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1965 SCC OnLine Ori 37 : AIR 1966 Ori 192 : 1966 Cri LJ 1171

Orissa High Court

(BEFORE R.K. DAS, J.)

State of Orissa … Appellant;

Versus
Dr. R.C. Chowala … Respondent.
Govt. Appeal No. 28 of 1964
Decided on October 15, 1965
JUDGMENT
1. This is an appeal by the State against the order of the Magistrate 1st Class,
Panposh acquitting the respondent of an offence under S. 158 and some other sections
of the I.P.C. It is the prosecution case that on 14-8-1954, a train carrying some
refugees arrived at Rourkela railway station at about 9 p.m. A passenger traveling in
the said train was found vomiting. P.W. 12 the guard of the train stopped the train and
went to the compartment and called for the Railway doctor. In the mean while, it is
said. The accused R.C. Chowla went to the station platform holding a piece of bread
and showed it to the people there saying that the bread contained poison and that the
Muslims were giving such bread to the Hindus

Page: 193

in order to kill them. This enraged the mob present there who got furious and
assaulted a Hindu Havildar (P.W. 7) under the belief that he was protecting the
Muslims. Thereafter the mob followed the Havildar to the office of the Assistant Station
Master P.W. 6, where it is said that P.W. 7 was assaulted. P.W. 6 lodged first
information against some unknown accused persons and on the basis of the said
information investigation was made by P.W. 14 and the accused respondent Dr. R.S.
Chowla and one Biswanath Ray were prosecuted. So far as the present respondent is
concerned he was charged with offences under Ss. 153, 448/149 and 332/149, I.P.C.

2. The respondent admitted that on the date of occurrence, he had been to the
Railway station at the time when the train carrying the refugees arrived. But his case
was that he had been there for distribution of medicines. He denied the charges made
against him.
3. In support of the prosecution case, some witnesses were examined of whom
P.Ws. 1, 4 and 5 were declared hostile. The main plank of the prosecution case is the
evidence of P.Ws. 2, 7 and 8
4. The learned Magistrate who tried the case found that no case was made against
the respondent under any of the charges leveled against him he also found that no
case was made out against the other accused Biswanath Ray and accordingly he
acquitted both the accused persons. It is against this acquittal of the respondent the
State has preferred this appeal and that also in relation to the offence under S. 153
I.P.C. is concerned.
5. The main question for consideration is whether the case under S. 153 I.P.C. has
been made out to make out a case under S. 153, it is necessary to establish that (1)
the accused did an act which is illegal (2) that by such act he gave provocation to
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others; and (3) that he did so malignantly or wantonly intending or knowing it to be

likely that such provocation will cause the offence of rioting to be committed. The
charge against the accused reads as follows:
“That you, on or about the 14th of March 1964 malignantly gave provocation
to a mob intending that such provocation would cause the offence of rioting and
thereby committed an offence punishable under S. 153 of the I.P.C. “But what
exactly was the particular illegal act that was malignantly or wantonly done by
the accused is not clear from charge. The evidence on the point is also not quite
clear and specific. All that could be gathered from the prosecution case was that
the accused wanted to say to the people gathered at the station that some bread
containing poison has been given to the refugees
6. Before I proceed to find out if the essentials necessary to constitute the offence
under S. 153 have been made out. I shall proceed to examine the evidence of the
prosecution witnesses. Of the witnesses examined in the case P.Ws. 1, 4 and 5 were
declared hostile and the prosecution mainly relied on the evidence of P.Ws. 2, 7 and 8.
P.W. 2 is a constable, According to him, he had been on the station platform on duty
when the train arrived at the Station. In his evidence he stated that the accused-
respondent held a bread in his hand and was shouting that there was poison in that
bread. Except that he said nothing against the accused. On the other hand his
evidence reveals that when he ran towards the gate of the station, he heard some
people shouting that Muslims were giving poison mixed with bread. According to him
at the station platform P.W. 7 was the Havildar, who was assaulted by some people
When P.W. 7 went to the office of the Assistant Station master. The mob also followed
him and broke open the windows of the office of the Asst. Station Master.
7. It is curious to note that according to him, he did not know the name of the
accused previously and came to know of it on enquiry and claims to have mentioned
his name in his report. But the report is not forthcoming. He admitted that he did not
know him earlier either by face or by name and lea rent the identity of the accused on
enquiry from one Panigrahi. The said Panigrahi has not been examined in this case.
According to him there was a large crowd of about 2500 people at the time of
occurrence and he never saw the accused again at any time, before except on the day
when he was present in court. P.W. 7 though involved the accused saying that he
shouted holding a bread in his hand that the bread contained poison and that the
Muslims were giving bread to kill the Hindus, in cross examination he said that he
could not identify anybody in the mob as that was a dark night he claims to have
given a report to his superior officer as to what happened at the railway station, but at
the same time he admitted that he did not mention anything about this incident in his
report According to him he first saw the accused when he was loitering on the
platform, but he could not identify anybodv in the mob.
8. The evidence of P.W. 8 an A.S.I. shows that he came to the platform being
deputed by his superior and was there from 6 p.m. onwards and when the train
carrying the refugees arrived. He saw some members of the public giving food to the
refugees and a large number of people rushing towards the main gate. After some
time he noticed the respondent coming out from the crowd holding a bread in his hand
and shouting that the Muslims had mixed poison with the bread to kill Hindus. It,
however, appears from his evidence that he was not instructed to be present there,
nor was any command certificate issued to him. There is no report or any other
contemporaneous document to show that he was there on duty Though he saw the
incident with his own eyes, he did not give any report in writing in cross-examination
he said that he gave an oral report. He, however, said that he was not sure if his
report found entry in the station diary though all such reports are supposed to find
place in the station diary. With respect to the identity of Chowla the accused, his case
was that he saw him in a
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crowd of seven to eight hundred and he could identify none except the accused. He
was then behind the mob and could not say where the occurrence took place.

