Judgment Sinha, J. 1. The two appellants have been convicted under Sec.302 read with Section 149 of the Indian Penal Code, and have been sentenced to transportation for life. They have also been convicted under Sec.147 of the Code, but no separate sentence has been awarded under that section. 2. These two appellants were put on trial along with eleven others who have been found not guilty and acquitted by the learned Additional Sessions Judge of Monghyr. 3. As the learned Judge has dealt with the facts of the case in a very satisfactory manner, giving the necessary details of the case, the evidence and his own criticisms o£ the evidence, I do not find it necessary to give at length the facts of this case except in a very brief manner. The appellants, along with their other co-accused, who have since been acquitted, belong to village Bar-tara, police station Sikandra, and the deceased Mumtaz Khan also belonged to the same village. There is another village, closely situated, known as Barhara within the same police station. It is an admitted fact that, because some meat seller of Barhara wanted to sell beef to the Muslims in Bartara communal tension was brought about, the Hindus resenting the sale of beef In Bartara, and the Muslims of Bartara and Barhara insisting that beef should be sold in Bartara. In the year 1953, the Holi festival of the Hindus fell on the 3rd of March. During that festival, trouble was apprehended between the two communities when Ramkishun Singh, Mukhia of the Gram Panchayat (accused--acquitted), sent a letter to the Sub-Inspector of Police, Sikandra informing him about an apprehension of a breach of the peace. The Sub-Inspector held enquiry on the 2nd of March and the very next day he submitted his report to the Sub-Divisional Officer recommending proceedings under Ss. 107 and 117 of the Code of Criminal Procedure against, the first party, consisting of Mumtaz Khan, the deceased, Anwar Khan (P W. 2) Nairn Khan (P. W. 19), son of Mumtaz Khan, Ali Bux (P. W. 7) and Usman (P. W. 5), and also against the second party, consisting of accused Chhotan Sahu (since acquitted) and four others. Proceedings were, accordingly, started against both sides on the 4th of March, 1953. Proceedings were, accordingly, started against both sides on the 4th of March, 1953. The proceedings were split up on the 4th of May, 1953 against the two parties, and the 24th of September, 1953 was the date fixed in the proceeding against the Hindus, namely, Chhotan Sahu and others. 4. There is a Gram Panchayat at Bartara, of which Ramkrishun Singh, aforesaid, is the Mukhia; accused Jato Singh, who has been acquitted, is the Sarpanch and appellant Bindesh-wari Singh is the Dalpati or the Chief Officer. Prom the letter which wag sent by the Mukhia to the Sub-Inspector of Police, Sikandra, on the 1st of March, 1953, which formed the subject-matter of the enquiry by the Sub-Inspector and later recommendation by the Sub-Inspector for a proceeding under Sec.107 of the Code of Criminal Procedure, it appears that the Dalpati, namely, the appellant Bindeshwari Singh, with the help of Swayam Sevaks and the chaukidar, had stopped breach of the peace between the two communities. 5. The prosecution case is that the deceased Mumtaz Khan, Anwar Khan (P. W. 2) Naim Khan (P. W. 19), Ali Bux (P. W. 7) Usman (P. W. 5), Idris (P. W. 17) and Salim (P. W. 6) were witnesses in the proceeding under Sec.107, Code of Criminal Procedure, against Chhotan Sahu and others which was fixed for the 24th of September, 1953. In the evening of the 23rd of September, the deceased, Nairn (P. W. 19), Idris (P. W. 17), Salim (P. W. 6) and Ali Bux (P. W. 7) started together from Bartara for Jamu, where the case under Sec.107 was pending, and reached Garsanda Railway Halt on the South Bihar Railway at about 8 or 8-15 P.M., to board the train for Jamui at about 9 P, M. After reaching the railway platform, they sat there. Only about 15 minutes after about 12 to 14 persons, variously armed with lathis and bhalas, came there from the west and started assault upon Mumtaz Khan. P. W. 17, the first informant, and P. W. 6 fled away as soon as the assault was started, and Nairn (P. W. 19) and Ali Bux (F. W. 7) also left the place and stood at a distance of about 15 steps and saw the entire occurrence. P. W. 17, the first informant, and P. W. 6 fled away as soon as the assault was started, and Nairn (P. W. 19) and Ali Bux (F. W. 7) also left the place and stood at a distance of about 15 steps and saw the entire occurrence. After the assault, Mumtas tried to get up but fell down in the middle of the railway lines, when all of them again began to assault him. After that, accused Jato and Parmeshwar, also called Parmeshwarl, pressed him and Ram Kishun Singh, the Mukhia, chopped off the head of Mumtaz with a sword. While his head was being chopped off, p. W. 19 Nairn cried as to why they were doing so. In the meantime, Anwar (P. W. 2), Muslim (P. W. 4) and Usman (P. W. 5), who had also left Bartara for Garsanda Halt a little later, arrived near a Mahua tree to the South-West of the said halt at about 400 yards, and heard the voice of Nairn. They then came to the ditch, south of the railway line, find saw about 14 to 15 men dragging a man from the platform. They reached the edge of the water and heard the voice of Ramkishun, They then fled away and went to a dilapidated house to the West of Garsanda basti. After that, they went to the southern khanta and found the headless trunk of Mumtaz Khan lying in the water. Thereafter, they remained under a peepal tree for the rest of the night. Idris (P. W. 17) and Salim (P. W. 6), who had fled from the railway platform immediately on the arrival of the mob, concealed themselves on the ridge of a paddy field in village Kuraota, about two miles away from the place of occurrence, and spent the night there. Next morning, they started for police station Lakhisarai, and reached there after sunrise, Idris got his fardbayan recorded by P. W. 2-0, Sub-Inspector R.P. Singh, at 7-30 A. M. on the 24th of September, 1953. Salim, who had accompanied Idris was also examined by the Sub-Inspector. But the Sub-Inspector, being of the opinion that the occurrence had taken place within a railway station premises sent the fardbayan to the Government Railway Police, Kiul, and asked Idris and Salim to wait till he got information from Kiul. Salim, who had accompanied Idris was also examined by the Sub-Inspector. But the Sub-Inspector, being of the opinion that the occurrence had taken place within a railway station premises sent the fardbayan to the Government Railway Police, Kiul, and asked Idris and Salim to wait till he got information from Kiul. The fardbayan was, however, returned with a note that, as Garsanda Halt was not a railway station, it was not within the jurisdiction of the Government Railway Police, Kiul. Thereafter, at about 12.30 P. M., first information report was drawn up by Sub-Inspector R.P. Singh (P. W. 20) on the basis of the said fardbayan recorded at 7.30 A. M. While returning from the police station, p. W. 17 Idris and P. W. 6 Salim met Mohan Chaukidar, who was going towards the police station Lakhisarai. 