JUDGMENT 1. The occurrence, out of which this case has arisen, took place on the night of 30th April during a Mahorrum procession in the city of Patna. Mr. Boylau, Assistant District Superintendent of Police, was superintending the Chowhatta Akhora on procession, and finding that it was moving on slowly and occasionally stopping he feared that, it would be mixed up with the next akhora which was following it, and he therefore personally kept on calling upon the processionists to move on, and in order to accelerate their movements he himself entered the procession close behind the sipper or trophy of arms carried in such processions and before the tazia or tinsel structure indicating its character. He found that the delay was caused by the carriers of the sipper who were dancing to and fro and sometimes receded, so when they advanced he followed closely to prevent any backward movement. In so doing he irritated the processionists. This is clearly shown by the evidence and would naturally be caused by such interference. He was on horseback. The procession had just reached the darga where the tazias are deposited, and halted, it is said, to enable the last part of the procession to rejoin. There is no reason to suppose that this was not so, for there is no evidence to contradict this and it does not appear that, when this was given out, any attempt was made to see whether this was true, (sic) if true to hurry up the last part of (sic) procession. Irritated by Mr. (sic) interference or overzeal some (sic) him from behind with a torch. Mr. Boylau thought that this was accidental. Soon afterwards he was struck on the mouth by a brick thrown at him. He then ordered the Police to arrest the persons causing the disturbance. The Police are said to have used their lathis but it is strange that except one of those arrested, Budhun Ramzaz, no one was injured and his injuries are very slight. It is said that some of the processionists threw bricks and others used gunjes that is the wooden sticks on which the lights are earned. Then again it may be observed that except Mr. Buylau who was struck first on the back with a torch and afterwards by a brick on the mouth no one was injured. Before Mr. It is said that some of the processionists threw bricks and others used gunjes that is the wooden sticks on which the lights are earned. Then again it may be observed that except Mr. Buylau who was struck first on the back with a torch and afterwards by a brick on the mouth no one was injured. Before Mr. Boylau was struck by a brick the sipper fell down, it was picked up and Mr. Boylau says that it was raised horizontally towards him as if to strike him and that the men then assumed a threatening attitude. A sipper is a kind of trophy of arms borne on high on a pole by one man and in order to preserve the balance there is a rope on each side held by men. The fall of a sipper is more or less a sacrilege and it is certainly regarded as inauspicious. This appears from the evidence. It is said that the sipper was intentionally thrown down and it is also suggested that it fell because it was pushed with a stick carried by Mr. Boylau. Neither version of the occurrence seems to be proved. It seems much more probable that the pressure brought to bear by Mr. Boylau on the movement of the procession may have accidentally caused the fall of the sipper. Eight out of the eleven men who have obtained a rule to consider the case were arrested on the spot, They have all been convicted of rioting and sentenced to various terms of imprisonment. The Sessions Judge on appeal modified the convictions and reduced the sentences passed by the Magistrate. The rule has been granted on the ground that the common object of the unlawful assembly has not been made clear so that the conviction for rioting is bad. It has consequently devolved on us to consider an erroneous mass of evidence. The common object found is to overawe the Police in the performance of their duty. Undoubtedly the assembly was, until the disturbance took place, a lawful assembly and from the suddenness of the disturbance as already described, there was no previous concert between the Appellants or any of them, and others not under trial who are said to have joined in the disturbance. There was however an attack made on Mr. Undoubtedly the assembly was, until the disturbance took place, a lawful assembly and from the suddenness of the disturbance as already described, there was no previous concert between the Appellants or any of them, and others not under trial who are said to have joined in the disturbance. There was however an attack made on Mr. Boylau, the Assistant District Superintendent of Police, first by a blow of a torch from behind and then by a blow from a thrown brick on his mouth, and this was to mark disapproval of his interference with the procession and, in this point of view, to overawe him from persisting in it. There is morever reason to believe that the brick which struck Mr. Boylau was not the first brick thrown, and it is shown that it was followed by the throwing of other bricks. The evidence shows that some of the Petitioners were arrested while picking up bricks. All those who were promoting or committing any act of violence were therefore clearly members of an unlawful assembly animated by the same common object, to overawe Mr. Boylau in the performance of his duty as a police-officer, and force and violence being used they would be guilty of rioting. So far this case is clear and the rule on the terms on which it was granted might be discharged. But as the case was presented to us by the learned counsel who appeared for the Petitioners, we were asked to determine whether as against each of the Petitioners there was any evidence on which he