JUDGMENT

1. This was a Rule calling on the District Magistrate of Shahabad to show cause why the conviction under sec. 148 should not be set aside on the ground that the Additional Sessions Judge has found that the common object is not proved and why the conviction under sec. 323 should not be set aside on the ground that the finding of the Additional Sessions Judge that the crops were not in danger of being looted is opposed to the other findings in his judgment. The Petitioners were convicted by the Deputy Magistrate of Arrah on charges of rioting, hunt and grievous hurt, some under one and some under all the sections relating to those offences. What led to the riot was a dispute in respect of possession of a plot of land admittedly belonging to one Musstt. Chulachan Koer. The party of the complainant allege that they had received settlement of the land from some relations of Musstt. Chulachan Koer: while the party of the accused allege that they had received settlement of the land from Chulachan Koer herself. The finding of the learned Additional Sessions Judge, after a careful survey of the evidence, comes to this that the party of the accused were in possession of the land, had grown the paddy and were entitled to harvest and remove the crops grown thereon. Such being the finding of the learned Additional Sessions Judge, the question for us to consider is whether a charge under sec. 148 can stand.

2. The explanation of the District Magistrate has been read to us and the learned Magistrate admits that on such findings of the Judge, the conviction of the accused under sec. 148 is not sustainable. But the Magistrate contends that the findings of the Judge are not in accordance with the weight of evidence. The ground of his saying so has been set out in the explanation that he has submitted to this Court and we are not prepared to say that the grounds urged by him have no substance. But when it comes to a question of appreciation of evidence, different views may be taken by different persons. We here have to recognise the findings of the learned Judge as having been arrived at after a careful and full consideration of the evidence which he had on the record before him We are therefore not disposed to go behind the finding of the learned Judge, and proceeding on those findings, we have to hold that the conviction under sec. 148 cannot stand.

3. The next question to which we have to direct our attention is the conviction of the accused under sec. 323, I. P. C.- that is, in reference to the exercise of their right of private defence. So far as the right of private defence is concerned, we are not prepared to hold that they exceeded that right in the circumstances of this case by causing hurt such as they did, for which they have been charged under sec. 323 and convicted thereunder. But the conviction of Sukul Ahir under sec. 326, I. P. C, stands on a different footing. It appears that he was armed with a garansa and caused such bodily injuries to one of the party of the complainant as to have brought him under a charge of causing grievous hurt with a sharp instrument. The Petitioner, Sukul Ahir, has not shown sufficient justification for his using grains and has not established his right of private defense to such an extent as to cause grievous hurt with a sharp cutting instrument. Under the circumstances, we have got to hold that the conviction of Sakal Ahir under sec. 326 is correct and. the sentence passed on him has to bereft untouched.

4. The Rule therefore is; made absolute in respect of all the Petitioners except Sakal Ahir who must undergo the sentence passed on him under sec. 326, I. P. C. Any sentence passed on him under sec. 148 is set aside.

5. All the Petitioners, with the exception of Sakal Ahir, will be discharged from their bail. Sakal Ahir must surrender to his bail and undergo the remaining period of the sentence passed on him. The conviction of the Petitioners under the rioting section having been set aside the con