Das, J.The nine appellants have been convicted and sentenced by the learned Additional Sessions Judge of Bhagalpur in the manner stated below. Two of the appellants, Ganu Gope and Sidhu Gope, have been found guilty of the offence of murdering one Mahendra Singh; they have been sentenced to death for this offence which sentence is the subject of a reference u/s 874, Criminal P.C. They have also been found guilty u/s 148, Penal Code, and sentenced to rigorous imprisonment for two years. They have further been found guilty u/s 802 read with Section 149, Penal Code, and sentenced to transportation for life. Ganu Gope has also been found guilty u/s 324, Penal Code, but no separate sentence has been passed against him under that section. Of the remaining appellants, all except two, namely Sipchu Gope and Hublal Singh, have been found guilty u/s 148, Penal Code, and sentenced to two years rigorous imprisonment; the latter two have been found guilty u/s 147, Penal Code, and sentenced to 18 months rigorous imprisonment each. These seven appellants have also been found guilty u/s 302 read with Section 149, Penal Code, and sentenced to transportation for life. One of them, namely, Mangal Gope, alias Mangru Gope, has been further convicted u/s 324, Penal Code, but no separate sentence has been passed under that section.

2. It has been directed by the learned Sessions Judge that the sentence of transportation will run concurrently with the substantive sentences of imprisonment passed by him for the offences under Sections 148 and 147, Penal Code. Therefore, the important sentences are: (1) the sentence of death u/s 802, Penal Code, on Ganu Gope and Sidhu Gope, and (2) the, sentence of transportation for life against all the appellants u/s 302 read with Section 149, Penal Code.

The occurrence which resulted in the pre. sent case against the appellants took place on 29th March 1944 at about 8 A.M., in a village called Mirachak in Chak Chakhandi Baihar, within the jurisdiction of the mofussil Police-station of Bhagalpur. The place is about 5 miles from the police-station. There are about 50 bighas of bakasht land in the village, comprised in two plots--one plot consisting of about 40 bighas and the other of about 10 bighas. Originally the village belonged to one Premlal Pande. He mortgaged this village along with other villages in favour of the father of Babu Bijoy Krishna Banerji (P.W. 17). I may note here that Babu Bijoy Krishna Banerji is a pleader of Bhagalpur. His father brought a suit to enforce the mortgage in 1927. A decree was obtained and put in execution. During the pendency of the execution proceeding the father died, and Babu Bijoy Krishna Banerji and his elder brother were substituted in place of their father. The mortgaged properties, including the village in question, were sold in execution of the decree and were purchased by Babu Bijoy Krishna Banerji and his brother. Then delivery of possession was obtained in 1931. Babu Bijoy Krishna Banerji stated that after delivery of possession in 1931 he cultivated the bakasht lands, but at the time of harvesting trouble was raised on behalf of Sarda Pande (one of the accused persons acquitted by the learned Sessions Judged Hublal Singh and others. There were proceedings u/s 144, Criminal P.C., and Section 69, Bihar Tenancy Act. These proceedings were decided against Babu Bijoy Krishna Banerji and his brother.

3. In 1932 Babu Bijoy Krishna Banerji and his brother filed a title suit in respect of the bakasht lands of the village. The title suit was against two sets of defendants, Sarda Pande being one set and Hublal and others being the second set. This suit was decreed in favour of Babu Bijoy Krishna Banerji and his brother. They again obtained delivery of possession in 1935. The prosecution case is that after this delivery of possession in 1935, Babu Bijoy Krishna Banerji gave 40 bighas of land to one Narsingh Singh to cultivate on the batai system, and kept about 10 bighas in khas cultivation. This arrangement continued peacefully till 1943. In September 1943, the Goalas of village Khutaha damaged the arhar crop grown by Narsingh.

