Manohar Lall, J.The learned Additional Sessions Judge of Purnea by his judgment dated 16th June 1941, recommends u/s 374, Criminal P.C., that Barka Jetha Majhi should be sentenced to death u/s 302, Penal Code. By the same order Barka Jetha was also sentenced to undergo rigorous imprisonment for five years u/s 326, Penal Code, and further to three years rigorous 1 imprisonment u/s 148, Penal Code, the latter sentences to run concurrently. The convict has also filed an appeal. The same trial resulted in the conviction of a number of other persons who were jointly tried with Barka Jetha, but out of them only Langra Manjhi and Bhaga alias Baghrai Manjhi have appealed against their convictions and sentences under Sections 326 and 148, Penal Code, the sentences being five years rigorous imprisonment u/s 326, Penal Code, and three years rigorous imprisonment u/s 148, Penal Code, the sentences are to run concurrently. These appeals will be disposed of along with the death reference.

2. The case of the prosecution briefly stated is that Jialal Jadav aged 75 is a tenure-holder of about 600 bighas of cultivable land in village Jianganj which is about six miles off to the east of Dharhara police station. These lands are cultivated in some seasons and not cultivable in other seasons. In this village there is a Santal Toli from which the accused persons come. Some of these Santals were given lands in batai by Jialal but the evidence suggests that he was careful to change the settlement from time to time obviously in order to prevent the accrual of occupancy rights. As is also usual in such cases the bataidars were neither given any paper in evidence of their settlement nor did their landlord issue any receipts to show the actual division of the crops in any particular year. From some time before April 1940, there was a general movement among the Santal residents in police station Dharhara and other neighbouring thanas in order to have their rights over the batai lands placed on a satisfactory basis. The authorities being apprehensive of a serious agrarian trouble tried to bring about a settlement between the parties. Exhibit 7 dated 9th April 1940, is a notice printed and circulated by the then District Magistrate and gives some account of this dispute. It appears to have been agreed at the intervention of the authorities that the bataidars should enter into written kabuliats and that the tenure-holders should henceforth give them regular receipts. As a preliminary, lists had to be made of the lands which the landlords admitted were in batai and which the bataidars claimed to be in their cultivating possession. This naturally led to a tension between the parties because the tenure-holders on the one hand would try to exaggerate the extent of their khas possession and the bataidars on the other hand were equally concerned to exaggerate their claim to the lands held as batai. The petition of complaint, Ex. 31, shows that the agrarian dispute had spread itself into criminal Courts. On 16th April 1940, Shyam Sunder Jadav of village Jianganj lodged a complaint to the effect that after the service of the notice by the order of the Collector on the tenure-holders, raiyats, and bataidars a large body of Santals about 100 to 125 in number accompanied with labourers formed an unlawful assembly being armed with arrows, dhanus and lathis and forcibly removed from the threshing floor the entire crops which was to have been divided between the bataidars and the landlords. On 18th April 1940, the Magistrate who received the complaint took a correct view of the situation when he stated in his order, Ex. 33 (1), that a state of lawlessness then existed as the result of the agrarian trouble in this thana area and unless immediate action was taken there would be serious trouble. He accordingly issued warrants of arrest against the accused named in the petition of complaint under Sections 144, 447 and 379, Penal Code. The Santal accused appeared in Court on 31st May 1940 when the case was made over to Mr. D.D. Banerji for favour of disposal. That officer summoned the prosecution witnesses for 4th July 1940. Before that date the present occurrence took place on 10th June 1940.

