Ground on which liability is cast upon accused must be shown.

This revision petition is by accused 5 and 6 in C.C. No. 322 of 1963 on the file of the Additional First-Class Magistrate, Sherthallai. They along with four others were convicted under sections 143, 147, 426 and 323 read with section 149, Indian Penal Code, and sentenced to pay a fine of Rs. 40. Accused 1 to 4 have not come up in revision. The charge against the accused was that they formed themselves into an unlawful assembly with the common object of dismantling a part of the eastern fence and another part of the western fence of Kollan Parappu Thekke puraidom in the supervision of P.W. 1, to gain easy access to the Bajana Madam in the property to the west. According to the prosecution all the six accused took part in dismantling the fence whereas accused 1 to 3 alone caused hurt to P.W. 1 by pushing him on the ground. All the accused pleaded not guilty. Accused 5 and 6 as also some of the others denied having been present at the spot. Accused 5 who is a man of 70 pleaded that he was bed-ridden and under treatment and accused 6 who was employed as a supervisor in the Electrical, Department, Ernakulam, contended that he was at Ernakulam at the relevant time. The first accused’s case was that there was a path-way leading from the road to the Bhajana Madam with gates on the eastern and western sides which were kept open and through which the public used to go to the Bhajana Madam. When P.W. 1 came to close the gate in the eastern fence accused 1 obstructed when P.W. 1 cut him with a chopper and a tussle ensued between him and accused 4 on the one side and P.W. 1 on the other in the course of which P.W. 1 fell down and sustained the injuries. D.Ws. 1 to 12 were examined in support of that version. On a consideration of the evidence the Magistrate has accepted the prosecution case and convicted the accused.

The points urged before me in revision on behalf of the revision petitioners are (i) that the conviction is unsustainable since the accused were only acting in the bona fide exercise of their right to use the pathway which was being used by them for a long time past, (ii) that in any view the conviction of accused 5 and 5 under section 323 by calling in aid section 149 is not proper since the common object of the assembly was only to demolish the fence and not to cause hurt to P.W. 1 End in the circumstances of the case it cannot be held that the members of the assembly knew that hurt was likely to be committed in carrying out that object; and (iii) that the conviction of accused 5 is unsustainable as it is not likely that he, a sickly and aged man of 70, could have taken an active part in the incident, and at the worst he could have been only an innocent by-stander.

The first objection is devoid of merits as it is proved by the evidence of P.Ws. 1 to 5 that access to the Bhajana Madam was through a gate on the western fence of P.W. 3’s puraidom in which the Madam is situated and this was an attempt on the part of the accused to get a more convenient passage. However there is some force in the other two objections.

It cannot be said that causing hurt to P.W. 1 by accused 1 to 3 was intrinsically connected with or implicit in the common object of demolishing the fence. P.W. 1 came to the place only after his mother informed him of the demolition of the western fence and he has no case that he caused any physical obstruction so as to necessitate his being pushed down. According to him he only asked the accused to desist from destroying the fence after the destruction began. It is not an obstruction which had to be removed by use of force. Admittedly P.W. 1 gave a blow to accused 1 and the pushing down might have been connected with the incident of which accused 5 and 6 could not be fixed with constructive liablity. It is also pertinent to note that P.W. 1 was taken away from the scene by his mother and sister before the accused got into the puraidom and destroyed the western fence. In this connection it has to be said that t