4. It may be mentioned here that the Goala accused in this case, such as, Ganu Gope, Sidhu Gope and others, are all residents of village Khutaha. As a result of the trouble created by the Goalas of Khutaha, there were again proceedings u/s 144, Criminal P.C., which were, however, subsequently dropped. The paddy crop of the year 1943-44 was looted away by the Goalas and a proceeding u/s 107, Criminal P.C., was drawn up against the parties. Two of the accused persons had also filed applications u/s 69, Bihar Tenancy Act. It appears that on about 8 or 10 bighas of the land given to Narsingh Singh, the arhar crop was standing. This crop was attached by the Sub-Divisional Officer in connection with the proceeding u/s 69, Ben. Ten. Act. There has been some dispute before us as to whether the attachment subsisted in fact or law on the date the occurrence took place. On the day in question, that is, 29th March 1944, Narsingh Singh (who is a resident of the neighbouring village of Baijani) learnt from his cowherd Jageshwar Mandal (P.W. 21) that the Goalas of Khutaha were cutting the arhar crop.

5. The deceased Mahendra Singh was a peon of Babu Bijoy Krishna Banerji, appointed only a few months before the present occurrence. Mahendra Singh was a resident of Patna District, and was described by witnesses as a khalifa (wrestler). He was staying at the time of the occurrence in the house of Narsingh Singh. On hearing about the harvesting of the crop by the Goalas of Khutaha, Narsingh Singh sent information to Mahendra Singh. Mahendra came with three other persons, Meda Singh, Balik Singh and Jharu Singh. Meda and Balik are brothers of Narsing. Jharu is their sisters son. Goda Singh another brother of Narsingh Singh, also came there, and these persons, along with two others who joined them on the way, went towards the arhar khet. The arhar khet is across a small rivulet known as Jogia river. The field is across the rivulet towards the east. The prosecution case is that Mahendra Singh and his companion saw about 125 men variously armed: out of these men about 50 or 60 were standing on the eastern bank of the rivulet and the rest were cutting the arhar crop.

6. The distance of the field from the eastern edge of the rivulet would be about 50 yards. Prom the western side of the rivulet Mahendra Singh inquired of the men standing on the eastern bank of the rivulet as to why they were cutting the arhar crop which had been attached. On this two of the accused persons, Sarda Pande and Hublal Singh, are stated to have given an order for assault. The mob standing on the eastern bank then ran towards Mahendra Singh and his companions. It may be noted that the bed of the rivulet was then dry and there was no difficulty in running across it.

7. It is stated that two of the accused persons, Ganu Gope and Sidhu Gope, pierced their bhalas into the abdomen of Mahendra Singh. The intestines came out and Mahendra Singh fell down. Others of the mob then beat Mahendra Singh with various weapons. Meda and Balik ran to protect Mahendra: they were also assaulted by the members of the mob. The mob, when running towards Mahendra and his companions, also threw brickbats at them. Finding that their life was in danger, Narsingh Singh and his other companions ran away. Narsingh got a tamtam and accompanied by Meda and Jharu he went to the police-station which he reached at about 10-30 A.M. He gave an information at the police-station which is Ex. 1 in the record. The information was given within about 2 1/2 hours of the occurrence. Balik Singh, who also ran away but did not go to the thana, got up on a gular tree. He saw that the mob tied a gamcha round the abdomen of Mahendra and they carried Mahendra towards the east. The Sub-Inspector arrived at the place at about 12-30 P.M. He saw the arhar field and found the cut plants lying on the ground. The body of Mahendra Singh was not found at the place where Mahendra Singh had fallen after the assault on him. There was, however, a trail of blood towards the east.

8. The Sub-Inspector of Police followed up the trail of blood, made certain enquiries and found a dead body in Katoria river, half submerged in water of the depth of about one cubit. This Katoria river is about five to six miles from Jogia rivulet. The dead-body had no head and the body was partly scorched. The right leg was missing and the intestines were protruding from the abdomen. The prosecution case is that this was the dead body of Mahendra Singh which the members of the mob had brought from near the Jogia river. They had severed the head and had tried to burn the dead body. The quick arrival of the Sub-Inspector, however, prevented them from completely burning the dead body. The Sub-Inspector held an inquest over the dead body and sent it to the Civil Surgeon of Bhagalpur for post mortem examination. I shall subsequently refer to this post-mortem examination. The Sub-Inspector searched for the accused persons, but none of them were found in the village. The above is the prosecution story in brief.

