Gangeshwar Prasad, J.
1. These are two connected criminal appeals arising out of the same sessions trial. The incident which led to the trial was the tragic sequel of two election meetings held in close proximity to each other by two rival parties to a contest for election to the Uttar Pradesh Vidhan Sabha from the Gondwa constituency of District Hardoi in connection with the general elections of 1962. The two contesting candidates for the election were Sri Mohan Lal Verma and Sri Rajendra Singh, the former being a candidate of the Congress party and the latter a candidate of the Jan Sangh party. The incident occurred on the 7th of February, 1962 in the Bazar of Lumamau, police station Sandiia, District Hardoi and it resulted in the death of three persons and in injuries to many others.
2. Three reports were lodged about the incident at three different police stations. The first report was by Mohan Singh (P. W. 9) at police station Sandila, situate at a distance of about six miles from the place of incident, on the 7th of February 1962 at 7.00 p. m. This was against thirteen persons of the Congress party and twelve persons of the Jan Sangh party. The second report was lodged by Sri Mohan Lal Verma appellant at police station Atrauli, situate at a distance of about 12 miles from the place of incident, on the 7th of February 1962 at 7.15 p. m, and it was against 24 persons of the Jan Sangh party. The third report was lodged by Harnath Singh (P. W. 25) at police station Kotwali of Hardoi on the 8th of February 1962 at 4.35 a. m. and it was against 42 persons cf the Congress party. After investigation, cross cases against a number of persons of both the parties were sent up by the police. The trial out of which these appeals have arisen related to 45 persons alleged to have belonged to the Congress party. Out of them 19 persons have been convicted and the remaining 26 have been acquitted. The appellants in appeal No. 1667 of 1964 are 13 in number. Among them Hanuman Singh has been convicted under Section 148 I. P. C. and sentenced to 21/2 years' rigorous imprisonment and also under Section 323/ 149 I. P. C. and sentenced to nine months' rigorous imprisonment. The remaining appellants of that appeal have been convicted under Section 147 I. P. C. and sentenced to 11/2 years' rigorous imprisonment and also under Section 323/149 I. P. C. and sentenced to nine months' rigorous imprisonment. The appellants in appeal No. 1668 of 1964 have all been convicted under Section 148 I. P. C. and sentenced to 21/2 years' rigorous imprisonment, under Section 307/149 I. P. C. and sentenced to seven years' rigorous imprisonment, and also under Section 323/ 149 I. P. C. and sentenced to nine months' rigorous imprisonment. All the sentences passed against the appellants in both the appeals have been directed to run concurrently.
3. Briefly stated, the prosecution story in regard to the incident is this. In the afternoon of the 7th of February, 1962, i. e. a few days before the start of the polling in respect of the general elections of 1962 for the Uttar Pradesh Vidhan Sabha, Sri Rajendra Singh the Jan Sangh candidate was holding an election meeting in the Bazar of Lumamau. The meeting was attended by 200 to 250 persons and was being held on the eastern side of a Galiara which was to the east of the Bazar. At about 3 p. m. some persons started making arrangements for a meeting of the Congress party at the Chabutra of Chhotey Lal Bania which was at a distance of 30 or 40 steps from the place where the Jan Sangh meeting was being held. Mukhtar Ali S. I. of police station Sandila (p. w. 17) had been directed by the station officer of police station Sandila to be present in the Bazar as election meetings were likely to be held there and he was, accordingly, present there along with some constables and Chaukidars.
