Judgment K.S.Garewal, J. 1. On August 17, 1981 the members of the Balmiki community of Chandigarh observed a strike to protest against the death of Ramesh Kumar, a Balmiki of Sector 20, Chandigarh who had been in the custody of the Delhi Police. About 1400/1500 persons gathered at Nehru Park, Sector 22, and proceeded in a procession towards the Estate Officer, Sector 17. They were armed with sticks and iron rods. A sizeable posse of Chandigarh police under Shri G.S. Aujla, S.S.P. was present near the Estate Office to maintain law and order as the processionists had been raising slogans against the police. At 1.45 P.M. a part of the procession emerged from the side of Mehfil restaurant, its members were armed with sticks and iron rods. The processionists submitted a memorandum to the Deputy Commissioner, Chandigarh. Some of them also delivered speeches raising slogans like "blood for blood", "down with Delhi Police" and "down with dogs in khakhi". When Prem Chand Premi was delivering his speech, the part of the procession which had come from the side of the restaurant attacked a passer-by who ran towards the police for help. When the police officers ran towards that side to rescue that man, the processionists started assaulting the police leading to infliction of grievous injuries to DSP Pritam Singh (PW.15) who suffered an injury which was declared dangerous to life and also to Inspector Partap Singh (PW.14), Inspector Sham Singh (PW.16), C. Surjit Singh and C. Yadvinder Singh (PW.31). 23 police officers and men received simple injuries. The processionists then went on a rampage and damaged the shops of Ashok Kapoor (PW.4), k S.S. Sodhi (PW.5), Kashmiri Lal Sehgal (PW.6.), Ravinder Singh (PW.8), Bhim Singh (PW.9) and Shiv Dayal (PW.36). 2. 12 members of the procession were sent up for trial on the basis of F.I.R. No. 730, dated August 17, 1981 recorded at Police Station Central, Chandigarh at 2.20 P.M. under sections 307, 148, 149, 353, 332, 452, 379, 380, 427 and 337 of the Indian Penal Code. The learned Additional Sessions Judge, Chandigarh vide judgment dated June 4, 1988 concluded that five of the accused had not been successfully identified and they were acquitted. The accused who had been idetified by one or the other member of the police party were Hukam Chand, Surjan Singh, Gurcharan Singh, Piare Lal, Krishan Lal, Kashmiri Lal and Kewal Krishan. The learned Additional Sessions Judge, Chandigarh vide judgment dated June 4, 1988 concluded that five of the accused had not been successfully identified and they were acquitted. The accused who had been idetified by one or the other member of the police party were Hukam Chand, Surjan Singh, Gurcharan Singh, Piare Lal, Krishan Lal, Kashmiri Lal and Kewal Krishan. They were sentenced under sections 307/149 I.P.C. to imprisonment for five years and also under Section 333/149, 332/149, 452/149, 427/149 and 148 I.P.C. to various lesser terms. All sentences were directed to run concurrently. The convicted accused has filed this appeal. During the pendency of the appeal, Hukam Chand and Kashmiri Lal died, consequently the appeals on their behalf stand abated and only five appellants remain. 3. The main question to be considered in this appeal is whether all or any of the appellants were part of the mob which had attacked the police and inflicted grievous and simple injuries to 28 members of the police force. Before embarking upon the process of assessing the evidence against each of the appellants, it would be necessary to briefly describe the nature of the injuries received by the injured police officers. 4. DSP Pritam Singh (PW.15) was first examined by Dr. J.K. Kalra (PW.13) Medical Officer of General Hospital, Sector 16, Chandigarh and was found to have the following injuries : Haemotomma of scalp in the left temporal parietal region. In the centre of the haemotomma, there was an abrasion measuring 2x2cm bleeding. Advised X.ray skull. S. ray was conducted by Dr. Sudha Suri Assistant Professor, Department of Radiologist, PGI, Chandigarh (PW.10) and it revealed a big depressed fracture in the left temporal parietal area with soft tissue swelling. Surgery was conducted by Dr. V.K. Khosla, Assistant Professor, Neuro Surgery, PGI, Chandigarh (PW.12) who observed that a left parietal skin flap was reflected and a large depressed fragment was found in the left parietal region. In the opinion of the Surgeon the injury could have proved fatal if it was not treated. 