R.K. Das, J.
1. This is an appeal by the Stale against the order of the Magistrate 1st Class, Panposh acquitting the respondent of an offence under Section 158 and some other sections of the I. P. C.
2. It is the prosecution case that on 14-3-1954, a train carrying some refugees arrived at Rourkela railway station at about 9 p.m. A passenger travelling in the said train was found vomiting. P. W. 12 the guard of the train stopped the train and went to the compartment and called for the Railway doctor. In the mean while, it is said, the accused R.C. Chowla went to the station platform holding a piece of bread and showed it to the people there saying that the bread contained poison and that the Muslims were giving such bread to the Hindus in order to kill them. This enraged the mobpresent there who got furious and assaulted aHindu Havildar (P. W. 7) under the belief thathe was protecting the Muslims. Thereafterthe mob followed the Havildar to the office ofthe Assistant Station Master P. W. 6. where itis said that P. W. 7 was assaulted P. W. 6lodged first information against some unknownaccused persons and on the basis of the saidinformation investigation was made by P. W.14 and the accused respondent Dr. R.S. Chowlaand one Biswanath Ray were prosecuted. Sofar as the present respondent is concerned hewas charged with offences under Sections 153, 448/149 and 332/149. I. P. C.
3. The respondent admitted that on the date of occurrence, he had been to the Railway station at the time when the train carrying the refugees arrived But his case was that he had been there for distribution of medicines. He denied the charges made againsf him,
4. In support of the prosecution case, some witnesses were examined of whom P.Ws. 1, 4 and 5 were declared hostile. The main plank of the prosecution case is the evidence of P. Ws. 2, 7 and 8
5. The learned Magistrate who tried the case found that no case was made against the respondent under any of the charges levelled against him. He also found that no case was made out against the other accused Biswanath Ray and accordingly he acquitted both the accused persons. It is against this acquittal of the respondent the State has preferred this appeal and that also in relation to the offence under Section 153 I. P. C. is concerned
6. The main question for consideration is whether the case under Section 153 I. P C has been made out To make oul a case under Section 153, it is necessary to establish that (1) the accused did an act which is illegal (2) that by such act he gave provocation to others; and (3) that he did sit malignantly or wantonly intending or knowing it to be likely that such provocation will cause the offence of noting to be committed The charge against the accused reads as follows :
' That you, on or about the 14th of March 1964 malignantly gave provocation to a mob intending that such provocation would cause the offence of rioting and thereby committed an offence punishable under Section 153 of the I. P. C. '
But what exactly was the particular illegal act that was malignantly or wantonly done by the accused is not clear from charge. The evidence on the point is also not quite clear and specific All that could be gathered from the prosecution case was that the accused wanted to say to the people gathered at the station that some bread containing poison has been given to the refugees
Before I proceed to find out if the essentials necessary to constitute the offence under Section 153 have been made out. I shall proceed to examine the evidence of the prosecution witnesses. Of the witnesses examined in the case P. Ws. 1, 4 and 5 were declared hostile and the prosecution mainly relied on the evidence of P. Ws. 2, 7 and 8. P. W. 2 is a constable, According to him, he had been on the station platform on duty when the train arrived at the Station. In his evidence he stated that the accused-respondent held a bread in his hand and was shouting that there was poison in that bread. Except that he said nothing against the accused. On the other hand his evidence reveals that when he ran towards the gate of the station, he heard some people shouting that Muslims were giving poison mixed with bread. According to him at the station platform P. W. 7 was the Havildar, who was assaulted by some people When P. W. 7 went to the office of the Assistant Station master, the mob also followed him and broke open the windows of the office of the Asst. Station Master.
It is curious to note that according to him, he did not know the name of the accused previously and came to know of it on enquiry and claims to have mentioned his name in his report. But the report is not forthcoming. He admitted that he did not know him earlier either by face or by name and learnt the identity of the accused on enquiry from one Pani-grahi. The said Panigrahi has not been examined in this case According to him there was a large crowd of about 2500 people at the time of occurrence and he never saw the accused again at any lime, before except on the day when he was present in court. P. W. 7 though involved the accused saving that he shouted holding a bread in his hand that the bread contained poison and that the Muslims were giving bread to kill the Hindus, in cross examination he said that he could not identify anybody in the mob as that was a dark night. He claims to have given a report to his superior officer as to what happened at the railway station, but at the same time he admitted that he did not mention anything about this incident in his report According to him he first saw the accused when he was loitering on the platform, but he could not identify anybody in the mob.