Sri Rajendra Singh the Jan Sangh candidate pointed out to Mukhtar Ali that the Congress party was going to hold a meeting close to the meeting of his party and that might lead to some trouble. He also suggested to Mukhtar Ali that the meeting of the Congress party should be shifted to a more distant place. Thereupon Mukhtar Ali met the persons who were making arrangements for the Congress meeting and asked to hold their meeting at some more distant place, but those persons said that the matter could be decided only by Sri Mohan Lal Verma. Shortly afterwards, Sri Mohan Lal Verma arrived at that place followed by a crowd of 1000 to 1200 persons who were shouting slogans and he started holding his meeting at the Chabutra of Chhotey Lal Bania. Mukhtar Ali went up to Sri Mohan Lal Verma and requested him to shift his meeting to some other place but the latter expressed his unwillingness to do so and asked Mukhtar AH to tell Sri Rajendra Singh to shift his own meeting to some other place. Mukhtar Ali then tried to persuade Sri Rajendra Singh to change the place of his meeting but he too was unwilling to do so. Feeling helpless, Mukhtar Ali stationed himself in the Galiara which divided the two meetings, along with the police constables and Chaukidars who were with him and also some other persons whom he had called to his aid. Sri Trijugi Nath Gupta meanwhile stood up on the Jan Sangh platform and began delivering a speech which contained some aspersions against Sri Mohan Lal Verma. The Congress meeting was at that time being addressed by Sri Raj Bahadur Singh Chandel and he was characterising the Jan Sangh party as a communal party and making uncomplimentary remarks against the Jan Sangh candidate. Some objectionable slogans were also being shouted in both the meetings. As a result, the people participating in the two meetings became agitated and started moving nearer each other. Mukhtar Ali apprehended trouble and he, therefore, sent a note to police station Sandila requisitioning additional police force.
At 4.00 or 4.30 p. m. a person present in the Congress meeting is said to have given a lathi blow to one of the participants of the Jan Sangh meeting. Thereupon some people in the Jan Sangh meeting began throwing brickbats on the Congress meeting and some people in the Congress meeting retaliated by throwing brickbats on the Jan Sangh meeting. Meanwhile a lathi fight also started between the two parties. While this was going on Ram Bilas appellant who belonged to the Congress party fired a pistol shot from the Congress meeting towards the Jan Sangh meeting. Thereafter, firing took place from both the sides as a result of which a number of persons were injured. Ten or twelve persons carrying firearms arrived at this stage on the side of the participants of the Congress meeting and there was a vigorous firing from that side on the Jan Sangh meeting. The result was that the Jan Sangh party took to its heels. The Congress party chased the Jan Sangh party upto some distance and then set fire to a number of articles which the Jan Sangh party had brought there in connection with the arrangements for its meeting and broke the loud speaker which had been installed there. Two persions, i. e. Mool Chand and Jagannath, who are said to have been members of the Jan Sangh party, died at the spot on account of the injuries received by them, and third person, Ram Jiawan, was seriously injured and died the next day in the hospital. Apart from these three persons, nineteen others including Mukhtar Ali S. I. and four constables were also injured in the course of the fight. Mukhtar Ali was not able to proceed to the police station himself because of his injuries and also because of the situation there. He, therefore, suggested that someone from amongst the persons present there should go to police station Sandila and make a report about the occurrence. Mohan Singh (P. W. 1) offered to do so, and he went to the police station and lodged a report there at 7.00 p. m.
Sri B. S. Negi (P. W. 22) S. I. of police station Sandila, took up investigation, informed the Superintendent of Police Hardoi about the occurrence on phone, and proceeded to the place of occurrence. He found the dead body of Jagannath near the platform of the Congress meeting and the dead body of Mool Chand close to the Chabutra of Mahadeo Ji which was within the area where the Jan Sangh meeting was held. After holding inquests he dispatched the dead bodies for post mortem examination. From the place of occurrence, Sri Negi recovered three empty cartridges; two of them were near the platform of the Congress meeting and one was at the place of the Jan Sangh meeting. He also recovered one big gunshot and four small gunshots from the Chaukhat of the eastern door of Chhotey Lal Bania's Baithak and he found gunshot marks on bamboo clumps to the north of the Chabutra of Mahadeo Ji. Some burnt and partly burnt articles and a broken horn of a loud speaker were also found by him at the place where the Jan Sangh meeting was being held. It may here be noted that on 8th February 1962 at 10.00 a. m. Sri Negi handed over the investigation to V. N. Singari (P. W. 26) Circle Inspector as directed by the Superintendent of Police, but he was present at the time of the recoveries mentioned above and prepared recovery memos relating to them under the supervision of V. N. Singari.
