JUDGMENT 1. THE eleven appellants along with two others were tried by the Additional Sessions Judge, Alipore, with the aid of a jury. All of them were charged under section 148 I. P. C. Appellant No. 5, Fulena Ram and appellant No. G, Mohant Ram were further charged under section 302/34 I. P. C. The jurors found appellants Nos. 5 and 6 not guilty of the charge under section 302/34 I. P. C. and they were acquitted of the charge. The others except appellants No. 1, Munglal Ram. No. 9, Shewjatan Ram and No. 11, Meghu Das, were found guilty under section 147 I. P. C. Each of them was sentenced to suffer R. I. for one year. The other appellants were found guilty under section 148 I. P. C. and were sentenced to R. I. for eighteen months each. The two co-accused were however acquitted. 2. THE prosecution case is that there are two rival parties of the tannery workers at Tangra, one being led by Mahindra Singh and the other by appellant No. 2, Tokkan Ram. On the Holi festival day i.e., on the 27th, March 1956, at about 5-30 p. m., the party of Mahindra Singh hired a dancing boy and dance and music were going on at the crossing of Tangra Road and Paymental Garden Lane where several hundreds of persons assembled to witness the same. Some of the members of appellant Tokkan Ram's party also went there. Appellant No. 5, Fulena Ram wanted the boy to dance for their party but his demand was met with a refusal. Thereafter, the men of Tokkan Ram's party went back to Tokkan Ram's house which was nearby and came back variously armed and attacked the members of Mahindra Singh's Party. Appellant No. 6, Mohant Ram and appellant No. 5, Fulena Ram, struck one Nasidi Ram of Mahindra's party with a spear as a result of which he died. In the meantime, P. W. 8, Sub-Inspector, Nihar Ranjan Guha Roy of the Entally Police Station went on a patrol trip in a police car accompanied by two police constables. Seeing them, the rioters ran away and dispersed. One of the constables was sent to the thana to get reinforcement. P. W. 9, Sushil Banerjee, then arrived on receiving this information with a police force. He arrested fifteen persons. Seeing them, the rioters ran away and dispersed. One of the constables was sent to the thana to get reinforcement. P. W. 9, Sushil Banerjee, then arrived on receiving this information with a police force. He arrested fifteen persons. The rioters then threw brick-bats at the police party which caused injury to P. W. 9, Sushil Banerjee. The two police constables were also injured. Sushil Banerjee left for the thana and from there to the hospital for treatment. In the meantime, another police force came from Lal Bazar Head Quarters end they arrested about 150 persons and took all of them to the police station. P. W. 8, Nihar Ranjan Guha Roy, Sub-Inspector, found the body of Nasidi Ram near the lamp post. He collected the arms left by the rioters and himself lodged a First Information Report. The defense of the appellants was, inter alia, that they had nothing to do with the rioting or with the murder of Nasidi Ram. They stated that it was Mahindra's party who murdered Nasidi Ram and two others, Jethulal and Babulal. The common object of the unlawful assembly was stated to be to assault the members of the rival group of Mahindra Singh. 3. THE main points urged by Mr. Mukherjee who has appeared on behalf of the appellants, are that on the facts of the case a right of private defense arose but the learned Judge had nowhere told the jury what the law was nor did he even direct the jury as to what evidence there was on this point. As a corollary to the above point, Mr. Mukherjee made a complaint that the learned Judge did not consider it necessary even to tell the jury as to which of the two parties were the aggressors. 4. IT is pointed out that the dead bodies of Jethulal and Babulal were discovered lying near the house of the appellant Tokkan Ram and that roofs of several houses on the west of South Tangra Road would unmistakably point to the conclusion that the house of the appellant was attacked and the two persons who came to resist were killed. The inference from these facts would be that it was Mahindra Singh's Party that were the aggressors. Another point argued is that evidence in the counter case was made use of. The inference from these facts would be that it was Mahindra Singh's Party that were the aggressors. Another point argued is that evidence in the counter case was made use of. Another instance of misdirection that was brought to our notice is that the learned Judge had nowhere told the jury that two injured persons Bhola and Sundar Ram had not been examined in this case and as such the jury was entitled to draw an inference against the prosecution. A further instance of misdirection was said to be the directions as to what value was to be put to the contradictions arising out of statements made to the police and the evidence given in court. The learned Judge told the jury that if there was any variation or contradiction or omission in the two statements then they had to consider in the light of the evidence and facts and circumstances of the case whether the evidence as given by the witnesses before court was true or the statement made before the police was true. In answer to these contentions, Mr. Banerjee, appearing on behalf of the State, submitted that in a case of rioting a Judge was only to tell the jury whether the accused persons had formed an unlawful assembly with a common object and whether any member of that assembly was guilty of rioting. We cannot agree with this submission. If an assembly of persons resisted an attack upon them the action of such members of the assembly in defending their persons and properties would take away its character as an unlawful assembly. It is, therefore, necessary for the Judge to point out to the jury the evidence as to which of the parties were the aggressors. In doing so, a further question as to the right of private defense would naturally arise. These are vital points which the learned Judge appears to have missed in this case. 5. AS regards the reference to the counter-case it appears that at least three of the eye-witnesses were convicted. This fact the learned Judge had brought to the attention of the jury in discussing their credibility of the evidence. What the learned Judge said is that in the counter-case it was conceded that Bhola and Sundar Ram did not belong to Mahindra Singh's party. This fact the learned Judge had brought to the attention of the jury in discussing their credibility of the evidence. What the learned Judge said is that in the counter-case it was conceded that Bhola and Sundar Ram did not belong to Mahindra Singh's party. Further with regard to the arms produced in this case the learned Judge told the jury that those were the aims produced and exhibited in the counter-case. As for the non-examination of Bhola and Sundar Ram the learned Judge told the jury although not mentioning about any presumption under section 114 of the Evidence Act that the fact of non-examination would go adversely against the prosecution and that it will be for them to draw their own conclusion on the point. We do not think that the appellants have much to complain so far as this point is concerned. 6. AS for the use of the statement made before the police the learned Judge was, in our view, certainly in error. A statement made before the police is not evidence but it can be used for the purpose of discrediting a witness. It can be used to cross-examine a person who made it and the result may be to show that the evidence of the witness is false but that does not establish that what he stated out of court is true. This was the observation of their Lordships of the Judicial Committee of the Privy Council in the case of Brij Bhusan Singh, (1) reported in L. R. 73 I. A. 1. This was said in connection with a statement under section 164 Cr. P. C. which is not substantive evidence and applies with equal force to a statement made to the police. We have, therefore, no doubt that there has been no proper trial of the appellants in this case and as a result of this mis-trial there has teen a failure of justice. We have been taken through the relevant evidence by Mr. Mukherjee and we find that the learned Judge not having made a proper approach to the facts of the case the jury had undoubtedly been misled. We do not propose to deal with the evidence inasmuch as we feel that the jurors were deprived of any opportunity of deciding the facts of the case. Mukherjee and we find that the learned Judge not having made a proper approach to the facts of the case the jury had undoubtedly been misled. We do not propose to deal with the evidence inasmuch as we feel that the jurors were deprived of any opportunity of deciding the facts of the case. That being so, their verdict must be set aside and the case sent back for retrial on the charges on which the appellants were convicted. This trial is to be held by a Sessions Judge other than Sri S. B. Mondal. The appeal is, accordingly, allowed and the case is sent back for being tried at directed above according to law.