The evidence of P. W. 8 an A. S. I. shows that he came to the platform being deputed by his superior and was there from 6 p.m., onwards and when the train carrying the refugees arrived. He saw some members of the public giving food to the refugees and a large number of people rushing towards the main gate. After some time he noticed the respondent coming out from the crowd hofding a bread in his hand and shouting that the Muslims had mixed poison with the bread to kill Hindus. It, however, appears from his evidence that he was not instructed to be present there, nor was any command certificate issued to him. There is no report or any other contemporaneous document to show that he was there on duty Though he saw the incident with his own eyes, he did not give any report in writing. In cross-examination he said that he gave an oral report He however, said that he was not sure if his report found entry in the station diary though all such reports are supposed to find place in the station diary. With respect to the identity of Chowla the accused, his case was that he saw him in a crowd of seven to eight hundred and he could identify none except the accused. He was then behind the mob and could not say where the occurrence took place.
In view of this unsatisfactory state of evidence, the trial court was not inclined to accept the prosecution story. Apart from the evidence of P. Ws. 2, 7 and 8, the other evidence also discounts the prosecution story. P. W. 1 constable No 100 has himself admitted in cross-examination that he never stated before the police in course of investigation that one man named Chowla came with a loaf. In other words the constable who admittedly was present there did not mention the name of the respondent in his earlier statement before the Police. The evidence of P. W. 3 and some others reveals that Dr. Chowla was a member of the peace committee and on the date of occurrence he was asking people to maintain peace. P. W. 3 is no other than the Sub-Inspector of Police, Plant Site Police Station Rour-kela. He admits that as long as he was there at the railway station, nobody complained to him against Chowla, the accused. Thus the evidence of a responsible police officer reveals that the accused instead of committing breach of the peace was asking people to maintain peace in the locality and he had heard no complaint against the respondent while he was at the Station platform. The evidence of P. Ws. 4 and 5 also supports the defence version. P.W. 4 is a school teacher and P. W. 5 is a local business man who saw the accused on the station platform and according to them the accused was trying to maintain peace and was distributing medicine
7. The story that the accused stood on a table and gave a speech to the persons present on the platform is hardly believable. It appears from the evidence that there was no table on the station platform. It is the evidence of P. W. 6, the Asst. Station Master that there was no table or chair on the station platform during his duty when the occurrence is alleged to have taken place P.W. 9 is the compounder who was assisting the accused doctor in the distribution of medicine and according to him there was no table at that time on the station platform The evidence of P. W. 12 the guard of the train is also to the same effect The story that the accused stood upon a table holding a piece of bread complaining that it contained poison and was intended to kill the Hindus is therefore to be rejected.
8. No bread has been seized from the possession of the accused with a view to show if in fact it contained poison The police, however, picked up some bread and sent it for examination to the doctor. P. W. 11, who opined that there was no poisonous substance contained in the bread. This piece of evidence was adduced by the prosecution obviously with a view to show that the accused falsely declared that the bread in question contained poison This evidence is wholly irrelevant since there is nothing to show that the bread examined by P. W. 11 was the bread held by, and seized from the accused. The evidence clearly reveals that the accused, who by profession, is a doctor, was there to render some medical assistance to the refugees travelling in the train. It further appears from the evidence that he is a member of the Peace Committee and as disclosed from the evidence of P. W. 8 he was asking people to maintain peace. There is nothing in evidence to show that in fact any Muslim was present at the spot or anybody was injured by the mob. The only person said to have been assaulted was P. W. 7, a Hindu Havildar
Moreover, to make out a case under Section 163. I. P. C. it must not only be established that a provocation was given by the act complained of, but it must also be shown that the act was done malignantly or wantonly. The word ' wantonly ' appears only in this section of the Code and the word malignantly in Section 270. ' Malignantly ' implies a sort of general malice and very strong evidence is necessary to prove malignantly or wantonly. The expression ' wanton ' means recklessness with regard to the consequences of a particular act done. A mere chance of provocation, however, is not sufficient to justify a conviction under Section 158, I. P. C. See (1894)) ILR 18 Bom 758, Queen Empress v. Karigowda.
In view of the aforesaid state of the evidence and the position of law, I am of theopinion that the order of acquittal must be heldto be justified In the result, therefore, theorder of acquittal is maintained and the appealdismissed.