4. The post mortem examinations of the dead bodies of Jagannath and Mool Chand and also that of Ram. Jiwan, who died in the hospital, were performed by Dr. R. K. Malhotra (P. W. 12) on 8th February 1962. The doctor found that Jagannath had four lacerated wounds and one bruise; Mool Chand had four lacerated wounds; and Ram Jiwan had three lacerated wounds. All the lacerated wounds were, in the opinion of the doctor, caused by firearms. Besides these three persons, nineteen others are said to have been injured in the incident but it is not necessary to give the details of their injuries and it is sufficient to indicate that some of them received injuries from firearms, some received injuries from blunt weapons, and some from both kinds of weapons.
5. The charges against the appellants were under Sections 147, I. P. C., 148, I. P. C., 302/149, I. P. C., 307/149, 1. P. C. 323/149, I. P. C., 435/149, 1. P. C., 152/149 I. P. C, and Section 127 of the Representation of the People Act. The learned Sessions Judge, however, convicted them only on the charges mentioned by me at the beginning of the judgment and acquitted them of the other charges.
6. The appellants pleaded not guilty Ram Bilas, Sardar Singh. Pyare Lal, Nawab Singh. Parwan Singh. Sri Mohan Lal Verma, Maharaj Singh, Bal Mukund, Shri Dhar and Shvam Lal appellants admitted their presence in the Congress meeting but stated that the meeting was being held peacefully and it was the Jan Sangh candidate, Sri Rajendra Singh. who came later and tried to disturb their meeting and started a meeting of his party at a short distance. They also stated that the throwing of brickbats and the firing were done by Sri Rajendra Singh and his supporters, and that as soon as the firing began persons in the Congress meeting ran away They denied that any firing had taken place from their side and alleged that as ' result of the firing done by the Jan Sangh party three persons present in the meeting of the Congress party were killed and some others received injuries. They also alleged that they were falsely implicated in the case by Sri Onkar Singh Dy. Superintendent of Police as Sri Mohan Lal Verma the Congress candidate had made a complaint of corruption against him to the Home Minister some time before the incident.
7. The prosecution examined fifteen persons as eye-witnesses. viz. Gangu (P W. 3), Gulab Singh (P W. 4). Jagat Jeet Singh (P. W. 5). Chheda (P. W. 7), Sobaran (P. W. 8), Mohan Singh (P. W 9), Dayal (P W. 10), Sobran Singh (P W. 11), Surendra Nath (P. W. 15), Fakirey (P. W. 16), Mukhtar Ali (P. W. 17), Nauratan Singh (P. W. 19), Puttoo (P. W 21), Bisheshwar Dayal (P. W- 23), and Harnath Singh (P W. 25) Out of these, P. Ws. 8, 16, 19, 21, 23 and 25 have not been relied upon by the learned Sessions Judge and the conviction of the appellants is based upon the testimony of the remaining nine witnesses. These nine witnesses have supported the prosecution case and their evidence in effect is that the incident happened in the manner in which it has been narrated above, that the appellants were present in the meeting of the Congress party, and that out of them Sri Mohan Lal Verma. Ram Bilas. Kaushal Kishore Porwan Singh. Suraj Pal and Prakash Chandra Bajpai had firearms and excepting Sri Mohan Lal Verma all others named above indulged in firing on the Jan Sangh meeting. Among these witnesses P. Ws. 4, 5. 15 and 17 are police men. P. Ws. 19 and 25 admittedly belong to Jan Sangh party and the remaining four i. e. P. Ws. 3. 7, 9 and 10. state that they were only visitors to Lumamau Bazar and were not attending either of the two meetings.