9. The defence of the accused persons is of the following nature. Two of the accused persons, Ganu Gope and Sidhu Gope, who have been sentenced to death, raised the plea of alibi. It is stated that they were at a place called Basukinath in the District of the Santal Parganas from 28th March 1944. Ganu was ill of malaria there, and Sidhu was attending on him. Apart from the plea of alibi, it has also been contended on behalf of these two accused persons that the prosecution case is not true in material particulars; and even if there had been an assault on Mahendra Singh, the circumstances in which that assault was made would give the accused persona a right of private defence. On behalf of the other accused persons it has been contended that the land was settled with them by Babu Bijoy Krishna Banerji on the bhaoli system and was in their possession. Babu Bijoy Krishna Banerji tried to oust them from possession for fear of their getting an occupancy right in the land, and also on account of a dispute over the share of the produce; it is stated that Babu Bijoy Krishna Banerji wanted half share in the produce whereas he was entitled to only 18 seers in the maund. It has been contended on behalf of these accused persons that they did not form an unlawful assembly with the common objects mentioned in the charge; on the contrary, Mahendra Singh and his companions formed an unlawful assembly and wanted to oust the Goalas of Khutaha from possession of the land. It was also eon-tended on behalf of these accused persons that the prosecution case was false in material particulars and that they had been falsely implicated. On behalf of Hublal Singh, whose case was separately argued, the main contention raised is that he was not a member of the mob and has been falsely implicated. I may note that we have been separately addressed on behalf of three sets of appellants--Ganu Gope and Sidhu Gope being one set, Hublal another set and the remaining appellants being the third set. Besides the special pleas raised on behalf of the three sets of appellants, the common defence has been that the prosecution case is false in material particulars and the accused persons have been falsely implicated. We have also been addressed on the individual case of each one of the appellants.

10. It would be advisable before discussing the evidence in the case to say a few words about the charges under Sections 147, 148 and 149, Penal Code. Two common objects have been mentioned in the charges under these sections, one being to loot the crops on the land of Narsingh Singh and Bijoy Babu, and the other being to assault Mahendra Singh, Meda Singh and Balik Singh. Some of the arguments raised on behalf of the appellants relate to the common objects mentioned above. I have, therefore, thought it necessary to refer to these common objects at the very outset. The learned Additional Sessions Judge, in agreement with the opinion of the assessors, has found that Narsingh Singh was the bataidar in possession in respect of the land in dispute. He has further found that the prosecution case of rioting and assault is substantially true. He has negatived the pleas of alibi and the right of private defence. He has then considered the case of each individual accused person and has acquitted those of the accused persons regarding whose presence in the mob or complicity in the assault there was some doubt.

11. It would be convenient to take up first the case of the two accused persons, Ganu Gope and Sidhu Gope, who have been sentenced to death. The main points raised on behalf of these two accused persons are (1) the prosecution case is not true in material particulars, (2) the identity of the dead body has not been established, (3) their plea of alibi should be accepted, (4) they are protected by the right of private defence and (5) that in any case, they cannot be found guilty u/s 302, Penal Code. I shall take up these points one by one. The prosecution case mainly rests on the testimony of the following witnesses. First of all there are the four brothers, Narsingh Singh (P.W. 1), Meda Singh (P.W. 2), Balik Singh (P.W. 3) and Goda Singh (P.W. 4). Then there is Jharu Singh (P.W. 14), who is the son of their sister. These five witnesses are clearly related to one another. Besides these relations, the independent witnesses are Kuldip Singh (P.W. 7), Naurangi Singh (P.W. 13) and Inder Mandal (P.W. 20). As far as Kuldip Singh (P.W. 7) is concerned, the learned Sessions Judge has not relied on his evidence for a very good reason.

