Meredith, C.J:— We have to deal with a reference under Section 307 of the Cr PC made by the learned Sess. J., Patna, & also with an appeal by such of the accused as were convicted by the jury & in regard to whom the learned Judge accepted the verdict. The persons who are the subject-matter of the reference are Banwari Singh, Earn Naresh & Shyam Dutt Singh. The verdict of the jury was in every case a majority verdict of four to three. In the case of Banwari Singh, the jury found him guilty under Ss. 148 & 324, Penal Code. The Judge thinks that the verdict was right under S. 148, but wrong under S. 324. In the case of Earn Naresh Singh, the jury also found him guilty under Ss. 148 & 324 but the learned Judge thinks that there was no sufficient evidence of identification, & accordingly he should have been acquitted altogether. In the case of the third man, Shyam Dutt Singh, the jury found, him guilty only under S. 148, but for lack of satisfactory identification the Judge wants him also acquitted altogether.

2. The applts. are Awadhbehari Singh, Ramjatan Singh & Ramanuj Singh. Awadh Bihari was found guilty by the jury under S. 147, & the Judge, accepting that verdict, has convicted him & sentenced him to two years' rigorous imprisonment. The same applies to Ramanuj. In the case of Ramjatan, the verdict of the jury was guilty under Ss. 148 & 324. The Judge, accepting, it has convicted under both sections, & sentenced him under S. 148, to three years' rigorous imprisonment, & imposed no separate sentence under S. 324.

3. The case arose out of an occurrence which took place on 19-8-1948, at about 9 A.M in village Koraitha situated three quarters of a mile from the Bikram Police station, & the trouble arose over the cultivation of plot No. 1126 of the village. This was claimed by both par ties, Akura Singh (P.W 1) claiming it by a deed of gift from one Dila Kuer. The prosecution party examined several witnesses to prove their possession of the plot & also put in the judgment of a Munsif. It appears that some of the plots of Dila Kuer, though not 1126, had been acquired by the Govt. in connection with Bikram Aerodreme, & the compensation had been awarded to Akura Singh as donee from Dila Kuer. The accused Awadhbihari filed a suit claiming half the compensation on the ground of the record of rights which showed the joint possession, half & half, of Dila Kuer and Suraj in 1911, & he claimed a half share through Suraj Singh & subsequent partition. This suit had failed, & been dismissed. It was also established that some months before the occurrence there had been an order under Section 144 of the Cr PC, against Awadhbihari. The accused led no evidence of possession & merely put in a judgment of the appellate Ct. in which the decision of the Munsif had been modified, and Awadhbihari's claim to a half interest in the plats in suit (not 1126), had been accepted. This judgment, however, came into existence after the present occurrence. The learned Judge, both in his charge to the jury and in his letter of reference, pointed out that there were two different versions of what took place in the occurrence—one that of Akura Singh (P.W 1) & his witnesses Baiju Ram (P.W 2), Rajnandan (P.W 5) & Indrasan Singh (P.W 7) & the other the version of three police witnesses, an Assistant Sub. Inspector, (P.W 10) a constable (P.W 11) & a chaukidar, Khaderan Dusadh, (P.W 12) who were actually present, during the occurrence. The version of the first group of eye witnesses was that those four persons were uprooting paddy seedlings in their plot just on the north of plot 1126. The accused Awadhbihari, Banwari, Ram Jatan & Shyam Dutta came armed to the disputed plot with their ploughman Bifan Dusadh, who began to plough up the plot which was then fallow. Tarkeshwar (killed) sent P.W 5 to Akura Singh in order to inform him, & Akura then came to the place of occurrence & protested to Awadhbihari, who ordered him to be assaulted. Just then several helpers of the accused persons arrived. Tarkeshwar also protested. Thereupon accused Ramnaresh gave a bhala blow to Tarkeshwar in the chest, & accused Banwari gave him one garasa blow on the head, & another garasa blow which he stopped with his hand. Tarkeshwar went to a short distance to the east & fell down. Alakh Narain (P.W 6) was assaulted by several of the accused persons including Ram Naresh, Banwari & Shyam Dutt. Accused Ram Naresh & Ram Jatan gave bhala blows to Bindeshwari (also killed), & accused Harbans gave a bhala blow to Indrasan (P.W 7). After the assaults were over the accused persons field away. The injured persons were taken to the dispensary at Bikram where Tarkeshwar & Bindeshwari died an hour or two later after making dying declarations in the presence of a Sub-Registrar.