6. On the prosecution case, when P. W. 19 Naim had raised some alarm at the time of the occurrence, order for assaulting him was given by the mob, and both Naim and Ali Bux fled away and went home. They related the occurrence to Fida Khan (P. W. 10), uncle of Naim, and also met P. W.s 11, 12 and 13 and others and they remained there for the rest of the night in their village. Next morning, P. W. 10 Fida Khan asked Nairn to go to the police station; and Fida Khan, along with P. W.7 AH Bux, Yusuf, Mano, Halim and Gauhar, went to Garsanda Halt and found the headless trunk of Mumtaz Khan in span-deep water in the Southern khanta of the Garsanda Halt platform. They also found his blood-stained clothes, shoes etc.; blood was also found at several places. Next day, Naim met Idris and Salim, who were coming from Lakhisarai police station, near the Lakhisarai railway station at about 11 A. M., and narrated the occurrence to them. The first informant Idris and Salim told him that they were returning after lodging first information at the thana and that the Sub-Inspector was coming to the place of occurrence. Naim did not go to the police station but returned with Idris and Salim to the place of occurrence and saw the headless trunk of his father in the water. 7. After investigation, charge-sheet was submitted and the accused, including these appellants, were put on their trial. 8. Naim did not go to the police station but returned with Idris and Salim to the place of occurrence and saw the headless trunk of his father in the water. 7. After investigation, charge-sheet was submitted and the accused, including these appellants, were put on their trial. 8. The learned Judge has disbelieved the prosecution case against the other eleven accused and has acquitted them. So far as the present appellants are concerned, reliance has been placed by him on the evidence of four eye-witnesses, namely, P. W. 17, the first informant, P. W. 6, his companion, P. w. 19 Naim and P. W. 17 Ali Bux. He has found that Mumtaz Khan was murdered at about 9 P. M. on the 23rd of September, 1953, at the place alleged by the prosecution, namely, at Garsanda Halt railway platform. 9. Thus first information report based upon the fardbayan of Idris mentioned only two names of the accused, namely, Binda Singh and Anandi Singh of Bartara, police station Sikandra, that is to say, the present appellants. It was said in the first information report that Anandi Singh is brother of Bindo Singh. No alias name of Anandi Singh was mentioned in the first information report, but during the investigation it came out that Anandi Singh had an alias name Ambika Singh. The Court below has relied upon the testimony of the first informant, P, W. 6 Salim, P. W. 19 Naim and P. w. 7 Ali Bux in holding that these two appellants were members of the unlawful assembly, the common object of which was to commit the murder of Mumtaz Khan. The learned Judge has also held that there was no reliable evidence to show that Rindo Singh or Bindeshwari Singh appellant No. 1, was armed with a bhala, as was the case developed during the trial. Upon the prosecution case, as found by the Court Anandi Singh or Ambika Singh was armed with a lathi. The Court below has convicted both Bindo Singh and Ambika Singh under Sec.147 of the Penal Code and thereby disbelieved the story of the prosecution that Bindo Singh was armed with a bhala. The evidence of P. W. 19 and P. W. 7, Naim and Ali Bux, has net been relied upon so far as the other eleven accused were concerned. The evidence of P. W. 19 and P. W. 7, Naim and Ali Bux, has net been relied upon so far as the other eleven accused were concerned. The learned Judge has disbelieved the story of Idris and Salim, the first informant and P. W. 6, about their having taken shelter on an all of a paddy field in village Kuraota. He also does not believe their story that they had not gone to the village and instead went to village Kuraota. The story of P. W. 19 and P. W. 7, Naim and Ali Bux, that they stood about 15 steps away from the place of occurrence at the time of occurrence and saw the whole thing has not; been believed by the Court below for the reason that it wag a clear moonlit night and it was not possible that the accused persons; who are alleged to be their co-villagers, had allowed them to see the entire occurrence from such a short distance, nor was it believable that these persons could dare stand near the place of occurrence at such a critical and dangerous time. Their story has been disbelieved also on the ground that alter having seen the entire occurrence they would go to the police station so leisurely and after such a long delay, as it was not a natural conduct on the part of Naim that after having seen the occurrence he would not have gone to the police station. Their story that they met Idris and Salim near the Lakhisarai railway station when they were coining back after having lodged the first information had also not been believed because they had known that Idris had merely given information about a riot and not about the murder of Mumtaz Khan inasmuch as Idris had not seen the murder itself. If Naim had met Idris and was made apprised of the fact that information was given merely oi a riot, it was improbable that Naim should have returned with Idris and Salim and not proceeded to the police station for informing the Sub-Inspector of Police about the murder. If Naim had met Idris and was made apprised of the fact that information was given merely oi a riot, it was improbable that Naim should have returned with Idris and Salim and not proceeded to the police station for informing the Sub-Inspector of Police about the murder. In his evidence before the committing Magistrate, Naim had stated that he had started from his village at about 3 A. M., next morning, that is, on the 24th of September, and the Court below rightly points out that this delay in not lodging the first information makes his statement regarding his seeing the entire occurrence incredible. The evidence of P. Ws. 2, 4 and 5, namely, Anwar, Muslim and Usman, who had come to the place of occurrence after the murder and who according to their own statements, had seen the dragging of the dead body has been discredited by the Court below. The dragging story, as given out by these witnesses, is further discounted on the ground that there were no scratch marks on the body. P. W. 7, Ali Bux has been held to be not a truthful witness and the Court below has come to the conclusion that "From the evidence on the record it appears that when the assault on Mumtaz started, his companions flew away and came home and after it, they went to P. O. and from there Idris and Salim were sent to P. S. to lodge information there next morning." 