1. This is a reference by the learned Sessions Judge of Ghazipur recommending that the conviction of the three applicants under Section 336, I.P.C. and sentence of fines of Rs. 30 each should be set aside. The learned Sessions Judge is under the impression that the acts found would not amount to the offence mentioned in Section 336, I.P.C. He does not consider whether they would amount to an offence under any other section. He does not definitely state an opinion as to whether he considered that the finding of fact of the Magistrate was correct or not. The circumstances of the case are that Joganand Pandey, complainant, made a report on 8th March at 8-30 a.m. that the four accused persons at about 9-30 p.m., including the three applicants,, had thrown bricks into his house from enmity, that several bricks had been thrown in, and that he had gone out of his house and had seen the accused standing with bricks in their hands outside his house, and that the accused had raised their hands to throw bricks. The complainant shouted, and three witnesses came up and saw the accused, and the accused ran away. The names of the witnesses were given in the firsb information report, and these three witnesses gave evidence before the Magistrate, and it is not shown or alleged that these witnesses had any personal enmity against the accused. There was no undue delay in the first information report, as distance from the thana was six miles, and it was not likely that the complainant would go at night to make this, report. The police prosecuted the case. The defence was that there was enmity between the complainant and the accused. This of course is admitted, and such enmity may either be a cause for a false case or a motive for the act alleged. About the prosecution witnesses the plea merely is that they were disciples and friends of the complainant, and therefore gave evidence. Five defence witnesses were produced, but they proved nothing of weight for the defence. The Magistrate wrote a long and careful judgment' and convicted the accused, giving to one the benefit of the doubt as he was a young boy. The only grounds which the learned Sessions Judge mentions in favour of the defence are that the three accused are old men, two off them being 60 and one 52. The learned Counsel for the defence produced in this Court one of these men who stated that he was an ordinary cultivator, and he certainly did not appear to be physically unfit to throw a brick. The Sessions Judge further stated that the three prosecution witnesses were casual witnesses, but he did not explain what he meant by this statement, and they are not casual in the sense that they come from a distance as they reside near the house of the complainant. No other reason is given for doubting the correctness of the prosecution story, and I see no reason to upset the finding of the Magistrate on the facts. I therefore consider that the facts found by the Magistrate are correct.
2. The next question is what is the correct law on the subject. The learned Sessions Judge referred to two rulings. In Gaya Prasad v. Emperor A.I.R. 1938 All. 745 there was a case where a pujari left his temple at midnight and threw bricks into it in the hope that the Hindus believing that the bricks came from the Mahomedan quarter would get enraged, and there would be a Hindu-Moslem riot, and it was found that nobody was hit. Under these circumstances a learned single Judge of this Court held that the applicant could not be convicted under Section 336, I.P.C., because his act was neither rash nor negligent but deliberate, and Section 153, I.P.C. did not apply, because it could not be said that his act was illegal. The learned Sessions Judge fails to notice that the facts of that case are entirely different, because in that case the accused had thrown bricks into his own temple, whereas in the present case the accused threw bricks into the house of another person who did not consent to that operation. Further there was no suggestion that the act was done in order to create a riot, BO Section 153, I.P.C. need not be considered. The second ruling referred to by the learned Sessions Judge is that reported in Babu Ram v. Emperor : AIR1925All396 . In that case, when communal riots were taking place in different parts of the town the applicant, a brother of a licence-holder, took a gun and fired shots in the air so that people mischievously inclined might know that it was not safe for them to do any mischief to the people living in the house. It was held that this would not amount to an offence under Section 19(f), Arms Act. There was a reference also to a conviction of the applicant under Section 336, I.P.C. on a finding that he threw brickbats and fired shots at passers by. This Court held that that conviction was on an insufficient and improper charge and that if the finding was correct the acts would amount to attempted murder or an attempt to cause grievous hurt with a deadly weapon. I do not think that this ruling applied in any way whatever to the facts found in the present case. Section 336 states
that whoever does any act either rashly of negligently so as to endanger human life or the personal safety of others
shall be guilty of an offence under that section. Learned Counsel argued that any act' must be limited to the meaning of 'any legal act' and that the section would not apply to an illegal act. I do not see any authority in the rulings quoted for this limitation of the perfectly general words 'any act.' In the present case the throwing of bricks into the house of the complainant was an act which would endanger the personal safety of the complainant when he was inside and of any other person who might be inside. I do not see anything in the section which indicates that the facts found would not constitute an offence under this section. The learned Sessions Judge was certainly wrong when he states that if anybody had been hit in the house it would furnish grounds only for a civil action. I may point out that the facts found would also amount to the offence of assault under Section 352, I.P.C. as the throwing of the brickbats by the accused would be a gesture which would cause the complainant to apprehend that criminal force was about to be used against him, that is, if the bricks hit him criminal force would be used against him. I consider that there is no reason whatever to set this conviction aside on legal grounds and I have already found that the facts were sufficiently proved. The sentence is not excessive. For these reasons I refuse this reference. Let the papers be returned to the Sessions Judge.