1. The present applicants have been convicted under Section 323 read with Section 147 of the Indian Penal Code. One Jalpa tenant was in possession of a certain mango grove in village Osa which belonged to the raja Sahed of Bara. On his death he left two step sons and a step daughter, who was married to a cousin of Thukurdin. It is found that Thakurdin was in possession of this grove about May 1923. He applied to the Raja Sahed for the grant of a lease of the crops to him; while that application was pending the Raja Saheb's sazawal auctioned the crops to one Rameshwar Kurmi and made a report with a recommendation that the lease to Rameshwar should be sanctioned. On the 10th of May the Raja Saheb accepted the lease in favour of Thakurdin and not Rameshwar. The sazawal after having been informed of this order put Thakurdin in actual possession of the crops. He did not, however inform Rameshwar of this. What next happened may well be described in the words of the learned Additional Sessions Judge himself:
On the morning of the 15th of May Rameshwar with two other men went and plucked some mangoes from those trees. They were obstructed by Ujagar appellant who took away from them the fruits pluked by them. Rameshwar then went and complained to Deo Saran, the head of the Kurmi party, and the latter took him again along with him to pluck the mangoes. This time Deo Saran, Rameshwar and Bachchu went to pluck the mangoes armed with lathis and Dao Saran challenged that he would take the fruits and any one who could might oppose him. It was wholly wrong on the part of Rameshwar and Deo Saran to have gone there with lathis to enforce their supposed right by show of force and challenge Ujagar and others of the other party. The appellants Ujagar and others in response to the challenge went there armed with lathis to resist the taking of fruits by Deo Saran's party. There was an exchange of not words between Deo Saran and Dalganjan, a servant of Behari Lal, and they then came to blows, many other Kurmis also arrived and a fight commenced in which Deo Saran on one side and Dalganjan and his brother Sheo Partap on the other were hurt and felled down. The others then I went away.
2. The learned Addition Sessions Judge has found that Thakurdin was m rightful possession of the mango crops and that as Rameshwar's lease had not been sanctioned he and his patty had no right to the crops and had no right whatsoever to take the fruits by force. He has also found that it was quite wrong of Rameshwar to go there and pluck such fruits. He has also found that when they went a second time to pluck the mango fruits they went there aimed with lathis and challenged that they would take the fruits and anyone who wanted to resist them should come forward. This conduct has been found by the learned Additional Sessions Judge to have been wholly wrong. It is been also found that an response to the challenge the members of Ujagar party went there to resist the taking of Fruits by Deo Saran's party. It is clear that the accused went there to resist the other party, that hit words were exchanged and they ultimately came to blows. In the fight which took place one man Deo Saran was hurt oh the other side and received some simple hurts, whereas two men were hurt on the accused's side and were actually felled down.
3. The actual facts cannot now be much deputed and they were fully proved by the evidence of a number of neighbours was happened to be present near the scene. The accused at the trial raised the plea of private defence of property. The learned Additional Sessions Judge his overruled that plea on a ground which is not quite apparent. In the course of his judgment he has remarked: 'It would have been a different thing if Thakurdin had tried to protect his possess, on against Rameshwar.' What the learned Judge probably thought was that as the crop was in the possession of Thakurdin he alone could have put forward a plea of self defence and that the other accused persons who are not directly related to Thakurdin could not claim that protection. This view was clearly wrong. He has also remarked that 'the fight commenced before any fruits were plucked by the opposite party.' Under Section 97 of the Indian Penal Code it is provided that every person has a right to defend the property whether moveable or immoveable of himself or of any other person against any act which is an offence falling under the definition of theft, robbery or criminal trespass or which is an attempt to commit theft, robbery or criminal trespass. On the findings arrived at by the leaned Additional Suasions Judge himself there can be no doubt whatsoever that there was certainly an attempt on the part of the opposite party to commit both theft, if not robbery, and mischief as well as criminal trespass in defiance of Thakurdin's right and it was quite immaterial whether the present accused persons did or did not thamselves own the mango crops. I may also add that the learned Additional Sessions Judge has not found that the case came under Section 99 of the Indian Penal Code. It is not suggested that there was time to have recourse to the protection of the public authorities or that there was more hurt caused than was absolutely necessary for the purpose of the defence. The opposite party having been the aggressors ware altogether in the wrong and I am of coin on that the Accused persons under the circumstances were justified in defending the rights of Thakurdin and resisting the attack of the opposite party.
4. I accordingly allow this revision, set aside the convictions and the sentences passed on the applicants and acquit them of the offences with which they have been charged. I also direct that the order calling upon them to furnish security be cancelled.