10. After having disbelieved the several aspects of the prosecution case, as mentioned above, the Court below has relied upon the testimony of P. W. 17, the first informant, P. W. 6 Salim, P.W. 19 Naim and P.W. 7 All Bax regarding the presence of the two appellants in the mob because these four witnesses, being co-villagers of the appellants and it being a clear moonlit night, could easily identify these two appellants. In regard to the other eleven accused persons, who have been acquitted, the learned Judge has disbelieved the testimony of P.W. 19 and P. W. 7 as well as the other witnesses who had purported to have identified them or to whom their names were mentioned by P.W. 19 and P.W. 7. I find it difficult to act upon the testimony of P.W. 19 and P,W. 7. I find it difficult to act upon the testimony of P.W. 19 and P,W. 7. They claim to have identified the other eleven accused also, who have been acquitted, as soon as they came upon the platform, and that when assault was started on Mumtaz, they stood about 15 steps away from the place of occurrence. The Court below, for very good reasons, has not acted upon their evidence so far as the other accused are concerned, and to me also, it appears to be most incredible that they would be standing about 15 steps away from the place of occurrence in a clear moonlit night when such a heinous crime was being committed and each one of them was equally exposed to danger. In my opinion, they had not seen the occurrence and they had not identified any of the persons in the mob. If they were there at the place of occurrence, about which I have grave doubts, I cannot possibly account for their conduct in having gone away to their village and not starting for the police station until 8 Oclock next morning. If they had seen the occurrence, one of them being the son of deceased Mumtaz, they must have started for the police station much earlier than 8 Oclock. According to their case, Naim had met Idris and Salim on their way back from the police station near about Lakhisarai railway station. Naim was told about the first information, which was not about the murder of Mumtaz, and still Naim did not think it worthwhile to go to the police station and mention the fact of murder to the Sub-Inspector of Police; the railway station must have been only a few furlongs from the police station. As these two witnesses have been disbelieved in regard to the other accused by the Court below and for other reasons given about, I do not propose to place any reliance on their evidence about the identification of these two appellants. 11. The evidence of the other two witnesses, namely, the first informant and Salim (P.W. 6), I have no reason to doubt so far as the identification of these two appellants is concerned and the use of their evidence, in my opinion, is not at all material. 11. The evidence of the other two witnesses, namely, the first informant and Salim (P.W. 6), I have no reason to doubt so far as the identification of these two appellants is concerned and the use of their evidence, in my opinion, is not at all material. The foremost reason which impels me to accept their statements about the identification is that while P.W. 17, the first informant Idris, names only these two appellants, he does not name any other person in the mob, although, according to the prosecution case, the accused persons were of Bartara and his village, Barhara, is closeby. If the Court below is right in thinking that Idris and Salim had gone to the village that night, after having seen the beginning of the assault, they must have met various persons in the village and if they did so meet, it is unbelievable that they would not have named other accused also, although they had not seen them as being members of the mob. They do not do so. For my part I do not fully appreciate the reason given by the learned Judge for holding impliedly that these two witnesses, P.W. 17 and P.W. 6, had gone away to their village on the night of the occurrence. I am rather-inclined to hold that they had not gone to their village that night and had not met other persons of the village before going to the police station. The evidence regarding their stay for the night at an al of a paddy field may or may not be correct, and if it is not correct, it does not necessarily mean that they had gone to their village. The two factions in the village, of the Hindus and of the Muslims, were engaged in litigation and actually two cases under Sec.107, Code of Criminal Procedure, were pending against the members of the two factions. In these circumstances, if the two witnesses had gone to the village, I would expect that in consultation with other persons in the village, the first informant must have mentioned the names of the other accused also, though ha may not have actually seen them. The first informant, Idris, is supported by P.W. 6 Salim so far as these two appellants are concerned. The first informant, Idris, is supported by P.W. 6 Salim so far as these two appellants are concerned. It is true that Salim had named one other accused, namely, Chhotan Sahu, who has been acquitted, but that does not necessarily show that, so far as these two appellants are concerned, he had given a false story about their presence in the mob. If Idris and Salim had named the other accused persons as well, it had been abundantly clear that these persons were lying absolutely so far as these two appellants also were concerned; but I have been impressed by their evidence mostly because Idris has named only these two appellants and Salim has also named these two appellants though he also named one Chhotan Sahu. There is one other circumstance which shows that his evidence about the identification and the general story given out by Idris about the occurrence is correct, and that is the fact that he does not mention about the murder of Mumtaz in the first information report; and the absence of such a statement in the first information report shows that the first informant, Idris, had mentioned only such facts in the first information as he had seen about the occurrence. On these grounds, in my opinion, it must be held that Idris and Salim had given a correct story about the prosecution case in so far as they had seen the occurrence; and if that part of the story is believed, then it establishes that a mob, variously armed, came to the place where Mumtaz and others were sitting on the platform at Garsanda Halt, that they started assaulting Mumtaz and that these two appellants were members of that mob, subject to the finding of the Court below being correct that Ambika Singh is the same person as Anandi Singh which matter will be considered presently. 