Fazl Ali, J.The appellants were tried by the Additional Sessions Judge of Muzaffarpore with the aid of four assessors and the learned Judge has, disagreeing with the verdict of the assessors, convicted all the appellants and sentenced them as follows:

2. Siwan Ahir has been convicted u/s 118 and 302 I.P.C., and sentenced to undergo rigorous imprisonment for two years u/s 148 and transportation for life u/s 302.

3. Jang Rai alias Jangbahadur Rai has been convicted under Sections 148 and 302 read with Section 149 and sentenced to undergo rigorous imprisonment for two years u/s 148 and transportation for life u/s 302 read with Section 149 I.P.C.

4. The remaining three appellants have been convicted u/s 147 and Section 302 read with Section 149 and sentenced to 18 months rigorous imprisonment u/s 147 and transportation for life u/s 302. All the sentences have been ordered to run concurrently.

5. The facts of the case are briefly these: There is a small river called Sijua in the district of Champaran flowing north to south by the east side of two villages called Kolasi and Semra, and the lands of both the villages are irrigated by this river. In August 1927, the people of Kolasi and certain other adjoining villages raised a bandh in the bed of the river in village Kolasi whereupon on 2nd September 1927, the tenants bf Semra filed a petition before the Sub-Divisional Officer of Motihari in which they stated that the Kolasi people had no right to erect a bandh in the river and that the bandh raised by them was causing great damage to the crops of Semra, and they asked the Court to take action u/s 144 against the Kolasi people and to direct them to remove the bandh in question. Thereupon the learned Sub-Divisional Officer after having called for a report from the Sub-Deputy Magistrate passed a somewhat curious order on 8th September, which reads as follow:

The report shows that the villagers of Kolasi have erected a new bandh at point A of this map. Issue notice Section 144 Criminal P.C. restraining the second party from obstructing the flaw of water into the canal by erecting a bandh at point A. Send a copy of the order to the police who will see that there is no breach of the peace.

6. A copy of this order was forwarded to the Sub-Inspector of Dhaka Police Station for necessary action, and the Sub-Inspector accompanied by a head constable and some constables proceeded to village Kolasi to serve notices u/s 144 against Khedu Ahir and Kodai Ahir of that village. He reached the village about 2 p.m. and sent a Chaukidar to call Khedu and Kodai. Meanwhile about 30 or 35 persons of Kolasi assembled near the Sub-Inspector who was sitting on the western bank of the river under a pakri tree. At about 3 p.m. a number of Semri people also assembled on the eastern side of the river.

7. It appears that the order of the learned Sub-Divisional Officer was interpreted both by the Semra people and by the Sub-Inspector to mean that the bandh erected by Kolasi men was to be removed. The people of Semra, therefore, began to press the Sub-Inspector to direct the people of Kolasi to remove the bandh in question. The Sub-Inspector, however, did not like to take any immediate step and this raised a certain amount of misgiving in the minds of Semra people, who in spite of the warnings given by the Sub-Inspector proceeded with kodalis and lathis to cut the bandh. Thereupon some men of Kolasi went to the bandh and when they were remonstrating with the Semra people they were driven back and some of them were also assaulted.

8. Meanwhile a large crowd collected on both sides, and the evidence is that these men were armed with lathis, spears and garasas, the spears and garasas being more numerous and prominent on the side of Kolasi men than on the side of Semra men. When the Kolasi people found that the men of Semra were determined to cut the bandh and were not in a mood to listen either to the Sub-Inspector or to their remonstrance they proceeded in a body to prevent them from cutting the bandh and to drive them away. This led to a free fight between the parties near about the bandh within a distance of about five laggis from it on the eastern bank of the river The origin of the fight is fully described in the following passage by Kitab Ali Dafadar (P.W. 22) in the first information which he lodged before the Sub-Inspector immediately after the occurrence:

Rajdhari Singh and Harnandan Singh, assessor panch, residents of Semra came and said to their party "The Sub-Inspector will, not allow the bandh to be cut. His object is to remonstrate and reason with you and to sand for a guard and place it here. The Collector will decide the matter after two days. What are you waiting for Out the bandh" and Raj Dhari Singh adjured his party by an oath. At this the party of Semra went up on the bandh shouting "hu hu" and began to cut the bandh with lathis and spades, and the party of Kolasi did not listen to the remonstrations and went upon the bandh. The Sub-Inspector and the head constable began to tell both the parties to move away from the bandh but the people of Semra did not pay any heed and Rambilas Singh and one man more, whose name I do not know, aimed lathi blows. At this lathis, garasas and speara began to be used from both the sides. Several persons of both the parties were wounded and when they were wounded both the parties ran away brandishing their garasas.