5. Inspector Partap Singh (PW.14) Addtional SHO. P.S. Central Chandigarh was also medico-legally examined by Dr. J.K. Kalra (PW.13) and found to have the following injuries : 1. Lacerated wound 1/2 x 1/4 x 1/4 cm on the outer side of nail right ring finger. 2. Contusion under the nail of right ring finger. 3. 5. Inspector Partap Singh (PW.14) Addtional SHO. P.S. Central Chandigarh was also medico-legally examined by Dr. J.K. Kalra (PW.13) and found to have the following injuries : 1. Lacerated wound 1/2 x 1/4 x 1/4 cm on the outer side of nail right ring finger. 2. Contusion under the nail of right ring finger. 3. Contusion under the nail of right middle finger. 4. Complaint of pain in the right thumb. There was a contusion 3x1 cm on the dorsum of right thumb. Advised X-ray. 5. Complaint of pain in the left wrist. 6. Lacerated wound 1/2 x 1 /4 x 1/4 cm on the left side of face 2 cm away from the left angle of mouth. Bleeding. 7. Complaint of pain in the front of chain. Advised X-ray face. Injury No. 2 was later on declared to be grievous while rest were declared simple. Inspector Sham Singh (PW.16) was also medico legally examined by Dr. J.K.Kalra and found to have following injuries : 1. Lacerated wound 2-1/2 x l/2 x l/2 cm on the left cheek. There was a defused painful swelling all over the left side of the face and left frontal region. Bleeding from the wound. Advised X-ray face and skull. 2. Abrasion 2x2 cm on the dorsum of right elbow. Later injury No.1 was declared to be grievous and there was fracture of left zygomatic bone. Injury No.2 was simple. C Surjit Singh too was examined by Dr. J.K. Kalra and was found to have the following injuries : 1. . Abrasion 1 x 1 cm on the dorsum of right ring finger. Bleeding. 2. Abrasion 1x1 cm on the dorsum of right middle finger. 3. Diffused painful swelling over dorsum of left hand at the base of index finger. Advised X-ray. 4. Complained of pain in the back of left leg. C. Yadivnder Singh (PW.31) was medico legally examined by Dr. P.K. Midha, Medical Officer General Hospital, Sector 16 and found to have the following injuries : 1. Pain and tenderness of the left middle finger. Advised X-ray for the same. X-ray No. 16454 dated 18.8.81 showed fracture of the base of the distal phalanx left middle finger. 2. Contusion over the right forearm 4 cmx2 cm just below the right elbow. 3. Pain and tenderness of the left middle finger. Advised X-ray for the same. X-ray No. 16454 dated 18.8.81 showed fracture of the base of the distal phalanx left middle finger. 2. Contusion over the right forearm 4 cmx2 cm just below the right elbow. 3. Multiple contusions linear 5 in number over the right scapula size 10 cm x 1 cm on the left scalp 7cm x 1 cm, 8cm x 1 cm. 4. Constusion below the left scapula 4 cm x 1 cm. 5. Complaint of pain in the left knee. X-ray was advised which was normal. 6. Contusion above 2 cm x .1 cm over the front of right shoulder. Injury No.1 was later declared grievous. The remaining 23 police officials including Shri G.S. Aujla, SSP, Chandigarh had simple injuries on their person which were mostly contusions and abrasions on various parts of the body and these were individually described in details by Dr. J.K. Kalra (PW. 13) and Dr. P.K. Midha (PW.17). 6 At the trial the prosecution examined DSP Pritam Singh (PW.15) who testified with regard to the procession of Balmikis on August 17, 1981, its arrival at the Estate Office at about 1.30 P.M. when most of the processionists were carrying lathies, tree branches and rods in their hands. The witness specifically stated that Hukmi (Hukam Chand deceased) was carrying a lathi and when Premi was addressing the mob a bystander was assaulted. The police tried to save that person but the mob attacked the police party. The witness then received a lathi, blow from Hukmi. Other police officers also received blows, the mob also broke window panes of shops. Inspector Sham Singh (PW.16) testified in the same terms and corroborated the evidence of DSP Pritam Singh. He further added that he had been hit on the head by Sudan Singh accused. DSP B.M. Singh (PW.18) further corroborated statement of DSP Pritam Singh. Inspector Gurcharan Singh (PW.20) stepped into the witness box and also corroborated the statement of DSP Pritam Singh. He went on to testify that he saw Sudan Singh assaulting Shri Aujla and Inspector Sham Shigh. SI Natha Singh (PW. 22) also confirmed that Inspector Sham Singh had been hit by Sudan Singh accused. C. Paramjit Singh (PW. 24) testified to the effect that he saw Hukam Chand assaulting Inspector Partap Singh (PW. 14). C. Balwinder Singh (PW. He went on to testify that he saw Sudan Singh assaulting Shri Aujla and Inspector Sham Shigh. SI Natha Singh (PW. 22) also confirmed that Inspector Sham Singh had been hit by Sudan Singh accused. C. Paramjit Singh (PW. 24) testified to the effect that he saw Hukam Chand assaulting Inspector Partap Singh (PW. 14). C. Balwinder Singh (PW. 25) stated that he saw Surjan Singh attacking Inspector Sham Singh. 