BAIRA BAIRAGI MOHANTY AND ANR. Vs. STATE

JUDGEMENT

(1.) THE two Petitioners along with 11 others were charged of offences punishable under Sections 147, 333 and 333/149, Indian Penal Code. The learned Assistant Session Judge who tried these accused persons ultimately convicted 5 of them under Section 332/149, Indian Penal Code and imposed a sentence of 2 year 's R.I. He convicted the self Same accused persons also under Section 147, Indian Penal Code and sentenced them to R.I. for one year with a direction that the two sentences would run concurrently. The learned Sessions Judge upon appeal set aside the conviction of some and retained that of the two Petitioners. He modified the sentence.

(2.) THE prosecution case shortly stated is that on 27 -10 -1964 p.w. 2 who was the Sub -Permanent Way Inspector of the South Eastern Railway was coming from his headquarter at Tapang to Khurda Road Railway Station in a trolley. He was then on duty. The accused persons stopped him and assaulted him as a result whereof he received grievous hurt. The accused persons were temporary gunmen who had refused to work according to the yard -stick and p.w. 2 in his official duty bad reported against them as & result whereof these accused persons were discharged. To venge for what had been done by p.w. 2 they formed themselves into an unlawful assembly and assaulted him. The defence was a clear denial. The prosecution case was accepted in to in the trial Court and as I have already indicated the learned Appellate Judge discarded bulk of it in appeal and maintained the conviction and sentence against the present two Petitioners.

(3.) COMING to the first aspect, the charge in this case was that 13 persons in all as named therein had participated in the unlawful assembly. By the process of elimination upto he appellate stage 11 had gone out a d only 2 remained. In the circumstances the number being reduced below 5 the charge under Section 147, Indian Penal Code would no more be substantial. Law on the point seems to be well established and reference may be made to a case of their Lordships of the Supreme Court in Kartar Singh v. State of Punjab, A.I.R. 1961 S.C. 1787, as an authority for the proposition. In that view of the matter the conviction under Section 147, Indian Penal Code must be set aside.