JUDGMENT Bennet, J.
1. This is an appeal by the Local Government against the acquittal of certain persons by the learned Sessions Judge of Cawnpore. Originally there were 41 persons prosecuted by the police on charges of riot, murder, dacoity and arson, the crimes being dated 25th March 1931, and of the 41 persons prosecuted, 24 were committed to the Sessions, and the learned Sessions Judge acquitted all the 24 persons. The Local Government filed an appeal against the acquittal of 9 persons, and of those 9 persons, 3 persons subsequently absconded. We therefore have the following six persons before us as respondents: (2) Sheo Swarup, (4) Chhote, (5) Ram Narain, (7) Gobardhan, (8) Manohar Singh and (9) Puttu Singh Kayastha.
2. The charge is that during the Cawnpore riots of March 1931, there was a riot with murder dacoity and arson committed in the Bengali Mahal, a mahal of Cawnpore city where the majority of inhabitants are Hindus and there are a certain number of houses inhabited by Mohamedans.A description of what happened during the riot is given in the evidence of M. Abdur Rauf, a Deputy Magistrate, who was on duty at Cawnpore during the riots, and he states that on 27th March he found some injured persons from Bengali Mahal at Patkapur Mahal, that is, Mt. Bibbo, Mt. Bismillah, Mt. Hafizan and Nur Muhammad alias Munne Khan. The women were injured and burnt, and one of them was pregnant, and he took them away to the hospital. The next morning he took their statements in the hospital, and he had not previously told the women that he was going to take their statements. When he saw them on the previous night of 27th March they were not in a fit state to make statements. The statements of these four persons taken on 28th March 1931, were therefore taken at a very early stage after the occurrence of 25th March. It is in evidence that at that period the whole city of Cawnpore was in a state of turmoil and it was not possible for persons who desired to make reports to the police to make reports because the police were engaged in an endeavour to maintain order, and the usual machinery of recording reports was not available.
3. It is to be noted that in the statement of Nur Muhammad recorded on 28th April the names of all the six respondents before us, with the exception of Chhote, are contained. The Magistrate M. Abdur Rauf proceeds to state that he visited Bengali Mahal on 3rd April, and he had met certain witnesses Wajid Ali and Muhammad. Yasin before that, and they had stated that the bodies of their relatives were lying buried in the debris of the house in Bengali Mahal. At Bengali Mahal the Magistrate found in the house of Yasin Khan a skull and a skeleton and an amount of debris in various houses, and he got men to excavate the debris, and in the house of Basharat two skeletons were found. In the house of Yasin there were found bones in different places belonging to four different people apparently, and a skull in a corner of the verandah, and two skeletons in the delan. On the first floor there was a bed with bloodstained pyjamas of a woman and some hair of a woman, and near the skeletons in the delan there were pieces of burnt cotton-wool on the top of the skeletons. At the time when he inspected houses in this Bengali Mahal were still burning. At that time he was unable to make any arrangements for having reports recorded as stray assaults were still taking place and the main streets were being patrolled by police and troops and there was a curfew order. There are some 24 reports printed in which different respondents before us are named, the first report being dated 29th March 1931, by Muhammad Yasin, and other reports extending to the first week in April. The principle of the police has been to prosecute only persons who were named in early reports, that is, not later than the first week in April.
4. In actual fact all the respondents before us are named on 28th March in the statement of Nur Muhammad taken by the Magistrate, with the exception of Chhote, and he is named in a report of 1st April by a constable Zainul Abdin, who did not himself witness the riots but received information from persons who did. The learned Judge has brushed aside these reports as of little value. At the same time he finds that it was impossible for persons to make a report until several days after the event because the police were busy and the streets were unsafe. Actually what happened to the witnesses in the present case is that when they escaped with their lives they went to Mahalla Patkapur and eventually left Cawnpore for a few days in most cases, and the reports were made on their return. We do not share the view of the Sessions Judge that the reports made in the present case and the statements of the Magistrate on 28th March are of little value; on the contrary we consider that where there is agreement between a large number of reports and statements on certain main facts, those reports and statements are of value. It has been suggested, and this suggestion has found favour with the learned Sessions Judge, that the persons who made the reports and the statements had assembled together in Mahalla Patkapur and had been coached as to what they should state in their statements and reports. If that had been so, we would find that in the statements and reports that the same persons are named as accused; but that is not so, and the persons who are named as accused differ from one report to another. It is clearly shown that the reports are not due to collusion and that the theory of the defence on this point is an incorrect theory.
