( 1 ) THIS revision application is directed against. 1 judgment of the learned Sessions Judge of budaun by which he affirmed in appeal a judgment of the learned Assistant Sessions Judge of that place convicting and sentencing each of the applicants under Section 147 I. P. C. to one and a half years R. I. and under Sections 295/149, 332/149; 333/149 and 188 I. P. C. to one and a half years R. L two and a half years R. I. , four years R. I. and six months R. I. respectively. Shyam Lal was further convicted and sentenced under Section 148 I. P. C. to two and a half years R, I. and Babu Ram was also convicted under Section 426 I. P. C. and sentenced to three months R. I. The sentences in all cases were ordered to run concurrently.

( 2 ) THE revision application first came up for hearing before our brother Vishnu Dutt who referred it to a Division Bench in view of the importance of the question of law involved in it.

( 3 ) THE prosecution case may be outlined briefly. Every year in the month of Moharram a tazia procession is taken out in village Ahmed-nagar Asauli in the District of Budaun. This procession after passing through village Naithwa terminates at village Balsi. In 1954 that procession was to start in the morning of 9th of September. In order to ensure against all eventualities the police took due precaution and even Section 144 Cr. P. C. was promulgated at various places including village Naithwa. The case for the prosecution is that on the morning of 9-9-1954 the Tazia procession started from village Ahmadnagar Asauli for village Bilsi accompanied by Sri R. L. Vilodia the officiating tahsildar of Sahaswan, Sri H. S. Mehrotra, the Station Officer P. S. Bilsi and a number of police constables. When the procession had passed through the Muslim part of village Naithwa and had reached the Hindu Abadi it was faced by a crowd of 20 or 25 Hindu rioters armed with spears, kantas lathis, guns and swords near the house of Sannu and Nannu dhobis as a result of which the procession could not proceed further. Thereupon the Station Officer and the Tahsildar tried to pacify the rioters and drew their attention to the order which had been promulgated under S, 144 Cr. P. C. but the latter did not pay any heed thereto. One of them by the name of Umrai burnt the Tazia and assaulted constable Shafiq Ahmad, another by the name of Kewal assaulted constable Daya Shariker with a sword, and cut two of his fingers, a third Balbir set fire at two places; a fourth by the name of babu Ram set fire to the house of Sannu and Nannu while eight or ten persons indulged in throwing brick-bats from the roofs of the neighbouring houses. Realising that the situation was out of control the tahsildar ordered the police to open fire. The latter fired six rounds as a result of which Umrai died on the spot while Hem Raj received a few gun-shot injuries. Thereafter the police arrested Hemraj, Babu Ram, Gopi Dwarka, Anokhey and salik on the spot while the remaining rioters succeeded in running away.

( 4 ) A first information report of the incident written by S. O. Mehrotra and signed by Sri Vilodia the Tahsildar was lodged at the police station at 1. 1-55 Oclock the same morning in which the main facts of the prosecution case were narrated as stated above and twenty one persons, including the ten applicants of this revision, were nominated as the culprits. As already stated six of them were arrested on the spot. Of the remaining culprits, Khem Karan, Ram Prasad Roshan lal, Gayan Chandra and Gyan Swarup Brahman surrendered themselves in Court while the remaining culprits were arrested on various dates during the course of the investigation.

( 5 ) FIVE of the prosecution witnesses, namely Nisar, Abdul Muqni, Farzand Alt, Allah Baksh and sharf Ullah who were members of the tazia procession knew the persons named above from before and hence they were able to supply their names at the time of the writing out of the first information report. Some of the C