JUDGMENT
1. In this case the accused were convicted by the Deputy Magistrate of Satan of offences under Sections 144 and 427, read with Section 149, Indian Penal Code. Their conviction were set aside by the Sessions Judge on appeal, and the case now comes before us in appeal from his judgment.
2. The facts of the case are exceedingly simple and they are that the appellants finding their fields flooded cut a channel through the Railway to let the water run off their fields. The learned Sessions Judge has get aside their conviction on the ground that neither their intention nor the means employed by them to effect their intention were criminal, He holds that their intention was rot to cause mischief but to cause the water to run off their fields. In this, however, he makes not altogether an uncommon error in confusing motive with intention. Their intention was to make a ditch through the Railway. Their motive was to free their fields from water. There can be no doubt that what they did to the Railway amounted to mischief and that they must have been fully aware of this fact. The learned Sessions Judge is also wrong in finding that the means employed by them were not criminal. It appears that about 50 men were present, some of whom carried spears. Of these some 10 or 15 only were engaged in digging. It, therefore, seems certain that the whole constituted an unlawful assembly, with the common object, as alleged, of damaging the Railway.
3. On looking at the evidence it appears that the act of mischief and the unlawful assembly are very plainly proved. There is, however, no proof of an offence under Section 144,
4. There is clear evidence that some of the persons present were armed with spears, but there is no evidence that any of the accused were so armed. The conviction under Section 144 is, therefore, improper.
5. Under these circumstances, we set aside the judgment of the Sessions Judge and we also set aside the conviction under Section 144 Indian Penal Code, by the District Magistrate. We convict the accused of the offences under Sections 143 and 427, read with Section 149, Indian Penal Code.
6. In considering the question of sentence we have to bear in mind that the result of what offences the men did might have been most serious, as the Accused must have known and it is necessary that people should remember, that they are not to do anything on Railways which may damage the life of people using them. As, however, we have set aside the conviction under Section 144, Indian Penal Code, we think it right that the sentence of six months’ rigorous imprisonment under Section 144 passed by the Deputy Magistrate should be reduced to four months’ rigorous imprisonment. We do not regard a fine as a suitable punishment in this case. We, therefore, inflict no sentence of fine. We do not think it necessary to pass any sentence under Sections 427 and 149, the conviction now standing under Section 143 instead of Section 144, Indian Penal Code. We have no power to order the accused persons to enter into bonds. We, therefore, make no order in respect of that.
7. Let a copy of this order be sent to the Sessions Judge and let the District Magistrate take steps to have the accused arrested and dealt with.