12. It is submitted by Mr. Baldeva Sahay that, so far as Ambika Singh is concerned, his name does not find place in the first information report; and that is true. The name mentioned is Anandi Singh, but he has got his description, namely, that he is the brother of Binde Singh. It is also true, as submitted by Mr. Sahay, that until after four days of the investigation, it was not known that Anandi Singh had an alias name Ambika Singh. The name mentioned is Anandi Singh, but he has got his description, namely, that he is the brother of Binde Singh. It is also true, as submitted by Mr. Sahay, that until after four days of the investigation, it was not known that Anandi Singh had an alias name Ambika Singh. It is argued that if for four days nobody knew the alias name of Anandi Singh as Ambika Singh the Court ought to disbelieve the prosedition case that Anandi Singh and Ambika Singh are the names of the same person. I am not inclined to accept this argument of Mr. Sahay. If the witnesses had not known accused Ambika Singh by his other name Anandi Singh, in all their statements they would not have mentioned that man as Anandi Singh; and unless, there was some doubt as to whether Anandi and Ambika were the same person, no witness would bother himself to give out the alias name of Anandi also. It was only after the Sikandra police had reported that there was no person of the name of Anandi Singh in that village when they had gone to serve processes under Sections 87 and 88 of the Code of Criminal Procedure, that the witnesses mentioned the fact in their subsequent statements that Anandi Singh had an alias name Ambika Singh. Besides this the first information report says quite explicitly that Anandi Singh was a brother of Bindo Singh. Even though the name may not be correct, the description that the other accused was the brother of accused Bindo Singh is correct, and it has not been proved that Bindo Singh had any other brother named Anandi Singh. The Court below, therefore, in my opinion, was right in holding that Anandi Singh, the brother of Bindo Singh, mentioned as such in the first information report, is the same as Ambika Singh. In that view of the matter, in my opinion, it has been abundantly proved that both these appellants were members of the mob when it arrived at the platform and started beating Mumtaz Khan at the Garsanda Halt. 13. Mr. In that view of the matter, in my opinion, it has been abundantly proved that both these appellants were members of the mob when it arrived at the platform and started beating Mumtaz Khan at the Garsanda Halt. 13. Mr. Sahay commented that, as there was enmity between the office-bearers of the Gram Panchayat, of which appellant Bindo Singh was the Chief Officer, "and as he had taken active pan in the dispute over the selling of beef in village Bartara, his name has been falsely mentioned by the prosecution. If there was false implication of the name of these appellants because of enmity. 1 would expect the names of other office hearers of the Gram Panchayat also in F.I.R. and I do not fully appreciate Mr. Sahays argument as to the absence of the names of persons like Ramkishun Singh and Fate Singh, the Mukhia and the Sarpanch of the Gram Panchayat. It is said that their names were not mentioned because it was hoped by the first informant that they must have been at Jamui as the case under Sec.107, Code of Criminal Procedure, was to be taken up on the 24th September, the next day, and that as Bindo Singh had already deposed in the case sometime before, on the 1st July, 1953 the names of the other office-bearers of the Gram Panchayat were not mentioned in the first information report. In my judgment, this explanation of Mr. Sahay is not acceptable. Idris the first informant, is a man of Barbara, a neighbouring village, and I do not suppose that he was apprised of the facts relating to the two proceedings under Section 107 of the Code of Criminal Procedure. Apart from this, it will be crediting too much intelligence to Idris, or as a matter of fact to Salim, for having omitted the names of the other accused persons because it was likely that they were at Jamui at the time of the occurrence. As a matter of fact, we find that Chhotan Sahu, one of the persons mentioned by Salim, has been found to be actually at Jamui in the morning of the 24th of September, and, therefore, it was unlikely, as the Court below has held that he was in the mob the previous evening. As a matter of fact, we find that Chhotan Sahu, one of the persons mentioned by Salim, has been found to be actually at Jamui in the morning of the 24th of September, and, therefore, it was unlikely, as the Court below has held that he was in the mob the previous evening. I am, therefore, of the opinion that the prosecution has succeeded in proving that these two appellants were members of the mob which came to the Garsanda Halt and started assaulting Mumtaz Khan. 14. The only question which remains to be answered is as to whether they could be held guilty under Sec.302/149 of the Indian Penal Code. Sec.149 of the Code runs as follows : If an offence is committed by any members of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence." I have underlined (here into ) the important words and expressions. Now the offence which has been committed is the offence of murder. The question is if these two appellants were persons "who, at the time of the committing of that offence were "members of the same assembly". There is no evidence by the prosecution on which reliance could be placed that these two persons were members of the assembly at the time the offence under Sec.302 of the Indian Penal Code was committed. The two witnesses on whom I have placed reliance, namely, the first informant, Idris (P.W. 17) and his companion, Salim (P.W. 6), do not speak of the murder; they speak of a mob armed with lathis and bhalas starting assault on Mumtaz Khan. The question that arises is whether they could be said to be members of the unlawful assembly at the time when the offence of murder was committed. 