George Knox, J.
1. This is an application for criminal revision. It is presented by learned Counsel on behalf of Raghubar Dayal and Pearey Lal, who have been convicted of offences under Section 147 and Section 323 read with Section 149, Indian Penal Code. The grounds taken in the application are (1) that the charge framed defined the common object of the unlawful assembly to be the taking forcible possession of Musammat Piari prostitute; (2) that this charge has been disproved by the evidence upon the record, both prosecution and defence; (3) that the evidence upon the record proves and it has been found as a fact that the complainants made an attempt to take forcible possession of Musammat Piari, which she was under the law entitled to resist quite irrespective of the provisions of Clause 3 of Section 99 of the Indian Penal Code; (4) that Musammat Piari was entitled to resist ths attempt and her friends also were legally entitled to help her in her resistance, irrespective of the provisions of Section 99, Clause 3, Indian Penal Code. It is usual in this Court, unless very strong ground for an opposite conclusion can be found to exist, to take the findings of the lower Appellate Court, and not of the Court of first instance, as the facts of the case. Now the lower Appellate Court has found that on the day in question a criminal case was in progress in the Court of a Magistrate at Budaun, the Magistrate being Sheikh Abdul Ghaffur and the day being the 17th of July, that a large crowd composed of Nats on the one side and of Banias on the other side were assembled, and that that assembly was within a few yards of the Magistrate's Court at Budaun. It was also so close to a guard of Police that the head constable of the havalat guard gave evidence, which evidence the lower Appellate Court believes, to the effect that it took him about six seconds to get from where he was with a party of constables to the place where the riot was going on. The case was concerned with one Musammat Piari who has been brought up by Musammat Jamni, a prostitute who relied upon Musammat Piari as a source of income in her old age. Later on this girl had been kept by a Bania as his mistress. It was Musammat Jamni who had instituted the criminal case which was going on under Section 363, Indian Penal Code, against Shambhu Lal and Raghubar Dayal, one of the applicants here. The Civil Surgeon had been called in to give evidence regarding the age of Mvsammat Piari. His evidence being over, Musammat Piari was told to leave the Court. She went outside and was immediately accosted by Musammat Jamni in a state of great excitement. She caught hold of the girl to take her away from the party of the Banias in whose protection she was. A great uproar arose. The parties to the case together with their legal advisers rushed out of Court, and a free fight ensued. In the course of this fight Musammat Jamni received two slight bruises and Har Dayal received one. These are the facts set out by the learned Sessions Judge in his judgment. I find no reason to doubt those facts as there set out. The applicants Raghubar Dayal and Pearey Lal were not arrested on the spot. When called upon for their defence, according to the learned Sessions Judge they pleaded that they took no part in the riot. This was their plea in defence.
2. So far as the evidence being to the effect that the Nats and the Banias joined in what became a free fight and that fight over the person of Musammat Piari, I cannot hold that there was not room for an inference on the part of the learned Sessions Judge that the common object of the unlawful assembly, whether of the Nats or of the Banias, was to take forcible possession of Musammat Piari prostitute and to remove her from the place where she then was. This, coupled with he evidence of the injuries which followed, though those injuries were slight, suffices to raise a prima facie case under Section 147 read with Section 323, Indian Penal Code. Section 149, Indian Penal Code, also appears to have been added; and the facts as stated cover an offence under Section 149, Indian Penal Code. Prom the learned Judge's judgment it appears that although Raghubar Dayal and Pearey Lal neither of them raised any plea of self-defence, an alternative plea was raised on their behalf that if they were found to have been present, they were entitled to immunity as having acted in self-defence or in defence of the person of Musammat Piari. The judgment of the Court of first instance is before me, and it is evident from the words used by that Court that this plea or something to that effect was taken in that Court, and the Magistrate who decided the case inferred from the case of Emperor v. Gullu A.W.N. (1904) 113 : 1 Cr. L.J 427, that if in a case it is proved from the evidence for the prosecution that the accused acted in self-defence they can undoubtedly claim an acquittal. As I was the Judge who pronounced the decision in the above-mentioned case, I think it advisable to say a few words with reference to that judgment. So far as I can see, the learned Magistrate appears to have entirely overlooked the final words of that judgment. It is true that in the earlier part of the judgment in that case, which was a very special case and in which I was refusing to accept the reference made by the Sessions Judge, to meet what the learned Sessions Judge had said with reference to the case and with which he supported his reference, I said something which was really obiter dictum, there was no necessity for those observations', and it shows the danger of making observations which are over and above the points in a case. The learned Sessions Judge in his judgment says that with reference to the present applicants there can be no question whatever that they had in any case no right of defence of Musammat Piari's person at all. He goes on to deal specially with the proviso to Section 99, Indian Penal Code, and he comes to the conclusion that it would be a clear waste of time further to discuss these pleas of private defence in view of these facts, namely, the facts already set out by him. He certainly did not find in the case before him that the evidence for the prosecution contained such elements of doubt that their case could not be believed and that the benefit of that doubt must be given to the accused. In the present case I hold that, following the law as laid down by a large number of rulings in this Court, the applicants in view of the fact, that they had raised pleas entirely inconsistent with the plea of self-defence could not be heard on what is called this alternative plea unless, as laid down in Emperor v. Gullu A.W.N. (1904) 113 : 1 Cr. L.J 427, the learned Counsel for the applicants could establish that the case for the prosecution could not be believed and that quite independent of the plea of self-defence there was an element of doubt, and that the benefit of the doubt must be given, to the accused. The alternative plea put forward should have been ruled and strongly ruled out of Court as irrelevant. There was no necessity for the pleas Nos. 3 and 4, and I hold that it was and is irrelevant to go into those pleas in the present case. The application fails and is rejected.