YUSUF KHAN Vs. EMPEROR

JUDGEMENT

(1.) This rule was issued on the District Magistrate of Cuttack to show cause why the conviction of the petitioners should not be set aside. The petitioner Yusuf. Khan, has been convicted under Section 323, Indian Penal Code, and the petitioner, Budhu Khan, under Section 379, Indian Penal Code, while both have been sentenced to rigorous imprisonment for two months each by the, Sessions Judge of cuttack in appeal on modifying their conviction under Section 394, Indian Penal Code, by the Sub- divisional Magistrate, Kendrapara, for which they had been sentenced each to rigorous imprisonment for six months each and to a fine of Rs. 150 and Rs. 100 respectively.

(2.) The learned lower appellate Court in interfering with the finding of the trial Court, held that the assault committed by the petitioner Yusuf was not for the end of commission of theft, and, therefore, their offences did not fall under Section 394, Indian Penal Code. They were, therefore, acquitted by him of this offence. The ultimate finding at which he arrived was: The two appellants might have remained, waiting at the place for the complainant to pass along the road. They appeared when they saw the complainant approaching towards them. The appellant Yusuf started the quarreland assaulted the complainant. Up to this stage the common object of the appellants might be the same or similar, but when the other appellant Budhu found that Yusuf was able to overpower the complainant, Budhu ran away with the bundle and Yusuf followed him when he found that other travellers had come to or were approaching towards the spot.

(3.) On this finding he convicted each of the petitioners for the specific offence committed by him by the specific act that he did.