12. It appears that before the investigating police officer the statement of this witness was that he had not seen the occurrence but had heard about it. The witness no doubt denied this in the Court of Session. But, in view of his previous statement, he is clearly an unreliable witness. As to Naurangi Singh (P.W. 13) the comment is that he is a partisan witness. He admits having deposed for Narsingh in a previous cattle grazing case. He also admits that he was an accused along with Narsingh Singh in a case u/s 188, Penal Code. As to Inder Mandal (P.W. 20) the comment is that his name is not mentioned in the first information and that he is also a partisan witness. This witness also admits that he was examined for Bijoy Babu in the grazing case and in the case u/s 107, Criminal P.C. The evidence of this witness is not of any great importance inasmuch as he says that he did not notice the assailants of Mahendra.

13. It further appears from the evidence of the investigating police-officer (P.W. 22) that this witness Inder Mandal had not named Ganu Gope in the mob. Leaving aside Inder Mandal and Kuldip Singh, we are left with the evidence of the four brothers, their sisters son and Naurangi Singh (P.W. 13). It must, I think, be conceded that the prosecution witnesses are related to one another, and Naurangi Singh (P.W. 18) had previously deposed for Narsingh in the grazing case and was an accused with Narsingh in a case u/s 188, Penal Code. The question is whether the evidence of these witnesses should be discarded on this ground. I am unable to agree with the contention that the evidence of these witnesses should be disbelieved on the ground that they are related to one another, or on the ground that Naurangi Singh is interested in the prosecution party. Babu Bijoy Krishna Banerji is a resident of Bhagalpur, who had purchased the village in execution of his decree. Since his purchase a great deal of trouble has been raised on behalf of different persons claiming the lands to have been settled on the nagdi or batai system by the previous landlord. One of such persons was Sarda Pande, a resident of village Baijani, another was Hublal Singh, another resident of village Baijani. Sarda Pande is related to the previous landlord and obviously has some influence in the village. The Goalas of Khutaha now claim the lands to be their batai lands. In such circumstances, paucity of evidence from independent sources is not a sufficient ground for disbelieving the testimony of the four brothers, their sisters son and Naurangi Singh.

14. The evidence of Narsingh Singh has been seriously criticised before us on the ground that he pleads ignorance of the proceeding u/s 107, Criminal P.C. It is true that Narsingh Singh has falsely pleaded ignorance of such a proceeding. Our attention has also been drawn to the fact that the investigating police-officer (P.W. 22) has admitted that Narsingh and one of his brothers are under police surveillance, though Narsingh denies that he is under such surveillance. The nature of the surveillance is, however, not known, and the mere fact that Narsingh is under police surveillance is no sufficient ground for disbelieving his testimony. There are two important particulars in respect of which the story given by the aforesaid prosecution witnesses is somewhat different from the story as set out in the first information. The prosecution witnesses have said that two of the accused persons, Sarda Pande and Hublal Singh gave the order for the assault. This part of the story is not mentioned in the first information. Sarda Pande has already been acquitted by the learned Sessions judge, and the omission of this part of the story in the first information, so far as it affects Hublal, will be considered when I take up the case of Hublal Singh. The other important point on which there is a difference between the first information and the story set out in Court is about the two accused persons, Ganu Gope and Sidhu Gope. These two accused persons are stated to have run straight on Mahendra and pierced their bhalas in the abdomen of Mahendra. The first information does not, however, present the story in exactly the same way. In the first information the names of 13 accused persons are mentioned, including Sidhu Gope and Ganu Gope, and then it is stated that they began to strike with lathi, bhala and pharsa. The first information does not state that Ganu and Sidhu ran straight on Mahendra and pierced their bhalas into the abdomen of Mahendra. I think the benefit of this omission should go to the two accused persons Sidhu Gope and Ganu Gope. This will affect the charge u/s 302, Penal Code and I shall presently discuss this aspect of the matter.

