B.P. Bert, J.
1. Chatru was convicted Under Section 148 of the Indian Penal Code and sentenced to 9 month's rigorous imprisonment and was also convicted Under Section 307 IPC. and awarded 3 years' rigorous imprisonment by the learned Assistant Sessions Judge, Alwar. The rest or the applicants were also convicted Under Sections 148 and 307 read with Section 149 I.P.C. & each one of them was sentenced to 9 months' rigorous imprisonment Under Section 148 and 3 years' rigorous imprisonment Under Section 307/149 of the Indian Penal Code These sentences were ordered to run concurrently. They preferred an unsuccessful appeal before the learned Assistant Sessions Judge. Still dissatisfied the nine application are before me seeking a revision of the judgment of the learned Sessions Judge, Alwar.
2. This is one of those usual cases where the dispute arose about an agricultural parcel of land. The prosecution says that one the moring of May 23, 1966 Sultan and his brothers Gangaram, Kanhaiya and Harchand and his another relation Surtaram went to Khasra No. 564 situate in viilage Pehal. in the one fourth share where of they had sown the crop of Jawar only a few days ago, Chatru (Sheonarain, Bodan and Chandgi applicants before me were found ploughing the aforesaid field and thereby destroying the crop. Pirabh Umarao, Durga, Bishambhar and Harnarain were sitting on the wall nearby when Sultan questioned as to why they were destroying the crop which they had sown, the accused asserted that it was their field. Thereafter, Chatru who was armed with a Farsi and other accused persons who had lathis with them made a violent attack on Sultan and his companions as a result whereof multiple simple and grievous injuries were caused to them. Tulla & Mamraj reached the spot. A fist information report was lodged in the Police Station, Mundawar at 10.30 A.M. on May 22, 1986, which is marked Ex. P/1. A charge sheet was eventually presented and nine accused persons were committed to be tried and they faced their trial before the learned Assistant Sessions Judge, Alwar.
3. The case set out by the accused was that in their portion of the land in field No. 664 they had grown Jawar which was not flourishing and they wanted to remove it and therefore they were engaged in the process of up rooting it. Defence evidence was also led by the accused but the learned Assistant Sessions Judge did not believe it and relying upon the prosecution, convicted the accused as indicated earlier.
4. Mr. Bhargava, learned Counsel for the applicants, submitted that field No. 564 was in the joint possession of the applicants and Sultan and Gangaram. As a matter of fact the Panchayat had accepted the mutation made in favour of Sultan and Gangaram and the ex-parte mutation remains where it was The learned Counsel vehemently urged that both the courts below were in grave error when they found that Sultan and Gangaram were in exclusive possession. The principle of law is that in case of a joint ownership each one of the co-sharers is in possession of every inch of the joint land. The prosecution miserably failed to prove the alleged partition by metes and bounds which is said to have taken place in Samwat Year 2015 and therefore the applicants had every right o be in possession of the land in dispute and on the prosecution's own showing it was the complainant Sultan and Gangaram who along with three other persons went to the field No. 564 with a view to drive out the party of the applicants from the field in dispute and it were they who formed the unlawful assembly and not the accused applicants. He was critical of the appreciation of documentary evidence and said that no conclusion of exclusive possession was possible from Ex. P/2 and Ex. P/4.
5. learned Counsel also urged that Sultan (PW 1) Gangaram (PW 3) and Harchand (PW 7) bad disowned portions of their statements Ex. D/1 Ex. D/3 and Ex. D/11 made by them before the committing court. In this background, the learned Counsel urged that no unlawful assembly was formed as envisaged by Section 141(1)(iv) because the party of the applicants repelled attack to maintain their own possession which is diametrically opposite to the case set out by the prosecution that the common object of the accused was to dispossess Sultan and Gangaram learned Counsel invited my attention to Anantha Bhandari v. Emperor 1934 MWN 43. Mandayan alias Vellayan Ambalam and Ors. v. Emperor 1935 MWN 178 and Emperor v. Nadimpalli Bangaruraju and Ors. 1942 MWN 32, He also urged that the defence had to merely prove it as a probable, case and it need not prove as the prosecution has to prove it beyond doubt and he relied on Thakur Mahto and Ors. v. The State of Bihar 1942 Cr.L.J. 835 learned Counsel also urged that there could be no common object to cause grievous hurt by all the accused persons because it was only one person who was carrying the Farsi and the rest were armed with lathis. No case Under Section 141 I.P.C. could thus be made out and he placed reliance on Chakkarange Gowda and Ors. v. State of Mysore : 1956CriLJ1365 , Shambhu Nath Singh and Ors. v. State of Bihar : AIR1960SC725 , Raj Narain and Ors. v. State : AIR1964All249 and State v. Ali Hafiz Mia and Ors. AIR 1965 Man 21. While the charge says that the common object of the unlawful assembly consisting of the accused persons consisted in the desire to dispossess Sultan and Gangaram the evidence is that it was the party of the accused which was in possession and Sultan and Gangaram were desirous of excluding them from possession.