15. There is absolute lack of evidence that the appellants were members of the unlawful assembly "at the time of the committing of murder". In my view, therefore, the offence under Sec.302/149 of the Code has not been brought home to the appellants. On behalf of the State, Mr. 15. There is absolute lack of evidence that the appellants were members of the unlawful assembly "at the time of the committing of murder". In my view, therefore, the offence under Sec.302/149 of the Code has not been brought home to the appellants. On behalf of the State, Mr. Varma, the learned Counsel, placed reliance upon the case of Ramhit V/s. Emperor, AIR 1934 All 776 (A). In that case, it was observed as follows : "When a person, however, is found to be amongst a mob of rioters the law presumes that he shares their common object and intention. If he does not share that common object and intention, the onus is upon him to prove his innocence. What the common object and intention of a mob is can only be inferred from its actions. Here a mob murdered certain man. The only inference therefore which can be drawn is that the common object of the mob was murder. If any of the accused did not share that common object it was for them to prove that fact. Their defence, however, practically in every case has been not that they were amongst the gathering of villagers with an innocent intention, but that they were not there at all. They were bound to rebut the presumption that they shared in the common object of the mob. This they failed to do." In my opinion, the proposition is very widely stated. As Sec.149 stands and this was a case under Sec.302/149, Indian Penal Code, the ingredients of the offence have to be made out by the prosecution and not by the accused. It has to be proved I by the prosecution that at the time of the committing of the offence the accused was a member of the assembly. It appears that the important expression occurring in Sec.149 -- "at the time of the committing of that offence" -- was missed by their Lordships, and no effect, therefore, was given to that expression in the observations just quoted. It is true that if once the prosecution has led evidence that the accusrd was present at the time of the commission of the offence as a member of the mob, it would be for the accused, if he so wishes, to give evidence to rebut the prose-qution case. It is true that if once the prosecution has led evidence that the accusrd was present at the time of the commission of the offence as a member of the mob, it would be for the accused, if he so wishes, to give evidence to rebut the prose-qution case. But unless there is some evidence to show that the accused was a member of the unlawful assembly at the time of the commission of the offence, no burden lies upon the defence to prove his innocence. It appears from the facts mentioned in that case that the appellants before their Lordships were held to be members of the unlawful assembly. Some of the members of which had committed the offence of murder, and the defence contention that there were different unlawful assemblies at different times culminating in the murder of certain persons was not accepted by their Lordships. According to their findings, it was held that there was one unlawful assembly some of the members of which had committed the offence of murder and that the appellants before their Lordships were members of that unlawful assembly when the murder was committed. If my reading of the facts is correct, then no objection could be taken to the ultimate result of the appeal. But I cannot possibly agree that without any evidence by the prosecution to the effect that the accused was a member of the unlawful assembly at the time of the commission of the offence, the burden is upon him to show that he had not been a member or had ceased to be a member of that unlawful assembly at the time the offence was committed. There is another case placed before the court by Mr. Varma, namely, the case of Abdullah V/s. Emperor, AIR 1924 All 233 (B). But that case, in my opinion, does not support the point of view pressed by Mr. Varma, at page 250 of the report, the following passage occurs : "The charge drawn up under Ss. There is another case placed before the court by Mr. Varma, namely, the case of Abdullah V/s. Emperor, AIR 1924 All 233 (B). But that case, in my opinion, does not support the point of view pressed by Mr. Varma, at page 250 of the report, the following passage occurs : "The charge drawn up under Ss. 302-149, I. P. C., is fully established as against any one of the accused persons who is proved by evidence to nave continued an active participant in the riot after the moment when kankar began to be thrown, unless and until it can be inferred from credible evidence that he separated himself from the rest before the offence of murder had been committed by any one of them." I respectfully agree with the aforesaid observation according to which the accused person who is proved by evidence to have continued an active participant in the riot must be held guilty unless from some credible evidence it could nave been inferred that he had separated from the rest before the offence of murder had been committed. In the case in hand apart from the evidence of the two eye witnesses upon whom the Court has placed reliance, namely, P.Ws. 17 and 6, who do not state anything about the murder, there is no other evidence to the effect that the appellants were members of the unlawful assembly at the time of the commission of murder. The prosecution should have given reliable evidence to the effect that the appellants did continue as members of the unlawful assembly at the time the murder was committed. There is no such evidence. It is for the prosecution to prove every bit of the chain in the guilt of the accused beyond any reasonable doubt. As I have repeatedly said, the prosecution has given no evidence at all as to whether the two appellants were members of the unlawful assembly at the time of the commission of the offence, namely, the murder of Mumtaz If they have failed to give evidence, it is right for the Court to hold the appellants guilty by construction of law under Sec.149 for the offence of murder on any presumption of law? My attention has been drawn to Sec.114 of the Evidence Act, and to its illustration (d). My attention has been drawn to Sec.114 of the Evidence Act, and to its illustration (d). Sec.114 of the Act reads as follows: "The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to facts of the particular case." In the present case, emphasis naturally is given to "the common course of natural events" and "human conduct". Illustration (d) is as follows : "that a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or state of things usually cease to exist, is still in existence." There is no authority and for which I searched in vain to show that this presumption was ever applied in favour of the prosecution and against the accused for the purpose of holding that, although at one stage, according to the prosecution evidence, a