15. The question now is if the difference in the story as set out in the first information and the story as given in Court would lead one to reject the entire prosecution case as false. In my opinion, the answer to this question must be in the negative. The first1 information appears to be a general statement of what happened. Substantially, the occurrence as given in the first information is the same as testified to by the witnesses examined on behalf of the prosecution. The difference in particulars is not such as to lead one to the conclusion that the prosecution has given an entirely false version of the occurrence. The prosecution witnesses have all stated that there was a mob of about 100-125 persons, some of whom were harvesting the crop and some were standing on the eastern bank of the Jogia river. They were all variously armed with dangerous weapons. As soon as Mahendra and his companions came near the Jogia river and Mahendra protested against the harvesting of the crop, the members of the mob on the bank of the river ran towards Mahendra and his companions and an attack was made on Mahendra. Meda and Balik, who tried to help Mahendra, were also assaulted. Substantially, this is the prosecution Case as set out in the first information and as testified to by the witnesses examined in Court. No such serious discrepancies have been pointed out as would lead one to think that the prosecution case was not substantially true.

16. Coming now to the question of the right of private defence, one of the points for consideration is the possession, of the land in dispute. There has been a good deal of oral evidence on this point, and the evidence of Babu Bijoy Krishna Banerji (P.W. 17) has been seriously criticised before us. It is admitted by both parties that Babu Bijoy Krishna Banerji is entitled to receive the rent for the land in dispute. The main dispute is as to who the bataidar is. Narsingh Singh claims to be the bataidar, who is supported by Babu Bijoy Krishna Banerji. The Goalas of Khutaha, on the contrary, contend that they are the bataidars whom Babu Bijoy Krishna Banerji wishes to oust. In the view Which I have taken of the occurrence in this case, it is unnecessary to decide the question of possession. There can be no doubt that Mahendra was assaulted before he had even crossed the Jogia river. The place where Mahendra was assaulted as testified to by the witnesses would appear from the sketch map (Ex. 3) prepared by the Sub-Inspector of Police. The evidence is that the arhar field on which the crop was being harvested was at a distance of 50 yards from the eastern bank of the river. Mahendra was still on the western bank when he protested against the cutting of the arhar crop. Such a protest did not amount to an invasion of the property of the accused persons, even if it is assumed that the Goalas of Khutaha were in possession of the land in dispute. Neither, in my opinion, is there right of private defence of body in the circumstances in which the assault was made on Mahendra Singh. The right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence, though the offence may not have been committed; and it continues as long as such apprehension of danger to the body continues. No such circumstances have been clearly established as would lead us to think that there was any apprehension of danger to the body, not to speak of grievous hurt, to the accused persons or the members on their side, so as to give rise to a right of private defence to them.

17. Learned Counsel for the appellants had drawn our attention to the following circumstances: Mahendra Singh was a khalifa (wrestler) brought from the Patna District; Narsingh and one of his brothers were under police surveillance; the evidence of Meda Singh (P.W. 2) shows that he had a lathi and others of his party had dantas: the statement of Jharu Singh to the Sub-Inspector of Police was to the effect that Mahendra asked his companions to go forward and not to run away. On these circumstances it has been contended before us that Mahendra and his companions came prepared to commit an attack, and, therefore, the accused persons had the right of private defence. I have given my best consideration to the circumstances mentioned above, which have been brought out in the cross-examination of some of the prosecution witnesses. I am unable to accept the contention that those circumstances show that Mahendra Singh was about to make an attack on the accused persons so as to give them a right of private defence of body. (After considering the evidence his Lordship concluded.) Prom whatever point of view we look at the case, it appears to me that the accused persons are not protected by the right of private defence, either of property or of body. [His Lordship then held that the dead body found was identified and rejected the plea of alibi set up by Ganu Gope and Sidhu Gope.] Now, comes the question as to whether the two accused persons, Ganu Gope and Sidhu Gope, have been rightly convicted u/s 302, Penal Code. I have already referred to the fact that these two accused persons are entitled to the benefit of the omission in the first information, which does not single out these two accused persons as having given the bhala blows on the abdomen of Mahendra Singh. There can be no doubt that some members of the mob did give bhala blows on the abdomen of Mahendra Singh. There can also be no doubt that those members of the mob who gave the two bhala blows on the abdomen of Mahendra Singh would be guilty of the offence of murder u/s 302, Penal Code.

