JUDGMENT

Mosely, J - Of the fourteen applicants in revision who were convicted under Section 10(b) and Section 10(c), Burma Gambling Act, there is evidence that two, Maung E Mye and Maung Ngwe Yin, set the bulls to fight. The only thing against Maung Po Mye is that he was the owner of the bull which was matohed by his son Maung Ngwe Yin. The other eleven applicants were mere spectators of the fight which took place in a paddy field after the crops had been reaped, a place to" which the public have access. There was no evidence however that they took any part in aiding and abetting the fight, by participation or encouragement of any kind. It was laid down as long ago as 1882 in Queen-Empress v. Nga Kywe (1872) L.B.R. 163, that mere spectators at a cock-fight on a public road cannot be punished for aiding and abetting. It was said that mere presence at a cock-fight on a public road might be accidental. The presumption that persons who are present at a fight in a paddy kwin went to that place for the purpose of seeing the fight is certainly stronger. But as the ruling quoted goes on to remark mere presence is not punishable, and the only persons punishable under Section 10(c), Burma Gambling Act 1 of 1899, which is identical in wording with Section 13, Act 3 of 1867, the Act, in force in 1882, are those who being there present aid and abet the public fighting of birds and animals.

2. In Nga Kywe's case (1872) L.B.R. 163 and Queen. Empress v. Coney (1882) 8 Q.B.D. 534 was quoted, where it was held by eight Judges against three that mere unexplained presence and on-looking is not an aiding and abetting. Hawkins, J., there said that encouragement by mere presence did not amount to aiding and abetting, but encouragement by intentional gestures or expressions or actions intended to signify approval did amount to aiding or abetting. The only other considered ruling on the point on record Queen-Empress v. Nga Shwe Kya (1892) 1 U.B.R. 119 is to the same effect. It was held that persons who were found sitting round a cook-fight in a public place shouting and gesticulating were rightly convicted as aiding and abetting.

3. The evidence against the applicant Kyauk Ni was that he assaulted the witness Po Thun Myaing on the way home after the fight, and accused him of being a spy. But it cannot be concluded from this that Kyauk Ni had taken any active part in encouraging the fight. The reference of the Sessions Judge will be accepted, and the convictions and sentences set aside in the case of all the applicants except Maung Aung Mye and Maung Ngwe Yin, and the fines paid will be refunded to these twelve applicants.