Sharma, J. - (1.) 20 persons. including Khunna, Gangadhar, Hazari, Hatilal, Shivlal, Kajora, Fattai and Lohari were challaned by the Police Sapotra in Karauli Sub - Division of Sawai Madhopur District. Lohari, Fattai and Kajora were challaned under sec. 224 of the Indian Penal Code and the rest under secs. 148, 225, 332, 341 and 395 of the Indian Penal Code. The case against them was that Lohari, Fattai and Kajora had been taken into Police custody for some offences on the 22nd of July 1948. On the morning of 24th July, 1948, when Balsingh, Harihar and Murari constables were taking these three persons for a wash, Khunna Gangadhar and one other man came to the Police Station Sapotra to enquire about the Inspector who had taken the three men in custody. On being informed that the Inspector was asleep, Khunna asked Bhaironlal Moharrir of the Inspector to wake him up. Bhairon Lal asked these men to bring the surities as ordered. In the meanwhile 25 to 30 men armed with Lathis and Gandasas entered the Police Station while 300 to 400 men armed with Lathis, Guns and Gandasas stood outside. The mob entered in the Police Station, rescued and took away the three arrested persons, after pushing aside the constables, Balsingh, Harihar and Murari, who tried to stop them. One blanket which was being used by the arrested persons belonging to the Government was also taken away by those people. The mob shouting 'veer Vasion Devi ki Jai' outside the 'thana' withdrew from the scene. The Inspector was awakened by the noise and the mob had in the meanwhile cleared out of the Police Station, but Khunna lagged behind and when the Inspector gripped with him, he relieved himself from the Inspector's grip with a jerk and joined his companions.
(2.) OUT of the 20 accused challaned, 2 died before the framing of charge and 10 were discharged. Kajora, Lohari and Fattai were charged under sec. 224 Indian Penal Code and the remaining 5 i. e. Khunna, Gangadhar, Azari, Hatilal and Shivlal were charged under secs. 148, 225, 353 and 395 I. P. C. Hatilal died after the charge and only 7 accused were put on their trial Kajora, Lohari and Fattai under sec. 224 of the Indian Penal Code and the remaining 5 including Khunna & Gangadhar under secs. 148 225, 353 and 395. All the accused denied the charge. The learned Additional Sessions Judge, Gangapur however, convicted Khunna and Gangadhar appellants under sec. 144 of the Penal Code and sentenced Khunna to one year's simple imprisonment and Gangadhar to one and a half year's rigorous imprisonment. They have both come in appeal to this court. I have heard the learned counsel for the appellants as well as the learned Government Advocate and I have also gone through the record. The appellants along with four others were charged with rioting armed with deadly weapons with the common object of rescuing Kajora, Lohari and Fattai from lawful custody. They were also charged with having rescued Kajora, Lohari and Fattai and having assaulted Police constables and committing a dacoity with respect to a blanket belonging to the Government. Out of these six, Hatila died after the charge and all others excepting the two appellants were acquitted of all the offences. The appellants alone were also not held guilty of the offences charged against them but they were convicted under sec. 144 for being armed with deadly weapons, as members of an unlawful assembly. It requires atleast five to form an unlawful assembly. Out of the 17 persons who were challaned, 10 were discharged by the lower court and two have been acquitted by the learned Additional Sessions Judge. Hatila died after the charge and the learned Additional Sessions Judge has held that it was not proved that he was a member of an unlawful assembly. Thus there remained only four i. e. the two appellants, and the two accused who died before the charge, who could at best be said to have formed an assembly. But every assembly is not an unlawful assembly unless it consists of 5 or more members and has an unlawful comman object. In the present case, it is not proved that 5 or more persons formed any assembly and therefore, the first ingredient of an unlawful assembly lacks in the present case. The assembly can not, therefore, he sail to be an unlawful assembly and the appellants could not, therefore be convicted of being members of an unlawful assembly. For applying sec, 144 it is necessary that there should be an unlawful assembly. As there was no unlawful assembly the appellants could not be punished under sec. 144 of the Penal Code. The learned Government Advocate himself concedes that the conviction under sec. 144 could not be maintained. The learned Government Advocate however argued that under the circumstances of the case, the appellants are proved atleast to have committed a house trespass and they should, therefore, be convicted under sec. 448 instead. The appellants were not charged with having committed house-trespass and, therefore to convict them of the said offence m appeal would not be legal. Assistance was drawn from sec. 238 but to my mind it does not apply. An offence of house trespass can not be said to be a minor offence to an offence under sec. 144 within the meaning of sec. 238. For an offence under sec. 448, different ingredients have to be made out. It is to be proved that the accused entered into or remained in any building, tent or vessel used as a human dwelling or any building used as a place for worship or as a place for the custody of property and that their intention in entering upon such property was to commit an offence or to intimidate insult or annoy any person in possession of such property. The charges framed against the accused do not give notice of any such complaints to the appellants. I shall not, therefore be justified in altering the conviction of the appellants to one under sec. 448 of the Penal Code. I am supported in this view by a ruling of Calcutta High Court reported in I. L. R. Calcutta P. 228 Yakub Ali vs. Lethu Thakur. I shall not therefore, be justified in altering the conviction to one under sec 448. If I had considered it necessary to carry on proceedings any further, I would have sent the case for retrial. I, however, do not think that retrial is necessary because the appellants had been in custody for some time during trial and have also been in jail for a few days after their conviction. The appeal is allowed and the conviction and sentence of the appellants are set aside. They are on bail and need not surrender to it. .;