Ghose and Gordon, JJ.
1. The appellants before us, Pachkauri and Jodha Singh, have been convicted by the Sessions Judge of Gya of the offences under Sections 147, 149 and 325 of the Penal Code, namely, that they were members of an unlawful assembly; that force and violence were used in the prosecution of the common object of that assembly; and that grievous hurt was caused to some one or other of that party of the complainant in furtherance of that common object. And each of them has been sentenced to one year's rigorous imprisonment.
2. It appears that there was a dispute between two parties, described as the.& Babhuns and Mahomedans, about certain lands; but it is found by the Sessions Judge that the Mahomedans obtained possession five or six years ago, and continued to be in peaceful possession until, at any rate, October 1895. The case for the prosecution, however, is that in execution of a rent decree (ex parte) obtained against a third party, the complainant's employer purchased the land, and obtained possession in September 1895; and that on the 4th July last, they (the Babhuns) were engaged in ploughing the fields, when the accused, with a large number of armed men, came and attacked them; the result of such attack being that a man belonging to their party, namely, Dipa Singh, was grievously hurt, and that he died in consequence thereof four days afterwards. This case is distinctly denied by the accused, who say that their party (the Mahomedans), notwithstanding the sale that took place, continued in possession of the property, and they were lawfully engaged in ploughing the lands when the complainant's party came in and attacked them; and, that in the course of the tussle which took place between the parties, Dipa Singh was hurt, and two men belonging to their side were similarly hurt. We have already said that the learned Sessions Judge has found that the party of the accused (the Mahomedans) obtained possession of the property five or six years ago, and continued in such possession; and we might now state that that officer has disbelieved the evidence adduced for the prosecution which was to the effect that they obtained de facto possession the property in September 1895, that they sowed nowaj-dhan a few days before, and were lawfully engaged in ploughing the fields on the date of the occurrence. The learned Sessions Judge, no doubt, in one part of his judgment, throws out certain observations which would seem to indicate that he was inclined to believe that Dipa Singh had ploughed the land, but he says at the same time that there is no evidence thereof. We may therefore take it, upon the findings come to by the Sessions Judge himself in this case, that the complainant's party never obtained actual possession of the land; and we think we may well infer from the fact of the party of the accused being in possession in October 1895, that they continued in such possession until the date of this occurrence.
3. We observe that the learned Sessions Judge has further disbelieved the evidence for the prosecution, in so far as that evidence sought to prove that the complainant's party, who, on the day of the occurrence went to the land, were only four in number. He seems to hold, if we understand him rightly, that there was an unlawful assembly on the part of the complainant, as also on the part of the accused, each party attempting to enforce some right, or supposed right in the property. But we fail to see how that position can be maintained so far as the party of the accused were concerned, if, as we hold, and as we take it, the learned Sessions Judge has in effect held, that the latter had been in possession of the property for five or six years together, and was in lawful possession of it up to the date of the occurrence. We are unable to say that the accused were upon that date endeavouring to enforce a right, or supposed right, within the meaning of Section 143 of the Penal Code. It would seem (and that is what we understand the Sessions Judge's view of the evidence to be) that the party of the accused had become aware that the complainant's party wanted to take forcible possession of the land; and that, in order to protect themselves from the aggression of the complainant, they collected a large number of men, some of them being armed, and went through the village to the land in question, and while they were there actually engaged in ploughing the land, the Babhuns came up also armed (some of them) and interfered with the ploughing, and this evidently resulted in a fight between the parties, and the consequence was that Dipa on one side was grievously wounded, while two men on the side of the Mahomedans were hurt. It seems to us that, if the party of the accused were rightfully in possession of the land on the date in question, and if they, found it necessary to protect themselves from aggression on the part of the complainant's party, they were justified in taking such precautions as they thought were required, and we think that in doing so they could not rightly be held to be members of an unlawful assembly. The view that we adopt in this case is supported by the cases of Queen-Empress v. Narsang Pathabhai I.L.R. 14 Bom. 441 of Birjoo Singh v. Khub Lall 19 W. R. Cr. 66 and of Shunkur Singh v. Burmah Mahto 23 W. R. Cr. 25. And we might say that the facts of the case of Ganouri Lal Das v. Queen-Empress I.L.R. 16 Cal. 206 are distinguishable from those in the present case.
4. Turning then to the conduct of the two appellants before us, it appears that, as far as Pachkauri is concerned, there is no evidence upon the record to show that he used any force or violence, or made any attack upon the complainant's party; and as regards Jodha Singh all that the evidence indicates is that he had a lathi in his hand, and that he struck Dipa Singh with the lathi. But it does not appear that he inflicted the fatal blow. Therefore, so far as the first-mentioned appellant is concerned, we do not see how he could be convicted of any offence in this case; and as to the other appellant, Jodha Singh, if the fact be that the complainant's party were the aggressors, he was entitled in the exercise of his right of private defence of property to use such force or violence as was necessary to prevent the aggression; and it does not appear that he used more violence than was necessary on this occasion.
5. Upon these grounds we think that the conviction and sentence must be set aside.