1. This is an appeal from a conviction under Section 147, I. P. C. and a sentence of fine of Rs. 150/- against each accused and in default the accused were to undergo rigorous imprisonment for six months. The accused were tried with the help of assessors and the majority verdict with regard to the offence under Section 147, I. P. C. was that all the accused were not guilty but the learned Additional Sessions Judge, U. A. D. on appreciation of the evidence found a case made out against the accused persons under Section 147, I. P. C. and sentenced them as aforesaid.
2. There were as many as twelve accused persons who were jointly tried and the allegation against them was that they assembled armed with 'lathis', spears, 'daos' etc., on a pathway leading from Feral Mea's 'bari' (homestead) to the Sonai Road and they not only blocked the passage by ' digging drains and planting banana trees and raising fencing round it but they chased the complainant Ferai Meah and his supporters from the land in dispute to the inner side of the compound of Feral Mea and two of the accused Muslim Meah and Batai Meah set fire to the cow-shed belonging to the complainant and that accused Master Ali induced these persons to do so. They were, however, driven away subsequently by the complainant's party and the accused could not succeed in doing further damage.
On these allegations charges under Sections 147 and 447, I. P. C. were framed against all the accused persons, accused Batai Mean Majumdar and Muslim Mea Choudhury were further charged under Section 436, I. P. C., and Master Ali was charged in addition to the charges of rioting and trespass, under Sections 436/149, I. P. C. All the accused persons pleaded not guilty and their main defence was that the charges of arson, trespass and rioting were all false and fictitious but they admitted that in pursuance of a decree passed by a competent court, they had brought under possession the lands covered by 'Dag' Nos. 302, 305 and 306 on which the alleged pathway stood.
3. The learned Additional Sessions Judge has -accepted the verdict of the assessors with regard to the charges of Sections 447 & 438, I. P. C. of which the accused were held to be not guilty and the learned Judge discarded that part of the prosecution story but convicted all accused only under Section 147, I. P. C. The scope of the enquiry is there-lore limited as to whether this conviction can be said to be proper on the facts as found in this case.
4. It is admitted by both parties that there was a Civil Court's decree passed by the Munsiff of Silchar in favour of the accused party with respect to the land in dispute. But on appeal, the said decree was set aside and the complainant's party were allowed access to the land in dispute. It was further found that the alleged rioting took place on 21-1-50 when the appeal (T. Appeal No. 38 of 1949) was pending in the Subordinate Judge's Court against the decree passed in T. Suit No 295 of 1947 by the Munsiff. It is therefore evident that at the point of time when the alleged unlawful assembly took place, the land in question was declared to be in rightful possession of the accused party and the plaintiff and his party were restrained by injunction from using the said land as their path.
With a view to form an unlawful assembly, the common object of the persons composing the assembly should be one of the objects as mentioned in Section 141, I. P. C., and in this particular case, the common object of the alleged unlawful assembly was stated to be to deprive Feral Mea and others of the enjoyment of the rights of way on a certain land. We must therefore judge whether the assembly was unlawful if they had the common object as mentioned in the charge framed against the accused persons. Clause (4) of Section 141, I. P. C. indicates that it would amount to an unlawful assembly if the common object of the persons com-posing that assembly be by means of criminal force, or show of criminal force to any person to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way etc.
But in this case, the Court having declared the right of way with respect to the path in question against the complainant the accused cannot be said to have the common object as described in Clause (4) of Section 141, I. P. C. even if they debarred the complainant any access to the disputed pathway. In this view, we cannot say that there was an unlawful assembly as contemplated under Section 141, I. P. C. even if we take the prosecution version to be true, in our opinion, the learned Additional sessions Judge failed to appreciate the correct legal position and the conviction was there-fore improper in the facts and circumstances of the case. We accordingly allow the appeal and direct that the conviction and sentence of all the appellants be set aside and fines if paid be refunded.
Ram Labhaya, Ag. C.J.
5. I agree.