4. The version given by the police witnesses was that the chaukidar (P.W 12) gave information at about 8-10 A.M at the Police station that there was an apprehension of a breach of the peace between the two parties, & both were collecting men. The Sub-Inspector (P.W 13) then deputed the Assistant Sub-Inspector & the constable to go to the spot & try to prevent a breach of the peace. When they came to the spot, they found accused Awadhbihari Singh & five or six others already standing armed with lathis & bhalas on the eastern ridge of the disputed plot which was being ploughed on their behalf. P.W 10 began to make enquiries from. Awadhbihari, & just then Alakh Singh, Indrasan, Tarkeshwar, Bindeshwari & three or four others came armed with lathis from the northeast. It should be explained that adjoining the disputed plot on the east is the field of one Jagu Dhobi. When the prosecution party arrived on the eastern ridge & Jagu Dhobi's field, one of its members threw out a challenge. This challenge was accepted by Awadh Bihari's party & both parties then advanced towards each other & a free fight took place in the field of Jagu Dhobi. In the course of that fight, Tarkeshwar & Bindeshwari, Alakh & Indrasan received injuries. They remained at the place of occurrence, but all others of both parties field away. The constable & the Assistant Sub-Inspector did not see any body injured on the side of the accused, nor was it proved at the trial that any one on the side of the accused had received any injuries.

5. The learned Judge expressed the opinion that the eye witnesses of the first group had not given out a truthful version. P.W 1 had admitted before the police that the men of his party had lat his with them, & there was a, free fight, but he did not stick to his statement in Ct. P.W 2 admitted before the Sub-Inspector that Tarkeshwar, Bindeshwari Alakh Indrasan, Raaaanand & Akura came to the place of occurrence with lathis at the same time as the police did. Rajnandan (P.W 5) admitted before the police that his father & uncles were armed with lathis, & there was a free fight. He went back on that statement at the trial. According to these witnesses, the assaults took place on plot 1126, but the victims fell in Jagu Dhobi's field on the east. The Sub-Inspector found blood stains, a cut finger, a broken tooth, a lathi & some vomitted substance in Jagu Dhobi's field, & no blood stains in the disputed field, & there could be no doubt that the fight took place in Jagu Dhobi's field, as stated by the police witnesses. He mentions that he had taken all these circumstances into consideration. The learned Public Prosecutor stated before the Ct. that he would rely upon the second group of eye-witnesses (P.Ws 10, 11 & 12) & not upon the first group of eye witnesses, namely P.Ws 1, 2, 5 & 7.

6. It should be mentioned that there were charges also under S. 302 against Ram Naresh, & charges under S. 302 read with S. 149 against the rest. The jury acquitted upon those charges, & evidently the learned Judge agreed with their acquittal because he has not suggested in his letter of reference that there should have been any convictions other than those actually made by the jury under Ss. 148, 147 & 324.

7. Mr. S.N Sahay who has appeared for the applts. & also for the persons who are the subject of the reference, has strongly argued that there are misdirections in the charge vitiating the verdict, & therefore, the applts. should be acquitted & the reference should be accepted, even if it is not possible to hold that the verdict of the jury was such that no reasonable body of men could have arrived at that verdict. The criterion is laid down by the P.C in the recent case of Ramanugrah Singh v. Emperor, 73 I.A 174 : (A.I.R (33) 1946 P.C 151 : 47 Cr. L.J 905). It is quite obvious that the question of misdirection is most important in this case, & indeed the main question. If there has been no misdirection, the appeal must clearly fail, & I may add that the reference must fail also, because I do not think it is possible to hold that on the evidence the jury could not reasonably come to the verdict it did. At the same time it is always necessary to remember that in the case of a jury trial & a reference the final criterion, which must eventually determine the matter, is whether in our opinion there has been a miscarriage of justice or not because Section 423(2) of the Cr PC says:

“Nothing herein contained shall authorise the Court to alter or reverse the verdict of a jury unless it is of opinion that such verdict is erroneous owing to a misdirection by the Judge or to a misunderstanding on the part of the Jury of the Law as laid down by him.”

I may say at once that, having considered the entire evidence of the case, I see no reason to think that there has been any miscarriage of justice, at least against the accused if the verdict of the jury errs, it appears to me that it errs in favour of the accused in not convicting of any offence except those I have mentioned.