8. From the evidence led by the prosecution and the circumstances of the case the following facts must be taken to have been established and. indeed, the argument of the learned counsel for the appellants has proceeded on the basis that they have been established. The incident took place at the time and place alleged by the prosecution. The meeting of the Jan Sangh party was already being held to the east of the Galiara when arrangements for holding a meeting of the Congress party on the Chabutra of Chhotey Lal Bania started Sri Mohan Lal Verma arrived there with a large crowd far outnumbering the people present in the Jan Sangh meeting, and he was not prepared to shift the meeting of his party to some more distant place in spite of having been requested to dp so by Mukhlar Ali S. I. Speeches containing uncomplimentary remarks against the other party or its candidate were delivered in both the meetings and some improper slogans were also shouted. Tempers rose and feelings ran high with the result that there was a fight between two parties in which firearms were used from either side causing the death of three persons and injuries to a number of others also. In the circumstances of the case, however, these facts appear to be inconclusive and altogether insufficient for a finding of guilt against the appellants. The judgment of the learned Sessions Judge proceeds on the fooling that these facts are in themselves sufficient to make the appellants guilty of the offences for which they have been convicted. According to the learned Judge the persons present at both the meetings had assembled with the determined object of trying their strength by force or show of force. The assemblies at these meetings were, in his opinion, unlawful assemblies from the inception and it was, therefore, a matter of no consequence which party started the fight, how it developed and in what sequence events happened, and neither party can be said to have acted in the exercise of the right of private defence. If this conclusion which is the basic foundation of the finding of guilt recorded by the learned Judge in respect of the appellants is found to be incorrect or not borne out by the circumstances, there can be no denying the fact that the entire structure of the finding must fall.
9. It is in the evidence of Chheda (P. W. 7) that people knew from before that the Jan Sangh party and the Congress party were both going to hold their meetings in the Lumamau Bazar on the date of occurrence and from the mere fact of the Congress party having started their meeting later in point of time, it cannot be inferred that its object was to create disturbance. It has also to be noted that Sri Mohan Lal Verma. on being requested by Mukhtar Ali S. I. to hold his meeting elsewhere, told him that Sri Rajendra Singh. the Jan Sangh candidate, should be asked to shift his own meeting to some other place. The attitude adopted by Sri Mohan Lal Verma might not have been a reasonable attitude, but insistence on holding a meeting at the Chabutra of Chhotey Lal Bania cannot be regarded as indicative of a desire to create disturbance. The number in which people had collected for the meeting of the Congress party cannot, obviously, be taken as suggesting that they had any unlawful object in their minds. Election meetings naturally attract crowds and excite interest and if more than a thousand persons had come to attend the meeting of the Congress party neither Sri Mohan Lal Verma nor for the matter of that anybody else can be said to have been at fault Shouting of slogans is a very common feature of election propaganda and very often they are of an objectionable nature and transgress the limits of propriety and decency. The fact, therefore, that the participants of the meeting of the Congress party shouted improper slogans when they came to the Chabutra of Chhotev Lal Bania or thereafter, cannot lead to the conclusion that they had assembled with the determination of proving their superiority over the other party by resort to force or show of force. As to the speech delivered at the meeting of the Congress party , it was one by Sri Rajendra Bahadur Singh Chandel who was a member of the Communist party and the only evidence about the contents of the speech is that he characterised the Jan Sangh as a communal party. Clearly, there was nothing in the circumstances so far dealt with which could stamp the assembly at the meeting of the Congress party with the character of an unlawful assembly.
10. The question then is whether the fact that some of the members of the assembly had armed themselves with weapons including firearms altered the situation. The answer, in my opinion, has to be in the negative. It appears to be indisputable that a state of tension must have prevailed in the electorate and the atmosphere must have been charged with passion. Resort to violence by supporters of either partv was. therefore, an eventuality which cannot be said to have been unlikely and the station officer of the Police station Sandila too had considered it necessary to direct Mukhtar Ali S. I. to be present in the Bazar of Lumamau in order to guard against that eventuality, [n these circumstances is it possible to say that those who carried weapons must necessarily have done so for using them for an unlawful purpose?
11. Undoubtedly, every person has a right to arm himself for protection and to prepare himself beforehand for repelling a possible attack on himself or any other person. If he anticipates danger to his own body or to that of any other person in the course of a lawful activity the law does not compel or require him to abstain from that activity so that he may not be called upon to use force. He has a right to keep himself armed for averting the danger and he is not deprived of that right merely because his preparedness may itself, in some cases, have the effect of enhancing the danger. It must, therefore, be held that the persons assembled at the meeting of the Congress party did not become members of an unlawful assembly by reason of the fact that some persons of the assembly carried weapons including firearms.
