1. This is an appeal from the judgment and sentence of the learned Sessions Judge of Midnapur, who, agreeing with both the assessors, found the
appellants, Kunja '' Bhuniya and Panchu Bhuniya, guilty of the offence of rioting u/s 147 and sentenced them to two years'' rigorous imprisonment
each. There were charges u/s 304 read with Sections 149 and 325, Indian Penal Code, read with Section 34 in respect of the injuries caused to
one Bariar, who met his death in consequence of the assault. The learned Judge, finding that the fracture of the skull which caused the death, was
an isolated act committed by one Srinibash and finding also that the charge u/s 304 read with Section 149 was withdrawn, did not take the
assessors'' opinion on it, but he says in his judgment, and we think erroneously, considering the findings which we shall surely have to come to, that
the same remarks really apply to the charge u/s 325 read with Section 34 as none of the contusions found on Bariar were severe,
2. Now what is really found in this case is that the accused party were justified in going to the land with the peon who had a warrant in execution of
a Civil Court decree, and that they were interfered with and one of their numbers the drummer, was pushed or struck with a lathi by the deceased
Bariar, who had come out from his house with a party of his adherents and opposed the lawful delivery of possession. This is what gave the
appellants'' party the right of private defence, and the Judge seems to change his mind more than once as to whether they had this right of private
defence or not, and he finally seems to come to the conclusion that the assembly became unlawful by reason of the accused retaliating when they
were obstructed in the lawful exercise of their rights, and he then seems to think that they made an independent attack upon the deceased''s party
and that the deceased''s party then also had a right of private defence. We confess, we are unable to follow the reasoning of the learned Judge.
Once an attack was made on persons in the lawful exercise of their right over the property in question, they were undoubtedly entitled to the right
of private defence; and the only question which can arise after that is, whether any members of the party individually exceeded that right. People,
who were in the exercise of lawful rights, cannot be held to have been members of an unlawful assembly nor can that assembly become unlawful by
reason of their repelling the attack made upon them, by persons who had no right to obstruct them, nor by reason of their exceeding the lawful use
of the right they had. We have laid down before, and we desire to lay down again, that the fact of exceeding the right of private defence which a
man has cannot make him a member of an unlawful assembly and he can only be convicted and punished for the individual act which he himself has
done in excess of the right of private defence; and it is because we think that these two appellants, Kunja and Panchu, did exceed that right in that
they continued to beat Bariar with lathis after he had been struck down with a fractured skull and was lying in the water in a practically moribund
condition that we have to consider the question of law which we just now pointed out had been wrongly decided by the learned Judge with
reference to the charge u/s 325 read with Section 34. That charge includes the charge u/s 323, and notwithstanding the finding of acquittal u/s 325,
we can, on the whole case being open to us on the charges originally framed, convict and punish any of these appellants on any fact which may be
found against him u/s 323. What they have been acquitted of is causing fracture to the skull of Bariar, but they have not been acquitted of causing
simple hurt in a cruel and unnecessary manner after the deceased had fallen and was incapable of rising. For this, we think they deserve a severe
punishment; and, while we are obliged to set aside the conviction and sentence u/s 147 as being illegal, we think that it is within our power and also
distinctly our duty to convict the appellants u/s 323.
3. We accordingly direct that the appellants, Kunja Bhuniya and Panchu Bhuniya, be rigorously imprisoned for one year u/s 323, Indian Penal
Code.
4. With this modification, the appeals are dismissed.
