1. This is an appeal preferred by Government against the judgment of the Sessions Judge of Tinnevelly in Criminal Appeal No. 66 of 1899, setting aside the conviction of two men who had been sentenced by the Special Magistrate to rigorous imprisonment for eighteen months such for an offence under Section 144 of the Indian Penal Code. The reasons for the decision arrived at by the Sessions Judge are given by him briefly in the judgment above mentioned and at greater length in his judgments in Criminal Appeals Nos. 54 and 59 of 1899 which have been printed with the record in this case and referred to by the Government Pleader
2. What the Magistrate has found as to the facts of this case is that the two persons convicted by him together with others, to the number in all of 100 or 150, assembled together armed with billhooks and sticks, and that they dispersed at once on seeing the police. From these facts he assumes that the intention of the members of the crowd was to use criminal force--an offence punishable under Section 352 of the Indian Penal Code and, as they wore armed with what he appears to have held were deadly weapons, he has convicted them under Section 144 of the Indian Penal Code. In order to show the common intention of the members of the crowd some evidence was put forward before the Magistrate to prove that certain members of the crowd were heard saying that they were going to loot, but he has, as I consider rightly, discredited this evidence. There is therefore nothing to show what the intention of the men was except that they were in a large crowd and were armed, These facts, no doubt, raise a strong suspicion that the men had not assembled with any harmless or innocent intention, but it cannot, in my opinion be held that they afford proof that the intention of the members of the crowd was to use criminal force or to commit any other offence. One argument put forward here by Mr. Chamier in support of the appeal appears to be that, as the men had assembled in a crowd and were armed, a prima facie case against them had been made out which was sufficient, in the absence of rebutting evidence to show that the men had come together for self-defence or for any other lawful object to warrant a conviction. I cannot admit this argument. The prosecution was bound to show that the common object of the crowd was such as would constitute it an unlawful assembly as defined by Section 141 of the Indian Penal Code, and, as I am of opinion that this was not done, I would decline to interfere with the judgment of the Sessions Judge and would dismiss this appeal.
3. I am not prepared to dissent from the conclusion arrived at by my learned brother in this case.
4. The fact that so large a crowd of Maravars had assembled and that they were armed with sticks and bill-books and ran away when the police appeared is, in my opinion, sufficient to raise a strong suspicion that they had come together for an unlawful purpose, intending to use criminal force or to commit some offence, but I am not prepared to say that the Sessions Judge was wrong in holding that these facts alone were sufficient as legal proof of the unlawful character of the assembly. It is observed that no evidence was given as to the disturbed condition of the district which is now alleged before us and specially as to the relations existing between the Shanars and the Maravara in the neighbourhood and the action taken by similar crowd of Maravars about the same time. Had such evidence been given, it might;, in my opinion, have been sufficient to lead to an inference as to the unlawful character of the assembly though it would not necessarily do so, for it might be that the crowd had come together for a lawful purpose, such as go discuss the situation or to petition the authorities, and bad armed themselves with stick and bill-books, for protection against anticipated violence from the Shanars. The 'common object' of an assembly is to be ascertained from the acts and language of the members composing is and from a consideration of all the surrounding circumstances. In the absence of evidence such as I have referred to and when the specific acts adduced by the prosecution to prove the unlawful character of the assembly have been disbelieved. by both Courts, I do not think that the case is one in which we should interfere with the acquittal. I therefore agree that we should dismiss this appeal.