RAMASWAMI ALIAS DURAIYYA SEMBIMUTHARASU Vs. EMPEROR

JUDGEMENT

(1.) IT is always desirable that when there are cases and cross-cases the appeals arising from such cases should ha posted before and tried by the same Bench. However, this appeal having come up before me, I am bound to deal with it on the evidence on the record, and on that evidence I have no hesitation in holding that the appellants have not been proved to be guilty of the offences for the commission of which they have been convicted and sentenced. The offences charged were rioting, rioting with deadly weapons and causing hurt and grievous hurt. The dispute was between the Kallars and Pallars of Shoroi Kudipatti. The Kallars who were larger in number and considerably more influential than the Pallars had been making arrangement for the purpose of catching fish in the Oorani with the help of certain Muhammadans from Trichinopoly. The Pallars were objecting to it. The evidence that is accepted by the learned Sessions Judge really is the evidence of the disinterested witnesses, namely, P.Ws. 3, 4, 5 and 6. Taking their evidence and the finding of the Sessions Judge thereon, there can be no doubt as to what took place. There was an attempt at mediation by the mediators with the Kallars in the village. The Kallars would not have it and they then proceeded in large numbers armed to the Oorani. The mediators followed them. While passing to the Oorani they had necessarily to pass through; the place where the Pallars were residing. After arriving at the Oorani the attempt at mediation was again renewed. IT was again rejected by the Kallars. At that time there were about 20 or 30 Pallars seated about 200 or 300 yards away; and the story that the learned Sessions Judge accepts is that the Kallars after the mediation fell through, ran towards the Pallars, surrounded them and attacked them. The Pallars naturally in self-defence inflicted injuries on several Kallars. On those facts the question is whether the conviction of these appellants for the offences of rioting, and causing hurt of various kinds can be sustained, for the purpose of establishing the offence of unlawful assembly which is a necessary element in the offence of rioting it must be established that the unlawful assembly had a common object by means of criminal force or show of criminal force of doing any of the various things mentioned in Section 141, I.P.C. All that could reasonably be inferred from the mere fact of the 20 or 30 Pallars having assembled at that distance from the Oorani and possibly also from the fact that some of them having sticks in their possession is that their intention was to prevent if possible the fishing by the Kallars. But that alone would not be sufficient to establish that their intention was to accomplish it by the use of criminal force. IT has been held in Queen-Empress v. Pellimuthu Thevan (1901) 24 Mad. 124 that the mere fact that a crowd of 100 persons including the accused had assembled together armed with billhooks and sticks would not be sufficient to support the inference that their common intention was to use criminal force or to commit any other offence. In the circumstances of this case it is just possible that seeing that the Kallars were proceeding towards the Oorani armed with weapons, some of the Pallars took sticks with them for purposes of self-defence in case of any unpremeditated attack by the Kallars in the course of any mediation or parley. The common intention of au unlawful assembly to use criminal force must be established as a fact by legal evidence. There is in this case, apart from the fact of this group of 20 or 30 Palla,'s assembling, some of them with sticks, no evidence which goes to show that their common object was to use criminal force. IT is also very significant that there is no evidence whatever that, after the mediation fell through, there was any communication from the leaders of the Pallar party near the Oorani to the Kallars seated at a distance. All that happens is a sudden attack by the Kallars. In that attack the Pallars were undoubtedly entitled to defend themselves in the manner and to the extent they did. No common criminal intention having been established with regard to this assembly of Pallars I cannot hold that they were members of an unlawful assembly or that they wore guilty of the offence of rioting, much less, of rioting armed with deadly weapons.

(2.) SO far as hurt and grievous hurt caused by thorn are concerned, it is clear that they were caused in the course of their defending themselves against the sudden and virulent attack by a much larger body of Kallars from the Oorani and I cannot possibly hold that the Pallars were not entitled to defend themselves or in the course of defending themselves, to inflict such injuries as they did inflict on the attacking Kallars. I must also add that the evidence with regard to the Pallars having possessed themselves of sticks is very meagre and unreliable; and as the learned vakil for the appellants suggested, it is quite possible that, in the course of the attack, some of the Pallars wrested the sticks which some of the Kallars had in their possession and inflicted injuries with them. In the result I think the conviction of the accused appellants by the lower Court was wrong. I set it aside and direct that they be acquitted. The bail bonds executed by them will be discharged.