8. Coming now to the question of misdirection, Mr. Sahay in the first place says that the learned Judge was wrong in telling the jury about the order under Section 144 of the Cr PC, without telling them that was not evidence of possession. The Judge, it is true, did not give them that direction, but at the same time he gave them no reason to suppose that S. 144 order was any evidence of possession. He referred to it only in narrating the history of the dispute & in that he was right. The matter was not irrelevant because as pointed out by a Bench of this Ct. in the The King v. Jagdish*, A.I.R (37) 1950 Pat. 79 : (51 Cr. L.J 551) though the decision in a proceeding under S. 144 is not by itself proof of possession, yet it is a circumstance supporting an inference that the person in whose favour the proceeding terminated would not be likely to allow his possess to be disturbed from any part of the property. That is certainly a factor which the jury ware entitled to consider. Would it be likely, after obtaining an order under S. 144, that the prosecution party would ever have allowed the accused to come into cultivating possession thereafter so as to be in peaceful possession at the time of the occurrence without there having been some previous occurrence at the time of the accused attempting to take possession on the expiry of the S. 144 order Not only that, but the Judge in another part of his charge did make it clear to the jury that this was not evidence of possession, because he said to them: “If you do not believe the evidence of P.Ws 1, 2, 5 & 7 there is no reliable evidence of possession over plot No. 1126.”

9. Next Mr. Sahay says there was a misdirection because the Judge did not tell the jury that they must place no reliance on the evidence of P.Ws 1, 2, 5 & 7 upon any point in view of the fact that the Public Prosecutor said not relied upon them. On the contrary, the simply narrated the entire facts, drew their attention to the difference in the versions & the attitude of the Public Prosecutor & quite clearly left the evidence of these witnesses to them, because, as I have stated he said “If you do not believe the evidence of P.Ws 1, 2, 6 & 7 there is no reliable evidence of possession over plot No. 1126.” That clearly means he left it open to them to believe these witnesses on the point of possession. In my opinion, the Judge was not wrong in taking that course. Simply because, where the two versions differed as to the actual details of the occurrence, the Public Prosecutor chose to rely & quite rightly, upon the version of the Police witnesses rather than that of the local witnesses it by no means followed that the evidence of those local witnesses must be rejected altogether by the Jury on the point of possession and on the point of identification I have read the evidence of those witnesses, & while no doubt they did distort the facts to some extent in their own favour it was not such as in my opinion, must be rejected altogether on all points. It could at least afford some corroboration of the Police witnesses, for example, on the point of identification & it also was not entirely irrelevant on the question of possession, having regard to the fact that the accused had put in absolutely no evidence of possession & the prosecution had in its favour, to some extent at that time, the facts that there was a civil Cl. decision completely negativing the claim to title on the part of the accused & an order under S. 144 against them shortly before. In my opinion there is no misdirection here either in the charge.

10. I now come to the most important point made by Mr. Sahay. The learned Judge after telling the jury that there was no reliable evidence of possession unless they believed P.Ws 1, 2, 5 & 7 went on to say:

“It seems to me that the question of possession over plot No. 1126 is not of any importance if you believe the evidence of P.Ws 10, 11 & 12 because their evidence discloses that the fight was between two armed parties, both prepared for a fight in contraction with the enforcement of a right or supposed eight of possession over plot No. 1126. If you believe, in view of the evidence of P.Ws 10, 11 & 12, that Awadhbihari's party consisted of five or more persons & that their common object was by criminal force to enforce a right or supposed right of possession in respect of plot No. 1126, you can hold that the members of that party have committed the offence of rioting.”

Mr. Sahay says that this amounts to a very serious misdirection because the case was not of the type referred to in Kabiruddin v. Emperor, 35 Cal. 368 : (7 Cr. L.J 256) where it can be held that both parties having come armed determined on fighting the matter out neither can have any right of private defence.

11. Mr. Sahay has cited a number of decisions on this point but, in my view, there is a clear line of distinction between the facts in those cases & the facts in the present case, which seem to me much more closely analogous with the facts in Kabiruddin v. Emperor, 35 Cal. 368 : (7 Cr. L.J 256). Mr. Sahay first relies on Fauzdar Rai v. The Crown, 3 Pat. L.J 419 : (A.I.R (5) 1918 Pat. 193 : 19 Cr. L.J 241) wherein it was laid down that there a person in possession of property sees an actual invasion of his rights to that property, if that invasion amounts to an offence under the Penal Code, he is entitled to assert his right by force & to collect for that purpose such numbers & such arms as may be absolutely necessary for this purpose. There is, however, a very important qualification in this case. The learned Judges add “Provided only that there is no time to have recourse to the protection of the Police authorities” & it is also to be noticed that this ruling refers to a person in possession of property, whereas in the present case the accused made no attempt worth the name to prove their possession of the property. Their Lordships in that case did not dissent from Kabiruddin v. Emperor, 35 Cal. 368 : (7 Cr. L.J 256). They merely distinguished it, & indeed no case has been cited before us in which that ruling has been actually dissented from. On the contrary they quoted a passage without dissenting from it:

“There can be no right of private defence either on one side or on the other where both parties are evidently aware of what is likely to happen & turn out in force. The right of private defence cannot be pleaded by persons who, expecting to be attacked, go out of their way to court an attack.”