3. Jialal Jadav claims to have given about 30 bighas of land in village Jianganj in batai system to Nebi Gope of that village. That bataidar went to sow maize on the morning of 10th June when a number of Santals turned up armed with arrows and lathis and prevented Nebi Gope from ploughing the land as they claimed the land to be their own batai. At this Nebi Gope raised an outcry whereupon, it is said, Meghu Gope, Rabi Gope, Maya Lai and Baldeo residents of the same village came up running and began to remonstrate with the Santals who had proceeded to unyoke the bullocks of Nebi. This led to a dispute and mutual assaults, the details of which will be examined later. At this stage, so is the case of the prosecution, the Santals receded for some distance and from there began to shoot at the Goalas and their adherents with arrows which they were carrying. The result of this as sault was that two men on the side of the Goalas were killed on the spot. Rabi Gope received an arrow which went right through his lungs and through his diaphragm. It may be that Rabi Gope tottered a short distance. His dead body was lying about 100 yards from where there were signs of two ploughs being used by the Goalas. Meghu Gope also fell after tottering a short distance as the result of an arrow shot. He was found lying about ten paces to the west of Rabi. Nebi Gope also received serious arrow wound. The arrow went into his thorax below the chest the arrow stem had to be cut out and the arrow head with part of the stem had to be extracted by making a puncture on the opposite side. Nebi Gope was in a serious condition. Mr. R.K. Dutta, the medical officer in charge of the Baradih Dispensary was requisitioned to go to Jianganj, which is one mile away, where he reached at 11 a. m. He says that he extracted the arrow from the body of Nebi which had gone into the left side of his abdomen below the left costal margin. He bandaged the wound and sent him off to Purnea. At that time Nebis condition was good but he was in pain and had fainted when the arrow was extracted. Towards the evening however, the condition of Nebi became serious and an attempt was made to record his dying declaration at 10-30 p.m. on that day. Nebi Gope made a short incomplete statement which is Ex. 1 in the case. He died after 10 days. Three other persons were found to have injuries on the side of the Goalas. Maya Lai Mandal had received minor lathi injuries. Baldeo Mandal had a lacerated injury and one Chhabi Das is said to have received lacerated injury and a bruise.

4. The information of this occurrence which undoubtedly took place on that day was given at 8 a.m. by Harakh Chand Jadav who went cycling to the police station Dharhara which is six miles away from Jianganj. Harakh Chand says he was at his house when the occurrence started. He ran up on hearing the hulla from the basti that the Santals were having a violent row in the field of Nebi Gope. Harakh Chand claimed to have reached the spot immediately. After the assault was over, he took down then and there on a piece of paper in pencil the names of the Santals who were stated to him to have been responsible for the occurrence. He also learnt that Rabi Gope had died by the arrow shot of Barka Jetha. In the slip he states that he learnt all this from Nebi Gope. This piece of paper was taken charge of by the police when the first information was being recorded and is an important piece of evidence.

5. The appellants along with others were charged u/s 148, Penal Code, for rioting armed with deadly weapons, namely bows and arrows with the common object to prevent Nebi Gope and his helpers from ploughing his field. They were also charged u/s 302 read with Section 149, Penal Code, for being constructively liable for the death of Nebi Gope, Rabi Gope and Meghu Gope. Barka Jetha was charged u/s 302 for intentionally causing the death of Rabi Gope. Langra Manjhi was also charged u/s 302 for intentionally causing the death of Nebi Gope and Baghrai Manjhi and Barka Jetha were also charged u/s 302, Penal Code, for causing the death of Meghu Gope.

6. The defence of the accused was that these Santals were in possession of the land upon which the occurrence took place for several twelve years under Jialal Jadav and that on the day of the occurrence they went to plough their respective batai lands when Jialal Jadav, Harakh Chand and other Man-dais accompanied by 125 to 150 people came up armed with lathis, ballams, guptis, pharsas and a gun and stopped the Santals from ploughing the lands, who protested that the lands being their batai lands they were entitled to plough them; whereupon, so is the defence, by the order of Jialal the mob of his side assaulted the Santals with lathis severely inflicting serious injuries on the Santal party and in particular on the arm and shoulder of the appellant Barka Jetha. It is also suggested that in order to stop further serious assault on the Santals some of the companions of the appellants, but not the appellants, let fly arrows which hit the three deceased persons; it is asserted that the prosecution, case which attributes the individual arrow shots to the three appellants is wholly untrustworthy.

7. The first question which arises for consideration is the question of possession. The learned Additional Sessions Judge states that apart from probability the evidence about possession is very thin on both sides and that the case about possession is equally weak on both sides. We have been taken through the entire oral evidence by Mr. Yasin Yunus, who appears for the appellants. Jialal is admittedly the tenure-holder of the land in dispute. Apart from some circumstances, there is no evidence adduced on behalf of the defence that the Santals were in cultivating possession of these lands immediately before June 1940, although it is very probable that they may have been so. In these circumstances very slight evidence of possession would be sufficient to establish possession of the true owner. I do not see any reason to disbelieve Harakh Chand Jadav when he says that his cousins Ram Burn Jadav and Sham Sundar Jadav had settled the land with the Goalas. The injuries on the Goala party shows that the Santals used deadly weapons with deadly effect. It must, therefore, be held that the accused have been properly convicted for being members of the unlawful assembly with the common object as stated above and are guilty of offence u/s 148, Penal Code. The presence of the appellants has been amply established and was not seriously challenged in the course of the arguments.

