Short Note : All that stands proved by the prosecution evidence and which has been accepted even by the appellants is that these appellants and others armed with lathies, etc. were found in the Nala. From this alone the Additional Sessions Judge has concluded that these persons had collected there for committing dacoity. He supported this conclusion by the failure on the part of the appellants to give any satisfactory explanation about their presence. The offence under section 402 of the Indian Penal Code lies not in the assemblage of men but in their assemblage for the purpose of committing decoity. The burden to prove the purpose is on the prosecution. The evidence that may be available in such cases may be evidence of conduct and circumstances from which the purpose may justifiably be inferred. There are no other circumstances which may throw any light as regards the purpose of assemblage. Merely because the explanation about the presence given by the appellants is not satsfacitory, it cannot be inferred that they had assembled for the purpose of committing decoity. This at best may raise a strong suspicion which is not sufficient to hold them guilty for an offence of section 402 of the Indian Penal Code. Appeal allowed.