12. Mr. Sahay next relies upon Sunder Buksh v. Emperor, 3 Pat. L.J 653 : (A.I.R (5) 1918 Pat. 308 : 19 Cr. L.J 983). But here again there is an obvious distinguishing feature. That was a case where a man found the opposite party actually cutting his crops. He sent a message to the Police, & then returned & found that the could not save those crops if he waited for the Police. They would have been already out & therefore, he was held justified in resorting to force to put a stop to the cutting.

13. Mr. Sahay's next case is Subedar Singh v. Emperor, A.I.R (20) 1933 Pat. 434 : (34 Cr. L.J 1075). There it was held that a party in possession of a property is entitled to resist by force an attack made on his property. But the important qualification is added “provided there is no time to have recourse to the public authorities for protection” & it was also added that there was nothing in the case to show that the accused had any reason to believe that an attack would be made on them while they were ploughing. Hence this case is clearly distinguishable.

14. The same remarks apply to Mr. Sahay's next case, Nareshi Singh v. King-Emperor*, 2 Pat. 595 : (A.I.R (11) 1924 Pat. 388 : 25 Cr. L.J 1228). Here again Kabiruddin v. Emperor, 35 Cal. 368 : (7 Cr. L.J 256) was not dissented from but distinguished on facts. Their Lordships pointed out that in Kabiruddin case, (35 Cal. 368 : 7 Cr. L.J 256) the applts. were members of an unlawful assembly, firstly because they were attempting to enforce a right or a supposed right by violence, & secondly, because there was sufficient time to inform the authorities. Then they said:

“Where, however, possession is undisputed or where there is no time to seek the assistance of the authorities, I cannot agree that there is any obligation upon a person entitled to exercise the right of private defence & to defend his person or his property to retire from the field merely because his assailant threatens him with violence.”

Nobody can quarrel with that proposition. But the important thing is that was a case where possession was undisputed, & there was no time to call in the Police.

15. Lastly Mr. Sahay cites Silajit Mahto v. Emperor, 36 Cal. 865 : (4 I.C 19). But the facts there were entirely different from those in the present case. In that case they said upon the facts which had been established that the common object was not to enforce a right or supposed right but rather to maintain undisturbed the actual enjoyment of a right.

16. The fact is it is difficult to lay down a general rule in these matters. Each case depends on its own facts. Now what were the facts in the present case? Both parties had been collecting men for a fight from the morning. Information had been sent to the Police. The thana was quite close & the parties must have known that the Police would come almost at once. Without waiting for the Police or giving the Police a chance to Settle the matter peacefully, the accused persons, whose claim at that time was at the best extremely doubtful, collected a number of armed men knowing, as they must that the other side had also collected men, & they go to the spot & having lined up their armed men, start the ploughing of this field, about which it does not appear that there was any urgency at all; & when the other side comes & issues a challenge, in the very presence of the Police they advance to meet them, accepting that challenge, not upon the land, but before the other party had reached the land, & despite the fact that the Police Officer present was doing his best to prevent a fight, & was telling both parties that they must not fight. In my opinion it was the duty of both parties in such circumstances to leave matters to the Police who could be trusted to see that the dispute was settled peacefully, if necessary by proceedings under S. 145. If the accused retired & left matters to the Police, they had no injury to expect. There was no crop in the land which could be cut. There was no possibility of any danger to the properties. It was the duty of both parties to obey the directions of the police officer, & in my opinion, both parties in fighting in those circumstances were entirely in the wrong & both were unlawful assemblies. I consider that this was a case where there was no right of private defence on the part of either. I think, therefore, that the learned Judge was not wrong in telling the jury that, if they did not believe the evidence of possession, they could nevertheless decide the case disregarding that aspect. We do not know whether the jury did discard the evidence of possession. It may well be that they cams to the conclusion that the prosecution party were in possession, &, in my personal opinion, if that was the basis upon which they acted, it was a correct basis. But I also think that if they acted on the Judge's instruction that possession was irrelevant, then also their verdict could not be upset on that ground. There was undoubtedly a defect in the charge having regard to what happened. The charge should have specified that one of the common objects was to assault. In the circumstances it undoubtedly was so. If nothing more, it became a common object the moment the party of the accused advanced towards the other party against the orders of the Assistant Sub-Inspector. The charge, however, did not specify “assault” as a common object, but specified “by criminal force or show of criminal force to enforce a right or supposed right of possession in respect of plot 1126 from Akura Singh.”

17. There was, therefore, a defect in this charge. But it was not, in my opinion, such as to cause any prejudice to the accused, & it would be curable under Section 537 of the Cr PC. The charge at least does refer to the use of force or show of criminal force. That was the gravamam of the charge & the accused did use force knowing full well they had no justification, in the circumstances, for doing so, irrespective of whether they were in possession or not, though I am of opinion they were not in possession, & had no right of private defence of property.

18. In my opinion there were no misdirections of a serious nature in the charge such as could occasion a failure of justice.

19. Apart from the general questions, Mr. Sahay for the applts. has argued the case of Ranaanuj, because, he says this man was identified only by the Chaukidar, & the chaukidar was shortsighted. He could not identify the accused at 25 feet in the dock, & had to go close. But the chaukidar said in his evidence that he identified the accused on the spot from a distance of three or four cubits. He was standing with them on the eastern ridge, & must have been at very close quarters, & had ample opportunity to make identifications. If the jury accepted the evidence of this solitary witness, they were certainly entitled to do so, & could not be called unreasonable in doing so. There was evidence. Then Mr. Sahay says the identification was only on the ridge before the fight. There was no evidence that this accused took an actual part in the fight. But the chaukidar did not identify the man as a spectator. He identified him as one of the armed group waiting to fight armed with a lathi & he went on to say that the party then fought with the other party. In such circumstances the jury, in my opinion, were fully entitled to draw the inference that this man must have been one of the rioters, & in my opinion, it was quite a reasonable inference too.

20. Coming now to the reference. The learned Judge is quite satisfied with the identification of Banwari Singh & his conviction under S. 148. As to that, he is clearly right. The man was identified with a garasa not only by the chaukidar but also by the constable. This was the only man identified by this constable at a test identification parade & he made no mistakes. As for the conviction under S. 324, there may be no direct evidence of Police witnesses, but as I have said, there was no reason why the jury should absolutely discard the evidence of the local witnesses, & there were also the dying declarations. Therefore, I am not prepared to hold that the jury could not reasonably have found this man guilty under S. 824. The matter, however, is of no importance. In the case of the applt. Ramjatan, the learned Judge accepted the convictions under ss. 148 & 324, but impose no separate sentence under S. 324. I think he might well have done the same in the case of Banwari instead of making a reference, & that is what I propose to do.

21. As for the other two, Ramnaresh and Shyam Dutt, the identification is only by the Assistant Sub-Inspector. The Assistant Sub-Inspector at a test identification, a month after the occurrence, identified these two & one more. But he also identified three persons wrongly. Mr. Sahay, therefore, argues that the jury could not reasonably have acted on his evidence alone. Had they acted on this evidence alone, the case would be a marginal one. They saw the Assistant Sub-Inspector in the box. They must have noticed the manner in which he gave evidence & in which he made the identifications, & they might conceivably, without being wholly unreasonable, have decided to rely upon his evidence despite his mistakes at the test identification. But in fact, for the reasons I have already given, the evidence of the Assistant Sub-Inspector did not stand wholly alone. There was also the evidence of the local witnesses to which, I think, the jury were entitled, if they saw fit, to attach some weight as a corroboration, & here again there were also the dying declarations. Bindeshwari, who seems to have been in his full senses when he made his dying declaration & told a story consistent with the Police version, mentioned Earn Naresh as one of his assailants. Tarkeshwar told a confused story, & it appears to me that his mind was probably wandering as he was very near death. But the fact remains that he did expressly name both Ram Naresh & Shyam Dutt. The dying declarations were not very clearly put to the jury. They were not expressly told that they were good evidence, but nevertheless they were mentioned to the jury & it may be that the jury, as they were entitled to do, did attach some weight to them.

22. In these circumstances I do not think that any sufficient ground has been made out for interference with the verdict of the jury in any case. I see no reason to think that in this case there has been any miscarriage of justice; rather I think some of the accused at least get off very lightly. I would, therefore, dismiss the appeal & I would reject the reference & accept the verdict of the jury. It follows that Banwari Singh, Ramnaresh & Shyam Dutt must also be convicted under S. 148, & as in the case of Ramjatan, I would impose a sentence of three years' rigorous imprisonment. Banwari Singh and Ram Naiesh must also be convicted under S. 324, but there is no necessity, in my opinion, for any separate sentences.

23. They must now surrender to their bail.

24. Rai, J.:— I agree.

V.B.B

25. Appeal and reference rejected.