Judgment

BOSE J. : The appellants are six in number. Five of them have been convicted under section 147, I. P. C. and sentenced to one years rigorous imprisonment each. The sixth, Misri Das, was convicted under sections 148 and 324, I. P. C. and sentenced to fifteen months; rigorous imprisonment under the former. No separate sentence was imposed under section 324.

2. The conviction of Misri Das under section 324 calls for no comment. He has been convicted under that head for his individual act and the only question raised there touches the credibility of the witnesses who have been believed. Following our usual rule not to interfere on questions of fact, we dismiss that part of the appeal.

3. The other matter depends on whether or not there was an unlawful assembly. It arises in this way.

There was a dispute between some of those on the prosecution side and the appellants about the right to occupy and cultivate certain lands. It is proved that the title to them resides in Jattu Rai (P. W. 4) and one Gena Kumar. Originally they had belonged to one Mangal Das and certain others. A decree was obtained against them for arrears of rent. In execution the lands were put up to auction and were purchased by one Banarsi Prasad in 1927. He sold them to Jattu Rai (P. W. 4) and one Gena Kumar on 25-7-1928. None of this is disputed.

The prosecution case is that Jattu Rai and Gena Kumar cultivated a portion of the purchased area themselves and cultivated the rest through their bataidars, Sonu Gope (P. W. 1). Sahdeo Gope (P. W. 5), Jadu Gope (P. W. 6), Manu Gope (P. W. 8) and Nankeshwar Pasban (P. W. 9). The appellants deny this and contend that they are the bataidars of Jattu and Gena and that they, and not the others, have been in cultivating possession ever since 25-7-1928. The finding of the Courts below is that neither side has been able to prove its possession. We must accept those facts.

4. Coming now to the incident which gave rise to the prosecution, the facts are as follows:

According to the prosecution (see, for example, Sonu Gope, P. W. 1, and Sahedo P. W. 5, who have both been believed), the appellants went to their fields on the day in question (30-11-47) with about 100 to 150 labourers and about 30 or 40 lathials , and at least one of them, Misri Das, had a spear. They started to cut the paddy growing there. Seeing this, Sonu Gope (P. W 1), who claimed to be the bataidar, rushed off to the police outpost which is half a mile distant and returned to the scene with the police havaldar (P. W. 3) and two constables. On nearing the fields Sonu Gope went ahead to remonstrate. When he reached the spot he began to protest and the rest of the incident is best given in the words of Sahdeo Gope (P. W. 5).

"The reapers were taking away bundles of paddy. Sonu came ahead to stop them. Moti gave the order for assault. Misri ran towards Sonu and Sonu fled. Misri over took him and gave him a bhala blow with the result that he fell down in the field of Rasul Mian. The other accused person then assaulted him with lathis. The Havaldar and constables came up and caught hold of accused Jagan and Churaman".

This is substantially the version which has been believed by both the Courts and so we must accept those facts.

5. Founding on them the learned counsel for the appellants contends that no conviction can be based on the facts so found. He says that the prosecution must be strictly confined to the charge and that they cannot now travel beyond it. He says the charge was that the appellant formed an unlawful assembly because their common object was to steal the paddy in the field and assault Sonu Gope in the course of the transaction of stealing. They have been acquitted on the dacoity charge of which the main ingredient was the theft because the prosecution have not proved either that the complainant was in possession or that the accused were not. Therefore, if no question of theft arises, no question of assaulting Sonu Gope as part and parcel of the transa