Meredith, J.This is an appeal by twenty persons, who have been convicted and sentenced by the learned Sessions Judge of Monghyr under various sections. I shall give the details of the convictions and sentences when I come to deal with the individual cases. Here it will suffice to say that all the appellants have been convicted under either Section 148 or Section 147, Penal Code, and also u/s 325 read with Section 149. In addition the appellants Mahathi Chaudhury, Bhado Chaudhury, Kari Rai, Harni Rai and Jangi Rai have been substantively convicted u/s 324. Thirty-nine persons in all were, on trial, but the learned Judge acquitted nineteen of them.

2. The case was the result of a riot, which took place at about 8 to 8-30 on the morning of 14th June 1944 on plot 1829 of village Nayatola, two miles from Kharia police station. In the course of that riot four persons on the side of Sukhdeo Chaudhry (P.W. 9), the first informant, received injuries. One of them Debu subsequently died from a fractufed skull said to have been caused by a blow inflicted by one Rambhaju, who was not on trial with the rest as he was an absconder. The other three men Harakh Chaudhry (P.W. 8), Sukhdeo Chaudhury (P.W. 9), and Ambika Chaudhury (P.W. 22) received a number of simple injuries.

3. Plot 1829 is situated on the south bank of the Gandak. During the course of years the river Gandak has retreated northwards so that lands have gradually accreted to plot 1829 and the surrounding plots so as to convert them into long stripe running up to the present river bank on the north and consisting largely of alluvial lands called locally barari as opposed to the old survey portion of the plots called karari. At the time of the survey the area of plot 1829 was only 10 kathas, but it is now much more. Sukhdeo Chaudhury is said to have purchased practically the whole of the plot in 1943, and what he purchased was 1 bigha 18 kathas from one Nageshwar and 1 katha from a man called Umakant. According to the prosecution, there had been bad feeling between Sukhdeo Chaudhury and his cousin and next-door neighbour the appellant Pardip for some years. It is unnecessary to go into the reasons put forward for this enmity, because it was not denied by the defence that the two were at enmity. Amongst those reasons, however, was said to be a dispute with regard to the eastern boundary of the barari portion of plot 1829. The plot immediately to the east, 1833, belongs to Pardip. It is the case of both sides that the boundary between the two in the barari portion was necessarily somewhat vague as the whole area went under water each rains and fresh silt was deposited. The dispute was said to have been settled by punches some time before the occurrence, one of the punches being Acchutanand, Pardips father, and another being Mahabir Chaudhury (P.W. 4). The punches made some demarcation of the boundary, but it did not apparently finally settle the dispute. According to the prosecution, Pardip also had wanted to purchase plot 1829 but had been outbid by Sukhdeo, and consequently was anxious to take possession of the whole plot. That has not been established, and the question is not of importance because there was undoubtedly a dispute with regard to the boundary, and that in itself was enough to lead to the occurrence. At the time of the riot sweet potatoes (alua) stood in both plots.

4. According to the prosecution, Sukhdeo had decided to dig the potatoes on the morning in question, and his brother Harakh together with his bataidar Misri Kandu, who occupied a small portion on the west of the plot went there and started to dig the potatoes from the west. Early that morning the dafadar, Ganga Singh (P.W. 7), received information that Pardip and his men were going to commit an assault, and he consequently sent off the chaukidar (P.W. 6) who arrived at the thana at 9 A.M. and lodged information recorded as a saneha (Ex. 8) to the effect that there was an apprehension of a breach of the peace between Pardip Chaudhury and Sukhdeo Chaudhury. The dafadar also directed both Sukhdeo and Pardip not to commit any breach of the peace pending the arrival of the police, but whereas Sukhdeo was amenable, Pardip was recalcitrant and told him he was determined to assault the other party. The Sub-Inspector receiving the information hurried to the spot and got there at about 9-30 A.M. but by that time the riot had taken place. What happened was, according to the prosecution witnesses, that Pardip and a large armed mob came up to the field from the west, started to uproot some of the potato plants near the eastern al, and on a protest by Harkhu assaulted him. Sukhdeo and his relatives came up, and were also assaulted. There was no counter assault, and it is conceded that no one received any injury on the side of the appellants.

5. The Sub-Inspector on arrival at the spot found the four injured men lying in the field. Sukhdeo was able to speak, but the other three were not, and he accordingly recorded a fard-i-beyan on the statement of Sukhdeo, and then sent all four off to the hospital. He found the bodies lying two or three paces west of the eastern al, about 25 paces northwards from the southern al. Round about he found trampling and some alua creepers uprooted, but 15 paces to the west, that is to say, towards Misris portion of the plot he found, potatoes lying which had been dug up in the ordinary manner.

