Pandrang Row, J.
1. This is an appeal from the judgment of the Sessions Judge of Tinnevelly dated 30th July 1938 convicting the appellants, 13 in number, of an offence punishable under Section 148, I.P.C., that is rioting armed with a deadly weapon. There were a number of other charges also against the appellants but they were acquitted of these charges and it is not necessary to go into them. With the exception of accused 2 and 4 of whom accused 2 was sentenced to rigorous imprisonment for two years and a fine of Rs. 100 and accused 4 to rigorous imprisonment for one year, the remaining accused were sentenced to undergo rigorous imprisonment for 12 months and to pay a fine of Rs. 75. The charge of rioting against them was that on 20th October 1937 they formed themselves into an unlawful assembly with the common object of preventing by force one Thoondikaruppa Nadar and his party from ploughing their lands and that in prosecution of the said common object committed rioting at Kallurani armed with deadly weapons namely sticks, vel sticks, hatchets and aruvals. There can be no doubt that there was a fight between two parties, namely the appellants' party and the Nadars' party on 20th October 1937 in the morning. There is equally no doubt that the parties themselves went to the place. with the intention of fighting one another and several members of the general public appear also to have been aware of the impending fight and a fairly large party of spectators had gathered at the spot for the purpose of witnessing the fight. The dispute was about certain land which originally belonged to the 10th accused and which had been subsequently acquired in Court sale by Seeni Nadar whose sons are the deceased, Thoondikaruppa Nadar and P. Ws. 7 and 8. In the course of the fight two persons on the side of the Nadar's were killed and one on the side of the Naickers' 'party' that is, the appellants' party, and thereupon the fight came to an end. As I have mentioned already the charge of murder, culpable homicide, attempt to murder, and causing hurt have all resulted in acquittal and it is not necessary to go into the details which relate to those charges. The only conviction is under Section 148, I.P.C. and the question therefore is whether the prosecution has established first that there was rioting by all the appellants and whether they were all armed with deadly weapons at the time. So far as the latter portion of that case is concerned, there is no clear evidence to show that all the appellants were armed with deadly weapons.
2. The learned Sessions Judge in para. 17 of his judgment has given an analysis of the evidence in the case enclosing in brackets the witnesses and the exhibits which he considered to be defective and tainted with infirmity and which in his opinion were to be rejected on that account. He has given reasons for these conclusions and no attempt has been made on the side of the Crown to show that the analysis is wrong or that the learned Judge ought to have accepted any portion of the evidence which he has rejected. Unfortunately, the learned Sessions Judge when dealing with the evidence against certain of the accused has rejected the evidence of certain of the prosecution witnesses which however he has accepted so far as some other accused were concerned. This procedure of rejecting the evidence of certain witnesses, so far as certain accused are concerned and accepting it so far as others are concerned, cannot be upheld. A witness whose evidence has to be rejected so far as certain accused are concerned cannot safely be accepted or acted upon in the case of other accused. Adopting this principle the only oral evidence that is left which is not liable to rejection is that of P. Ws. 12 and 17. It is not necessary to devote much attention to the dying declarations referred to by the learned Judge because they have not been accepted as sufficient proof of the other charges. P. W. 12 was a witness whom the prosecution sought to treat as hostile, an attempt which' Was not permitted by the learned Judge. His evidence in his examination in chief itself does not show which of the appellants were armed with deadly weapons. He merely says as follows:
3. 'All the accused and some other persons were among those persons. They were armed with sticks, aruvals and vel sticks.' As to the actual infliction of hurt, etc, his. account is that 'some of the Naickers' beat Thoondikaruppa Nadar and 'some Naickers and Kudumbans' beat the deceased Sodalaimuthu Nadar.' In other words there is nothing in his evidence in chief to show that any particular appellant was armed with a deadly weapon. His evidence also clearly shows that the Nadar party had armed themselves even before the appellants arrived at the scene and that it was the Nadars who first threw stones the throwing of stones being the first event at the place of occurrence and the actual' fighting began only after the throwing of stones. P.W. 17 who is a Nadar no doubt says that accused 2 had a hatchet, accused 3 to 6 and 9 had vel sticks and the others had stones and sticks. According to him the first injury that was inflicted was by the deceased Sodalaimuthu Nadar on the deceased Vetturswami Naicker. In other words it was one of the appellants' party that was killed before the appellants' party did anything serious to any member of the opposite party. In any case, so far as the actual fighting is concerned, nothing turns on it in view of the acquittal of the appellants of the other charges. The only question that remains is whether all the appellants have been shown to have taken part in the rioting and if so whether they were all armed with deadly weapons at the time. As regards the first point, I am of opinion that there is sufficient evidence to show that all the accused did take part in the rioting. The evidence of P. Ws. 12 and 17 as well as the dying declarations and the fact that four of the appellants had injuries on their persons establish their presence among the rioters beyond doubt.
4. The next question as to whether all or any of them were armed with deadly weapons cannot be answered so easily because the evidence is very vague. As I have mentioned already, the only reliable oral evidence on the point is that of P.W. 17, and he says only accused 2 to 6 and 9 had deadly weapons without any description of the stones and sticks which the other appellants are said to have had; it is impossible to say they constitute deadly weapons. It is however admitted by P.W. 17 that he saw the whole fight from a distance of about 100 yards and it is not likely that he would have been in a position to notice carefully which appellants were armed with deadly weapons and which were not. I am of opinion that the possession of deadly weapons by any of the appellants has not been established satisfactorily. The conviction of the appellants must therefore be modified into one under Section 147, I.P.C. The appellants were apparently in custody for about 8 or 9 months before the trial in the Sessions Court was over. In these circumstances, I am of opinion that a sentence of six months' imprisonment is quite sufficient for the offence under Section 147, I.P.C. The sentences of the appellants are therefore reduced to rigorous imprisonment for six months. The fines, if paid, must be refunded to those who have paid them. The appellants must surrender to their bail and serve the remaining portions of their sentences.