12. It is also obvious that an assembly of five or more persons acquires the character of an unlawful assembly only when the common object of the persons composing that assembly is one or more of the things enumerated in the five clauses of Section 141 I. P. C. Going to or participating in a public meeting with arms is certainly not a desirable thing to do, but undesirability is not criminality, and so however improper the behaviour of an assembly may be it cannot be designated an unlawful assembly unless it has a common object falling within one of the clauses of the aforesaid section. In the instant case it is not possible to hold that the persons assembled, in the meeting of the Congress party had! any such common object
13. It may be that the manner in which the people in the meeting of the Congress party behaved tended to provoke the other party and was thus fraught with the danger of exciting it into violence, but that cannot be a reason for holding that they had formed an unlawful assembly by reason of the unlawfulness of its object and not because of its having a tendency to inflame the passions of others and to rouse them to indulge in an unlawful activity I may draw attention here to In re Mukka Muthrian, 31 Ind Cas 343 = (AIR 1916 Mad 1062 (2)) where a learned Judge of the Madras High Court observed that an assembly lawful in itself does not become unlawful merely by reason of its lawful acts exciting others to do unlawful acts.
14. I have dealt above with the circumstances from which the learned Sessions Judge derived the conclusion that the participants in the meeting of the Congress party were members of an unlawful assembly from the beginning, and it seems obvious that these circumstances, neither individually nor cumulatively, justify the conclusion. It is true that common object has to be a matter of inference, but for establishing that an unlawful assembly had been formed the prosecution has to show not merely that it was likely that the assembly in question had for its object one or more of the things specified in Section 141 I. P. C. but that the existence of such object or objects is the only reasonable conclusion possible in the circumstances of the case. The circumstances of the present case, far from being of such a conclusive nature, do not even make it probable that the assembly at the Congress meeting was formed with any such common object as could have made it an unlawful assembly.
15. What has next to be seen is whether the assembly which was initially a lawful assembly became subsequently converted into an unlawful assembly. That this could happen cannot be disputed, but the question is whether it did happen. No doubt, this again is a matter of inference deducible from the conduct of the persons composing the assembly. The conduct which may lead to the inference must, however, be of a clear and unequivocal nature and the inference must be irresistible. If the conduct of the assembly is consistent with its having remained a lawful assembly and a reasonable possibility of its having retained its original lawful character is not excluded, it is not possible to hold that the assembly changed into an unlawful assembly. I may now proceed to examine in this light the conduct of the assembly apart from the speech delivered there and the slogans shouted.
16-20. (After discussion of evidence the judgment proceeds). The result of the above discussion is that it is not possible to hold that persons assembled in the Congress meeting were members of an unlawful assembly to start with or became members of an unlawful assembly at any later stage so long at least as the exchange of firing was going on. Note may here be made of the fact that Mukhtar Ali S. I. states that he too fired six shots from his service revolver towards east, and that when he did so he was towards west of the Galiara and near the Chabutra of Chhotey Lal Bania. This would suggest that the situation required firing towards east of the Galiara where the Jan Sangh meeting was held. However, it seems undeniable that on the evidence and the circumstances of the case a reasonable possibility that those persons in the Congress meeting who used force did so only for a defensive purpose cannot be excluded.
21. Before passing on to another aspect of the case I must refer to the statement of Mukhar Ali S. I. to the effect that when lathi fight between the two parties began he declared that the two assemblies had become unlawful and they should disperse. If what Mukhtar Ali said is construed as an expression, at the spot, of Mukhtar Ali's opinion as to the legal character of the two assemblies and an effort on his part to disperse them nothing need be said about it. If, however, it is suggested that it had itself the effect of making the assemblies unlawful or that upon the failure of the members of the assemblies to disperse after having been commanded to do so, they automatically became members of unlawful assemblies the suggestion has to be repelled. The statutory provision relating to dispersal of assemblies is contained in Section 127 Cr. P. C. which runs as follows:
'(1) Any Magistrate or officer in charge of a police station may command any unlawful assembly, or any assembly of five or more persons likely to cause a disturbance of the public peace, to disperse; and it shall thereupon be the duty of the members of such assembly to disperse accordingly.