6. The learned Counsel also urged that the basic document Ex. P/1. which is the first information report, is altogether silent with regard to the injuries caused to the accused persons and, therefore, it is a deliberate device to supress the truth and must be rigorously condemned. He placed reliance on Doongar and Ors. v. The State 1969 All LJ 726. Mohar Rai v. The State of Bihar : 1968CriLJ1479 . and Mod and Ors. v. State ILR (1962) 12 Raj. 383.
7. He lastly urged that the accused had a right of private defence and in this connection he placed reliance on Munshiram v. Delhi Administration AIR 1968 SC 702 and Doongar and Ors. v. State 1969 All LJ 726.
8. The learned Counsel also made grievance of the fact that the defence evidence was not even referred to by the learned Sessions Judge.
9. learned Counsel for the State Mr. B.R Arora argued that from the evidence of Sultan (P.W. 1), Gangaram (P.W. 3), Tullaram (P.W. 5) and Kanhaivalal (P.W. 6) and with particular reference to the statement contained in Ex. P/10 the exclusive possession on the one fourth field of Sultan & Gangaram stands conclusively proved Sitting in revisional jurisdiction I should not ordinarily interfere with the finding of fact Reference in this connection was made to Amar Chand Agarwsla v. (sic) Bose and Anr. : 1973CriLJ577 . It was then urged that there is no discrepancy between the charge and the evidence led. It was never urged in the court below that there was discrepancy in the charge and the evidence Su h a point is not open for attack in the revisional jurisdiction. Reference may be made to K. Velukutty and Ors. v. State AIR 1966 TC 191. The learned Counsel also urged that the conclusion of common object will have to bgathered from the conduct of the parties who attacked. Reference in this connection was made to (sic) and Anr. v. State of U.P. : 1959CriLJ777 Arjun Raghu Patil and Ors. v. State AIR 1956 Bora. 183 Masaiti v. State of Uttar Pradesh : 8SCR133 and Gokal and Ors. v. The State or Rajasthan : 1972CriLJ42 which lay down that the common object is a question of fact and cannot be against in revisional jurisdiction My attention was also invited to Tiruva Tevan v. Emperor (1929) MWN 899.
10. In regard to the injuries suffered by the accused my attention was invited to Bankey Lal and Ors. v. The State of UP. : 1971CriLJ1540 .
11. It will be profitable to consider the extensive agruments addressed to me by the learned Counsel for the parties in this case in the back ground of the latest observations made by the Supreme Court in Amer Chand Agarwala's case (13):
The jurisdiction Under Section 439, h normally to be exercised only in exceptional cases, when there is a glaring defect in the procedure or there is a manifest error of point of law and consequently there has been a flagrant miscarriage of justice.
All the arguments argued before me, it will be proper to be assessed in this back ground.
12. It is correct that if persons assembled for the purpose of maintaining possession of their field and resisted an attemp of an opposite party who comes to disturb it then the persons who have assembled for maintenance of possession would not constitute an unlawful assembly. The question is whether field No. 561 is in joint possession or one fourth part thereof was in possession of Sultan, Gangaram, etc. The learned Sessions Judge in paragraph 8 while dealing with point No. 1 regarding the possession of field No. 564 has; held that after looking in to the evidence of Sultan (PW/- 1) and Rameshwer Daval Pat-wari (PW/- 2) and weighing the entries in Ex. P/2 and Ex. P/4 and the corrected revenue entries in accordance with the order of the settlement Officer clearly show possession of Sultan and Gangaram of field No. 564 and he has concluded the question in the following words:
Therefore, I feel saying (Sic) that the prosecution has proved satisfactorily that it were Sultan and Gangaram who were in possession of land No. 564 on the relevant date.
Two courts having fourrl this, it is idle to expect me to reappraise evidence on the question of possess on. I am also of the view that the defence set out by the accused that they had grown Jawar which was not found to be flourishing and, therefore, they were ploughing the field in the month of May is a fanciful suggestion. It is incredible that in the last week of May when rains could reasonably be expected, even assuming that the Jawar crop had grown sparsely, no sane agriculturist would ordinarily enter upon the task of uprooting it. An attempt to plough a portion of field No 504 in the possession of Sultan and Gangaram was clearly for a different purpose, namely, to dispossess them.
