R.N. Dutt, J.
1. This revisional application is directed against an appellate Order dismissing the petitioners' appeal against their conviction and sentence under Section 323 of the Indian Penal Code.
2. The prosecution case was as follows :
On March 28, 1961 at about 6-45 P.M. Sk.Sorab and Sk. Nuru with some other persons werecutting branches of sal tree in the Governmentforest at Kapagari. P. W. 1 Bakul Chandra Ghosh,P. W. 3 Nikunja Behari De and one Tushar Safar,all employed under the Forest Department of theGovernment, while on patrol, detected this P. W. 1had a gun with him. When they tried to catchhold of those persons, all except Sk. Sorab andSk. Nuru fled away, Sk. Sorab and Sk, Nuruwere arrested and were being taken to the Beatoffice of the Forest Department but on way thepetitioners along with some other persons surrounded P. W. 1 and the other employees of theForest Department and petitioner Didar Khan forcibly snatched away the gun from P. W. 1 andbroke it into two pieces by striking on the ground.Petitioner Mainuddin and one other person rescuedSk. Sorab and Sk, Nuru from the custody of theforest employees and all the petitioners assaultedP. Ws. 1 and 3 as a result of which P. W. 1 felldown unconscious but P. W. 3 managed to runaway. P. W. 1 was then carried to the house ofpetitioner Mahatram Hossain and when P. W. 1regained consciousness the petitioners asked him togo away. P. W. 1 demanded back the gun butthis was not returned. P. W. 1 then went toKuchissole Beat office, met the Range Officer thereand then lodged the First Information Report at thethana at 1 A.m. on March 29, 1961.
3. On these allegations the petitioners were put on their trial along with Sk. Sorab and Sk. Nuru. Sk. Sorab and Sk. Nuru were charged under Section 379 of the Indian Penal Code for having committed theft of timber from the Government Forest. Petitioner Didar Khan was charged under Section 379 of the Indian Penal Code for having committed theft of the gun of P. W. 1. Petitioner Mainuddin was charged under Section 225-B of the Indian Penal Code and all the petitioners, 3 in number, were charged under Section 323 of the Indian Penal Code for having voluntarily caused hurt to P. Ws. 1 and 3.
4. The petitioners and Sk. Sorab and Sk. Nuru pleaded not guilty.
5. The learned Magistrate acquitted Sk. Sorab and Sk, Nuru of the charge under Section 379 of the Indian Penal Code on the finding that it was not proved beyond reasonable doubt that the trees from which branches were being cut appertained to a Government forest. The learned Magistrate also acquitted petitioner Didar Khan of the charge under Section 379 of the Indian Penal Code on the finding that he had no dishonest intention in snatching away the gun from P. W. 1. The learned Magistrate further acquitted petitioner Sk. Mainuddin of the charge under Section 225-B of the Indian Penal Code on the finding that it was no offence to rescue Sk. Sorab and Sk. Nuru who were unlawfully arrested. The learned Magistrate, however, convicted the petitioners under Section 323 of the Indian Penal Code and sentenced each of them to rigorous imprisonment for two months. The petitioners filed an appeal which was dismissed by an Assistant Sessions Judge at Midnapore.
6. Mr, Mukherjee, who appears for the petitioners, argues that on the findings of fact the conviction of the petitioners under Section 323 of the Indian Penal Code should not be sustained. Hesubmits that the little hurt that was caused to P. Ws. 1 & 3 must have been caused in the scuffle for rescuing Sk. Sorab and Sk. Nuru from unlawful detention. The Courts below have found that the hurt was not the result of any scuffle but was voluntarily caused by the petitioners. We have, however, the finding of the trying Magistrate that Sk. Sorab and Sk. Nuru were in unlawful detention. We have also the finding of the trying Magistrate that Sk. Sorab and Sk. Nuru were rescued from such unlawful detention by petitioner Mainuddin and one other person. The trying Magistrate has found that P. Ws. 1 and 3 were assaulted after Sk. Sorab and Sk. Nuru were rescued. The learned Assistant Sessions Judge does not appear to have made any clear or positive finding on this point. But the fact remains that the incidents of rescuing Sk. Sorab and Sk. Nuru and the causing of hurt to P. Ws. 1 and 3 appertain to the same transaction. It is true that the sequence of events as disclosed in the evidence of P. Ws. 1 and 3 is that the gun was snatched away first, then Sk. Sorab and Sk. Nuru were rescued and then P. Ws. 1 and 3 were assaulted. But none of these witnesses has said that the petitioners came back after rescuing Sk. Sorab and Sk. Nuru and then caused the hurt. From the evidence and from the circumstances there is no doubt that the causing of hurt was simultaneous with the rescuing of Sk. Sorab and Sk. Nuru. It must, therefore, be said that the petitioners cannot be convicted for causing the hurt which was caused while rescuing Sk. Sorab and Sk. Nuru from unlawful detention.
7. The conviction of the petitioners cannot, therefore, be sustained.
8. In the result the revisional application is allowed and the rule is made absolute. The order of conviction and sentence is set aside and the petitioners are acquitted. They are discharged from their Bail Bonds.
D.N. Das Gupta, J.
9. I agree.