18. The question, however, is, if these two accused persons, Sidhu Gope and Ganu Gope, can be found guilty of the offence u/s 302, Penal Code, in view of the fact that the first information report does not state that they had given the two bhala blows on the abdomen of Mahendra Singh. In my opinion, these two accused persons cannot be found guilty of the offence u/s 302, Penal Code, in view of the statement made in the first information.

19. The next question is if these two and the other accused persons can be found guilty u/s 302 read with Section 149, Penal Code. There is no doubt in my mind that Mahendra Singh was assaulted by the members of the mob in prosecution of the common object of the unlawful assembly. Mr. Baldeo Sahai, arguing for some of the appellants, has contended before us that if the Goalas of Khutaha were in possession of the disputed land and the crop was not under attachment, then one of the common objects mentioned in the charge, namely, to loot the crops of Narsingh Singh, would undoubtedly fail. He contends that the accused persons were committing no offence in cutting their own crops. I have already said that it is unnecessary to determine in this case which bataidar was in possession of the land in dispute. Even if the Goalas of Khutaha were in possession of the land, they would still be an unlawful assembly when they attacked Mahendra Singh on the other side of the river merely on his protest that the crops should not be cut. The charge mentions two common objects as stated by me previously. The contention of Mr. Baldeo Sahai is that the second common object of assaulting Mahendra Singh was merely ancillary to the first common object; and if the first common object fails, the accused persons cannot be found guilty on the second common object. For this he has relied on the case in Aklu Mian and Others Vs. Emperor, and the unreported case in Baldeo Gangota v. Emperor Cri. Appeal No. 711 of 1944. What is the real common object of an unlawful assembly, and whether of the two common objects mentioned in a charge, one is the real common object and the other is merely subsidiary to it, will depend on the facts of each case and will vary from case to case. No hard and fast rule can be laid down which would fit in with every case. In the particular case before us, some members of the mob were harvesting the crop, others were standing on the bank of the river armed with dangerous weapons in order to assault anybody who would come to interfere or protest. I have found that the members of this mob fell on Mahendra Singh and assaulted him on the other side of the river as soon as he merely protested against the harvesting of the crop.

20. In these circumstances, it cannot be said that the second common object is merely subsidiary to the first common object, and that it cannot make the members of the mob, who shared in that common object, an unlawful assembly. In my opinion, the second common object is as important as the first one, and can make the members of the assembly, who shared in that common object, an unlawful assembly. This matter has been very clearly explained by Ainslie J., in the leading case, in Queen v. Sabid Ali (73) 11 Beng. L.R. 347 Though Ainslie J., delivered the dissentient judgment in the Pull Bench case, the point which is under consideration was one of the points on which their Lordships were in agreement. I can do no better than quote from the judgment of Ainslie J.:

I do not think it possible on the evidence to say that the common object was limited to the ejectment, and that the use of force was not deliberately contemplated. Nor do I think that we may say that force was only a means to an end, and that the ultimate object of obtaining possession of the field was the only common object of the party. It was clearly the deliberate intention of the unlawful assembly to use certain means to obtain a certain end, and I am therefore unable to come to any other conclusion than that the common object was compounded both of the use of the means and the attainment of the end.

21. In this case also, the common object of assaulting anybody who would come to intervene was present in the minds of the members of the mob from the very beginning; otherwise, some members of the mob would not be standing on the river armed with dangerous weapons. It cannot, therefore, be said that the common object of assaulting Mahendra Singh and others was a subsidiary common object of no particular account; on the contrary, it was as important as the other common object of harvesting the crop. The two cases on which Mr. Baldeo Sahai has relied can easily be distinguished on facts. In Aklu Milan v. Emperor AIR 15 Pat. 405 the real common object was to destroy the hut; the beating was merely an incidental happening. In Baldeo Gangota v. Emperor Cri. Appeal No. 711 of 1944, the finding is that two of the accused persons were assaulted first which resulted in an exchange of blows by those who had accompanied these two accused persons. Naturally, therefore, assault was not taken as the principal common object of the unlawful assembly.

