1. This is a petition by 11 accused persons against their conviction under Sections 448, 147 and 342, Indian Penal Code. At the time when this Revision came up for admission, this Court issued a rule to show cause why the sentence should not be enhanced. Accordingly, the learned counsel appearing on behalf of the accused-petitioners argued the matter as an appeal and questioned the legality of the conviction itself.
2. All the accused persons were charged under Sections 147, 448. Indian Penal Code. Accused Chachak Setti, Kalpa Mohapatra, Radhu Setti, Bhim Setti. Hadibandhu Bag. Sadhu Bag, were also charged under Section 380, whereas accused Puma Chandra Mohanty, Bhagirathi Jena. Bhagaban Patra. Panu Naik and Lakshmi Setti were charged under Section 342. Indian Penal Code.
3. The prosecution case was that the complainant who is a young lady had some trouble at the time of her husband's death with regard to the removing of his corpse, when the accused persons demanded certain sums of money. On the date of occurrence, that is, on 28-11-54. at about 8 O'clock in the morning, one Radhu Barik was attending to the shaving of her son when the ac-cused persons came and demanded as to why hewas attending to the complainant's son in spite of their prohibition. But since he did not pay any heed to it. Radhu Barik was dragged to the house of accused Puma Chandra Mohanty and was kept confined there until 9 O'clock.
The accused persona thereafter entered the house of the complainant, assaulted her and took away some clothings and her ear-rings. She was also tied and kept under wrongful confinement for sometime. She and Radhu Barik after their release from wrongful confinement went and lodged the first information at the Thana. A station diary entry was made on the information of Radhu Barik (Ext. D). and the complainant was directed to file a complaint petition in Court. Accordingly, she filed a petition of complaint before the S. D. M. the next day.
4. The learned Magistrate on a consideration of the evidence, acquitted all the accused persons of the charge under Section 380, I. P. C. as also of the charge under Section 342 for having tied down the hands of the complainant. He, however, disbelieved the story of alibi as pleaded by the accused persons, and without any discussion of the evidence against them convicted them all under Sections 448 and 147. I. P. C. and sentenced each of them to pay a fine of Rs. 15/- under each count; and in default to undergo R. I. for 15 days each under each Count.
The learned Magistrate also convicted accused Purna Chandra Mohanty, Bhagirathi Jena, Bhagaban Patra only under Section 342 for the wrongful confinement of Radhu Barik and sentenced each of them to pay a fine of Rs. 15/- and in default to undergo R. I. for 15 days each. It is against this conviction and sentences that the present petition in revision was filed and a rule for enhancement of the sentence was issued.
5. Mr. Das. learned counsel appearing on behalf of the petitioners contended that the charges both under Sections 147 and 448. I. P. C. are defective, and as such there cannot be held to be any legal charge or charges against the petitioners. It is unfortunate that the learned Magistrate had overlooked the provisions of law while framing the said charges. The charge as framed by him reads as follows :
'That you on or about the 3rd day of Margasir last at Fuladi were members of an unlawful assembly the common object of which was to commit rioting against P. W. 1, and others and thereby committed an offence punishable under Section 147, I. P. C.
That you, on or about the same day and at the same place committed criminal trespass into the house of P. W. 1; and thereby committed an offence punishable under Section 448 of the Indian Penal Code, and within my cognizance.'
'Unlawful Assembly' and its common object has been stated in Section 141, I. P. C. It is apparent from the above charge under Section 147, I. P. C. that the common object of the unlawful assembly has not been stated at all. Mere statement of the common object to commit rioting would not be sufficient in law to indicate as to what really their common object was. The learned Magistrate should have mentioned one of the objects as the common object as enumerated in Section 141, I. P. C. It was doubtless incumbent upon the Magistrate to specify the common object in the charge itself. Again with regard to the charge under Section 448, I. P. C. the learned Magistrate should have stated the intention with which the accused persons trespassed into the house of the complainant as contemplated under Sections 441 and 442, I. P. C. If the accused persons were not acquitted of the charges under Sections 380 and 342, I. P. C. by the learned Magistrate, we would have considered the question of prejudice; but since the learned Magistrate has acquitted them of the charges under Sections 380 and 342 I. P. C. so far as the complaint was concerned, the question of prejudice does not arise. Thus, the charge being defective, the whole proceeding was vitiated and the accused persons are entitled to acquittal. I would, accordingly, set aside the conviction and sentence of all the petitioners under Sections 147 and 448. I. P. C.
6. Coming to the conviction of the accused persons, under Section 342 for wrongful confinement of Radhu Barik the witnesses examined on behalf of the prosecution were P. Ws. 2, 3 and 4. P. Ws. 2 and 3 are interested witnesses as admittedly, there is a party faction in the village and they belong to the other faction. P. W. 4 is Radhu Barik himself. Now according to the prosecution evidence, the Chowkidar of the village was present some limp after the occurrence, but he has not been examined. Reference was made to an entry made by Radhu Barik at the police Station.
From the station diary entry No. 509 dated 38-11-54 of Balasore P. S. (Ext. D), it is apparent that Radhu Barik did not mention the accused Purna Chandra Mohanty Bhagirathi Jena. Bhagaban Patra. but on the contrary he mentioned therein two other accused persons, Laxmi Setti, and Bhima Setti. Therefore, the accused persons convicted of the charge under 'Section 342, I. P. C. not having been mentioned at the first instance at the police station by Radhu Barik, and having regard to the nature of evidence as discussed above, they are clearly entitled to the benefit of doubt. I would accordingly set aside their conviction and sentence under Section 342, I. P. C.
7. In the result the conviction of all the accused persons are set aside and they are acquitted of all the charges and the fines if realised shall be refunded to them at once.
The Rule for enhancement is discharged and the application is allowed.
8. I agree.