13. In so far as the reliability of the evidence of Sultan (PW/1), Gangaram (PW/3) and Harchand (PW/7) is concerned the learned Sessions Judge keeping in mind the ptinciple laid down in Masalti's case (17) to the effect that evidence of partisan witnesses has to be carefully scrutinized weighed their evidence. The learned Sessions Judge rightly noticed that Sultan had received as many as 7 injuries Gangaram bad received 9 injuries, Kanhaiya had received 13 injuries while Harchand had received 2 injuries, even if Surtaram's injuries, who was not examined as a witness, were to be excluded. The learned Sessions Judge has said that these witnesses have given all the material details about the occurrence and that they were reliable to that extent in these circumstances 1 decline to reappreciate evidence.
14 The next argument was that only Chatru had a Farsi and the rest of the accused were armed with lathis. In is the Courts below have convicted all the accused Under Section 148 Indian Penal Code and the learned Sessions Judge has observed that having regard to the fact that 8 persons had lathies & they made extensive use of them conviction Under Section 148 Indian Penal Code was appropriate. Section 148 Indian Penal Code reads.
Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death. shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
The only point that can be considered under this head is that when only Chatru was armed with a Farsi and other persons were armed with lathis, could it be said that the latter were armed with deadly weapons? The learned Sessions judge has found that in view of the number of injuries sustained by Sultan, Gangaram, Kanhaiya, and Harchand extensive use of lathis was made and in these circumstances it was a deadly weapon. There is divergence of Judicial opinion on this question. One view is that a stout bamboo stick is a deadly weapon The other view is a lathi in itself is not a deadly weapon unless and until it is used on the head or on some vital part of a person. Assuming for the sake of argument this view to be correct then in essence it is a question of fact to be determined in the circumstances of each case. I have examined the injuries reports of the persons who received injuries. Ganga Ram for instance had injuries No. 1, 2 and 4 in his injury report Ex. P/5 which were in the region of his head, all by blunt weapon. Sultan had an injury No. 5 which was again by blunt weapon in the parietal region. Kanhaiya had injuries on his chest Dr. B.N. Bhargava (PW 4 has testified to this effect. Thus lathis were used on vital parts of the body and in the circumstances of the case it was rightly held by the Sessions Judge that lathis were used as a deadly weapon.
15. The next argument of the learned Counsel was that only Chatru was carrying a Farsi, how could others be held vicariously liable? In Sbambhu Nath Singh's case (6) it has been observed that the members of an unlawful assembly may have a community of object upto a certain point and beyond which they may differ in their objects, and the knowledge possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the extent to which he shares the community of object and as a consequence of this the effect of Section 149 of the Indian Penal Code may be on different members of the same unlawful assembly. The aforesaid observations of the Supreme Court were made in the context of the submission made from the Bar whether the conviction of accused Nos. 2 to 8 & 14 for the offence Under Section 326 read with Section 149 I.P.C. could be sustained when no offender was found guilty of the substantive offence Under Section 302 read with Section 149 IPC In paragraph 6 their Lordships have made the following significant observation,
If an unlawful assembly is formed with the common object of committing an offence and if that offence is committed in prosecution of the object by any members of the assembly will be vicariously liable for that offence even it one or more, but not all committed the offence.
When Chatru carried the Farsi openly and he wielded it extensively because from the medical report of Sultan he received 4 substatial sharp edged injuries vide Ex. P/6; Gangaram received 2 sharp edged injuries and Kanhaiya received 8 sharp edged injuries. The Courts below were right in saddling all the members of the unlawful assembly with the vicarious liability the common object where of was clear and what weapons were going to be employed were known to every one of them.
16. Another argument advanced was that the accused persons gave beating to the complainant party in exercise of the right of private defence of property and person. The learned Sessions Judge has observed that Chatru was not in possession of the land in question in field No. 564 and he and his associates had no right to go into the field and uproot the crop which had been sown by Sultan and Gangaram. He has firmly concluded that Chatru and his associates were aggressors and no right of defence either in regard to the property or person was available to them. I have no reason to differ in regard to this finding.
17. The last argument of the learned Counsel was that the injuries received by the accused were not mentioned in the first information report &, therefore, the prosecution evidence should be discarded. This has been cleary negatived by the recent judgment of the Supreme Court in Benkey Lal's case (20), where their Lordships have said that when the profecution witnesses have not deposed truly in all respects, Court should scrutinise their evidence with care But simply because prosecution did not explain injuries on the per on of accused, Court cannot discard the entire prosectuion evidence. This is the latest view on the subject of the Suprme Court and I am bound by it, The silence in Ex. P/1 of the injuries received by some accused is merely a part of this argument and essentially a question of weighing.
18. The result is that this revision application fails and is dismissed.