SYED M.FAZAL ALI, J.

(1) THIS appeal by special leave is directed against the judgment of the High court of Rajasthan dated 25/04/1972. By virtue of the judgment under appeal, the convictions of the 18 appellants were upheld with certain modification which may be catalogued as follows:

Name of appellants

Conviction under

Term of Sentence

Section

1.

Hathi Singh

325/149 IPC

2.

Gangaram

Two years R. I. and a fine of Rs. 200, in

3.

Qasimkhan

default, further R. I for 2 months.

4.

Noranga

5.

Mubarakhan

147 IPC

6.

Hanuman

2 years R. I.

7.

Sadulla

425 IPC

8.

Kesar Singh

2 years R. I.

9.

Kesharkhan

10.

Bagaram

11.

Lal Singh

12.

Nabbukhan

13.

Ramuram

14.

Narain s/o Ganesh

15.

Bhura

16.

Chliotu and

17.

Narain s/o Arjun

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18.

Kokura

325/149 IPC

Two years R. I. and a fine of Rs. 200, in

default further R. I. for two months.

427 IPC

2 years R. I.

447 IPC

3 months R. I.

435 IPC

2 years R. I.

Noranga

Hanuman

Kesar Singh

Kesharkhan

323 IPC

3 months R. I.

Nabbukhan,

Ramuram and

Chhotu

Hathi Singh

323 IPC

2 months R. I.

Bhuraram and

Narain s/o Arjun

325 IPC

2 years R. I.

(2) THE occurrence took place at about 6 p.m. on 15/12/1968 at village Kalyanapura when the complainant and his party went to the plot situated at Khasra No. 558 and 559 and after constructing water channel from the well which is situated in Khasra No. 559, they also enclosed the entire plot by thorny bushes so as to close any possible access to the well. At this stage the appellants variously armed arrived at the scene of the occurrence and in the course of altercation are alleged to have assaulted Sugna, Ballu, Narain, Choona, Hanuman, Rekha and Roopa. Out of these persons, Roopa died as a result of the injuries received and Public Witness 16 Narain and Public Witness 18 Chimnaram received grievous injuries in the nature of fracture of the hand and fracture of the finger respectively. FIR was lodged at I a.m. at police station Fatehpur. After usual investigation, a charge- sheet was submitted against the appellants who were tried and convicted by the Sessions Judge, Sikar as mentioned in the judgment. The High court in appeal acquitted some of the accused and modified the conviction of others and has maintained the conviction and sentences of the appellants as described above. The facts of the case have been detailed in the judgment of the courts below and it is not necessary for us to repeat the same all over again.

(3) APPEARING for the appellants, Mr. Jain has raised a short point before us and has attacked the findings arrived at by the High court in respect of the charges under S. 149 and 147 and 447 of the Indian Penal Code and has contended that these charges must necessarily fail because the appellants. were not inspired by any unlawful object but were seeking to assert their legal customary right which they undoubtedly possessed. It is also contended that the appellants had undergone substantial part of the sentence of imprisonment and hence their sentences may be reduced. We are of the opinion that the contention raised by learned Counsel for the appellants is well-founded and must prevail. The High court while considering the evidence led by the prosecution came to the following findings:

(1) The accused had the right to take water from the well for them- selves and for their cattle. The village cattle also used to sit on the land in case there was no crop on it. The villagers also repaired the well in the year 1962. This well is the only well which provides drinking water to the villagers.

(2) On the date of the incident during daytime, that is sometime before the actual incident took place, the complainant-party had prepared water channels for irrigating the crop and had put thorn-fencing on the land surrounding the well closing all pathways leading to the well.

(3) On the date of the incident, they had prepared water .-.hannels to irrigate th