22. It is now well settled, as far as this Court is concerned, that the members of an unlawful assembly are not necessarily guilty of the same offence as the principal offender. It has to be determined, with reference to the facts of the case, what offence the members must have known to be likely to be committed: if such offence is a minor offence, then they should be convicted accordingly: Bhagwat Singh v. Emperor AIR 1936 Pat. 481. There are two other decisions also in which the same principles have been followed Tulakant Jha v. Emperor Cri. Appeal No. 31 of 1940 and Rama Shankar v. Emperor Cri. Appeal No. 183 of 1989. In both these cases it has been held that a person can be convicted of the constructive offence of murder not only where the offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, but also where the offence is such as the members of that assembly know to be likely to be committed in prosecution of the common object. In short, any member of an unlawful assembly is guilty of an offence committed by another member of that assembly, if the offence is of such a nature that the members of the unlawful assembly must have known that such might be committed in prosecution of the common object of the assembly. The following observations made by Meredith J., in Rama Shankar v. Emperor Cri. Appeal No. 183 of 1939 are relevant for the purposes:

In such cases, some member of the mob, carried away by anger and excitement, frequently goes further than is likely to have been anticipated. In the circumstances, it is neither necessary nor right, in my opinion, to hold all the appellants guilty of murder. When they joined in this attack, however, a number of them being armed with spears, they must have known it likely that grievous hurt would be caused with deadly weapons to some one, that is to say, they must have known it likely that the offence u/s 326 would be committed.

23. I agree with the observations made above, and, in my opinion, those observations apply with equal force in the present case. Some of the members of the mob which attacked Mahendra Singh were armed with spears; others were armed with different weapons, such as, farsa, lathi, etc. The members of the unlawful assembly must have known that grievous hurt with dangerous weapons was likely to be caused in prosecution of the common object of assaulting Mahendra Singh and his companions. I do not think it can be said that the members of the unlawful assembly knew that murder or culpable homicide was likely to be committed. I, therefore, think that the proper section to apply in the present case is Section 326 read with Section 149, Penal Code. I should also add that the word "knew" in Section 149, indicates a state of mind at the time of the commission of the offence, the subsequent dragging of the body etc., however cruel, cannot affect) that knowledge.

24. Mr. Baldeo Sahai, appearing for some of the appellants, has also contended that the charge is defective inasmuch as it says that the offence of murder was committed in prosecution of the common object of the unlawful assembly. It is. well known that Section 149, Penal Code, is divided into two parts: (1) an offence committed by a member of an unlawful assembly in prosecution of the common object of that assembly; and (2) an offence such as the members of the assembly knew to be likely to be committed in prosecution of that common object. It has been contended by Mr. Baldeo Sahai that the charge is under the first part and, therefore, the appellants cannot be convicted of an offence under the second part. In my opinion, this contention is not worthy of acceptance. The charge no doubt mentions that the offence of murder was committed in prosecution of the common object of the unlawful assembly. The offence u/s 826 read with Section 149, Penal Code, is a minor offence and is covered by the charge. The mere fact that a charge does not mention that the members of the unlawful assembly knew that an offence u/s 326 was likely to be committed, does not invalidate the charge, nor has it caused any prejudice to the appellants.

25. I will now take up the individual case of each one of the appellants. As far as Hublal Singh is concerned, he is clearly entitled to the benefit of doubt. It was alleged against him that he had given the order for assault. This fact is not mentioned in the first information. Hublal Singh was one of the defendants in the title suit which Babu Bijoy Krishna Banerji brought in 1932. There was, therefore, a temptation to make him an accused person in the present case as well. Naurangi Singh (P.W. 13) has stated that he knows Hublal Singh; but he did not notice him in the mob. He has no doubt been identified by other witnesses. In view, however, of the circumstances mentioned above, Hublal Singh is entitled to the benefit of doubt. As to Ganu Gope and Sidhu Gope, they have been identified by a large number of witnesses. Their names appear in the first information report. The evidence of Meda Singh (P.W. 2) shows that Ganu Gope and three others hit him with bhala. The doctors evidence shows that Meda Singh had only one bhala injury. It is doubtful which of the accused caused the bhala injury on Meda Singh. The conviction u/s 324, Penal Code, cannot therefore be supported. There can, however, be no doubt of the complicity of these two accused persons in the assault on Mahendra Singh.