6. At the trial ten eye-witnesses were examined, four of whom (P.Ws. 4, 18, 19 and 20), besides the three injured men (P.Ws. 8, 9 and 22), were named in the first information. The three additional eye-witnesses are P.Ws. 16, 17 and 23. These people have all described the attack by the mob and given various details as to the weapons with which the members of the mob wer6 armed and the individual assaults committed by them.

7. The defence was two-fold, in the first place, that none of the appellants took part in the occurrence, and in the second place, that if they did they were not trying to take possession of the whole of plot 1829, but merely to prevent the prosecution party from trespassing into plot 1833 across the boundary of the barari portion and uprooting the alua which belonged to Pardip.

8. Mr. Baldeva Sahay, who has argued the appeal for the appellants, concedes that he cannot establish affirmatively that the accused had any right of private defence, because the defence made no attempt to establish that Harakh or Misri had trespassed across the boundary, or had uprooted any alua which had been grown by Pardip. Therefore, he conceded that if the evidence regarding individual assaults be accepted he could not contest the correctness of the convictions of those who had been substantively convicted u/s 324; but he argued that the boundary being vague and uncertain, if the defence would not establish affirmatively a right of private defence, for the very same reason the prosecution could not establish affirmatively the existence of an unlawful common object.

9. Therefore, the convictions for, rioting and u/s 325 read with Section 149 could not be supported, and except those in respect of whom it was established that they committed individual assaults, all the appellants must be acquitted. Unfortunately for the appellants this argument proceeds upon two assumptions neither of which appears to be correct. The first is that the unlawful common object charged against the mob was to dispossess Sukhdeo of his land, and the second is that the assault took place on the barari portion where the boundary was indistinct. As regards the first, an examination of the charge shows that dispossession was only put in as the secondary object. The primary object of the mob in the charge was described as committing hurt or grievous hurt.

10. Upon the evidence it is extremely difficult to hold that this common object was not established. The object of the mob was undoubtedly to assault and injure the men of Sukhdeo. No other inference from their conduct is possible, and there is nothing in the case which could support a finding that there was any legal justification for committing such an assault. As for the second assumption, the evidence seems to me to leave no doubt that the assault took place in the karari portion, and not the barari, and at the time no potatoes were being uprooted by any one in the barari portion where there was a boundary dispute. This cuts away the entire basis of Mr. Baldeva Sahays argument, and it is a vital point in the case.

11. The evidence of the Sub-Inspector, to my mind, leaves no possible doubt as to the locality of the assault. He says, as I have already noticed, that the bodies and trampling were three paces west of the eastern al and about 25 paces from the southern al. A survey trained sub-inspector, known for some obscure reason in the police office as a "Building Sub-Inspector," was deputed to make a map, and he has testified that he made measurements and he found that the karari portion extended northwards for 31 yards from the southern al. Twenty-five paces northwards must, therefore, be within the karari portion. Mr. Baldeva Sahay relies strongly upon a statement of the Sub-Inspector that the scene of occurrence was also about two rasis south of the Gandak. He points out that some of the witnesses have said that the entire length of the plot was 3 1/2 rasis and, therefore, he argues the occurrence took place 1 1/2 rasis north of southern al, which would be in the barari portion. These estimates in rasis are only approximate.

12. Unfortunately for the argument the Sub-Inspector went on to explain that by two rasis he meant 200 or 280 paces. The Building Sub-Inspector measured the entire length of the plot north to south, and found it 230 yards. There is, therefore, really no contradiction in the two statements of the Sub-Inspector. If the occurrence took place 250 paces from the river bank and the entire plot only extended 230 yards to the south, it is obvious that the occurrence was very near the southern limits of the plot. Independently of this police evidence, which to my mind is conclusive, there are definite statements by two witnesses that the mar-pit took place on the karari and not on the barari land. Mahabir (P.W. 4), who it will be recalled was one of the panchas, definitely states that the marpit took place on the karari land 10 or 15 laggas north of the southern boundary of plot 1829. Harakh (P.W. 8) says that the marpit was on the survey plot or karari land. Mr. Baldeva Sahay as against this cites a statement of P.W. 19 who said that he saw the injured persons being put on a boat at a place one rasi from the place of assault. This statement proves nothing, as there is no evidence of the position of the boat. That question was not asked.

