Mookerjee, J.:— The six Appellants before this Court have all been convicted under sec. 147 of the Indian Penal Code one of them, Silajit Mahoto, has also been convicted under sec. 304 and another Sudhakar has been convicted under sec. 323. Silajit has been sentenced to rigorous imprisonment for five years, Sudhakar to rigorous imprisonment for two years and the other four Appellants to one year each.
There is no real dispute as to the facts. The learned Sessions Judge has found that the Appellants were in possession of their land and were engaged in cutting the paddy which they had grown. The complainant's party came, and attemped to cut the paddy; there was a fight, the result of which was that one man was seriously wounded and subsequently died. The learned Sessions Judge has held upon these facts that the accused are liable to be convicted under sec. 147 of the Indian Penal Code inasmuch as they were members of an unlawful assembly, the common object of which was to enforce a right to property.
It has been argued before us that the conviction under sec. 147 cannot be sustained on two grounds: first, that the common object as stated in the charge has not been established and, secondly, that upon the facts found there was no unlawful assembly. In our opinion, each of these contentions is well-founded. The common object as stated in the charge was to assault the complainant and his men who were cutting the paddy of their land and thereby forcibly ousting them from the land. The common object which has been established upon the evidence, according to the Sessions Judge, was to maintain possession of the land by the accused persons. It cannot be laid down as a general proposition of law that a conviction under sec. 147 cannot be supported whenever the common object, as stated in the charge, is not precisely made out. The question in each individual case is whether the common object established agrees in essential particulars with the common object as stated in the charge. In the present case, there can be no doubt that the Common object as stated in the charge has not been substantially established. It may, however, be further pointed put that under sec. 141, sub-sec. (4) of the Indian Penal Code which alone is supposed to have any application to the present case, an assembly is unlawful if the common object is shown the to enforce any right or supposed right; Upon the facts which have been established, the common object here was not to enforce any right or supposed right. It was rather to maintain undisturbed the actual enjoyment of a right. If so, no question of an unlawful assembly arises. Under these circumstances we must hold that the conviction under sec. 147 as regards all the Appellants must be set aside:
As regards the second Appellant, Sudhakar, he has been, as already stated convicted also under sec. 323. It is argued on his behalf that he is entitled to claim the benefit of the right of private defence. In our opinion this defence is made out. He appears upon the evidence to have caused simple hurt to one of the assailants. He belonged to a party which was attacked by the complainants, while he was in peaceful possession of his land. Under these circumstances it cannot be said that he lost the right of private defence by causing simple hurt to one of his assailants. So far as Sudhakar is concerned, the conviction under sec. 323 must also be set aside.
So far as the Appellant Silajit is concerned, his case stands on a somewhat different footing. It has been contended on his behalf that he is entitled to the benefit of sec. 103, sub-sec. (4) of the Indian Penal Code. Unfortunately for him, however, the defence which he took in the Court below was that he was not present at the time of the occurrence. No evidence was therefore adduced on his behalf to establish the elements which must be proved before sec. 103 can be made applicable. It is not shown that he was under any apprehension that death or grievous hurt would be the consequence if he did not exercise his right of private defence. In his case, therefore, the conviction under sec. 304 must be maintained. As regards the sentence, however, we are of opinion that a sentence of five years' rigorous imprisonment is, under the circumstances of this case, too severe. He acted evidently under grave provocation: he was in possession of the property and he was attacked by a large number of armed people who tried to dispossess him and to carry away his crops. Under these circumstances we reduce his sentence to two years' rigorous imprisonment. We acquit the other Appellants and direct their release.
N.G