M. HIDAYATULLAH, C.J.
1. Thirteen persons were prosecuted for diverse offences, including rioting, grievous hurt and murder before the Sessions Judge, Gaya. One of them was acquitted and twelve were convicted. Only one, namely, Sitaram Mahton, was convicted under Section 302 of the Indian Penal Code and sentenced to rigorous imprisonment for life. The others were variously convicted under Sections 147, 148, 323, 324, 325 and 326 of the Indian Penal Code and sentenced to different terms of imprisonment, the highest being five years. All of them, however, were convicted with the aid of Section 149 under Section 326 and sentenced to five years' rigorous imprisonment. To sum up, Sitaram Mahton received in the aggregate life imprisonment and the others, five years' rigorous imprisonment under Section 326 read with Section 149. Only four of the twelve persons, whose appeals failed in the High Court (except for some slight modifications) have appealed to this Court.
2. The occurrence is stated to have taken place on July 10, 1962, at about 12 noon in village Mamaka Khaira within the jurisdiction of Aurangabad police station, situated nine miles away. In the occurrence, one Badri Mahton was injured and died. Other persons, namely, Jagdish Mahton, Kuldip Mahton and Khalif Mahton received either simple or grievous injuries or both. The Sessions Court convicted each person for his overt act and punished him substantively for that offence. Invoking Section 149 read with Section 326 of the Indian Penal Code, the Sessions Court convicted each of the twelve accused and sentenced each of them to imprisonment for five years.
3. The dispute which led to this occurrence concerned a field No. 567 which according to the prosecution case belonged to Ramsewak and his father Chanarik, two of the four appellants. A part of this plot was exchanged eight years before the incident for another plot by Ramsewak and Chanarik. Possession of Plot No. 567, therefore, came to Khalif and Kuldip. Khalif and Kuldip erected a Baharghara over the plot and also filled certain ditches and levelled the ground. The exchange was said to be oral. Later, the party of the accused wanted to rescind the exchange and to take back Plot 567 from Khalif and Kuldip. It is in the attempt to take this plot back that the present occurrence is said to have taken place. According to the prosecution case, the party of the accused, variously armed, attacked Badri, Jagdish, Kuldip and Khalif, causing injuries. As a result of his injury, Badri died at the very spot. The prosecution case, therefore, was that the accused formed an unlawful assembly the common object of which was to take unlawful possession of Plot No. 567, including the Baharghara and to assault Badri, Jagdish, Kuldip and Khalif. In furtherance of the common object, offences under Sections 323, 324, 325 and 326, Indian Penal Code, were committed and the murder of Badri took place. It may be mentioned that Badri received only one injury on his back with a Gandasa, which was caused to him by Sitaram Mahton. The others used either a stick or a Gandasa and only caused grievous injury to whomsoever they assaulted.
4. The contention in the appeal is that the offence of murder has not been made out in any event; that there was no unlawful assembly as such of which the common object was the taking back of possession of Plot No. 567; that no offence was committed in furtherance of the common object of the unlawful assembly; that the offence did not take place at all as contended by the prosecution and finally, that none of the appellants was concerned in it whoever else might have caused the injuries. The High Court in disagreement with the Court of Session, disbelieved the story of exchange and gave an excellent reason which also impels us to agree with the High Court. According to the prosecution case itself, field 567 was purchased by Ramsewak four years before the occurrence. The story of an oral exchange as set out by the prosecution case eight years before the occurrence could, therefore, not be believed. If this be a fact, it is obvious that the possession must have remained with the party of the accused and not with the other side. It may be that there was a free fight over this field, the other side also asserting right to possession and being resisted by the party of the accused. There is, however, no evidence to show that Khalif's party had either armed itself or had assaulted any of the accused persons. No accused person suffered any injury. It, therefore, follows that whatever happened in the field was done by the party of the accused. They beat up the other side, causing severe injuries to them, including the fatal injury to Badri. How the incident occurred is not germane to the purpose. It was not sufficient to show that the possession had not changed hands. It was necessary to show that Khalif's party were wanting to take possession of this field from the party of the accused. No such suggestion was even made in the cross-examination, not to say that there was no evidence led to prove it. We, therefore, are left with the prosecution version that these twelve accused assaulted and injured the party of Khalif.