9. It appears that as a result of this fight one Bhabikhan Ahir of Semra received mortal injuries and died on his way to the Motihari hospital. There were also certain minor injuries on five other men of Semra. It is difficult to say, however, what was the number of injured men or the nature of the injuries on the side of Kolasi. We know this only that one Shivanandan Raut of Kolasi was examined at Motihari by a private practitioner and was found to have a slight injury. But it is fairly certain in view of the statement of Kitabali Dafadar in the first information report that several people on Kolasi side also received injuries. The version of the occurrence given above is substantially the version given in the first report, which was drawn up immediately after the occurrence by the Sub-Inspector of Dhaka Police Station on the statement of Kitabali Dafadar. There is, however, another version of the occurrence given in the petition of complaint (Ex. 1) filed by one Ram Protab Rai of Semra before the Sub-Divisional Officer of Motihari on 12th September 1927. The account of the occurrence given by Ram Protab Rai on solemn affirmation before the Magistrate was as follows:

On Friday last I along with 30 to 35 people of Semra were sitting on the eastern bank of the Sijua Nali, a laggi to the south of the bandh at Harbolwa Ghat. The Sub-Inspector had come there to out the bandh and I went to see the bandh cut by the Sub-Inspector. The Daroga was sitting in Kolasi on the other side of the river on a khatia. Some 400 to 500 men of Kolasi and other villages were there. They were armed with lathis, bhalas and garasas. The Daroga came to us and he was followed by 100 to 150 men. The Kolasi people abused us and said we were the people who had gone to the Magistrate and had obtained an order to cut the bandh, Khedu gave a bhala blow to Bhabhikhan. Siwan gave him a Garasa blow. Baran Rai, Suruj Rai, Tappi Rai, Ram Dheyan and Tokhan Chamar of Semra were also assaulted with lathis, garasas and bhalas. We said to the Sub-Inspector: a great zulum was taking place in his presence. He said nothing. We ran away. Bhabhikhau Ahir fell down. The Sub-Inspector took him on a khatia to Dhaka and from there while he was being taken to Motihari he died. There never was a bandh on behalf of the Kolasi people at that point. The baudh had been erected

there in Bhado last....

10. I may also mention here that Bhabhikhan Ahir had made a statement before he died and his statement was recorded by a Deputy Magistrate. His statement as to the occurrence was as follows:

...and I had gone to out the bandh. It was nearly in the evening that I and the people of my village had gone to cut it. At this the people of Kolasi, Katkoia, Raghopur, Ahiraulia and Mirpur numbering about 500 men came to the bandh armed with garasas, spears and lathis and began to aim lathis at us. Khedu Ahir hit me with a spear on the right side and Siwan of Ahiraulia struok me with a garasa. Nobody struck me with lathis. I fell down and then became senseless.

11. A large number of witnesses were examined in the trial Court. Prosecution witnesses 1 to 18 supported the version given by Ram protab Rai in his petition of complaint, whereas P.Ws. 22 to 29, 32, 34, 35 and 36 have deposed in support of the version as contained in the first information. The version of Ram Protab Rai is certainly not the correct version and has been rightly disbelieved by the learned Sessions Judge. It is the version of certain interested witnesses and is opposed to the version given by the police officers who are decidedly the most disinterested witnesses in the case and is also not consistent with the account given by Bhabhikhan Ahir in his dying declaration.

12. The learned Sessions Judge has in deciding this case relied mainly on the version given by the police witnesses. It is conceded both by Mr. Varma and Mr. P.K. Sen that this version is substantially the true version but they contend that the learned Sessions Judge has entirely misconstrued the order of the Sub-Divisional Magistrate passed u/s 144, Criminal P.C. on 8th September 1927, and his decision is very largely based on a misinterpretation of the said order. We have gone through the judgment of the learned Sessions Judge very carefully and he does appear to have decided the case under the impression that the order of the Magistrate amounted to I a direction to remove the Bandh in Kolasi I and that the Kolasi people had, to use; his own words, "deliberately and turbulently set at nought the order of the Magistrate." Now, I have already quoted; above the order of the Magistrate and, there is nothing in that order to justify the assumption that the Magistrate had; given any direction to the Sub-Inspector to remove the bandh erected by the Kolasi people. It is well established law that it is beyond the jurisdiction of I a Magistrate to pass an order like this; u/s 144, Criminal P.C. and the Magistrate himself made it absolutely clear in the order passed by him on 15th September 1927, that he was not competent to pass an order to that effect in a proceeding u/s 144, Criminal P.C. I have also reproduced almost verbatim the order of the learned Magistrate and it is clear that all that it purports to do is to restrain the Kolasi people "from obstructing the flow of water into the canal by erecting a bandh." This obviously could not apply to a bandh which had been admittedly erected before this order was passed. I do not see, therefore, how it can be held that the Kolasi people were acting in defiance of the order of the Magistrate as the learned Sessions Judge seems to have assumed.