26. As to the remaining six accused persons, Iswar Gope is named in the first information and is identified by P.Ws. 1, 4, 13, 14 and 20. Even excluding Inder Mandal (P.W. 20), he is identified by four witnesses. The evidence is also clear that he was armed with a bhala. Mangal Gope, alias Mangru Gope, has been named in the first information and has been identified by P.Ws. 1, 2, 8, 4, 13, 14 and 20. Even excluding the witnesses about whose testimony there may be some doubt, he has been identified sufficiently by a large number of witnesses. The evidence is also clear that he was armed with a bhala. He has also been found guilty u/s 324, Penal Code for having hit Meda Singh with a bhala. For the reasons given in the case of Ganu Gope, the conviction u/s 824, Penal Code, against this accused person cannot be sustained. Accused Sipchu Gope has been named in the first information and has been identified by a large number of witnesses. He was not, however, armed with a dangerous weapon. Hirangi Gope is named in the first information and has been identified by a large number of witnesses. He was armed with a pharsa. Banru Gope is named in the first information and is identified by four witnesses. He was armed with a bhala. Bhola Gope (son of Ganu Gope) is named in the first information and is identified by five witnesses. Two of the witnesses, however, did not name him before the police. Excluding these1 two witnesses, there are only three witnesses, P.Ws. 1, 4 and 13, who identify him. In a large mob identification is hot always easy, and, I think, this accused,, who is identified by the least number of witnesses, should also be given the benefit of doubt.

27. The result, therefore, is as follows. Appellants Hublal Singh and Bhola Gope are entitled to the benefit of doubt and should be acquitted. Their appeals are allowed and the conviction and sentences passed against them are set aside. The remaining appellants are all found guilty u/s 326 read with Section 149, Penal Code. Those of them who were armed with deadly weapons, namely, Ganu Gope, Sidhu Gope, Iswar Gope, Mangal alias Mangru Gope, Hirangi Gope and Banru Gope, are also found guilty u/s 148, Penal Code. The remaining appellant, Sipchu Gope, who was not armed with a deadly weapon, is found guilty under, Section 147, Penal Code. The conviction u/s 324, Penal Code against Ganu Gope and Mangal Gope is set aside. Six of the appellants, namely, Ganu Gope, Sidhu Gope, Iswar Gope, Mangal alias Mangru Gope, Hirangi Gope and Banru Gope are sentenced to rigorous imprisonment, for seven years u/s 326 read with Section 149, Penal Code. Sipchu Gope, who was not armed with a deadly weapon, is sentenced, to rigorous imprisonment for four years u/s 326 read with Section 149, Penal Code. It is not necessary to pass any separate sentence under Sections 148 and 147, Penal Code.

28. The net result, therefore, is that the appeals of Hublal Singh and Bhola Gope are allowed and the appeals of the other seven appellants are dismissed with the modifications of the conviction and the sentences mentioned above. The reference u/s 374, Criminal P.C., is discharged.

29. Before I conclude, I would like to observe that this case shows that if the Sub-divisional Officer had taken timely steps to get the crops cut, after the attachment u/s 69, Ben. Ten. Act, the occurrence might have been avoided. The order sheet (Ex. 11), to which I have made a reference, shows that the learned Sub-divisional Officer had ordered the cutting of the crops after attachment. If timely steps had been taken to give effect to the order, the unfortunate result which followed would have been avoided. The necessity of prompt action in cases of this nature, where there is an apprehension of a breach of the peace, cannot be over-emphasised.

30. This is a case in which the parties have been fighting over possession for a long time; and whenever there is an apprehension of a breach of the peace, the Magistrate should take prompt action and decide the dispute once for all u/s 145 or any other appropriate section of the Criminal Procedure Code.

Varma, J.

31. I agree.