person was a member of an unlawful assembly, he continued to be so throughout including the time when the particular offence in question was committed. This presumption under Sec.114 of the Evidence Act has to be drawn at the discretion of the Court upon materials justifying such presumption. The Court is not compelled to draw such a presumption, and in my opinion it would not be right at all to draw upon this presumption under Section 114 as to the continuance of a person as a member of an unlawful assembly when once he was shown to be a member at the initial state. In view of the principle of criminal jurisprudence, the prosecution must prove beyond reasonable doubt every link in the chain of the prosecution. Besides, I think the existence of an unlawful assembly or its continuance is merely a matter of moments and there is always a presumption in favour of the accused that he may have withdrawn himself before the offence was committed, and therefore, I do not like to draw any presumption in favour of the continuance of unlawful conditions. Besides, I think the existence of an unlawful assembly or its continuance is merely a matter of moments and there is always a presumption in favour of the accused that he may have withdrawn himself before the offence was committed, and therefore, I do not like to draw any presumption in favour of the continuance of unlawful conditions. The drawing of such a presumption naturally results in casting burden of proof on the party against whom the presumption is raised and, in my opinion, such a presumption should not be raised against an accused in regard to matters which have got to be proved by evidence by the prosecution. This aspect of the matter, however, does not absolve the appellants from any offence altogether. The evidence of these two eye witnesses referred to above is that the mob, including the appellants, came armed with lathis and bhalas, as in the first information, and with other lethal weapons, as mentioned in the evidence. That the mob was armed with dangerous weapons is proved also by the injuries found upon the person of the deceased. The first four injuries were caused by sharp pointed weapons and Nos. 5 and 6 by hard and blunt substance, and the last one No. 7 also by a sharp cutting weapon. The last injury, namely, the cutting of the neck, according to the doctor was post-mortem. There is no doubt, therefore, that the mob was armed with sharp pointed weapons and, therefore, any person who was a member of that unlawful assembly must have at least known that a grievous Injury was likely to be caused, and in that view of the matter the appellants, upon my findings, must be held guilty by the construction of law of the offence under Sections 326/149 of the Indian Penal Code. It is now well established principle of law that an accused who is member of an unlawful assembly is not necessarily guilty of the graver offence committed by any member of the unlawful assembly but that he could be convicted of a lesser offence, provided it is found that he was a member of the unlawful assembly and that such lesser offence was likely to be committed in prosecution of the common object of the assembly. Upon the evidence, these two appellants were members of the unlawful assembly which started beating the deceased. Upon the evidence, these two appellants were members of the unlawful assembly which started beating the deceased. That assembly was armed with bhalas and deadly weapons as also lathis. It must therefore be held that these appellants must have known that a grievous injury was likely to be caused and they could be constructively held guilty of the offence of causing grievous hurt read with Sec.149 of the Indian Penal Code. It is true that the Court below has not believed the story of the prosecution that appellant No. 1 was armed with a bhala, and both these appellants have been convicted under Sec.147 indicating thereby that they were armed with lathis and not any sharp cutting or sharp pointed weapon. I would therefore alter the conviction of these appellants from under Sections 302/149, Indian Penal Code, to one under Sections 326/149, Indian Penal Code. In the circumstances and facts of this case, in my opinion, it will amply meet the ends of justice if appellants are sentenced to rigorous imprisonment for ten years, and they are further sentenced to pay a fine of Rs. 200.00 each in default to suffer rigorous imprisonment for a further period of six months, and I would sentence them accordingly under Sections 326/149 of the Indian Penal Code. Their conviction under Sec.147, I. P. C., will stand but there will be no separate sentence under that section. 16. In the result, the conviction is altered, the sentence is modified as mentioned above and the appeal is accordingly dismissed with the aforesaid modification in the conviction and sentence. Ahmed, J. 17 I agree with the order proposed by my learned brother. I must however, say that my opinion on the application of Sec.149, Indian Penal Code is slightly different. Under that section a person who is a member of an unlawful assembly is made guilty of an offence committed by another member in the circumstances mentioned therein although he had no intention to commit that offence and had done no overt act excepting his physical participation therein. The circumstances as laid down in the section are that that offence should be one which is committed in prosecution of the common object of the unlawful assembly or which the members of that unlawful assembly knew as likely to be committed in prosecution of that object. The circumstances as laid down in the section are that that offence should be one which is committed in prosecution of the common object of the unlawful assembly or which the members of that unlawful assembly knew as likely to be committed in prosecution of that object. Further, for other members of the unlawful assembly to be liable for that offence, it is necessary to be found not only that they were members of the unlawful assembly but also that they were members of the unlawful assembly even at the time when that offence was committed, that is, they continued to be members of that unlawful assembly up to the time of the committing of that offence. I agree with my learned brother that like all other ingredients of the offence under Sec.149, Indian Penal Code, the one that a particular member of the unlawful assembly continued to be its member up to the time of the commission of the offence, is also to be proved by the prosecution. There can be no difference of opinion on that point. The difference, if any, is on the point as to how it is to be found that a particular member of the unlawful assembly continued to be its member up to the time of the