Pandrang Row, J.
1. The appellants six in number appeal from their convictions and sentences by the Sessions Judge of Madura in S.C. No. 93 of 1937. The charge in that case consisted of no less than sixteen counts and as many as 22 persons were accused in the case. The appellants alone were convicted and the rest were acquitted. The convictions now appealed from relate only to counts 1 and 2, the first count being one of rioting which was against 12 persons under Section 148, Penal Code, and against the remaining ten under Section 147, Penal Code. The second count is one of murder. The conviction is not for murder or culpable homicide but under Section 324, Penal Code. The occurrence to which the case relates took place some time in the morning of 21st December 1936 and it arose out of a dispute regarding the groundnut crop in Section No. 442-2 in the village of Chokkalingapuram, to which the accused belong. The prosecution party headed by accused Kailasam Chetti appear to have gone to the field in the morning determined to harvest the crop. Kailasam Chetti was the person who claimed to be in possession of the land under a lease granted by one late Ramalinga Servai. He brought his men in a bus from Melur which is 18 miles away, apparently after making preparations for harvesting the crop in spite of the threatened opposition on the part of accused 2 and 5 who claimed the land and also claimed to have raised the crop through their farm servant, one Kuppan. Information of the impending clash reached the Village Munsif, P.W. 22, and he at once went to the police station to report it and to obtain the necessary bandobust. A fight however actually took place between two groups in the course of which persons on both sides were injured, and one belonging to the group of Kailasam Chetty and related to him was killed. The evidence for the prosecution appears to have been unsatisfactory as would be seen from the fact that a large number of persona accused were acquitted and numerous specific charges against particular accused were held not to be established. The first charge sheet implicated only accused 1 to 12 the second charge sheet, which was filed a fortnight later, implicated accused 13 to 18 and the third charge sheet, which was filed after an interval of a month and a half, implicated four more accused, namely accused 19 to 22. The evidence of identification as disclosed by the identification, parades was held to be not satisfactory by the trial Judge, and he observes that some of the witnesses for the prosecution had previous opportunities of seeing the accused before they identified them.
2. He also points out in para. 16 of his judgment that numerous mistakes were made by the witnesses in the course of the actual identification. In another place in his judgment the learned Sessions Judge observes, that the evidence against the accused except those convicted by him is rather vague, scanty and unreliable. So far as the unreliable character of the evidence is concerned, it cannot be said to be unreliable as against certain accused only and reliable as against others, the witnesses being more or less the same. The principal witness, namely, P.W. 3, who alone made statements regarding the occurrence soon after it (vide Exs. D and E) is characterized by, the learned Sessions Judge as a wobbler and this characterization appears to be justified in view of the different statements made by him regarding the occurrence (vide. para. 33 of the judgment of the Court below). At least as many as ten persons in the prosecution party, namely, P.Ws. 2 to, 11, had received injuries and produced wound certificates, and it is remarkable that no conviction could be had in respect of any of the injuries sustained by these witnesses - a fact which shows that the evidence of even persons who were injured was not accepted as satisfactory even so far as the identity of their assailants was concerned. As regards the injuries inflicted on the deceased, the evidence is nearly as unsatisfactory as the evidence relating to the infliction of injuries on the others, and really there is no justification for making a difference. It would appear from the judgment of the learned Sessions Judge that there was an attempt made to rope in accused 19 as an abettor of the murder. In other words, the witnesses for the prosecution had shown a desire to implicate persons who were really innocent of the particular act alleged against them. If as a matter of fact the learned Judge accepted the evidence regarding the attack on the deceased and the infliction of the injuries on him by certain of the accused, the mere fact that it was not possible to say who inflicted the fatal injury would not be sufficient to support the finding that no offence of murder or culpable homicide had been committed. If there was a joint attack with dangerous weapons by four or five persons on one man and the latter died almost on the spot as a result of the injuries inflicted on him, at least the offence of culpable homicide must be said to have been made out. Apparently the learned Judge thought that it was not possible to convict the persons charged with murder even of culpable homicide. But the reason given, namely, that it will not be possible to say who inflicted the fatal stab is not sufficient. The other reason which seems to have weighed in the mind of the learned trial Judge, namely that the evidence itself was of a doubtful character, must have been the determining reason which led the learned Sessions Judge to reduce the offence to one of hurt under Section 324, I.P.C. There is really no justification for this conviction in view of the unsatisfactory evidence relating to the attack on the deceased and in particular, to the persons who took part in it.
3. Then remains the charge of rioting, that is to Say, the first count in the charge. The common object is stated in the charge to be to prevent Kailasam Chetti and his men from harvesting groundnut crops from R.S. No. 442-2, the field in their possession and to cause hurt to Kailasam Chetti and his men. As regards the latter, namely the object of causing hurt, nothing is said in the judgment of the learned Sessions Judge. As a matter of fact he does not find that this common object has been proved. There is a reference to the other common object,, namely of preventing by force the harvest of the crop. As regards this point however the learned Sessions Judge in his otherwise careful judgment fails to consider the question adequately. He merely observes as follows:
There can be little doubt on the evidence that a large crowd of 40 to 50 persons marched on the morning of 21st December 1936 from Chokkalingapuram to the field with the common object of preventing by force its harvest by Kailasam and his men and that the rioters were armed with weapons like spears, aruvals and sticks.
