QUEEN-EMPRESS Vs. PEELIMUTHU TEVAN
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Moore, J -
(1.) This is an appeal preferred by Government against the judgment of the Sessions Judge of Tinnevelly in Criminal Appeal No. 66 of 1899, setting aside the conviction of two men who had been sentenced by the Special Magistrate to rigorous imprisonment for eighteen months such for an offence under Section 144 of the Indian Penal Code. The reasons for the decision arrived at by the Sessions Judge are given by him briefly in the judgment above mentioned and at greater length in his judgments in Criminal Appeals Nos. 54 and 59 of 1899 which have been printed with the record in this case and referred to by the Government Pleader
(2.) What the Magistrate has found as to the facts of this case is that the two persons convicted by him together with others, to the number in all of 100 or 150, assembled together armed with billhooks and sticks, and that they dispersed at once on seeing the police. From these facts he assumes that the intention of the members of the crowd was to use criminal force--an offence punishable under Section 352 of the Indian Penal Code and, as they wore armed with what he appears to have held were deadly weapons, he has convicted them under Section 144 of the Indian Penal Code. In order to show the common intention of the members of the crowd some evidence was put forward before the Magistrate to prove that certain members of the crowd were heard saying that they were going to loot, but he has, as I consider rightly, discredited this evidence. There is therefore nothing to show what the intention of the men was except that they were in a large crowd and were armed, These facts, no doubt, raise a strong suspicion that the men had not assembled with any harmless or innocent intention, but it cannot, in my opinion be held that they afford proof that the intention of the members of the crowd was to use criminal force or to commit any other offence. One argument put forward here by Mr. Chamier in support of the appeal appears to be that, as the men had assembled in a crowd and were armed, a prima facie case against them had been made out which was sufficient, in the absence of rebutting evidence to show that the men had come together for self-defence or for any other lawful object to warrant a conviction. I cannot admit this argument. The prosecution was bound to show that the common object of the crowd was such as would constitute it an unlawful assembly as defined by Section 141 of the Indian Penal Code, and, as I am of opinion that this was not done, I would decline to interfere with the judgment of the Sessions Judge and would dismiss this appeal. Benson, J.
(3.) I am not prepared to dissent from the conclusion arrived at by my learned brother in this case.;
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