ORDER

Bennet, J. - This is a reference by the learned Sessions Judge of Ghazipur recommending that the conviction of the three applicants under S. 336, I.P.C., and sentence of fines of Rs. 30 each should be set aside. The learned Sessions Judge is under the impression that the acts found would not amount to the offence mentioned in S. 336, I.P.C. He does not consider whether they would amount to an offence under any other section He does not definitely state an opinion as to whether, he considered that the finding of fact of the Magistrate was correct or not. The circumstances of the case are that Joganand Pandey, complainant, made a report on 8tb March at 8.30a.m. that the four accused persons at about 9-30p.m., including the three applicants, had thrown bricks into his house from enmity, that several bricks had been thrown in, and that ho had gone out of his house and had seen the accused standing with bricks in their hands outside his house, and that the accused had raised their hands to throw bricks. The complainant shouted, and three witnesses came up and saw the accused, and the accused ran away. The names of the witnesses were given in the first information report, and these three witnesses gave evidence before the Magistrate, and it is not shown or alleged that these witnesses bad any personal enmity against the accused. There was no undue delay in the first information report, as distance from the thana was six miles, and it was not likely that the complainant would go at night to make this report. The police prosecuted the case. The defence was that there was enmity between the complainant and the accused. This of course is admitted, and such enmity may either be a cause for a false case or a motive for the act alleged. About the prosecution witnesses the plea merely is that they were disciples and friends of the complainant, and there fore gave evidence. Five defence witnesses were produced, but they proved nothing of weight for the defence. The Magistrate wrote a long and careful judgment and convicted the accused, giving to one the benefit of the doubt as he was a young boy. The only grounds which the learned Sessions Judge mentions in favour of the defence are that the three accused are old men, two of them being 60 and one 52. The learned counsel for the defence produced in this Court one of these men who stated that he was an ordinary cultivator, and he certainly did not appear to he physically unfit to throw a brick. The Sessions Judge further stated that the three prosecution witnesses were casual witnesses, hut he did not explain what he meant by this statement, and they are not casual in the sense that they come from a distance as they reside near the house of the complainant. No other reason is given for doubting the correctness of the prosecution story, and I see no reason to upset the finding of the Magistrate on the facts. I therefore consider that the facts found by the Magistrate are correct.

2. The next question is what is the correct law on the subject. The learned Sessions Judge referred to two rulings. In Gaya Prasad Vs. Emperor, AIR 1928 All 745 there was a case where a pujari left his temple at midnight and threw bricks into it in the hope that the Hindus believing that the bricks came from the Mahomedan quarter would get enraged, and there would be a Hindu-Moslem not, and it was found that nobody was hit. Under these circumstances a learned single Judge of this Court held that the applicant could not he convicted under S. 336, I.P.C., because his act was neither rash nor negligent but deliberate, and S. 153, I. P. C, did not apply, because it could not be said that his act was illegal. The learned Sessions Judge fails to notice that the facts of that case are entirely different, because in that case the accused had thrown bricks into his own temple, whereas in the present case the accused threw bricks into the house, of another person who did not consent to that operation. Further there was no s