4. Nowhere has he given reasons for this conclusion, namely that the common object was to prevent by force the harvest of the crop by Kailasam Chetti and his men. Assuming however that the evidence supports this finding, it remains to be seen whether its common object can be regarded as an object which will render the assembly an unlawful one. It cannot be said that preventing by force the harvest of one's own groundnut crop is an unlawful object, and if in this case the groundnut crop belonged to accused 2 and 5, it is obvious that the preventing of the harvesting of such crop by persons who had no right whatever to it was not unlawful and could not be unlawful. This is not a case of maintaining a particular right by force but of preventing the commission of an offence like theft or mischief which was threatened. It is enough in this connexion to refer to In re Veerabadra Pillai A.I.R. (1927) Mad. 986, where it was held that where five or more persons assemble for maintaining by force a right which they bona fide believe they possess and not for enforcing by such force or show of force a right or supposed right of theirs, they do not constitute an unlawful assembly. The present case is more or less similar to Pachkauri v. Queen-Empress (1897) 24 Cal. 686 with this difference, namely that in this case Kailasam Chetti and his party were actually on the land before the accused's party could prevent the harvesting of the crop. This does not however make any difference if the crop really belonged to the accused's party. The mere fact that the party which had no right was able to get on the land a few minutes before the rightful owners could get to the spot for protecting their crop could not make their entry otherwise than unlawful and would not make the defenders other than persons acting in lawful exercise of their right. The taking of possession in these circumstances would not confer any legal right : it would not be possession in the eye of the law. As observed by Mayne, relying on Browne v. Dawson 113 E.R. 950, a mere trespasser cannot obtain what is known in law as possession by an act of entry or by the continuance of that act so long as the act is disputed and resisted (Mayne's Criminal Law of India, 4th Edn., page 738). It was therefore absolutely necessary in this case to determine to whom the crop belonged, and incidentally to determine in whose possession the land was prior to the occurrence, because that would assist the determination of the ownership of the crop. On this point the learned Sessions Judge's observations are somewhat halting. In one place he says:
It may be possible, but I express no definite opinion on this subject, that the original lease (Ex. O) by Ramalingam in favour of Kailasam and two others was a nominal or colourable document as contended by accused 2 and 5, and it may be that even after the lease Ramalingam dealt with some of the properties as if they were his own and that after his death his heirs - accused 2 and 5 - asserted the absence of any title in Kailasam Chetti.
5. He leaves the matter there remarking that all this relates to a civil dispute between the parties and has nothing to do with the question now before us, and it is surprising that the learned Sessions Judge should have gone the length of saying that this is a civil dispute which has nothing to do with the question before him. It had everything to do with the case before him, and it was his duty to determine whether as a matter of fact, as contended by the accused, the land was in their possession and the crop belonged to them, because if that contention were made out, there could be no conviction even for rioting. This is not a case in which the dispute relates to mere possession of land, but it relates to the ownership of the crop, and it is not unlawful for a person to protect his own property from theft or mischief. It may be that, where there is a dispute relating to possession alone and one party by force or show of force attempts to obtain possession from another who has already got possession, or at least is in the land, the case is different. It is not necessary for the purpose of this case for me to decide whether in such a case the employment of force by five or more persons with such object would not amount to an offence, and that is not the case here. We are dealing with a case in which one party alleges that it was acting in the exercise of its rights to property, that is to say, in defending such property from theft or mischief. For instance, if a person were told that certain unauthorized persons had broken into his house and were taking away his property or damaging it, there would be nothing unlawful in his collecting his friends and arming them for the purpose of repelling the invaders. The present case is one comparable to this, and it is therefore a matter for regret that the learned Sessions Judge did not think it was for him to decide whether or not the accused's claim to ownership of the crop in question was made out. Looking at the evidence myself, I may mention that the accused's contention appears to be justified by the evidence of the Village Munsif who appears to me to be one of the few disinterested witnesses. He says that even after Ramalinga's lease in favour of Kailasam Chetti and two others, Ramalinga continued to be in possession till his death. This shows that Ramalinga regarded the lease as not binding on him and retained possession of the land in spite of it. It follows, that Kailasam Chetti could not have obtained possession at least during Ramalinga's lifetime, though his case is that he got possession under the lease itself, and it is not his case that after Ramalinga's death he got into possession. This case therefore that he got possession under the lease cannot be true. Ramalinga was in possession according to the Village Munsif till his death and was paying the kist. It was only after his death that disputes arose according to the Village Munsif and both the parties paid the kist. The evidence in support of the allegation that the crop was raised by Kailasam Chetti's tenants is not entitled to credence. The learned Judge remarks in para. 17 of his judgment that
though it was argued on behalf of the accused that possession of the field was with the accused and that it was Kuppan the farm servant of accused that had raised the groundnut crop on the field, and that the aggression was on the part of the prosecution party in driving Kuppan away from the field and that when he was gathering the crop, think we can safely say that this is not correct and that the prosecution case about the groundnut crop having been raised by P.Ws. 14 and 23 under sub lease from Kailasam Chetti is more probably true.
6. Here again the learned Sessions Judge has not given any particular reasons for coming to the conclusion that it could be safely said that the accused's version is not correct, and that the prosecution case is more probably true. In any case a conviction must rest on something more substantial than a mere probability. It is impossible to say in this case that the accused's contention is not true or that the prosecution case has been established so far as possession of the land and the ownership of the crop are concerned. It must therefore be held that the prosecution has failed in this case to establish that the accused were animated by a common object which was unlawful. The charge of rioting must therefore be held to have been not established by the prosecution in this case. The appeal therefore succeeds. The convictions and sentences of the appellants are set aside and they are acquitted. They are also discharged from their bail bonds.