(2) This section applies also to the police in the town of Calcutta.'
It is obvious that the power to command an assembly to disperse has been conferred only upon a Magistrate or officer in charge of a police station, and Mukhtar Ali was, therefore, incompetent to act under the above provision. Further, the failure of an assembly of persons to disperse or even its refusal to do so has the effect of calling into play the provisions of Section 128 Cr. P. C. and of empowering a Magistrate or an officer in charge of a police station to proceed under that section, but it does not result in the conversion of a lawful assembly into an unlawful assembly. The unlawful character of the assembly has to be determined with reference to Section 141 I. P. C. alone and the disobedience of a command issued under Section 127 Cr. P. C. is not a relevant consideration for that purpose. Reference in this connection may be made to Girdhara Singh v. Emperor, 64 Ind Cas 373 = (AJR 1922 Lah 135).
22. Even if it is supposed that some of the persons participating in the Congress meeting were there for any of the objects specified in Section 141 I. P. C. a conclusion not warranted by the circumstances. I do not think it is possible to say definitely that their number was five or more. As mentioned above there is nothing to indicate the number of persons who took part in the throwing of brickbats or in using lathis from amongst the participants of the Congress meeting and it would be wrong to assume that at least five must have indulged in an activity of this nature. There is certainly evidence to the effect that six persons in the Congress meeting had firearms with them and ten or twelve others came there with firearms when the firing was going on. So far as ten or twelve persons who came later, it must be admitted that they could not be credited with any of the objects mentioned in Section 141 I. P. C., because they came when fire was being exchanged and the object might only have been to defend the members of the Congress party meeting by repelling the attack on them. Apart from that, this part of the prosecution story does not appear to be correct. It is strange that none of the prosecution witnesses has been able to give the name of even one of these ten or twelve persons and it is difficult to accept that all of them were not only unknown persons but their names could not be ascertained even by investigation. The story relating to six persons being present at the meeting with firearms does not also appear to be free from doubt.
I have already noted that the part assigned to Ram Bilas appellant is obviously exaggerated, and what he actually did and at what stage cannot be determined with certainty. Then, it will be seen that Sri Mohan Lal Verma appellant did not actually fire although strangely enough, he is said to have kept his pistol in position. About the firing done by others there is no evidence except that of the policemen. I do not mean that the evidence should be rejected merely because it is that of policemen but I certainly regard it as strange that no other witness except the policemen saw any of these four persons firing. On a careful consideration of the evidence I find it difficult to arrive at the conclusion that five or more persons indulged in firing from the side of the Congress party. Even assuming, therefore, that the object of some of the members of the Congress party meeting became unlawful within the meaning of Section 141 I. P. C. at some stage, it cannot be held that such persons were five or more in number.
23. But suppose that five or more persons in that assembly came to have at some point of time one or more of the objects mentioned in Section 141 I. P. C. and that they then constituted an unlawful assembly. Would that be sufficient for holding that all those who were participating in the Congress party meeting and they were, it must be remembered, more than 1000 in number and were present there when the fight took place became members of that unlawful assembly? All of them could not possibly have shared the common object of the unlawful assembly if any such assembly ever came to exist. They must have been drawn to and stayed at the place where the Congress party meeting was held for different reasons and it is not possible to suggest that they ever had any community of object. The question then is whether the mere presence of a person at that place made him a member of the unlawful assembly.
24. Section 142 I. P. C. has to be Considered in this connection. The section reads as follows:
'Whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly.'
The first condition for the applicability, of the section is that a person should be aware of facts which render any assembly an unlawful assembly. The assembly may actually be or have become an unlawful assembly, but if a person is not aware of the facts which impart that character to the assembly Section 142 I. P. C. does not come into operation. The facts which have the above result are specified in Section 141 I. P. C. and it naturally follows that before Section 142 I, P. C. can apply to a person he must be proved to have been aware of the existence of the said facts. It is also to be borne in mind that Section 142 I. P. C. speaks of a person 'being aware of facts' and not merely suspecting the existence of facts or having reason to believe that they exist. Obviously, in the circumstances of this case awareness of facts which had brought into existence any unlawful assembly cannot be attributed to a person merely because of his having been present at the place where the Congress meeting was held.