13. The question then was this: The Kolasi people had erected a bandh in their own village several weeks before the occurrence. There seems to have been no opposition offered on behalf of Semra people at the time the bandh was constructed. The Magistrate neither had ordered nor could he order the removal of this bandh. The Sub-Inspector, who was on the spot, had told the Semra people not to cut the bandh. The Kolasi people were asking the Semra crowd not to interfere with the bandh till the matter was decided by the District Magistrate before whom an appeal from the order of the Sub-Divisional Officer was pending. Notwithstanding all this a large mob of Semra rushed forward to the bandh and began to cut it. It is also clear from the first information report that they not only disregarded the Sub-Inspectors warnings but also accused him of malafides and proceeded to the bandh saying:

the Sub-Inspector will not allow the bandh to be out. His object is to remonstrate and reason with you and to send for a guard and place it here.

14. Under the circumstances, the Kolasi people went and prevented the Semra from cutting the bandh and there was a fight. It is obvious that the Semra people had no right to cut the bandh under the circumstances mentioned and when they actually proceeded to destroy it the Kolasi people had certainly a right to prevent them from doing so. It is pointed out by the Assistant Government Advocate that there was a proceeding u/s 147, Criminal P.C. subsequent to the occurrence and the final order was in favour of Semra people. The learned Government Advocate, therefore, contends that the bandh having been erected by Kolasi people without any right, the Semra people were entitled to treat it as a nuisance and remove it. Now, in my opinion the final order u/s 147, Criminal P.C. can be of no avail to the prosecution in this case. It was an order passed in a summary proceeding after the occurrence had taken place. It only amounted to a provisional decision that the Samra people had a certain right.

15. The main object, however, of an order u/s 147 is to prevent a breach of the peace for the time being and it cannot have the finality which an order passed by a civil Court will possess. Besides it is not the function of the criminal Court, while dealing with a case like the present, to decide any question of title and so, we deliberately refrain, from expressing any opinion as to the irrigation rights of the two villages. It is enough to say that we find in this case that the Kolasi people had erected a bandh is their own village and at the time of the occurrence they were in possession of the bandh and there had been no lawful order passed by any competent Court directing them or authorising Semra people to remove the bandh. This being so, we hold that it was not unlawful on the part of the appellants to prevent the Semra men from forcibly cutting the bandh and on this finding the charges under Sections 147, 148 and 149, I.P.C. clearly fail against all the appellants and they are entitled to an acquittal so far as these charges are concerned.

16. The question then arises as to whether the substantive charge u/s 302, I.P.C. against Siwan Ahir has been established. On the evidence on the record there is no doubt that Siwan Ahir was one of the assailants of Bhabhikhan and that he assaulted him with a garasa. This is proved by the dying declaration of Bhabhikhan himself as well as by the evidence of a large number of witnesses. It is, however, contended by Mr. Varma that on the admitted facts of the case the charge u/s 302, I.P.C. against Siwan cannot be maintained. The prosecution case is that it was Khedu Ahir who caused the fatal injury to Bhakhikhan and that this injury had been caused with a spear. The evidence of the Assistant Surgeon (P.W. 31) shows that besides this injury there were five other incised injuries on the parson of Bhabhikhan Ahir, of which one was of a grievous character. There are indications in the prosecution evidence itself that there were other assailants of Bhabhikan besides Khedu and Siwan. These being the circumstances of the case and keeping in view the fact that the injuries were caused to Bhabhikhan by the Kolasi people in a free fight and in the exercise of the right of private defence of person as well as property, I cannot hold that Siwan Ahir committed an offence u/s 302, I.P.C There is, however, no doubt that the right of private defence was exceeded and Siwan Ahir is certainly guilty u/s 326, I.P.C. I would, therefore, set aside the conviction and sentence of Siwan Ahir u/s 302, I.P.C. and convict him u/s 326, I.P.C. and sentence him to undergo rigorous imprisonment for three years.

17. As regards the other appellants, the convictions and sentences are set aside and it is ordered that they be set at liberty.