8. It should be stated here that the learned Additional Sessions Judge acquitted the accused for the offence u/s 302/149, Penal Code, for the following reasons: "No doubt, bows and arrows cannot be hidden from the other members of the assembly. Those who joined in an unlawful assembly in which such weapons were taken out should have known that they might be used and might result in serious consequences. On the other hand, it is a notorious fact that Santals as a class move about with these weapons without the least thought of what might happen if the arrows are aimed with force and precision. Therefore, I would not interpret a common folly of this class of people as a definite crime. Therefore, agreeing with one assessor and disagreeing with three I acquit all the accused persons of the charge u/s 149/302, Penal Code." It is difficult to understand this reasoning. The learned Additional Sessions Judge had himself convicted, in agreement with the assessors, the three appellants u/s 148, Penal Code, and the others who were not proved to have been in possession of deadly weapons u/s 147, Penal Code. It is very difficult to understand how the three appellants were acquitted of the offence u/s 302/149, Penal Code. The effect of this acquittal will have to be considered later.

9. I now proceed to consider the question whether the appellants have been proved to have committed the individual assaults for which they have been charged. The prosecution version of the assault as given by a number of witnesses in Court is this: "The Santals were trying to prevent these two men (Nebi and Rabi Gope) from ploughing. There was exchange of lathi blows after exchange of language. Then Meghu Gope from the east came and joined Nebi and Rabi Gope. Maya Gope and I (Baldeo Narain Mandal) and others also joined them. Megha hit about on the Santals with lathi. They in their turn hit. The Santals then retreated, about 4 or 5 laggas. Then the Santals shot their arrows" (an extract from the evidence of P.W. 5 at p. 39). This version is supported by the evidence of a number of witnesses and appears to be an acceptable narrative of what was expected to have happened, Mr. K.C. Mazumdar, Jail doctor of Purnea Jail, examined the appellant, Barka Jetha, on 11th June 1941 and found on him a simple fracture on the lower third of the right ulna. It was, therefore, strongly argued on behalf of this appellant that it is impossible to believe the prosecution case that the-appellant was able to use his bow with deadly effect upon Meghu Gope. In my opinion there is no answer to this argument. I, therefore, do not believe the prosecution evidence which is to the effect that an; arrow from Barka Jethas bow hit Meghus stomach and was the cause of his death. Although there are. vague suggestions in the evidencewhich was relied upon by the learned Advocate-General that even after the Santals had retreated and had used their arrows with deadly effect upon the parties of Goalas, the Goalas committed a second assault on the Santals in the course of which the appellant Barka Jetha was assaulted, but the evidence as a whole does not justify this inference. The truth of the matter is that after the mutual assaults had taken place at or near about the place where the Goalas were ploughing the land, the Santals retreated and then their companions began to let fly a shower of arrows which took deadly effect and, therefore, the prosecution party were naturally unable to make, out whose arrow hit whom. I am satisfied there was no second assault upon the Santals. The appellant Barka Jetha was physically incapable of shooting any arrow after the assault. It follows that some, other Santal, though a member of that assembly, sent out the fatal arrow. It may also be noted here that in the pencil note which Harak Chand made then and there on the spot Nebi did not tell him that it was the arrow shot of the appellant Barka Jetha which hit Meghu Gope.

10. Having then disbelieved the evidence of the prosecution witnesses that it was the appellant Barka Jethas arrow which killed Moghu Gope it is difficult to believe the same evidence which implicates the other two appellants as the assailants of Eabi and Nebi.

11. The learned Advocate-General then suggested that even if we are disinclined to accept the prosecution evidence as to the individual assaults by arrows upon the deceased persons by the three appellants they would still be guilty of the offence u/s 302r by the operation of Section 34, Penal Code. But the difficulty in accepting this argument is that there is no evidence at all from which the common intention can be attributed to these three appellants for bringing about the death of the three unfortunate Goalas. The appellants, therefore, cannot be convicted u/s 302, Penal Code. It may be noticed that the learned Additional Sessions Judge himself has not convicted the appellants, Langra Manjhi and Baghrai Manjhi for the offence u/s 302, Penal Code. For the same reasons the conviction of the appellants u/s 326, Penal Code, cannot be, maintained.