7. Shri G.S. Aujla (PW. 26) is an important witness. He was posted as S.S.P. Chandigarh on the day of the occurrence and was an eye witness to the procession, submission of memorandum to the Deputy Commissioner and indeed to the entire sequence of events which had been deposed to by the other witnesses. Shri Aujla also received injuries at the hands of Sudan Singh accused. 8. C. Baj Singh (PW. 27) testified that he received injuries at the hands of Kashmiri Lal accused. C.Jai Bir (PW. 28) testified that he was assaulted by Krishan with a lathi. H.C. Pritam Singh (PW. 29) stated that he received injuries at the hands of Gur Rattan Dass (Gurcharan Singh) with a lathi C.Prithi Pal Singh (PW.30) stated that the sustained injuries at the hands of Piara Lal with a lathi. C. Yadvidner Singh (PW. 31) stated that he sustained injuries at the hands of Kewal Krishan with a lathi. 9. The learned trial court found that Hukam Chand, Kashmiri Lal, Sudan Singh, Piare Lal, Kewal Krishan and Kishan Lai had been named by the various witnesses. Trial court also came to the conclusion that HC Pritam Singh (PW. 29) had named Gur Rattan Dass accused who was present in the court but since there was no accused by this name, the trial court concluded that the witness was referring to Gurcharan Singh accused because no question had been put to the witnesses in cross-examination regarding this discrepancy. As the remaining accused before the trial court had not been specifically named and identified by the witnesses, they were acquitted. 10. Learned counsel has argued that the prosecution has failed to establish the identity of the appellants. They had not been named in the F.I.R. Even their descriptions were not mentioned therein. As the remaining accused before the trial court had not been specifically named and identified by the witnesses, they were acquitted. 10. Learned counsel has argued that the prosecution has failed to establish the identity of the appellants. They had not been named in the F.I.R. Even their descriptions were not mentioned therein. No test identification parade had been conducted and it was not possible for any witness to correctly identity persons out of a mob, particularly when that person was not previously known to the witness. Therefore, it would not be safe to convict on the basis of the evidence recorded at the trial between October 1985 and November 1986. In some cases identifiction of an appellant was only by a solitary witness and did not have corroboration. C. Prithi Pal (PW. 30) was the sole witness who identified Piara Lal, C. Yadvinder Singh (PW. 31) was the sole witness who identified Kewal Krishan C. Jai Bir (PW. 28) was the sole witness who idetified Krishan Lal. The identification of Sttrjan Singh was also untrustworthy. 11. It was further argued that specific questions or incriminating circumstances had not been put to the respective accused when they were examined under section 313 Cr.P.C. therefore, the evidence on record could not be used to connect them. Counsel also contended that the object of the procession was to simply express resentment and submit a memorandum to the Deputy Commissioner. The occurrence took place all of a sudden, therefore, the essential ingredient to designate the assembly as an unlawful assembly was missing. 