W. Comer Petheram, C.J. and Rampini, J.
1. The accused in this case have been convicted under the provisions Sections 143 and 379 of the Penal Code and sentenced, the principal accused, Ra Brahma Sircar, to six months, and the remaining six accused to five mont, rigorous imprisonment.
2. The facts of the case are as follows:-The complainant) Ohandra Kanta Shah is a trader, and on the 12th March last he wished to send certain bags of linseed from Boalia, where he lived, to Calcutta. He engaged some carts to j convey his bags, and on the morning of the day of the occurrence he sent twenty bags of linseed across the river, on the west bank of which resided, to the east bank where the carts, which were to convety his goods and those of another trader, were collected. The complainant says, that on the evening of the day before the occurrence ' the nabi's master, Mani Babu (that is, the. master of the principal accused Ram Brahma Sircar) had demanded a larger nazar than Rs. 2 from us. Rs. 2 had been taken, but the nib had said he would levy Rs. 2 from every shopkeeper in the bazar. I would not pay the two rupees, and in the evening of that day he sent some men to take me to cutcherry. This was the day before the day of the occurrence.' On the following morning, according to the complainant, after his twenty sacks of linseed had been taken! across the river, AH Sheikh, a barkandaz, and one of the accused, came from Ram Brahma's cutcherry to the east bank and then went away. He than came back and called the ferryman Madhu Patni and two of the cartmen, who had been assisting the coolies in loading the carts, to the accused's arat which is on the west bank of the river. The complainant followed them there, upon which the accused Ram Brahma said to the ferryman, 'you must not take the goods of Ohandra Shah and Godadhar Shah across the river,' and to the cartmen, ' you must not bring your carts on my land, take them away and be off.' The ferryman then said he would not take any more of the complainant's bags of linseed across the river. The naib Ram Brahma and two others then went to the hat, crossed in the ferryboat to the east side, and told the barkandaz Ali Sheikh, to take the carts, which were loaded with the complainant's bags of linseed, to the cutcherry, which, according to the witness Umed Sheikh, is on the east side of the river. On Ram Brahma's ordering the carts to be taken to the cutcherry, Ali barkandaz said, 'I cannot take them alone.' .The naib then said, ' bring the barkandaz es and halsanas from the cutcherry.' Ali Sheikh accordingly went to the cutcherry, and returned with the other accused and others, about five or seven in number, and took away all the carts that were there in spite of the remonstrances of the cartmen. Subsequently the complainant complained at the,thannah, and the Sub-Inspector of Police came and found fourteen carts near the cutcherrry. They were, he says, ' not at the place where carts usually stand on the side of the ghat,' but they were on or near the road leading to Alumdanga. Some nine sacks of linseed were found on the carts, and some 61 sacks were found on the west bank of the river. The complainant admits that he recovered these nine sacks, of linseed found by the Sub-Inspector. He does not say explicitly whether or not he got' back the remaining thirteen sacks out of the twenty that had been taken to the east bank, but the cartman Umed Sheikh says that the sacks taken away with the carts have not been recovered.'
3. Now, on these facts the Assistant Magistrate convicted the accused of theft and rioting. The District Magistrate on appeal affirmed the conviction under Section 379, but altered the conviction of rioting into one of unlawful assembly under Section 143.
4. Mr. Ghose, on behalf of the appellants, has argued that the conviction under neither section can be sustained, inasmuch as the accused had no intention of taking possession of the bags of linseed, or of doing anything unlawful. They merely desired, he contends, to remove the carts from the land of the accused's master, where they were being loaded without his permission.
5. We have examined the evidence in this case with care, and on the whole we do not think that there is sufficient evidence to show that the accused wished to take the goods of the complainant out of his possession and into their own. There is no evidence to show that they have had anything to do with the disappearance of the bags of linseed which have not been recovered. The fact that the Sub-Inspector of Police found nine bags of linseed still loaded on the carts shows that she accused had no wish to retain possession of these bags. We think we may therefore acquit them of the offence of theft, of which they have bean convicted; but we think the conviction of the offence of unlawful assembly should be sustained. The accused clearly assembled to prevent the complainant and his cartmen doing what they were legally entitled to do, viz., to take the carts of linseed along the road to Alumdanga and Calcutta. Mr. Ghose has told us that this road is a public one. Why they acted in this way is not so apparent. It may be inferred that they did so because the complainant had not paid the extra Rs. 2 which had been demanded from him the previous evening. However, this may be, after his goods had been taken across the ferry and loaded on the carts on the east bank, the accused had no right to stop the carts from going along the public road for any reason, and the accused, when they assembled armed with lathies (as according to the witness Banko Behari they were) and seized and moved the carts as they did, had undoubtedly a common object of an unlawful nature. We therefore think the conviction under Section 143 of the Penal Code must be sustained.
6. We, however, consider that the sentence passed in this case is unduly and unnecessarily severe, and would have been so, even if the accused had been properly convicted of theft. We are told the accused have undergone about sixteen days rigorous imprisonment. We think this is sufficient for the requirements of justice in this case, and we will reduce the sentence accordingly.
7. We must, before concluding, allude to an observation made by the District Magistrate in his letter of explanation with regard to this case. He has said that this Court in revision has only to determine questions of law and has no jurisdiction to determine questions of fact. He cites a case In the matter of the petition of Debi Chum Biswas 20 W.R. Cr. 40 in support of this observation. This case, however, was decided under the old Criminal Procedure Code, Act X of 1872, the provisions of Sections 294 and 297 of which were different from those of Section 439 of the present Code. The powers of this Court to consider the facts of a case in revision are apparent from the terms of the section, and this has been held in numerous decisions of this Court. We may cite the passage at p. 618 of the case of Hari Dass Sanyal v. Saritulla I.L.R. 15 Cal. 608 as explicitly dealing with this question.
8. For these reasons, then, we set aside the conviction of the accused under Section 379 of the Penal Code. We affirm their conviction under Section 143, and we reduce the sentence of imprisonment passed on them to such period as they may have already undergone.