5. In the evidence for the prosecution and in the reports there are three main events. The first is the assault on the house of Fakhruddin; the second is the assault on the house of Yasin; and the third is the assault on the house of Mahbub. In each of these three cases murders were committed. In the assault on the house of Fakhruddin, one Wazir and his little son Bashir of 6 or 7 years, who were tenants in the house, were caught in the yard and killed. In the house of Yasin a number of Mohamedan women and children had taken refuge and the mob broke in and killed 12 women and children. In the assault on the house of Mahbub, Mahbub himself was killed. Altogether, it is shown from the evidence that there were 17 persons murdered in Bengali Mahal, mostly women and children. All the houses of Mohamedans in this Mahal were burnt and looted. The evidence in the case consists of statements of witnesses who saw these various incidents and sacking of some other houses, such as the house of Mohammad Azim and the house of Jan Muhammad. (After discussing evidence His Lordship proceeded). Then the learned Sessions Judge has made an argument on p. 253, line 29, that if the Mohamedans did not know who were the real culprits they would seek revenge against the local Hindus. This is merely a theory as there is nothing to show that they did not know. No defence witnesses have been called in the present case and no evidence has been placed before us to show that the rioters were persons who came from a distance. The riot took place during the daytime in full daylight and it continued for several hours from about 9-30 or 10 a.m. on to 2 or 3 p.m. There was thus a prolonged opportunity for witnesses to see the rioters in broad daylight and the witnesses would naturally recognise the local Hindus if the local Hindus took part in the riot. Various suggestions, of alibi have been made for the defence, but evidence has not been called to confirm these allegations. learned Counsel for defence argued that it was improbable that the local Hindus would join in the riot. We do not think it would be improbable; on the contrary we consider that the natural course of events would be that the Hindus living in this mahalla would join in a riot which was taking place against Mohamedans in their mahalla. No presumption therefore can be drawn in favour of the defence on the grounds that it is improbable that the local Hindus would not take part in the riot. Certain points of law arose in this case. One point arises as to what the prosecution from has to prove in the present case. The learned Sessions Judge on p. 252, line 22, states:
The question however is whether the offences. were committed exactly in the manner described by the witnesses and whether the accused were the real culprits.
6. learned Counsel for the defence began on these lines and considered that the issues before us were whether different accused persons had taken part in different murders and assaults. We do not consider that the prosecution is called on to prove the part which each accused person took in the riot. The prosecution has to prove in the first place that there was an unlawful assembly and that the unlawful assembly committed various offences of riot, looting, arson and murder. Having proved this the prosecution has to prove that each accused person was a member. of the unlawful assembly. We do not consider that the prosecution has to prove anything further, and no authority has been shown to us that the prosecution has to prove anything further. Having proved so much the provisions of Section 149, Penal Code, apply, and every member of the unlawful assembly is guilty of offences committed in the prosecution of the common object of the unlawful assembly. In the present case we consider that the prosecution have proved beyond any reasonable doubt whatever, and this was also held by the learned Sessions Judge, that there was an unlawful assembly on the date in question and at the place in question which committed the offences of riot, looting, murder and arson. The only question therefore is whether each of the accused persons was a member of that unlawful assembly. learned Counsel for the defence argued that it is possible that certain accused persons were seen in the crowd and that they may have been there with innocent intentions, as the accused persons are all either residents of this mahalla or resided close to it. But Section 142, Penal Code, lays down:
Whoever being aware of facts winch render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly.