committing of the offence. This, in my opinion, is essentially a question of fact and has to be approached on the same line as all other questions of facts are approached. In other words, in order to give a finding on that point, all evidence on the record, direct, indirect or circumstantial has to be carefully weighed and appraised and all these have to be done in the light of the normal course of human conduct keeping in view the rules of presumption, if any, applicable to the facts of the case. Here, it is established that there was an unlawful assembly and that the common object of the unlawful assembly was to commit murder of Mumtaz Khan, as mentioned in the charge, as also unquestionably established by the way in which the assault pointedly began on the deceased alone, by the way in which his body was dragged from the railway platform to the ditch nearby, by the way in which the head was cut off and the trunk thrown off in the water and not less by the nature of the injuries found by the doctor inflicted on the body of the deceased as also by the past history of the case. Further, the facts on the record fully prove that it was one and the same unlawful assembly which did all--first suddenly appeared on the platform with lethal weapons in their hands and then brutally assaulted Mumtaz Khan and in the course of it killed him. On these facts a question arises as to how far the guilt, If any, rests on the head of the appellants for the crime committed by that unlawful assembly Or by some Or all of them. It is true that there is no evidence to prove that it were the appellants who inflicted the fatal blows on the deceased and it is also true that on the direct evidence alone of the two eye witnesses, namely Idris (P.W. 17) and Sk. Salim (P.W. 6) it cannot be conclusively said that these two appellants continued to be members of the unlawful assembly till the time when the fatal blows were inflicted on the deceased. But this much I think stands proved by that evidence beyond reasonable doubt that the appellants were the members of the unlawful assembly & also that they as such among others had come to the railway platform and had actually joined in the assault which suddenly opened from behind at the railway platform & which then and there resulted in instantaneous death of Mumtaz Khan in the course of one of the same transaction. The evidence of the informant, Md. Idris, (P.W. 17) on this point was as follows : "On 23-9-1953, which was a Wednesday, at night we were going to board the train at Gar-sanda Halt. Sk. Salim, Mumtaz Khan, Naim. Ali Bux and myself were going to board the train. The evidence of the informant, Md. Idris, (P.W. 17) on this point was as follows : "On 23-9-1953, which was a Wednesday, at night we were going to board the train at Gar-sanda Halt. Sk. Salim, Mumtaz Khan, Naim. Ali Bux and myself were going to board the train. We left our village after sunset and reached Gar-sanda Halt at about 8-30 P.M. and sat on the western extremity of the platform there. After about 15 minutes of our sitting there about 10 or 12 persons armed with weapons came there and began to assault Mumtaz Khan. As soon as he was struck I fled away. Before fleeing away and after the assault on him had started I could identify two of them. They were Bindo Singh, Ambica Singh alias Anandi Singh. I saw them along with others assault Mumtaz Khan. All began to assault him. Bindo was armed with bhala and Anandi with lathi and the rest with bhalas and lathis. The said two accused are present here (identifies them). Sk. Salim also fled away with me. Both of us fled towards the east and after fleeing away for about two miles we sat on the Ahri which is also called (ridge) of a paddy field in village Kuraota. We sat on that Al for the rest of the night. We remained sitting there. Salim told me that he had identified Bindo Singh, Anandi Singh and Chhotan Sahu and I told him that I had identified Bindo Singh and Anandi Singh. Next morning when it was somewhat clear (saf) We (Salim, and I) started for Lakhisarai P. S. and reached there after sunrise. I gave my statement before the S. I. after 15 or 20 minutes of our reaching there. I got my Fardbeyan recorded which was read over to me and I found it to be correct and signed it, This is my signature on it." And practically to the same effect was the evidence of the other eye witness Md. Salim (P. W. 6). I got my Fardbeyan recorded which was read over to me and I found it to be correct and signed it, This is my signature on it." And practically to the same effect was the evidence of the other eye witness Md. Salim (P. W. 6). If the evidence of these two witnesses is true, which I also think is substantially true, then the inference which reasonably emerges from these facts especially when they are read in their context and in the back ground of the case is that the appellants as members of the unlawful assembly not only joined in the assault when it opened bait continued to be there as such till the time when the fatal blows were inflicted on the deceased, immediately thereafter in the course of the same transaction, by some members of the unlawful assembly and as such they are liable for the offence under Sec.302, read with Sec.149, Indian Penal Code, as found by the trial Court. On the facts of this case it is clear that the two appellants had identified themselves completely with the common object of the unlawful assembly. Further, it is clear that the assault itself could not have taken more than a few minutes as it was the time for the train to arrive. It is true that a man may retire from an unlawful assembly in the course of its transaction before a particular offence is committed but once it is found that he was a member of the unlawful assembly at the time when the transaction began, the reasonable inference should be that he continued to be there as such till the transaction was completed unless there is some evidence or circumstance present on the record to show otherwise. This rule, however, is not without exception because there may be cases where difference in time and space between the presence of a member and the commission of a crime is so that that factor considered in the light of other circumstances may throw doubt as to his continuing to be the member till the time when the offence alleged was committed. In those cases no doubt as also in a case where an accused specifically pleads that he retired from the assembly after a point of time in the midst of the transaction, the question of his guilt no doubt will have to be weighed on a different footing. But normally as stated above and more particularly when in the course of a single transaction many acts are committed by different members of the unlawful assembly in quick succession within a short time, the rule of inference should be in favour of his continuing to be the member of that assembly till the close of that transaction. For, if the interval between the different acts is short, the probabilities are more against the inference that any of these members retired in the midst of the transaction and did not continue to be present till the time the transaction lasted. Otherwise, I think the very application of constructive liability, as contemplated by Sec.149 Indian Penal Code will fail. This conclusion gets support from the rule of presumption as laid down in illustration (d) of Sec.114 of the Evidence Act. That says : "that a thing or a state of thing which has been shown to be in existence within a period shorter than that within which such things or state of things usually cease to exist, is still in existence." 