A.N. Chakrabarti, J.
1. This Rule was issued at the instance of the petitioners whose appeal against conviction and sentence by a Magistrate, First Class, Barrackpore. Under Section 297 of the Indian Penal Code has been dismissed by the Additional Sessions Judge, Alipore.
2. The facts shortly stated were thus: On the 29th of April, 1966 the opposite party Monoranjan Chakraborty had come to Muktearpara Burning Ghat for the cremation of his daughter Anjali. aged about 5 years and a few months. When the dead body was put on the funeral pyre and just before the pyre was set fire to, a Police officer arrived there accompanied by the present petitioners. The petitioners told the Police officer that if an enquiry was made it would be found that the girl had been killed. Thereupon, the Police Officer caused the dead body to be lifted from the pyre and sent to morgue. Later on, post mortem being held on the dead-body of the girl it was found that she had died of measles. Monoranjan, the father of the girl started a case against the petitioners for committing offences Under Sections 500 and 297 of the Indian Penal Code. The trying Magistrate acquitted the petitioners of the charge Under Section 500 of the Indian Penal Code but convicted them of the charge Under Section 297 of the Indian Penal Code and sentenced them to rigorous imprisonment for one year each and to pay a fine of Rs. 200/ each, in default to further simple imprisonment for one month each. Against this order of conviction and sentence the accused persons appealed to the Sessions Judge of Alipore. The Additional Sessions Judge who heard the appeal held that the charge Under Section 297 of the Indian Penal Code was well established and in that view of the matter dismissed the appeal but reduced the sentence of rigorous imprisonment from one year to six months and set aside the sentence of fine.
3. The charge Under Section 297 of the Indian Penal Code framed against the accused persons reads thus: 'That you on or about the same day (29th of April, 1966) at Muktarpore Burning Ghat P. S. Jagaddal, with the knowledge that the feelings of Manoranjan Chakravarty is likely to be wounded commited criminal trespass in Miktarpur Burning Ghat committing dishonour to the complainant and his companions employed in preparing the funeral rites of Anjali, daughter of the said Manoranjan Chakravarty, and thereby committed an offence punishable Under Section 297 of the Indian Penal Code and within my cognizance.''
4. It will be seen that there are three distinct and separate clauses in Section 297. If anybody with the intention or knowledge mentioned in paragraph 1 of Section 297, IPC does any of the three acts mentioned in the three clauses then he would be guilty of the offence Under Section 297 of the Indian Penal Code. The three clauses are these: '(a) commits any trespass in any place of worship or on any place of sepulchre, or any place set apart for the performance of funeral rites or as a depository for the remains of the dead, (b) offers any indignity to any human corpse, (c) causes disturbance to any persons assembled for the performance of funeral ceremonies.' Evidently the charge was framed under the first of the aforesaid three clauses. The allegation against the petitioners as recited in the charge was that they with the knowledge that the feelings of Monoranjan was likely to be wounded committed criminal trespass upon the Mukhtearpore Burning Ghat. The prosecution should therefore have proved that the accused persons had committed trespass on a place set apart for the performance of funeral rites. But there is nothing in the evidence that was led by the prosecution from which it can be said that the acts alleged to have been done by the petitioners constituted a trespass upon any place set apart for the performance of funeral rites. The burning ghat is certainly a public place. The fact that the petitioners had gone there in the company of a police officer could by no stretch of imagination have amounted to a trespass upon that place. The learned Magistrate who tried the case forgot that the gist of the offence was trespass upon a place set apart for performing the funeral rites. He did not come to any finding regarding this essential ingredient of the offence under the first of the three clauses of Section 297, IPC His finding was that the accused persons had offered indignity to the dead-body with a view to wounding the religious feeling of the complainant Manoranjan Chakraborty. In other words, his finding was that a case under the second clause of Section 297 of the Indian Penal Code was made out. There was actually .no charge against the petitioners under that clause. The learned Additional Sessions Judge also held that indignity was 'offered to the dead body of Anjali Chakraborti with the intention of wounding the feelings and insulting the religion of Manoranjan. Both the trial court and the appellate court had overlooked the fact that the charge was under the first clause of Section 297 of the Indian Penal Code. As the ingredients of the offence under the first clause of Section 297 IPC were not proved the petitioners should have been acquitted.
5. The result, therefore, is that the conviction and sentence of the petitioners are set aside. The Rule is made absolute. The petitioners are discharged from their bail bonds.
A.P. Das, J.
6. I agree.