7. We consider that this section shows that it is sufficient for the offence of riot to be proved against an individual that that individual should remain in an unlawful assembly as soon as he is aware that the assembly is unlawful. Some argument was made by the learned Counsel that the word "continues" may have some special meaning. But we consider that it merely means physical presence as a member of the unlawful assembly, that is, to be physically present in the crowd. learned Counsel referred to a ruling in Hardayal Singh v. Emperor AIR 1933 Oudh 226. But this ruling was not on a riot at all but on a case where three persons were accused of murder, and therefore it has no application whatever. In the present case there is no doubt that anyone who was present in the crowd was at once aware that the crowd constituted an unlawful assembly and that the crowd were committing the offences of murder, arson and looting. We may also refer to the provisions of Section 106, Evidence Act, which state:
that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
and Illus. (a):
when a person does an act with some intention other than that which the character and circumstances of the act suggest the burden of proving that intention is upon him,
8. Therefore in a case of riot, if the defence is that a particular person was present among the rioters with an innocent intention, then the burden of proving that innocent intention lies upon the defence. In the present case the defence have given no evidence of any innocent intention for the presence of any accused persons and, in fact, the plea of the accused is that they were not present. The defence therefore is not open to the counsel for the respondents. Another point of law, which was argued, was what are the functions of this Court in an appeal by the Local Government against an acquittal and learned Counsel for the respondents argued that the functions were similar to the functions on a reference by a Sessions Judge who differs from the verdict of acquittal by a jury, In the case of such a reference, no doubt, this Court has to see whether the verdict of the jury is perverse. But no such condition applies to Section 418, Criminal P.C., as amended by Act 18 of 1923. That section provides in Sub-section (1) that:
An appeal may lie on a matter of fact as well as a matter of law except where the trial was by jury in which case the appeal shall lie on a matter of law only.
9. It is to be noted that the reference to a trial by a jury under this section means a trial where the Judge has agreed with the jury in the verdict of acquittal and that the case is not similar to a reference by a Sessions Judge where he differs from the jury. This Section 418, as it now stands., provides for an appeal on a matter of fact where an acquittal is by a Judge trying the case with assessors. No condition is imposed on this Court in an appeal of this nature. All that this Court has to see is whether the offence charged is proved against each of the accused persons and for this purpose this Court has to take the definition of "proved" given in the Indian Evidence Act. Reference was made by the learned Counsel for the defence to certain early rulings of this Court contained in Queen-Empress v. Gaya Din (1882) 4 All 148 and Queen-Empress v. Robinson (1894) 1G All 212. These rulings have been overruled by Queen-Empress v. Pragdud (1898) 20 All 459, where it is stated "Indeed it is not easy to see any distinction in the Criminal Procedure Code between the right of appeal against an acquittal and a right of appeal against a conviction." The matter is also clear from the language of Section 418, Criminal P.C.
10. Another point which occurred in this case was the proper use of statements made by prosecution witnesses to the police. Under Section 162, Criminal P.C., a special procedure is laid down for the use of such statements. The learned Counsel for the defence argued that that procedure only applied where it is desired to contradict the evidence of the witnesses by the statements and that where the witness agrees with the statement, Section 162 did not apply. It is no doubt correct that Section 145, Evidence Act, provides that in case it is desired to contradict the witness by the statement, that statement must be put to the witness and it would follow that where the witness agreed with the statement it would not be necessary to put that statement to the witness. But it does not follow that Section 162 does not apply where the witness agrees with the statement. We consider that the language of Section 162 is meant to be comprehensive as it definitely says:
nor shall any such statement or any record thereof... be used for any purpose (save as herinafter provided).
11. These words are perfectly general. The distinction between a statement and a record thereof is a distinction between the oral statement and the written record in the diary of that oral statement. The language of Section 162 therefore covers all cases of any use of the statements to the investigating officer except as excepted by the Criminal Procedure Code. Now Section 162 provides that:
the Court shall on the request of the accused refer to such writing and direct that the accused be furnished with a copy.
12. In the present case the Court has merely directed that the accused be furnished with copies of statements of the prosecution witnesses and those statements have been subsequently proved by a general reference to them by the investigating officer. We consider that the Court should also have complied with Section 162 by making a reference to such writing. By these words we understand that where a witness is called and the statement to the police is made the subject of cross-examination then the Court should make a reference to that written statement and make a note of what the written statement actually says. It is not proper to rely on the memory of a witness as to what he thinks many months afterwards he stated to the investigating officer. When the writing itself is available, the Court should refer to that writing and make a note on the record. The Court has not done so and therefore it has been necessary for us to refer to these statements and sec in each case exactly what the statement says. This may be a small matter, but it saves a considerable amount of time of a Court of appeal if the Sessions Court carries out the provisions of Section 162. (His Lordship then considered the evidence against each of the accused persons and allowed the appeal by the "Local Government).