(1.) THIS revision is against the appellate judgment of the Sessions Judge, Balasore, maintaining the conviction and sentence of the petitioners under Section 143, I.P.C., while setting aside their conviction under Section 379, I.P.C, and the sentence passed thereunder.
(2.) FOURTEEN accused persons Including the petitioners were prosecuted for charges under Sections 143 and 379, I.P.C. on the allegation that these fourteen persons entered into the plot of land, settled with P.W. 1, the Ex -Choukidar, by breaking open the fence, and destroyed therein his hut and the vegetable plants, and carried away therefrom vegetables worth Rs. 100. Those fourteen persons were convicted in the trial court for both the above mentioned offences. The appellate court acquitted all of them of the charge under Section 379, I.P.C. on the finding that there was no clear evidence against them regarding their actually carrying away vegetables from the place of occurrence. The court below while finding that the charge under Section 143, I.P.C. was well proved against the petitioners, recorded a finding, in the same strain, as follows: <AT>'No charge is proved against other appellants or against the deceased accused Kasi Das.'</AT> Most of them were given the benefit of doubt and one of them 'was found not to be actually present at the spot. The number of the members of the unlawful assembly who allegedly participated in the above mentioned acts was definite and they were all ascertained and named persons. It was not alleged in this case that these fourteen accused persons along with others formed the said unlawful assembly. On such facts Mr. Roy con -j tended that eleven out of those fourteen named and ascertained accused persons having been acquitted, the remaining three accused persons, the petitioners herein, could not on the facts of this case, be held to be members of an unlawful assembly, so as to be convicted under Section 143, I.P.C. In support of his above contention Mr. Roy cited the decision in Kartar Singh v. State of Punjab, AIR 1961 SC 1787 the relevant portion of which is as follows: