JUDGMENT
Mullick, J.
1. The petitioner Jadubar Singh has been sentenced to rigorous imprisonment for six months for an offence under Section 147, Indian Penal Code, in respect of a field called Snarmara.
2. The petitioner and his cousin Ram Singh are in dispute about this land and it appears that on the day of the occurrence each, with a party numbering seven or eight, went upon the land and a fight took place.
3. The finding in this case is that Jadubar was entitled to joint possession with Ram Singh in equal proportions and that on the day of the occurrence he went to out the dried up paddy, which was then upon the land. It is found that both parties had sowed the land jointly but on account of the dispute the paddy was not watered and that, therefore, it had become dry and useless. There can be no doubt, however, that Jadubar had a right to out half that paddy. The Police appear to have sent up both parties for rioting and both parties were convicted by the Magistrate.
4. In regard to Jadubar’s party the learned Judicial Commissioner finds that though the claim set up in the trial Court to a right to the whole field is false, they had a joint right to out the paddy. But the learned Judicial Commissioner thinks that, as it was their intention to assert a right to the whole field and to exclude Ram Singh, the common object of the assembly was unlawful and that in causing hurt in prosecution of that common object the offence of rioting was committed.
5. Now the finding as to the common object must be supported by evidence. Beyond the defence set up at the trial there appears to be no evidence that the object of Jadubar’s party in going upon the field was to do more than out their share of the produce. It would have been possible from the acts of Jadabar and his party, when Ram Singh’s party arrived, to draw the conclusion that their object was something more than to assert their undoubted title to half the land; but neither the first Court nor the learned Judicial Commissioner has been able to come to any finding as to what took place when Ram Singh arrived and who began the fight. If Ram Singh began the fight while Jadubar’s party were peacefully employed, there could clearly be no ground for holding Jadubar’s party guilty of the offence of rioting. They had a right in that case to use appropriate force for the purpose of repelling the attack; and in the absence of any clear finding as to how the fight originated, it is impossible to support the conviction and sentence.
6. The result is that the conviction and sentence are set aside and the petitioner released from bail.
Jwala Prasad, J.
7. I agree.