13. It cannot be assumed that the boat was necessarily in the main stream. There are frequently side inlets in which boats are kept. Secondly, he cites the statement of the dafadar who at one portion of his cross-examination said: "The bodies were lying in the accreted portion." There seems reason to believe, however, that the dafadar had merely been confused by the cross-examination, because very shortly afterwards he said: "I do not know whether the marpit was on barari or karari land." The dafadar had stated that he witnessed the assault from a long distance, 5 or 6 rasis, and though at the trial he said that after the assault he went to the spot, before the Committing Magistrate he said that he did not go to the spot even after the mob had left. This solitary statement of the dafadar does not, in my opinion, in any way shake the evidence which conclusively establishes that the marpit took place in the karari portion. The defence has challenged the prosecution version that potatoes were actually being dug on the western sides at mistry plot. The statement appears in the first information recorded, very promptly after the occurrence and is supported by the Sub-Inspectors evidence as to where he found the digging had been going on, that is, 15 paces to the west of where the injured men were lying. But it makes no difference whether the prosecution is strictly correct on that point or not, because it is nobodys case that any potatoes were being uprooted by the prosecution party on the eastern side of the al in the karari portion, nor is it anybodys case that there was any dispute with regard to the boundary in that portion. If the Sub-Inspector found some traces of hurried uprooting near the eastern al he is definite that it was some paces to the west of the eastern al and, therefore, within plot 1829. What he found seems to support the prosecution story that the mob attempted hurriedly to uproot some creepers at that point, and, of course, they had no justification whatever for doing so.

14. In my opinion the existence of an unlawful common object on the part of the mob was amply established. The only remaining questions are as to the presence of each of the appellants, and in the case of some of them as to what part they took in the affair. I, therefore, turn to the individual cases. I may say at once that the learned Judge adopted a rather mechanical standard for judging the evidence. He convicted those identified by at least six witnesses and with two exceptions acquitted those identified by five or less. This is not the way to estimate evidence in cases like this. There is no virtue in a multiplicity of wit-nesses if once it is found, as the Judge found, that most of them were interested. The Judge himself felt that the course he had adopted was unsatisfactory, but observed that there was no way out of the dilemma. In my opinion, however, it is possible to avoid that dilemma. Before dealing with the individual cases, it is necessary to notice that there can be little doubt that the net was cast too wide by the prosecution in this case. There is strong reason to believe that some at least of the accused were implicated not because they were seen to take part but because they were relatives of Pardip. No less than eight old men of over 60 were implicated as members of the mob. One of them was a man of 75, and another of over 70. No less than 40 in all were said to have been identified, including the absconder already referred to. It is difficult to believe that the witnesses could really have identified so many. A very strict standard has, therefore, to be adopted in weighing the evidence against each accused. (Then after dealing with the cases of Pardip, Mahathi, Silo, Bhumi, Bhado, Bangali Rai, Bishundeo Rai, Mudo Rai, Ram Prasad Rai, Bilas Rai, Thakur and Bhadai Rai his Lordship proceeded). Kari Rai--The Judge has sentenced him to three years rigorous imprisonment u/s 824 for assaulting Harakh.

15. In my opinion, he was not justified in doing so. Only two witnesses, Harakh himself (P.W. 8) and Ambika (P.W. 16) attributed this assault to him, but the learned Judge omitted to notice that Harakh himself had not done so before the police, leaving only a single witness to testify to the point out of seven witnesses who identified him as a member of the mob. The conviction u/s 324 must, therefore, be set aside, but the conviction u/s 148 should, in my opinion, stand. Though he was not mentioned in the first information, I have no doubt he took part because, besides the six other witnesses who have identified him, he was one of those identified by the dafadar (P.W. 7).

16. I would, therefore, set aside Karis conviction u/s 824, but maintain that u/s 148, and as the sentence of three years u/s 824 has to go and the learned Judge stated that he imposed no separate sentence u/s 148 because he considered that three years was sufficient, I would impose a sentence of 18 months rigorous imprisonment u/s 148. Mr. Baldeva Sahay raised some question as to whether that could legally be done. It would be a grave anomaly if when an appellate Court has found that a man has been rightly convicted for a serious offence it has to let him go scot-free merely because the trial Court has imposed the sentence under a wrong section.

17. In my opinion, that is not the law. I think the appellate Court has ample power to transpose the sentence so long as the transposition does not amount to an enhancement. The wording of Section 423(1)(b) will, in my opinion, cover the case, but if it does not, then it will be covered by that of Section 423(1)(d), which authorises an appellate Court to make any amendment or consequential or incidental order that may be just or proper. If any authority be need as it is found in Superintendent and Remembrancer of Legal Affairs Vs. Hossein Ali and Another, . The effect of what I am proposing in the present case is to reduce the sentence upon Kari from three years to eighteen months rigorous imprisonment. (Then dealing with the cases of Rajpati Rai, Sital Rai, Kasi Rai, Harni Rai, Kamli Rai, Shanti Rai and Jangi Rai his Lordship concluded).

18. I would dispose of this appeal as I have detailed above in the case of each appellant. I have criticised the findings of the learned Judge in certain instances, but it must not be thought that I do not appreciate the careful and thorough manner in which he conducted the trial.

Imam, J.

I agree.