1. The appellants have been convicted of rioting by the Sessions Judge concurring generally with the assessors.
2. The case is a difficult one in some respects. There is no doubt that there was an affray between the Nadars and Thevars and that all the appellants were members of the assembly of Nadars, which formed one party to the affray, and there is no reason to doubt that the affray arose out of the interference by the Thevars with a number of Nadars engaged in demolishing a house, the title to which was in dispute between the two castes.
3. The Sessions Judge finds it impossible to accept as true either the account put before him of the occurrence, and it is clear that the prosecution witnesses cannot be telling the whole truth when they deny that their party inflicted injuries on the Nadars. If what appears to be the case for the Crown is the true case, that is to say, that the Police officers were not present when the affray commenced, then, the prosecution evidence is untrue also on the important questions of the origin of the riot. On this point, the observations of the Sessions Judge, in paragraph 13 of his judgment, seem to me to be entirely justified.
4. On the other hand, the story told by the accused is equally incredible as pointed out by the Sessions Judge, and is not supported in this case by any evidence of great value.
5. In these circumstances, the Sessions Judge has declined to accept the direct evidence as to details and has decided the case generally on the undoubted circumstances and it is difficult to say that he is wrong. I have been taken through all the evidence, and it is clearly open to all objections taken to it by him. He finds on the circumstantial evidence that,
(1) the Nadars, more than five in number, were engaged peaceably in demolishing a house, the title to which was in dispute, but possession of which was with their tenants, at that time they were not an unlawful assembly;
(2) they were interrupted by the Thevars, who endeavoured to prevent them from continuing the demolition of the house and who probably attacked them;
(3) they used force to the Thevars in order to enable themselves to continue their work in the house
6. Counsel for the appellants accepts the finding and argues on them that the Nadars should have been acquitted as having used force only in repelling an attack upon themselves, that is to say, they are protected by the Law of Private Defence.
7. The Sessions Judge, it is contended with some reason, states the law incorrectly when he says that no right of private defence exists. If Nadars were not an unlawful assembly when demolishing the house, they would he entitled to a right of private defence, if attacked. The Sessions Judge is not clear on the question when the Nadars became an unlawful assembly. On the statements that the house was in disrepair and required to be pulled down, statements which are uncontradicted by any prosecution evidence, I think it must be held that they were not an unlawful assembly before the Thevars came up.
8. Then rejecting the prosecution evidence that the Nadars then attacked the Thevars at the instigation of the Police, it may be right to hold that the Thevars were the aggressors in the sense that they first used the force. In that case, all that is clear is, that force was repelled by force on the part of the Nadais and injuries were suffered on both sides. Now the story of the Nadars is, that they did not use force at all, but the Thevars fought some of their own caste employed by them (the Nadars) but this is improbable, and I am not asked to accept its as true,
9. It is not then their case anywhere that they used force in their own defence, and there is no evidence to show that force was necessary to repel the attack. It is for the person who relies on the right of private defence to prove that he is within the exception, though the right was not alleged as a defence. I should still, if the circumstances made it clear that the Nadars did not use more force than was necessary to defend themselves, be prepared to acquit them on that ground but so far as I can see there are no circumstances in the case which should warrant me in taking this view of the appellant's conduct. I, therefore, confirm the conviction and sentences, and dismiss this appeal.