Macpherson, J.This is an application for revision of the conviction of the petitioners u/s 379, I.P.C., and their sentences of fine. They were tried by a second class Magistrate of Sasaram, an appeal against whose decision was dismissed by the District Magistrate of Shahabad. A motion against the appellate decision was rejected by the Sessions Judge. The petitioner Barhamdeo Rai is father of the other two petitioners and the fourth petitioner is his labourer.

2. The facts which have been found to be established are that the complainant was unwilling to continue the credit which he had formerly allowed to Barhamdeo Rai who resented the refusal. On the day of occurrence the complainant had brought to the front of Barhamdeos house a bullock cart on which to carry home five bags of rice which he had bought some time before from Deodhari Missir. The cart had to be left at that point because the road became too narrow for it to proceed. On the bags being brought Barhamdeo and the petitioners removed them from the cart to their house by force. Next day the police found the cart in front of the house of Barhamdeo.

3. Mr. Nirsu Narain Sinha has advanced the following four contentions in support of the rule:

(1) The offence disclosed by the evidence which has been accepted by the Courts, amounts to robbery, and so a second class Magistrate cannot try it:

(2) The defence of the second petitioner Gaya Rai was that he was ill and he examined two witnesses in support of it, but neither the trial Court nor the appellate Court has discussed their evidence at all;

(3) The 4th petitioner being a servant of Barhamdeo cannot be convicted without a finding of guilty knowledge, and

(4) The defence witness 3 who states that the cart found near Barhamdeos door was sold by him to Barhamdeo has been disbelieved on the illegal ground thai he is of the same caste as Barhamdeo.

4. As to the first point I am not prepared to say that a charge of robbery could not stand. The evidence that the first petitioner or perhaps the first three petitioners brought lathis seems to show that in order to the committing of the theft the offenders voluntarily caused fear of instant hurt to the complainant and his cartman, but it has been hold in Queen-Empress v. Gundya (1889) 13 Bom 502 , and Emperor v. Ayyan (1901) 24 Mad 675 that where a Magistrate convicts an accused person of an offence falling within his jurisdiction though the facts found would also constitute a more serious offence not within his jurisdiction, his proceedings are not void abinitio, and the High Court will not ordinarily interfere unless the sentence appears inadequate or unless the accused have been deprived of the right of appeal. There are many unreported cases of the Calcutta High Court to the same effect. In my opinion the petitioners having been in no way prejudiced, the fact that they might have been charged with robbery is not a good ground for interference in revision with the conviction u/s 379.

5. As to the second point it would appear that this defence was not discussed because it was not relied upon. Indeed the point was not even taken specifically in the petition of appeal.

6. The third point is supported by a reference to the judgment of Woodroffe, J. in Hari Bhuimali v. King Emperor (1904) 9 CWN 924. The circumstances are distinguishable. In that case the master of the petitioners had at least a colourable claim of right. In the present case the petitioner No. 4 knew perfectly well that his master was removing the bags of rice of complainant without even a pretence of right and yet he assisted him in doing so and therefore clearly acted dishonestly.

7. As to the 4th point it may at once be conceded that it is not a sound ground for disbelieving a witness that he is of the same caste or community as the person in whose favour he deposes. The defence adduced evidence in support of Barhamdeos claim that the cart is his. The learned District Magistrate however accepted the evidence as to the ownership of the cart adduced on behalf of the complainant. He states "The prosecution on the other hand have shown that the complainants cartman, Ramdas Sundi, obtained the cart from one Rampati Koiri. There is no reason why the latter should have given false evidence and he has given his evidence in such a manner as to leave no doubt in my mind that he was once the owner of this cart". In effect therefore the learned District Magistrate considers the whole evidence of both sides as to the ownership of the cart and on a substantial ground prefers the evidence given by Rampati Koiri. It is urged that the appellate Court has also not discussed specifically the evidence of the first and fourth defence witnesses as to the first appellant having a cart, but on perusing their depositions I am not impressed with their testimony and apparently it was not thought worth while to place it before the District Magistrate, the question being whether the evidence of defence witness 3 or that of Ramdas and Rampati should be believed. It is not shown that the evidence on behalf of petitioners has not been adequately considered or that the decision of the Courts below is wrong on the merits.

8. In my opinion none of the grounds urged in support of the rule are well founded. The rule is accordingly discharged.