1. These are two appeals against convictions for rioting in a fight which is said to have taken place between two rival factions at the village of Kundri in the Shahjahanpur District. There are in all ten appellants before us. There appears to have been a long standing quarrel between what in this Court has been called group A and group B. Group A in this Court consists of Ajudhia Prasad, Misri Lal, Chetram, Jwala Prasad and Jangi Lal: group B of Hardwari, Lal Bahadur, Bhagwandin, Gokul and Tika Ram. All of these people are the, appellants before us. The first four per-sons in group A are represented by Mr. Desanges. Jangi Lal was not represented but at our request Mr. Desanges was good enough to bear his interest in mind and has at the end discussed the case of Jangi Lal separately, with a view to assist him. Group B are represented by Mr. Jamini Mohan Banerji.
2. There is no doubt that for a long time there has been extremely bad blood between, these two parties represented by Ajudhia-Prasad as the ring leader on the one side and Hardwari on the other and their relatives and friends. There had been previous litigations and criminal proceedings, but on the 8th of April last there was an encounter which we are told is still the subject of a judicial enquiry, with the result that a man named Jagannath belonging to faction A was so injured that he died four days later. In our opinion that circumstance, the injury of Jagannath on the 8th, has an. important bearing on what took place on the 10th of April. We may pause for a moment to say that we are satisfied that both sides have told false-hoods about this matter, that group A have deliberately concocted a story as to Ajudhia Prasad being dragged from the neighbourhood of Dwarka's sitting room towards the threshing floor of Hardwari whilst on Hardwari's side there has been a deliberate fabrication of evidence putting the wounding of Jangi Lal as the act of a man named' Puhup Ram. There are three or four witnesses who are independent in the sense that they are not relatives of any of the accused nor do they appear to be members of group A or group B, but with the solitary exception of a man named Tilok it is obvious on reading the evidence of the so-called independent witnesses that their sympathies can be plainly marked out as leaning either towards group A or group B. Tilok, however, holds the balance very evenly and we attach very considerable weight to his evidence and from his evidence and the evidence of the other witnesses in the case we are able to construct with sufficient certainty and safety what in fact in our belief took place. It should be understood that group A and group B in this village undoubtedly consisted of more persons than are before us to-day. We have no doubt that group A were vengeful and resentful because of the injuries to Jagannath which had been received by him two days before and that a number of persons adherent, to group A did gather at Dwarka's sitting room either about midday or in the early afternoon. News of this, gathering, we believe, was communicated to Hardwari and it may be that Hardwari on learning that a considerable number of men, certainly more than 10 and probably less then 20, had gathered at Dwarka's sitting room, felt it prudent in the circumstances to get his brothers and friends also to come to his threshing floor. But however that may be we have no doubt whatever that this fight arose from an advance made by group A party towards the threshing floor of Hardwari. It is common ground and agreed and we have been most precise and careful about this that the fight took place on a piece of waste ground belonging to Hardwari and at a distance of about 40 paces from the sitting room of Dwarka and about 30 paces or less from that of Hardwari. In other words the fight took place at a distance of 2/3 from the sitting room of Dwarka and 1/3 from the threshing floor of Hardwari. There is one point on which the evidence is perfectly clear and that it is that there was some preliminary abuse and a reference by Ajudhia Prasad to what had been done to Jagannath on the 8th and then before any lathi blow was struck, Jangi Lal fired a pistol. There is no doubt that the bullet from that pistol hit Shamacharan. On the evidence we accept what Tilok says, that thereupon Hardwari, who had come down from his threshing floor, turned back, grasped a pistol and fired it in the direction of and in fact hit Jangi. Thereupon a lathi fight became general. No more pistol shots were, fired on either side and in the result Pimmi Singh, an adherent of the A group, was so seriously injured in this fight that he died on the same day, the 10th of April. Shamacharan of B group, the man who was wounded by Jangi was trampled upon in the fight and received other severe injuries and died of pneumonia on the 19th of April
3. There are two principal questions which we must settle at the outset. The first is who were the participants in this fight who are proved by the evidence beyond any reasonable doubt to have been engaged in it; secondly are there any circumstances to exonerate any body either in group A or group B individually or collectively?
4. Turning now to group A, as we have said, there is no doubt that this encounter was started by Jangi firing the shot and we' have no doubt whatever that Ajudhia Prased was the ring leader or at all events a very important person in this fight. Jangi and Ajudhia Prasad also received injuries which cannot be counted for except on the ground that they were present.
5. It has been pressed upon us that Misri Lal was not present in the capacity of a combatant and indeed he asserted that he received the slight injury that he did when he was engaged in helping his injured brother Ajudhia Prasad. We have a great deal of doubt about that story but Misri Lal has had the advantage of evidence given in his favour by Binda who states that Misri Lal got hurt when helping his brother, and Jhabu who says also that Misri Lal was not in the fight. With some hesitation we have decided to give Misri Lal the benefit of the doubt.
