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Prinsep, J -
(1.) THE Magistrate has convicted the petitioners of theft of mangoes and also of rioting, the common object of the unlawful assembly being the forcible taking away of mangoes belonging to the complainant.
(2.) IN appeal the Sessions Judge has entirely disbelieved the evidence relating to the taking of the mangoes or that was the common object of the unlawful assembly. He, however, finds (and about this there is no doubt) that a fight took place between the two parties, and on this he has endeavoured to ascertain from the evidence what the common object of the assembly was which caused this fight; and, so far as we understand his judgment, he has not only found that the cause was not the taking of the mangoes but that it was something else. The Sessions Judge has accordingly dismissed the appeal confirming the conviction and sentence, but on a different finding of fact from that to which the petitioners were called upon to plead and to defend themselves at the trial. The petitioners have accordingly been convicted by the Appellate Court of an offence for which they have never been tried. They are consequently entitled to an acquittal. The result may be unfortunate, if the petitioners have broken the peace and caused bodily injuries to persons in a fight; but on the findings of the lower Court they cannot possibly be convicted. The sentences are accordingly set aside and the fine, if paid, must be refunded.;
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