25. What the section next requires is that a person should intentionally join the assembly or continue in it. On the facts of the present case the question of joining an unlawful assembly does not arise because, as I have held above, there was no unlawful assembly to start with. In any case, the considerations which should be taken into account in determining whether a person continued in an unlawful assembly have to be taken into account also in determining whether a person joined an unlawful assembly. In fact Section 142 I. P. C. requires the presence of an additional factor before a person can be said to have become a member of an unlawful assembly by reason of joining it, and that factor is that the joining must have been intentional. Let me now examine whether by reason of merely having been present at the time of the fight and at the place where the Congress meeting was held, a person can be said to have continued in an unlawful assembly, assuming that such an assembly came to be formed.
26. In a Division Bench case of this Court, Emperor v. Sheo Dayal : AIR1933All535 it was certainly observed that the word 'continues' in Section 142 I. P. C. 'merely means physically present as a member of the unlawful assembly, that is he physically present in the crowd'. The Bench, however, proceeded to say that if the defence is that a particular person was present among the rioters with an innocent intention, the burden of proving that intention lies upon the defence. It may be noted that Section 142 I. P. C. does not provide that under the conditions laid down in that section a person is merely presumed to be a member of an unlawful assembly, but that he 'is said to be a member of an unlawful assembly'. Obviously, therefore, what the Bench intended to lay down was that physical presence in an unlawful assembly would indicate continuance in the assembly unless innocent intention is proved. The mental element is not therefore, to be excluded or ignored in considering whether a person has continued in an unlawful assembly, because in that case there would be no escape for the person concerned from the effect of Section 142 I. P. C. by proof of innocent intention. It appears undeniable that physical presence has at least to be voluntary before it can amount to 'continuing' within the meaning of the section. The law laid down in the above case, therefore, is not that physical presence even if it is unaccompanied by volition, would amount to 'continuing', but that physical presence will be deemed to be the result of volition unless the absence of volition is shown.
27. That volition is an essential requisite for 'continuance' in an unlawful assembly as contemplated by Section 142 I. P. C. has been made clear by a later Division Bench case of this Court, Rex v. Sadla : AIR1950All418 . where Raghubar Dayal, J. observed as follows in relation to one of the accused persons involved in that case:
'The question whether Sadla can be said to have been a member of the unlawful assembly after he had fallen down and been beaten depends on the determination of the fact whether he, who formed a member of the unlawful assembly from the beginning, had withdrawn himself from the unlawful assembly and had thus dissociated himself with any further membership. It does not solely depend on the fact that he became incapable of taking part in the attack. His withdrawal from the unlawful assembly could be either actual and voluntary, which would be if he removed himself from the assembly and went away, clearly indicating that he was averse to taking any further part in the incident. If a member of an unlawful assembly is not able to walk away like this and has perforce to remain on the spot either because he is so injured that he cannot remove himself or because he is held up by others, he may still continue to be a member of the unlawful assembly if he shares the common object of the assembly subsequent to his being made helpless in assaulting the victim. He. can, however, in such a position disallow his share in the common object by expressions, leaving no doubt that he did not share the object any more. If he is also unable to express himself in this respect, it would be fair to presume that he was incapable of both taking part and of sharing the objects of the unlawful assembly and that he had withdrawn himself from the unlawful assembly.'
28. The position, therefore, is that 'continuance' is not in all circumstances to be equated with physical presence, although, unless the contrary is shown either by evidence of circumstances, physical presence would lead to the inference that it was accompanied by the mental element necessary for continuance.