6. As regards Chetram and Jwala Singh, they stand on quite a different footing. It is agreed that they are not relatives of any of the members of group A. They in fact live in a different village. They admit that they were present on the 10th of April in Kundri. They explain their' presence by saying that they were indebted to Ajudhia Prasad and they came to the village on business without any knowledge of any impending mar pit, and that they did nothing whatever in the matter at all.' We have gone through the evidence very carefully with regard to these men and there does seem to be evidence in their favour, as for instance of Komal, who says that Oh tram did not use a lathi, Binda said that Chetram and Jwala Singh took no part in the mar pit and generally there seems to be very little evidence against them. In these circumstances we are, acquitting them also.
7. The result, therefore, as far as it concerns group A, is that we uphold the conviction as regards Ajudhia Prasad and we do not interfere with the sentence of 10 'years' rigorous imprisonment passed upon him. Jangi has been sentenced to 10 years' rigorous imprisonment. In our, opinion that is not sufficient punishment. He commenced the affray by the firing of a pistol and we regard the importation of a firearm into a village faction fight of this character as a most serious matter. Although the wound indicted by him on Shama Charan was not in a vital spot, it brought Shamacharan to the ground and may have been the indirect cause of his death as it led to his receiving injuries from which he might otherwise have escaped. Organised fights with each side armed with Lathis are grave infractions of the law and frequently result in the death of one or more combatants. In this case the introduction of the pistol was an' added aggravation and we are of opinion that transportation for life is the only appropriate sentence in. Jangi's case.
8. We now come to group B. The position has been taken as regards group B, quite boldly that the whole of these men are entitled to acquittal on the ground that they acted in self defence only. In the lower Court they gave no hint of any, such defence but they are entitled to have it examined and if it is proved to us that that was the attitude of Hardwari and his adherents they are entitled to claim their right to act in the way they did. We must summarise what we have previously said. We have already expressed our relief that the origin of this mar pit on the 10th of April was due to the beating which group B had given to Jagannath on the 8th. With the rights and wrongs of that beating we are not in any way concerned here at all. But in our belief that brought about in the minds of the A group a determination for revenge and that when they gathered together at Dwarka's sitting room about mid-day or a little after that on the 10th they meant to take that revenge and meant to beat Hardwari and his brothers. We accept the evidence of the boy Bhudar who says that he went and told Hardwari what had been happening as regards the gathering of men at Dwarka's sitting room and we have very little doubt that Hardwari on receiving this information collected his forces. The Judge also seems to have thought that Hardwari did this but that Hardwari was doing what was wrong. That in our view is not entirely a correct view. If Hardwari knew that he could have escaped from these people and if his brothers and adherents were aware that they could escape also there would have been a duty on them to get out of the way until the anger and resentment had lessened. But if they had a reasonable belief that if they separated they would be pursued and individually beaten they had every right to keep together and that seems to be the view that they took, and in the circumstances of the feeling as between these two factions they seemed to have felt it safer for them not to be separated. We have already said that we believe that the attack' proceeded from group A and we are confirmed in that view by the undoubted circumstance that the fight took place very much nearer to the threshing floor of Hardwari than the sitting room of Dwarka. In other words group A advanced upon group B. We have no doubt that Jangi fired the first shot and we. believe that Hardwari had not then at that moment a pistol in his hand, but he went back and took one from the threshing floor. We think that it is a very unfortunate circumstance that fire-arms were used in this village fight, but we are of opinion that when Jangi had fired at some one in group A and in fact did wound Shamcharan. Hardwari had a right in law to fire back and did fire back and did wound the right man, Jangi. Having decided that important point it follows that if Hardwari had a right to repel the attack of Jangi by pistol the rest of his party had a right to repel by lathis the attacks made upon them by lathis. That being so, although the defence of self-protection was not raised at all in the lower Court, we believe on a very careful perusal of the evidence that we have come to what is the right and the proper conclusion in this matter. This case has occupied a full day's hearing and we have endeavoured to dissect the evidence and to arrive at what we think to be the just and proper conclusion. We have already dealt with group A. As regards group B the' order is that the sentences passed on Hardwari; Lal Bhadur, Bhagwan Din, Gokul and Tika Ram must be set aside and those five persons released unless it should happen that they are being detained in connection with, any other criminal charge. Turning now to group A as regards Misri Lal, Chet Ram and Jwala Singh the convictions against them are also set aside and they must be released subject to their' being detained in respect of any other charge. The appeal of Ajudhya Prasad is dismissed and his sentence confirmed and 'the sentence passed upon Jangi Lal is enhanced to transportation for life.