S. Acharya, J.
1. This is a revision by ten petitioners whose conviction and sentence under Section 294, I. P. C., as passed by Sri D. Naik, Magistrate, 1st Class (Judicial), Aska has been upheld by the learned Sessions Judge, Ganjam by his judgment dated 12-9-1966 passed in Criminal Appeal No. 10 of 1966 (G).
2. The prosecution case in short is that the complainant on the date of occurrence had another criminal case before the First Class Magistrate, Aska against the accused persons, and after the adjournment of the said case to another date he came away from the Court and was taking rest under a banian tree near the Grain Gola of Aska. It is alleged that the accused persons while returning by that way, abused the complainant in filthy language and threatened to assault him, when they saw him sitting under the banian tree. Some persons who were passing on the road nearby intervened and saved the complainant from being assaulted by the accused persons.
3. The petitioners in their defence stated that the complainant has foisted this false case against them due to previous enmity.
4. The learned trial court convicted the petitioners under Sections 294 and 352, I. P. C. read with Section 34 I.P.C. The trial court in passing the sentence against the petitioners ordered as follows:
'They are sentenced to pay a fine of Rs. 51 (fifty one), in default of payment of the fine to undergo rigorous imprisonment for one month each under each count of the offences proved against them.'
5. The appellate court found that the charge under Section 352/34, I. P. C. was not proved beyond all reasonable doubt against any of the appellants (the petitioners in this Court) and as such set aside the conviction and sentence passed against them on this count. The said court on a finding that the offence under Section 294, I. P. C. was proved against all the petitioners confirmed the order of conviction and sentence of the trial court on this count.
6. Mr. P. V. B. Rao appearing for the petitioners contended, amongst other things that the ingredients constituting the offence under Section 294, I. P. C. have not been established, and that there was no finding that the offensive words were uttered at or near a public place. It was also urged that the P. Ws. supporting the complainant's case were highly interested, and as the appellate court did not place any reliance on their evidence regarding the offence under Sections 352/34, I. P. C., he should not have placed any reliance on them in respect of other minor allegations against the petitioners. It was also urged bv Mr. Eao that it is highly improbable that all the ten petitioners would have uttered exactly the same alleged offensive words and that the alleged offensive words cannot be considered as obscene words considering the status of the parties involved in the incident.
7-9. There was strained feeling between the parties and the appellate court disbelieved the major part or the prosecution case by holding that the prosecution evidence did not inspire confidence. This being so one has to be cautious in scrutinizing and scanning the evidence in order to examine the correctness or otherwise of the conviction under Section 294, I. P. G. upheld against the petitioners.
[After considering evidence His Lordship proceeded.]
10. In view of all that has been stated above, it is difficult for me to come to a definite finding that the offence under Section 294, I. P. C. has been proved against the petitioners beyond all reasonable doubts. I would, therefore, on giving the petitioners the benefit of doubt, set aside their conviction under Section 294, I. P. C. and they are hereby acquitted. The fine if realised from the petitioners be forthwith refunded to them.
11. I would, however, like to observe in this case that the trial court while holding the petitioners guilty under Sections 294 and 352, I. P, C. read with Section 34, I. P. C. acted in a negligent manner in passing the sentence as follows :--
'They are sentenced to pay a fine of Rs. 51 (fifty-one), in default of payment of the fine to undergo rigorous imprisonment for one month each under each count of the offences proved against them.'
From a reading of the above sentence it would appear that the petitioners were conjointly ordered to pay a fine of Rs. 51 only for their above conviction on two heads, but in default of payment of this fine each of them was to undergo rigorous imprisonment for one month under each count. Moreover, it is generally the proper course where an accused person is convicted in one trial for more than one offence, that a separate sentence should be passed in respect of each such conviction regard being had to the provisions of Section 35, Cr. P. C. so that if the conviction in respect of offence is set aside, as in this case, the sentence imposed in respect of that offence only would go. The word 'may' in Section 35 of the Code of Criminal Procedure, not only confers a power but also imposes a duty of putting it in use. Passing of a cumulative sentence, instead of separate sentences, upon an accused person convicted at one trial of two or more offences, is not the order, but is an exception only under certain circumstances enumerated under Section 71, I.P.C. The courts in passing sentences should be careful enough in setting out the order so as not to leave any ambiguity in the same which might give rise to complications in enforcing the sentence and in dealing with the matter in appeal or in revision.
12. The revision is allowed.