Jwala Prasad, J.
1. The petitioners seven in number have been convicted of rioting under Section 147, I.P.C. and sentenced to six months rigorous imprisonment each.
The short case of the prosecution is that the complainant Sher Ali was having his field ploughed when the petitioners along with one more person, who is not before us, came in a body and unyoked the plough. The complainant remonstrated but he was assaulted by the rioters with lathis. He fell down senseless.
2. His son Habibullah and his son-in-law Muhammad Zakaria were also assaulted. The defence is that the case is false and has been brought with a view to coerce the petitioners Nos. 1 and 2 (Ulfat and Wahid) to give up possession of 18 bighas of jagir land belonging to the complainant but in possession of the petitioners as bataidars thereof. The petitioners refer to two previous cases between the parties in order to show that it has been the repeated attempt of the complainant to dispossess them from the jagir land. There was a case under Section 447 brought by the complainant against the petitioners and it ended in acquittal of the petitioners by an order of the Court, dated 17th April 1927, upon the ground that the complainant's possession over the jagir land was not satisfactorily proved.
3. Then there was proceeding under Section 144,. Criminal P.C. in which also the complainant claimed possession of the land and the crops thereon. This was dropped on the ground that the crops had already been cut and there was no present apprehension of a breach of the peace. This order was passed by the Sub-Divisional Officer on 2nd September 1926. The present occurrence is said to have taken place on 15th June 1927, at 8-30 a.m., and the place of occurrence is. alleged to be a plot of land measuring 1 bigha 15 kathas bearing khasra No. 188 in khata No. 42. The Sub-Inspector of Police (P.W. No. 9) in his evidence says that this plot, which is the scene of the occurrence in the present case, is different from the jagir land of 18 bighas. An information was lodged before him by Habibullah Khan, son of Sher Ali, at 4 p. m. on 15th June 1927, the day of occurrence, and in it Habibullah is said to have stated that his field is in batai cultivation of petitioners Wahid Khan and Ulfat Khan but they did not divide the produce, and Sher Ali went to plough that field with his plough and bullocks. Thereupon petitioners Ulfat Khan and Wahid Khan unyoked the bullocks and beat his brother with lathis and, when he began to separate the said persons beat him also.
4. The Sub-Inspector wanted Sher Ali to go to the thana which he did on 16th June 1927, at 8-30 a. m. along with his son Habibullah and his son-in-law Zakaria. He stated that on 15th June at 8 a. m., he was getting the khet ploughed when Wahid, Ulfat and Sabir came and asked him not to plough claiming the land to be their batai land. Sher Ali did not listen and he was assaulted by the aforesaid three persons. Ulfat hit him on his head, Wahid Khan on the left hand and Sabir on the right thigh with lathis. He fell down unconscious.
On the 18th the complainant went to the hospital and with a note of the injuries on his person he went to Court and lodged a complaint. In that complaint he mentioned that he lodged an information before the police, but the police did not take any action.
5. The Magistrate directed the police to hold an investigation into the case treating the complaint as a first information. The Sub-Inspector did so and went to the spot on 26th June 1927. The accused appeared before him and took up the same plea as they did in Court that the case was a false one instituted with the sole object of harassing the accused and forcing them to give up possession of the jagir land. The Sub-Inspector, however, found that the place of occurrence alleged in the present case was not the batai land or the jagir land but altogether a different land. Upon the alleged place of occurrence he did not find any blood-marks. The prosecution explains it by saying that there was heavy rain after the occurrence and before the Sub-Inspector visited the spot, possibly the blood stains were removed by the accused themselves. The Sub-Inspector does not remember of there having been any rain before. Be that as it may, no blood was found at the spot nor any sign of occurrence noticed.
6. In both the sanehas of the 15th and 16th June the place of occurrence is alleged to be the jagir land for which the parties were fighting from some time before. In the saneha of 15th June lodged by Habibullah only Ulfat and Wahid Khan are said to have assaulted the complainant Sher Ali. No assault is alleged in the saneha upon Habibullah himself who lodged it. In the saneha of 15th June Sher Ali states that three of the petitioners only took part in the occurrence, namely, Wahid Khan, Ulfat Khan and Sabir Khan. The complainant was asked in cross-examination as to his having mentioned only the aforesaid three persons in his petition and not the others. He explained it that he stated to the police that Wahid Khan, Ulfat Khan and others implying that not only those three persons but several others, as is now alleged, had taken part in the occurrence.
7. The Sub-Inspector was asked about the saneha lodged by Habibullah on 16th June and he stated that Habibullah had mentioned to him the names of Wahid Khan and Ulfat Khan and not the others, and if he had mentioned the names of seven persons as having taken part in the occurrence, he would have certainly taken cognizance of it and started investigation. Thus we have got from the evidence of the complainant and the Sub-Inspector of Police that on 15th and 16th June only three persons were named as accused before the Sub-Inspector, namely, Ulfat Khan, Wahid Khan and Sabir Khan. No question was asked either from the complainant or from the Sub-Inspector as to the place of occurrence having bees stated to him on 15th and 16th June to be the jagir land. This was an unfortunate omission.
