Judgment

HEGDE, J.- These appeals by special leave are directed against the decision of the High Court of Judicature at Patna in Cr. A. No. 178/65 on its file.

2. 12 persons including the appellants were tried and convicted for various offences by the learned 3rd Additional Sessions Judge, Gaya. In appeal all except the appellants Manzoor Halim, Jangloo, Ekramul, Enamul and Sattar were acquitted. Manzoor, Halim, Jangloo and Ekramul were convicted under Section 324/34 I.P. C. and sentenced to suffer rigorous imprisonment for two year each for that offence. Ekramul and Enamul were convicted under Section 323 read with Section 34, I. P. C. and for that offence each one of them was sentenced to suffer one year s rigorous imprisonment. Sattar was convicted under Section 323, I. P. C, and sentenced to suffer rigorous imprisonment for one year. The sentences imposed on such of the appellants as were convicted for more than one offence were ordered to run concurrently. In these appeals the appellants challenge their conviction.

3. The incident with which we are concerned in these cases, as found by the High Court commenced in connection with a dispute regarding taking water from Sarfara Ahar. The High Court found and that finding was not challenged before us, that the water from this river was used to irrigate the fields in the village Bandi as well as that in Sarfara but the water could be taken by the cultivators only after obtaining the permission of Mokararidars and Thikedars . The High Court further found that on the date of the occurrence viz., October 3, 1964, some of the members of the prosecution party belonging to Sarfara village came and blocked the channels through which water was taken to Bandi village and diverted the entire water to their fields in Sarfara village and at that time the appellants who belonged to Bandi village came and obstructed them and at that stage there was a fight between the two parties as a result of which several persons were injured. The further finding of the High Courts is that the appellant party is not proved to have gone to the scene of occurrence with the common object of assaulting the prosecution party. But on the other hand they had gone there to protect their own rights. The High Court has also come to the conclusion that the common object mentioned in the charge is not proved. It further held that the appellants were not members of an unlawful assembly. None of the accused was charged with any offence read with Section 34, I. P. C. On the facts of this case, no question of common intention could have arisen. But yet the learned judge of the High Court relied on Section 34, I. P. C. in convicting some of the appellants. charge under Section 34, I. P. C. supposes the sharing of a particular intention by more than one person, do a criminal act. In the instant case as found by the High Court, the accused party did not intend to commit any criminal act. They went to the scene of occurrence only with the object of protecting their own rights. That being so the High Court was not justified in relying on Section 34, I.P. C, while considering the case against some of the appellants. In paragraph 19 of the judgment the learned judge of the High Court observed:

"In the view I have taken that the appellants, were not members of an unlawful assembly with any unlawful common object the question that requires to be considered now is what offence, if any, the appellants have committed."

4. Another finding reached by the High Court, which finding again was not challenged before us is that:"It cannot be said with any amount of certainty which of the assailants was responsible for causing which of the injuries."

5. Let us now recapitulate the material findings reached by the High Court. They are (1) the accused went to the scene of occurrence to protect their own right, (2) they were not members of an unlawful assembly and (3) it is not possible to ascertain from the records whether any particular accused c