1. The conviction of all the appellants under Section 329/149, I.P.C., appellant No. 8's under Section 326, I.P.C. some of the appellants under Section 148, I.P.C. and others under Section 147, I.P.C. has been affirmed by the High Court of Patna. This appeal has been brought by special leave challenging the correctness of the decision of the High Court.
2. According to the prosecution, there was bitter enmity between the members of the prosecution party and that of the accused resulting in various cases and counter cases, some of which, were pending at the time of the incident with which we are concerned in this case. It is said that at about 6 a. m on August 10, 1964, there was a quarrel between some of the appellants and P. W. 5, Sri Ram Singh on the outskirts of their village about some water dispute. Irritated by that quarrel, the appellants who are all close relations formed them-selves into a unlawful assembly some of them armed sharp cutting instruments like Grasa and others with sticks, came and attacked P. W. 8, Gaya Sing, P. W. 9, Kameshwar Singh and P.W.2, Bhagwan in front of the house of P.W.8, at about 8 a.m. that day as a result of which P. W. 8 sustained three incised injuries and two defused contusions, P.W.9 sustained two incised injuries and five countusions; P. W. 2 sustained a lacerated injury. One of the injuries sustained by P. W. 8 was a grievous injury. The prosecution evidence also discloses that of the accused attacked the prosecution party with brickbats.
3. The appellants admit that there was enmity between them and the prosecution party. According to them at about 6 a. m. on the day of the occurrence, P. W. 5, was allowing a cattle of his to graze the crops in one of their fields. At that stage some of the appellants went and seized the cattle and when they were taking the cattle to the pound, the prosecution party including. P. Ws. 8, 9 and others attacked them and rescued the cattle. At that stage in self defence they counter attacked them. Their case is that during that incident A-5 and A-8, were also injured. It is true that A-5 bad sustained three lacerated wounds and one punctured wound. The injury sustained by A-8 is only a bruise.
4. Both the trial court and the High Court have substantially accepted the prosecution evidence. But the High Court, has opined that there was a fight between the two parties and P. Ws. 2, 8, and 9 and and A-5 and A-8 were injured during that fight. There is hardly any dispute as to the time of the occurrence. So far as the place of the occurrence is concerned, the prosecution version is that it took place in front of P. W. 8's house but according to the appellants, it took place near a tamarind tree. The trial court and the High Court have accepted the prosecution version on this point. The oral evidence of the prosecution witnesses as to the place of occurrence is corroborated by two circumstances viz. the investigating officer found blood like substance in front of the house of P. W. 8 and there were several brickbats in front of that house. Taking the entire evidence into consideration we are also of the opinion that the incident is likely to have taken place in front of the P.W. 8's house.
5. There is little doubt that the prosecution party must havebeen heavily armed. P. W. 8 had sustained as many as six injuries and P. W. 9 eight injuries. Some of the injuries sustained bythem are serious injuries. The injuries sustained by A-5 and A-8are of very simple nature. Taking into consideration the place ofthe occurrence and the nature of the injuries found on the participants in the incident, we think that the High Court was right inarriving at the conclusion that the accused party were theaggressOrs.
6. The High Court, in our opinion, rightly did not attach significance to the evidence relating to the immediate provocation but it rejected the defence version that the incident took place when the prosecution party was trying to rescue the cattle that was being led to the pound.
7. There is consistent evidence to show that all the appellants were the members of the unlawful assembly. Therefore their conviction under Section 326, read with Section 149 is fully justified. Both the courts have concurrently come to the conclusion on the basis of satisfactory evidence that A-8 caused grievous injury to P.W.8. Hence the conviction of A-8 under Section 326, I.P.C. cannot be disturbed. Such of the appellants who were armed with dangerous weapons at the time of the incident were convicted under Section 148, I.P.C. and those who were not so armed were convicted under Section 147, I.P.C. Once it is held that they were members of an unlawful assembly, those convictions follow as a matter of course. The sentence of three years imposed on A-8 and the sentence of two years imposed on the other appellants cannot be said to be excessive.
8. In the result this appeal fails and the same is dismissed. A-1 & A.7 are on bail. They shall forthwith surrender and serve out the remaining portion of the sentence imposed on them.