8. The learned Counsel for the petitioners explains this omission by saying that the accused had not got copies of the sanehas and that it was the duty of the prosecution to put the sanehas in. The learned Judge says that it was the duty of the defence to prove the saneha if they wanted to use it for the purpose of contradicting the prosecution witnesses under Section 145, Evidence Act. In this the learned Judge has erred. The earliest information of the occurrence was given to the police by Habibullah on 15th June at 4 P.M. and was followed by the information given by Sher Ali on 16th June at 8-30 A.M. The Sub-Inspector did not take cognizance of the information inasmuch as only two or three persons were named before him as having taken part in the occurrence. The complaint was lodged on 18th June and the complainant was examined on oath as is required by Section 200, Criminal P.C., the Magistrate having taken cognizance upon that complaint. Instead of summoning the accused or directing further inquiry to be held under Section 202, Criminal P.C., the Magistrate directed the police to investigate treating the complaint as a first information. Having once taken cognizance on the complaint, I do not think that the Magistrate could act otherwise than under Sections 200 to 203, Criminal P.C. He could direct the police to make an inquiry under Section 202, but I do not think that he could direct the police to treat the complaint as first information.
9. There is no provision in the law justifying this action. If he had not taken cognizance of the offence and if he had not received information of the occurrence, probably he would have directed the police to investigate treating that information received as first information; but that is not the case. A regular complaint under the Criminal Procedure Code was lodged by him and he examined the complainant on oath and took cognizance of the offence. The stage of investigation by the police upon a first information had already passed. This is no doubt a technical point. In this case, however, it becomes an important point. The reason is that the police had already got information of the offence on 15th or 16th June. If the case was to be investigated by the police the earliest information lodged by Habibullah and possibly by Sher Ali should have been the first information and not the complaint petition. This again might seem to be a technical point; but it is not so in the present case, for the sanehas would then have come on the record automatically and as evidence on behalf of the prosecution. It was not a statement under Section 161, Criminal P.C., and hence 162 S. does not apply to it. It was the first information of the occurrence and should have been treated as such and brought on the record by the prosecution. These sanehas are on the record here and not exhibited. The attention of the Sub-Inspector was drawn to the saneha. The writer Head Constable would have been the best person to prove as the saneha was written by him. Ordinarily the case would have been remanded for a fresh trial treating the saneha as the first information and determining as to whether the place of occurrence was the jagir land of 18 bighas or the land alleged in this case, plot No. 128, khata No. 42 and also to determine, after considering the saneha, as to whether the accused had committed an offence and, if so, which of them. There were very important points in the case, and the learned Magistrate should have directed his mind to them; and so also the learned Sessions Judge.
10. The plea of the defence suggested that the place of occurrence was not the alleged plot, but it was the jagir land over which the parties were fighting for some time. The saneha should have been looked into by the Magistrate and the Sessions Judge. The Magistrate should have brought this saneha properly upon the record. The omission has prejudiced the accused seriously. It would be a great harassment to the accused to order a re-trial and the learned Counsel on their behalf says that he would prefer the sanehas to be taken into evidence here and to dispose of the case now instead of directing a re-trial. The learned Assistant Government Advocate is of the same view and he also wants the saneha to be considered as a piece of evidence in the case.
11. Taking the saneha into consideration with the other evidence in the case, I hold that the place of occurrence was not the aforesaid plot as alleged by the prosecution but the jagir land; and that land was undoubtedly in possession of the accused. The complainant was ploughing the land and his intention was to disposes the petitioners. He had no right to do so and the accused, therefore, had a right of private defence to prevent them from ploughing and to drive them ' out from the field, and in order to effect their ejectment the accused are entitled to use such reasonable force as the circumstances demanded.
Muhammad Zakaria, son-in-law of the complainant, stated that he had received some injuries, but there is no medical evidence to support it. Habibullah had some scratches and swellings on his body. He did not complain of them in the saneha lodged by him on 15th June, and the injuries received by him cannot be said to have been inflicted in excess of the right of private defence. Complainant Sher Ali had seven injuries on different parts of his body consisting of contused and lacerated wounds on forehead, shoulder, right and left arms, etc. The injuries were not severe, but they were numerous and caused by lathis. No one on behalf of the accused had any injury to show. Therefore they exceeded the right of private defence. Only two persons Ulfat and Wahid are mentioned in the saneha of 15th June to have assaulted the complainant. The complainant on 16th June added the name of Sabir Khan also. This was long after the occurrence and, therefore, Sabir Khan should get the benefit of the delay, and the omission of his name from the saneha lodged by Habibullah on 15th June. Raso Khan, Majid Khan, Nasir Khan, and Khakru Mian were not mentioned in any of the sanehas and, therefore, they should get the benefit of it.
12. The result is that the petitioners other than Ulfat and Wahid must be acquitted. Ulfat and Wahid also must be acquitted of rioting under Section 147, I.P.C., of which they have been convicted: firstly, because the sanehas did not make out a case of riot committed by five or more persons; secondly, they had a right to resist the trespass committed by complainant Sher Ali upon the jagir land in their possession. I hold that Ulfat and Wahid are guilty under Section 323, I.P.C. They have been convicted of rioting under Section 147, I.P.C. the common object of which is stated to be to assault the complainant and in prosecution of the common object did actually assault the complainant. Therefore, the charge of assault is included in the charge under Section 147, though no separate and distinct charge was framed in the Court below. The evidence in the case also was directed towards the actual assault committed by the accused persons. Therefore, the accused are not in any way prejudiced if they are convicted under Section 323, I.P.C., without having the charge framed under that section. The principle laid down in Section 535 would apply to such a case. They could have been convicted by the trial. Court under Section 323 without any charge; and in that case the conviction would not have been set aside in appeal or revision unless a failure of justice had been occasioned thereby.
13. Therefore, I would convict Wahid Khan and Ulfat Khan, upon the evidence in the case, of having assaulted the complainant under Section 323, I.P.C. and sentence them to the terms of imprisonment already undergone by them in view of the nature of the injuries caused in the case, the falsity of the prosecution in changing the scene of occurrence and the high handedness of the complainant in at tempting to dispossess the petitioners. from the jagir land.
