1. After re-hearing the appeal the Deputy Magistrate has acquitted the appellants on the charges of house-trespass and mischief for the acts alleged to have been committed during the second stage of the disturbance.
2. He has confirmed the conviction of the present petitioners on the charges of rioting and voluntarily causing simple hurt for the acts alleged to have been committed during the first part of the occurrence, namely, when the car was being taken in procession through the streets and when the Ambalagars were carrying 'sevalai kalis' in front of the ear.
3. He draws the inference that the Ambalagars intended to commit rioting because the carrying of these bamboo sticks, which are said to be used for catching flower balls, was unprecedented on the occasion of the festival and was objected to by the Pallars. He adds: 'To explain it still further, these sticks have been in the end the cause of the rioting, for it was the use of those sticks that was remonstrated (sic) by the Pallars and the obstinate attitude of the appellants in refusing to lay down the sticks that led to the riot.' The Second Glass Magistrate expressed his views in this way: 'The Ambalagars (accused) have not gone to the Village Munsif or to the Police Station, which is close by, to represent the apprehended disturbance. The accused have on the other hand taken the law into their own hands. In the first place, the accused should not have taken the 'sevalai kalis' in the face of the evidence tendered on their behalf that at a previous festival the sticks were wrested from their hands by the then Village Munsif as it foreboded rioting. They have committed this initial error. Secondly, the accused, knowing that the Pallars are stoutly opposing this procedure, should have lost no time to seek the help of the Police and Magistracy, who are in close vicinity, to prevent the disturbance.'
4. this Court has already pointed out in In re Mukka Muthiriyan 31 Ind. Cas. 337 that ordinarily there would be no presumption that the mere carrying of sevalai kalis' would be unlawful.
5. In itself it was a perfectly lawful act although it may have been resented by the Pallars as against 'mamul' and as an infringement of their rights. An assembly lawful in itself does not become unlawful merely by reason of its lawful acts exciting others to do unlawful acts vide Beatty v. Gillbanks 9 Q.B.D. 308.
6. Of course, if the Ambalagars used their sevalai kalis to make an unprovoked attack on the Pallars, the assembly, lawful in its origin, would have become at once an unlawful one. But the Deputy Magistrate has not found that these accused were the aggressors. He says it is not necessary to decide which party was the aggressor and how the riot actually arose. In his opinion, 'these points need no consideration in a disturbance of this kind where both the parties have been accused of rioting.' In this he is mistaken. The defence let in evidence to prove that while the accused were peacefully carrying the sevalai kalis, a large body of Pallars with sticks set upon them and beat and wounded them. The truth of this story has not been determined. At any rate there is no finding that it is false.
7. It was held in Kunja Bhuniya v. Emperor 15 Ind. Cas. 481: 16 C.W.N. 1053 : 13 Cri. L.J. 481. that an assembly of persons lawfully exercising their lawful rights would not become an unlawful assembly by repelling an attack made on them by persons who had no right to obstruct them, nor by exceeding the lawful use of their right of private defence.
8. Individuals would doubtless be liable for particular acts of hurt committed by them, which they failed to justify as done in self-defence, but here the Magistrates have not found any of the petitioners guilty of causing hurt, except Constructively.
9. The convictions are, therefore, set aside. The fines imposed on the petitioners will be refunded.