9. In view of this unsatisfactory state of evidence. The trial court was not inclined to
accept the prosecution story. Apart from the evidence of P.Ws. 2, 7 and 8. The other
evidence also discounts the prosecution story. P.W. 1 constable No. 100 has himself
admitted in cross-examination that he never stated before the police in course of
investigation that one man named Chowla came with a loaf. In other words the
constable who admittedly was present there did not mention the name of the
respondent in his earlier statement before the Police. The evidence of P.W. 3 and some
others reveals that Dr. Chowla was a member of the peace committee and on the date
of occurrence he was asking people to maintain peace. P.W. 3 is no other than the Sub
-Inspector of Police, Plant Site Police Station Rourkela. He admits that as long as he
was there at the railway station, nobody complained to him against Chowla. The
accused. Thus the evidence of a responsible police officer reveals that the accused
instead of committing breach of the peace was asking people to maintain peace in the
locality and he had heard no complaint against the respondent while he was at the
Station platform. The evidence of P.Ws. 4 and 5 also supports the defence version.
P.W. 4 is a school teacher and P.W. 5 is a local business man who saw the accused on
the station platform and according to them the accused was trying to maintain peace
and was distributing medicine.
10. The story that the accused stood on a table and gave a speech to the persons
present on the platform is hardly believable. It appears from the evidence that there
was no table on the station platform. It is the evidence of P.W. 6. The Asst. Station
Master that there was no table or chair on the station platform during his duty when
the occurrence is alleged to have taken place. P.W. 9 is the compounder who was
assisting the accused doctor in the distribution of medicine and according to him there
was no table at that time on the station platform. The evidence of P.W. 12 the guard of
the train is also to the same effect. The story that the accused stood upon a table
holding a piece of bread complaining that it contained poison and was intended to kill
the Hindus is therefore to be rejected.
11. No bread has been seized from the possession of the accused with a view to
show if in fact it contained poison. The police, however, picked up some bread and
sent it for examination to the doctor, P.W. 11, who opined that there was no poisonous
substance contained in the bread. This piece of evidence was adduced by the
prosecution obviously with a view to show that the accused falsely declared that the
bread in question contained poison. This evidence is wholly irrelevant since there is
nothing to show that the bread examined by P.W. 11 was the bread held by, and
seized from the accused. The evidence clearly reveals that the accused, who by
profession, is a doctor, was there to render some medical assistance to the refugees
traveling in the train. It further appears from the evidence that he is a member of the
Peace Committee and as disclosed from the evidence of P.W. 3 he was asking people
to maintain peace. There is nothing in evidence to show that in fact any Muslim was
present at the spot or anybody was injured by the mob. The only person said to have
been assaulted was P.W. 7, a Hindu Havildar.
12. Moreover, to make out a case under S. 153, I.P.C. it must not only be
established that a provocation was given by the act complained of, but it must also be
shown that the act was done malignantly or wantonly. The word “wantonly” appears
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only in this section of the Code and the word malignantly in S. 270. “Malignantly”
implies a sort of general malice and very strong evidence is necessary to prove
malignantly or wantonly. The expression “wanton” means recklessness with regard to
the consequences of a particular act done. A mere chance of provocation, however, is
not sufficient to justify a conviction under S. 153, I.P.C. See (1894) ILR 18 Bom 758,
Queen Empress v. Karigowda. In view of the aforesaid state of the evidence and the
position of law, I am of the opinion that the order of acquittal must be held to be
justified in the result, therefore. The order of acquittal is maintained and the appeal
dismissed
LI/MVJ/D.V.C.
13. Appeal dismissed.
———
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