Pandrang Row, J.
1. The petitioners in this case are two out of the 28 persons who were charged with a number of offences, namely, offences punishable under Sections 148, 149, 323 and 427 read with Section 114, Indian Penal Code, in connection with an occurrence which took place at about 8 P.M. on the 14th November, 1937, in the village of Modekurru. There is no doubt that for some time before the occurrence there was a dispute between the villagers headed by the first petitioner, the Village Munsiff, and also to some extent by the second petitioner on the one side, and P.W. 1 the complainant on the other as regards a certain vacant site which had been purchased by the complainanjt1 about two years ago. The villagers claimed the site as part of communal land required and used for religious purposes, whereas the complainant claimed it to be private' land which he had obtained under a sale-deed. One or two attempts made by the complainant to build a house on the site proved fruitless on account of the obstruction offered by the first petitioner and others. Finally it would appear that the Police Sub-Inspector took a strong line in the matter in favour of the complainant as a result of the instructions given to him by the Deputy Superintendent of Police, and he went to the village with a party of constables; in these circumstances the complainant appears to have engaged a large number of coolies and built up the walls in one day to a height of several feet, intending to put a roof the very next day. It was in the evening of the day after the walls had thus been hastily built that the occurrence is said to have taken place. A large number of villagers headed by accused 1 and 2, that is, the petitioners are said to have gone to the place, and under the orders of the latter, the rest of the villagers are said to have pulled down the walls by using crowbars, pick-axes, etc. It is also alleged that the complainant was beaten with a cane or walking stick by accused 1 and 2. There can be no doubt that the complainant had injuries on his person as is seen from the medical evidence, and there is no reason to suppose that he did not receive them at the time of the occurrence. The Magistrate who heard the case was of the opinion that the evidence of the prosecution was not reliable so far as 26 out of the 28 accused were concerned and these 26 were discharged and the c5se was proceeded against only accused 1 and 2. As regards the offences punishable under Sections 148, 149 and 427, I am of opinion that the convictions cannot stand in the absence of any finding as to the ownership of the site on which the walls were put up. If really it was a site to which the complainant had no individual right, and if the site belonged to the villagers generally and had been set apart for public purposes they were entitled as a matter of law to remove the obstruction to the enjoyment of the site, and the mere removal of the walls in those circumstances would not amount to a criminal offence. There is no finding on this question by either of the Courts below. In these circumstances, it is impossible to support the convictions under the above sections. The common object of demolishing the walls cannot in these circumstances be regarded as an unlawful one. There is nothing to show that any force or show of force was intended to be displayed as against the complainant or his party. Crowbars and pick-axes were taken only for the purpose of pulling down the walls and not for any other purpose. The offence of rioting therefore has not been made out by the prosecution. In the circumstances it is really difficult to say that the villagers did not honestly believe that they were within their rights in pulling down the walls without doing any injury to the complainant or his friends. The convictions therefore of the petitioners under these sections are accordingly set aside and they are acquitted of the same.
2. As regards the convictions under Section 323, Indian Penal Code, namely, for causing hurt to the complainant, I see no sufficient reason to doubt the correctness of the convictions. The complainant was, as I have already observed, undoubtedly beaten and injured at the time of the occurrence and according to him it was the two petitioners who beat him. It may be that he is not quite reliable as a witness but on this point there is no reason to upset the concurrent findings of the Courts below that it was the petitioners who caused hurt to him. The convictions are therefore upheld; but the sentences appear to be unnecessarily severe. The hurt was simple and in the circumstances did not call for a sentence of imprisonment. The sentence therefore under Section 323, Indian Penal Code, on the petitioners is reduced to a fine of Rs. 50, in the case of each and in default of payment to one month's rigorous imprisonment. 14 days' time is given for payment of this fine into Sub-Divisional Magistrate's Court.
3. The petitioners were also ordered to furnish security for keeping the peace but in t tie view that I have taken of the case, this order is not necessary; that order is also set aside and the bonds if executed should be cancelled.