29. It should also be noted that Section 142 I. P. C. uses the words 'continues in' which necessarily carries the implication that the person concerned remains a part of the assembly. Physical presence near about the place where an unlawful assembly has been formed cannot by itself and in all situations prove remaining a part of the assembly or, to use the words of the section, continuing 'in' the assembly. In the present case there was admittedly a crowd of over 1000 persons in the Congress party meeting. People present in the meeting were evidently members of a lawful assembly to start with. If at a later stage some persons out of them formed an unlawful assembly the result was that there came into existence two assemblies at that place, one a lawful assembly and the other an unlawful assembly. Further, it is not known where the members of the unlawful assembly were sitting whether they were scattered about or were sitting in a group. Is it possible in these circumstances to say that all those who were participating in the meeting 'continued' in 'the unlawful assembly of those five persons merely because they were physically present. Section 142 I. P. C. besides being a part of a penal statute provides for something which becomes the basis of constructive liability and the words used therein must, therefore, receive a strict interpretation. Both on principle and on authority it seems clear that mere presence at the place of the Congress meeting could not amount to 'continuing in' an unlawful assembly even if it supposed that such an assembly came to be formed by some persons at some stage. It will be useful to refer in this connection to the case of Maung Oh Kyan v. Emperor, AIR 1925 Rang 243 where a learned Judge of the Rangoon High Court, referring to the presence of a person in a meeting of about 40 or 50 persons observed:
'The learned Sessions Judge's view was that by remaining in the meeting he became a member of the unlawful assembly formed by those members who did use force. This appears to me to be an unjustifiable extension of the meaning of Sections 141 and 142 of the Indian Penal Code. The five or more persons who used violence may have formed an unlawful assembly But I see no ground for holding that all the persons assembled at the meeting were also members of this unlawful assembly. If this view of the law be correct, then at any public meeting however peaceful be its obiects, the whole meeting at once becomes an unlawful assembly directly five or more persons present at the meeting act with a common object of using criminal force. The actions of a few members of an assembly which is gathered together for a perfectly lawful purpose, cannot by themselves, make the whole assembly an unlawful assembly. The circumstances must be such as at least to justify the presumption that the other persons present associated themselves with the offending members. The mere fact that they are with the offending members at the time does not make them members of the unlawful assembly formed by those members. They must be shown to have joined or continued in that smaller assembly It is not shown in the present case that the majority of the original members of the meeting approved of the tactics of violence or in any way associated themselves with those tactics. If the petitioner be held to have been a member of an unlawful assembly in these circumstances then the prosecution witnesses who were the victims of the violence would also have to be held to be such members. There is nothing to show that these witnesses could not have left the meeting if they had wished to do so. and all that has been found against the petitioners is that he did not leave the meeting.
In my opinion the facts held to be established did not justify the finding that the petitioner was ever a member of the unlawful assembly formed by those persons present at the meeting who employed violence.'
30. In the above discussion I have supposed that at some stage of the Congress party meeting an unlawful assembly was formed and even on that supposition I find that nobody can be said to have become a member of the assembly by reason of his mere presence at the place of the meeting. However, the evidence and the circumstances of the case do not establish that any unlawful assembly was formed until the Jan Sangh party took to its heels. The individual acts alleged by the prosecution have not been satisfactorily established. Further, the circumstances show that such acts were justified and, at any rate, a reasonable possibility of their having been justified is not excluded.
31. There is certainly evidence to the effect that some participants of the Congress meeting chased the Jan Sangh party when the latter was running away and also burnt and destroyed some articles which the Jan Sangh party had brought for its meeting. These acts were clearly unjustified and cannot be said to have been done in the exercise of the right of private defence. The persons who did so. if they were five or more in number, did form an unlawful assembly at the time of doing it. but the question is who they were. These persons are not known and the learned Sessions Judge too has on this ground acquitted the appellants of the charge under Section 435 I. P. C.
32. In the result I hold that none of the appellants has been proved to be guilty of the charges of which they have been convicted. On the view that I take of the case it is unnecessary for me to deal with the criticism to which the bona fides and genuineness of the investigation have been subjected by the learned counsel for the appellants. It is also unnecessary to deal with the defence evidence, particularly because no reliance was placed on it in the course of argument.
33. The two appeals are allowed. The convictions and sentences of the appellants in both the appeals are set aside and they are acquitted. The appellants are on bail, they need not surrender to their bails and their bail bonds are discharged.