12. The prosecution evidence in this case has been carefully perused in order to determine the exact object of the large gathering of the people on the day of the occurrence. Witnesses are unanimous as regards the fact that a procession of 1400/1500 persons belonging to the Balmiki community had gathered at the Nehru Park, Sector 22, Chandigarh. From there, the procession came to the Estate Office in Sector 17 where the occurrence took place. Some of the members of the procession were carrying rods and sticks. The purpose of the procession was to submit a memorandum to the Deputy Commissioner with regard to an atrocity which had allegedly been committed by the Delhi Police. The Chandigarh Police had no role whatsoever to play in the events which lead to the death in custody of Ramesh Kumar, a Balmiki of Chandigarh. The purpose of the procession was to submit a memorandum to the Deputy Commissioner with regard to an atrocity which had allegedly been committed by the Delhi Police. The Chandigarh Police had no role whatsoever to play in the events which lead to the death in custody of Ramesh Kumar, a Balmiki of Chandigarh. The fiery speeches were made and slogans were raised against the police, the atmosphere was no doubt surcharged. This was inevitable because economically weak sections of society felt aggrieved at the death of a young man and were agitated. In such an atmosphere even a small incident could have sparked off a riot. The evidence is also unanimous that a part of the procession emerged from the side of Mehfil Restaurant and attacked a Sikh by-stander who then ran towards the police van. The members of the police party then ran in that direction to rescue that man. It was at this stage some members of the procession started assaulting the members of the police force. It is quite obvious that there was no pre- planning and no prior meeting of the minds. Injuries were received by 28 police officials but only 5 of them had grievous injuries. Out of these five an injury on the left side of the head of DSP Pritam Singh (PW.15) showed a big depressed fracture with soft tissues swelling, Inspector Partap Singh (PW.14) had a contusion under the nail right ring finger which was declared grievous, Inspector Sham Singh (PW.15) a fracture of the left zygomatic bone on the left side of the face, C. Surjit Singh a painful swelling on the left hand at the base of the index finger and C. Yadvinder Singh (PW.31) a fracture on the base of the distal phalanx of the left middle finger. The remaining injuries on the above five were simple. 13. The number of police officials injured shows that they had been attacked by a considerably large group of processionists but the extent of injuries and nature of injuries are not so serious or widespread. only two officers had grievous injuries on the head. The other grievous injuries were on the hands and fingers. From the spread and pattern of the injuries a reconstruction of the events may be possible. only two officers had grievous injuries on the head. The other grievous injuries were on the hands and fingers. From the spread and pattern of the injuries a reconstruction of the events may be possible. When the police party had rushed to save a by- stander the processionists may have apprehended that the attack was aimed at them. Therefore, they rained blows on the police. This may have been the common object of this limited assembly of people but not of the large assembly of the original procession of 1400 persons. It is quite obvious that the occurrence had taken place at the sepur of the moment and not in prosecution of any preplanned common object of the unlawful assembly. Consequently section 149 I.P.C. would not be applicable in this case and each of the accused can at the best be said to be responsible for his own individual act. 14. The next question to be considered is with regard to the successful identification of the accused by the witnesses. The trial court has acquitted five of the original accused on the ground that they had not been successfully identified. Out of the convicted persons two have died. Therefore, no useful purpose would be served in going into the question of their identity. Out of the five surviving appellants the identity of Gurcharan Singh appellant is also in doubt as the trial court had linked him to one Gur Rattan Dass who had been so named by HC Pritam Singh (PW.29). Trial Court had concluded that the witness had been referring to Gurcharan Singh because he was not cross- examined with regards, to this discrepancy. In his examination in-chief, HC Prithi Singh had stated that he had sustained injuries at the hands of the Gur Rattan Dass accused present in the court, with a lathi. Before the trial court there was no accused by the name of Gur Rattan Dass. The prosecution should have asked the witness to specifically identify the accused who had inflicted him the injuries. The witness could not identify any other accused. For the failure of the prosecution to get the witnesses