18. In this case it was not even suggested and much less pleaded in any form or manner any where at the trial that the two appellants though they were originally members of the unlawful assembly but subsequently retired from it, before the fatal blows were inflicted on Mumtaz Khan. Nor there is any circumstance on the record to suggest any thing like that. On the contrary, the circumstances, if any, are against it, for, if the members of the unlawful assembly including the appellants had gone to the station with various legal weapons in their hands with the set common object to commit murder of Mumtaz Khan and if the presence of the appellants in the assembly is established up to the time when the assault in prosecution of the common object had already begun, the probabilities are in favour of the conclusion that consistent to their object they remained there till the last. The specific defence pleaded by the appellants at the trial was only this much that they were not members of the unlawful assembly in answer to that the prosecution gave evidence and proved fully that they were as a matter of fact members of the unlawful assembly so much so that they were seen even participating in the assault when it opened. In the context of these facts it is difficult to accept the contention of Mr. Baldeva Sahai advanced for the first time in appeal that it was not improbable that the appellants had ceased to be members of the unlawful assembly in the midst of the assault or that the circumstances, as stated above were not sufficient to prove that the appellants continued to be the members of the unlawful assembly when the fatal blows were inflicted on Mumtaz Khan. Mr. Varma appearing for the state in this connection drew our attention to the decisions in AIR 1924 All 233 (B) and AIR 1934 All 766 (A), I think these decisions fully support the view which I have stated above, and the rule of law, as laid down therein, if I may say so, is correct. I. however, think as already stated, that this point of difference substantially relates to the appreciation and appraisement of evidence. Therefore, on that ground it is not incumbent to differ with the order proposed by my learned brother. 19. Then there is another small point in the judgment of the trial court which in my opinion, is not correctly discussed. The two eyewitnesses (P. Ws. 6 and 17) fled away from the place of occurrence, as soon as the assault began, to a paddy field in village Kuraota about two miles away from the place of occurrence and there they remained on the ridge of a field for the rest of the night. In the opinion of the trial court this part of their evidence was not worthy to be accepted and in support of its conclusion the reasons given by the learned Judge are three. I think that none of them is sustainable and the entire story given by P. Ws. 6 and 17 is true. In the opinion of the trial court this part of their evidence was not worthy to be accepted and in support of its conclusion the reasons given by the learned Judge are three. I think that none of them is sustainable and the entire story given by P. Ws. 6 and 17 is true. (i) The first reason given is that there is nothing in the record to show that the marks on the Al shown by those witnesses to the Sub-Inspector of Police were due to their sitting at the place on that night. In my opinion, those witnesses in support of their claim could not possibly produce better circumstantial evidence than that. The very fact that they took the Sub-Inspector of Police to the Al and showed the place where they had sat and that the Sub-Inspector in the course of his investigation found there certain marks of a similar character, in my opinion, go a long way to support their claim. After all, what other evidence under the pre-sent standard of criminal investigation could the trial court expect to find for establishing that the marks of sitting there were those of Idris and Salim. Any attempt on that line, in my opinion, is the stretching of reason to a point where intelligence may fail to find any substance in it. After all, the circumstantial evidence relied upon by the two eye-witnesses was to be used only to corroborate what they stated at the trial. (ii) The second reason given by him is that it was improbable that instead of going to their own village they should have run to a paddy field in village Kuraota. This again is an equally untenable reason. The two witnesses must have been abnormally terrified at the cruel way in which the occurrence took place and then they might have thought that it was not safe for them to go to any side but to get themselves concealed somewhere. That being so, I think there was nothing improbable on their part to do what they did that night. (iii) Lastly, the learned Assistant Sessions Judge has tried to find out some contradictions in their statements made before the Police and those made at the trial. That being so, I think there was nothing improbable on their part to do what they did that night. (iii) Lastly, the learned Assistant Sessions Judge has tried to find out some contradictions in their statements made before the Police and those made at the trial. In the F. I. R. they clearly stated that from the place of occurrence they fled away out of fear and that in the night they ran and concealed themselves hither and thither and for that reason instead of going in the night they went to the police in the morning. It is true that no specific mention is made there of the word Al but that, in my opinion, is not an omission of a character which can be reasonably held sufficient to throw out the entire statement made by them soon thereafter in the course of their examination specially when the same found support from the circumstances found just nest morning on the Al. Therefore I think that the trial court was wrong to disbelieve even that part of their story.