5. However, there is some doubt as to whether this was done with the common object alleged by the prosecution in the case, namely, the taking over of the possession of field 567 from Khalif's party. If Khalif's party had never received the field in exchange for other lands as the High Court has rightly found, the whole common object of the unlawful assembly fails. Therefore, it is very difficult to hold what the common object of the unlawful assembly was. In fact, it is difficult to hold that there was an unlawful assembly at all. It is true that a large number of persons attacked the other side but it is difficult to say that what each individual did was in the furtherance of the common object of all, which common object remains unproved. Therefore, if the provisions of Section 149 cannot be used, the responsibility will be of each person for whatever he did. In fact, the High Court and the Sessions Court went more by the overt acts which could not be proved. In respect of persons who were not charged with substantive offences but were convicted with the aid of Section 149, it is obvious that their conviction cannot be sustained. The unfortunate position is that those precise persons have not appealed to this Court. We, therefore, leave the matter for the Government whether it would not remit them the remaining portion of their sentences in view of what we say about the appellants here.
6. We have shown above that the case of an unlawful assembly with the common object of taking possession of field 567 and the probable assault in furtherance of the common object has not been established. The possession of the field according to the finding of the High Court was with the accused themselves and, therefore, they could not have formed the common object of regaining possession from the other side. If anything happened, it must have been a fight in trying to protect their own possession when it was tried to be disturbed by the other side. Therefore, although there was a very slender right of private defence, all that can be said in favour of the appellants is that they exceeded the right of private defence. The benefit of this will go particularly to Sitaram Mahton who has been held guilty under Section 302. If Sitaram Mahton was in possession of the field and he beat off the others who were there trying to assert their right to it, then he would be guilty not under Section 302 but under Section 304. As the injury which he intended causing was likely to kill, his case would fall under Section 304, Part I and not under Section 302. Insofar as the others are concerned, they had a right to protect the property against an attack by the other side. The attack is not proved but it is obvious that if they had the possession, they had no need to fight the other side unless they were provoked to it. The offence of rioting, therefore, cannot be made out, because the unlawful assembly is not proved. The individual acts, therefore, remain. There is nothing to show that these injuries were caused in the defence of person, and, therefore, no protection can be claimed on that account. We, however, think that the conviction must be upheld and therefore we must uphold convictions for the substantive offences. Accordingly, we set aside all the convictions under Sections 147 and 148 and those reached with the assistance of Section 149 and the sentences awarded under those sections in respect of the appellants. The substantive offences, however, remain and we think that regard being had to the circumstances of the case, those convictions should be maintained.
7. The result is as follows: In the case of Sitaram Mahton his conviction under Section 302 of the Indian Penal Code, cannot be upheld. It will be altered to Section 304, Part I. We think that in the circumstances of this case, a sentence of seven years' rigorous imprisonment will meet the ends of justice. His sentence of life imprisonment is, therefore, set aside and the sentence of seven years' rigorous imprisonment is imposed upon him under Section 304, Part I. His other convictions and sentences are set aside. In respect of Chanarik Mahton, his conviction under Section 325 of the Indian Penal Code, with a sentence of two years' imprisonment is maintained. His conviction under Section 147 and Section 326 read with Section 149 of the Indian Penal Code, is set aside along with the sentences passed under those sections. In the case of Ramsewak, his conviction under Section 326 of the Indian Penal Code, and the sentence of five years are confirmed. His convictions under the other sections and sentences imposed on him are set aside. In the case of Kailash Mahton, his conviction under Section 324 of the Indian Penal Code, with a sentence of one year's rigorous imprisonment is maintained, but his conviction under Section 148 and Section 326 read with Section 149 and the sentences passed on him are set aside. With these modifications, the appeal fails and is dismissed.
8. A copy of this judgment may be sent to the Legal Remembrancer, Bihar State, in view of our observations in regard to those accused who have not appealed.