could be convicted. This has involved considerable labour, for as already stated, the record contains an immense mass of evidence. The hearing of the appeal before the Sessions Judge it may be observed occupied three days. The case is somewhat complicated, because the majority of the Petitioners are Hindus and are therefore properly no parties to a Mahomed an procession of religious importance. Still it is notorious and abundantly shown from the evidence that Hindus (especially of the lowest castes) do join in such processions attracted probably by public display. There is consequently difficulty in such a case in distinguishing between persons present as curious spectators and those who join in the procession and especially in this case between those who promoted or committed the disturbance and those who were merely present and took no part in it. There is consequently difficulty in such a case in distinguishing between persons present as curious spectators and those who join in the procession and especially in this case between those who promoted or committed the disturbance and those who were merely present and took no part in it. It must be recollected that the disturbance fortunately lasted only a few minutes and therefore those who were present and may have wished not to join in it could not leave the spot so as to avoid the appearance of being amongst the rioters. 2. We have considered the evidence on this point of view. There is evidence which has been believed to show that all the Petitioners except Ragho Singh and Muddon Buksh were seen to use gunjes, i.e., sticks on which the lights are borne or to throw bricks and some of them were arrested in the act. 3. Against Ragho Singh the evidence has been described by the Magistrate in these terms:-- Prosecution witnesses Nos. 7 and 9 saw Ragho Singh with the procession at Parbapore (not at the scene of the disturbance). Bachu Narain, the Inspector, saw him and is positive about and heard him exciting the crowd. Mr. Smith saw him positively at the time of the row in the crowd. Mr. Smith has known him for some time and could not be mistaken as to his identity. Witnesses Nos. 14, 23, 24 also identify him. Witness No. 24 states that he heard him say 'maro, maro.' His evidence, he retracts on cross-examination and his conduct in doing so is very suspicious. A note will be found on the record. From this evidence I have no doubt that Ragho Singh was there and took part. 4. That Ragho Singh was present is clearly proved in spite of his alibi but it is certainly not proved that he incited the rioters by calling out "maro, maro." Witnesses Nos. 23, 24 who are both police-constables say so generally in their examination-in-chief but both of them in cross-examination retract this statement. Their evidence in this respect may be suspicious as noted by the Magistrate, but it would not be safe to rely on it. It is really the only evidence that Ragho Singh took any part in this disturbance. 23, 24 who are both police-constables say so generally in their examination-in-chief but both of them in cross-examination retract this statement. Their evidence in this respect may be suspicious as noted by the Magistrate, but it would not be safe to rely on it. It is really the only evidence that Ragho Singh took any part in this disturbance. The Inspector, Babu Bachu Narain, states that from what passed he "thinks that Ragho Singh had some voice in the procession but he cannot swear. He does not remember his very words. That is not the only reason for him being an accused. He joined the rioters. He followed up to where the riot took place." That would not show that he took part in the riot. Witness No. 14, Ram Mohan Panday, writer-constable, says that he saw Ragho Singh near Wajed and Nurali the person to whom the license for the procession had been granted when the Inspector told them to move on. He had a walking-stick in his hand. He also saw him with Muddon Buksh who had the license with him. He consequently suspected Ragho to be one of the rioters. Now up to this point the assembly was not an unlawful assembly. From his presence only, no presumption could be properly drawn that he was afterwards one of the rioters when the assembly became an unlawful assembly and the disturbance commenced. The evidence of this witness does not take the case further than that of witnesses Nos. 7 and 9 and Mr. Smith, and the conviction of Ragho Singh therefore depends only on the evidence of the two constables Nos. 23 and 24 which for reasons already stated cannot be accepted as reliable. Ragho Singh is moreover a Hindu, a man of some position and not likely to be irritated from religious feelings at any interference with the Mahomedan procession in which he was interested only as a spectator. The Sessions Judge has not expressly dealt with the case against him. On such evidence Ragho Singh cannot be properly convicted. We accordingly direct that he be acquitted. 5. Muddon Buksh, the remaining Appellant is, on the other hand, a Mahomedan and was a prominent member of the procession. The witnesses state that he incited the rioters by calling out "maro, maro." The evidence is unshaken and may therefore be believed. On such evidence Ragho Singh cannot be properly convicted. We accordingly direct that he be acquitted. 5. Muddon Buksh, the remaining Appellant is, on the other hand, a Mahomedan and was a prominent member of the procession. The witnesses state that he incited the rioters by calling out "maro, maro." The evidence is unshaken and may therefore be believed. The sentences, as modified by the Sessions Judge, are moderate, and he has justly passed a more severe sentence on Muddon Buksh. We therefore discharge the rules except in regard to Ragho Singh who will be released.