12. As I am satisfied that the appellants were present, in the mob and they were actuated by the common, object as stated above, I would affirm their conviction u/s 148, Penal Code, and maintain the sentence of three years rigorous imprisonment each passed thereunder.

13. The appellants were acquitted, as I have stated earlier in the judgment, of the offence under. Section 302/149, Penal Code. I have shown that the reasoning adopted by the learned Additional Sessions Judge is erroneous. As, I shall show just now, this Court has the power to alter the finding of acquittal. We gave notice to the learned Counsel for the appellants to show cause why this should not be done. He asked for one days time and this was granted. On the resumed hearing of the appeal we heard his arguments in support of the contention that this Court has no power to alter the finding of the learned Additional Sessions Judge.

14. It was held in this Court as far back as 1917 in Mahangu Singh and Others Vs. Emperor, that u/s 423, Criminal P.C., the appellate Court has power to alter a finding of acquittal to a conviction either on a point of law or on a point of fact. In that case the accused were charged with the offence of being members of an unlawful assembly with the common object of resisting arrest. The trial Court had acquitted them on this charge but had convicted them u/s 323, Penal Code. In appeal the learned Sessions Judge pointed out that the conviction on the charge u/s 323 could not be maintained but when he found that the intention of the unlawful assembly was to avoid arrest he altered the conviction u/s 323 to a conviction u/s 147 and maintained the sentence imposed u/s 323, Penal Code. A Division Bench of this Court pointed out that the course adopted by the learned Sessions Judge was amply supported by the leading case in Queen-Empress v. Jabanulla (96) 23 Cal. 975 . In the course of the judgment they pointed out that it was true that Chapman, J., in the unreported case in Dhanpat Singh v. Emperor Reported in AIR 1914 Cal. 456 was not required to go further than to say that where the law had been improperly applied to the facts found, an appellate Court had power to alter a finding of acquittal to a finding of conviction and that this too was the limit to which Beachcroft J. felt it necessary to go in Romesh Chandra Banerji v. Emperor AIR 1914 Cal. 456. But they proceeded to observe:

We see no reason to limit the section in the way suggested upon the basis of these two cases. The learned Judges in these two cases were not required to go further than they did, and there is nothing in their judgments to suggest that they would not have been prepared to go further, if necessary. The section as it stands empowers the Court to alter the finding, maintaining the sentences, and if it be conceded that a finding of acquittal may be altered to a conviction on a point of law, we can conceive no valid reason for limiting the word finding to a finding upon a point of law as distinct from a finding upon a point of fact.

15. In a recent decision of this Court in Dhiro Mirdha v. Emperor, (Criminal Appeal No. 20 of 1940, unreported) my learned brother who delivered the judgtnent of the Bench, the learned Chief Justice agreeing, took the same view. It has been suggested by the learned Counsel for the appellants that the cases referred to above are no longer good law in view of the decision of the Privy Council in Kishan Singh v. Emperor AIR 1928 P.C. 254 . He also drew our attention to the decision of the Allahabad High Court in Sarda Prasad Vs. Emperor . Most of these cases have been referred to in the case reported in Ambika Thakur and Others Vs. Emperor, , but the learned Judges did not think it necessary to decide the question which arises in the present case. It is unnecessary to consider in this case the larger question whether the appellate Court has power to set aside the finding of fact of acquittal on one count while hearing an appeal against the conviction on the other charge. In the present case that question does not arise because the learned Sessions Judge has not acquitted the accused upon any finding of fact which we are setting aside, but he has acquitted the accused upon an erroneous view of the law. For these reasons, the acquittal of the accused under Sections 302/149, Penal Code, is set aside and in lieu thereof the accused are convicted under Sections 326/149, Penal Code, and sentenced to five years rigorous imprisonment eachthe sentences will run concurrently with the sentences which has already been maintained u/s 148, Penal Code.

16. The result is that the reference is discharged, the sentence of death passed on the appellant, Barka Jetha Majhi is set aside and he is convicted under Sections 326/149 and 148, Penal Code, and sentenced to undergo rigorous imprisonment for five years under the former section and, three years under the latter section the sentences to run concurrently. The convictions of the appellants, Langra Manjhi and Bhaga alias Baghrai Manjhi u/s 326, Penal Code, are set aside and they are convicted under Sections 326/149 and 148, Penal Code, and sentenced to-five years rigorous imprisonment each under the former section and three years rigorous imprisonment each under the latter section the sentences to run concurrently--so that in their case the appeal is dismissed.

Meredith, J.

I agree.