to specifically identify, Gur Rattan Dass, the benefit must be given to Gurcharan Singh. There is nothing on the record to link Gurcharan Singh appellant with Gur Rattan Dass. The witness could not identify any other accused. For the failure of the prosecution to get the witnesses to specifically identify, Gur Rattan Dass, the benefit must be given to Gurcharan Singh. There is nothing on the record to link Gurcharan Singh appellant with Gur Rattan Dass. Failure to challenge the witness in cross- examination cannot benefit the prosecution where prosecution itself had failed to first link Gurcharan Singh with the person know as Gur Rattan Dass who had given injuries to the witness. Gurcharan Singh accordingly deserves benefit of doubt as his identity has not been established. 15. Out of the remaining four appellants, the prosecution had been successful in establishing their identities. It may be that some of them were identified only by a single witness but this can be no ground to reject the identifiction. As stated above, C. Prithi Pal Singh (PW. 30) had identified Piara Lal, C. Yadvinder Singh (PW. 31) had identified Kewal Krishan and C. Jai Bir (PW. 28) had identified Krishan Lal. Surjan Singh had been identified by Inspector Sham Singh (PW. 16), Inspector Gurcharan Singh (PW.20), S.I. Natha Singh (PW. 22), C. Paramjit Singh (PW. 24), C. Balwinder Singh (PW. 25) and Shri G.S. Aujla, S.S.P. (PW. 26). 16. The mob had also damaged shops of seven persons who appeared as witnesses but one of them had identified any of the appellants as the persons who had damaged their shops. Consequently, the appellants could not have been found guilty of offences under sections 427/149 and 452/149 I.P.C. The appellants are guilty of their individual acts of violence because there was no unlawful assembly in the strict sense. Conviction under section 148 I.P.C. and under section 307 read with section 149 I.P.C. is also hereby set aside. The appellants had caused hurt and grievous hurt to deter public servants from their duty. Therefore, they are guilty of offences under section 332/333 I.P.C. 17. From the evidence of the prosecution, the grievous hurt on the person of DSP Pritam Singh (PW. 15) inflicted by Hukam Chand (deceased appellant), the grievous hurt on the person of Inspector Partap Singh (PW. 14) on his right finger was also inflicted by Hukam Chand (above mentioned). The grievous hurt on the person of Inspector Sham Singh (PW. 16) on the right side of his face was inflicted by Surjan Singh with an iron rod. 15) inflicted by Hukam Chand (deceased appellant), the grievous hurt on the person of Inspector Partap Singh (PW. 14) on his right finger was also inflicted by Hukam Chand (above mentioned). The grievous hurt on the person of Inspector Sham Singh (PW. 16) on the right side of his face was inflicted by Surjan Singh with an iron rod. Grievous hurt on C. Yadvinder Singh (PW. 31) was inflicted by Kewal Kirshan. Therefore, out of the present appellants, Surjan Singh and Kewal Krishan had inflicted grievous injuries punishable under section 333 I.P.C. while Piare Lal and Kristian Lal had caused simple injuries punishable under section 332 I.P.C. Appellants had attacked police force on duty without any provocation and had used rods and lathies. Therefore, they do not deserve the benefit of probation. As a result of the above discussion, the appeals filed by Surjan Singh, Kewal Krisham, Piare Lal and Krishan Lal are partly accepted and they are acquitted of the charges 148, 427/149, 452/149, 307/149 I.P.C. Resultantly, the convictions of Surjan Singh, Kewal Krishan Piare Lal and Krishan Lal under sections 332/149 and 333/149 I.P.C. are also set aside because the offences they committed had not been committed in prosecution of common object of the unlawful assembly and liability under section 149 I.P.C. was not present. 18. Surjan Singh and Kewal Krishan are individually convicted under section 333 I.P.C. and in view of the long time since the occurrence, awarded rigorous imprisonment for 2 years under section 333 I.P.C. and to pay a fine of Rs. 500, in default rigorous imprisonment for 6 months. Likewise, Piare Lal and Krishan Lal are hereby convicted under section 332 I.P.C. and sentenced to undergo rigorous imprisonment for six months. They shall be arrested forthwith and committed to custody to undergo the remaining part of their sentence. Gurcharan Singh stands acquitted. Order accordingly.