JUDGMENT

1. The appellants in this case have all been convicted of rioting u/s 147 of the Indian Penal Code, and of culpable homicide not amounting to murder u/s 304 read with Section 149. There is no doubt that there was a riot on the 8th March 1909, the day alleged, and that the accused were concerned in it, and there is not much doubt that Amiruddi the deceased man was killed in the course of it, but the first question to which we will direct our attention is whether it has been proved that the appellants took part in an unlawful assembly, since if that is not done the case against them has no foundation. The case put forward by the prosecution was as follows: There was a dispute between two bodies of zemindars as to some homestead land in the village of ITjanibari. The complainant's party had been in possession of part of it for rather more than a year before the date of the riot, and were then turned out of it by Banga, the first appellant, and his party. They brought a suit u/s 9 of the Specific Relief Act, 1877, and obtained a possessory decree, by force of which they turned Banga out of possession on the 28th February, and themselves took possession. The accused then came in force and turned them out on the occasion when, as we have said, a riot, no doubt, took place. This all happened in relation to the homestead of Amiruddi, the deceased, and it is in respect of the attack on his homestead that the charge in the present case is laid. There was, however, it is alleged, a similar attack on the bari of Mathura Dutt, which is situated next to Amiruddi's, and the former is said to have been dispossessed and to have reinstated himself in the same way that Amiruddi was and did. Though the attack cm the two baries may be distinguished for legal purposes, it really constituted one transaction, and evidence of what occurred in relation to Mathura's bari is, of course, evidence in this case. Now the curious feature of this appeal is that the appellants accept all the facts found by the Judge so far as they depend on the credit of the witnesses : And they may well do so, for the learned Sessions Judge finds that the story told by the witnesses for the prosecution as to Amiruddi and Mathura having been put into possession under the possessory decrees obtained by them is false, and that the appellants' party were never put out of possession, but were in actual possession on the day of the riot. Having gone carefully through the record, we quite agree with the Judge in the conclusions he has come to on the matters we have mentioned. After coming to those conclusions, however, he goes on to point out that there was certainly a riot, which no doubt there was, and, in his own words, "that one of two things happened, viz., either (1) that both sides deliberately collected men and there was a free fight resulting in the complainant's side being repulsed and in Amiruddi being killed, or (2) that there was not one riot but two riots, and that the decree-holders first went at dawn with an armed mob and drove out the judgment-debtors and demolished their houses and that subsequently the latter assembling in still lager numbers (their baries being only half a mile off) attacked the other side, re-captured the baries and killed Amiruddi by way of revenge." The second view is the one which commends itself to the Judge. As to it we need only say that it is quite unsupported by evidence, that is by evidence which does not seem to be equally consistent with the first, that no such story was ever put forward by the prosecution, and that it was never suggested to the appellants that this was a case they had to answer. It, no doubt, often happens that the Court may consider that the story told by the prosecution is false in some of its details, but is nevertheless sufficient to prove the guilt of the accused; but such a change in the case as the Judge makes by putting forward his second alternative is not one that can be justified in the present case