ORDER
Choudhary, J.
1. Petitioner No. 1, Sheopujan Koiri, has been convicted under Sections 326 and 324, Penal Code, and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 100/-, or, in default, to undergo rigorous imprisonment for a further period of three months under Section 326, Penal Code, and to undergo rigorous imprisonment for six months under Section 324, Penal Code, the substantive sentences of imprisonment to run concurrently. Petitioner No. 2, Sukhu Koiri, has been convicted and sentenced to undergo rigorous imprisonment for six months under Section 324, Penal Code. Petitioners 3 and 4, Dasain Koiri and Dulesar Koiri, have been convicted under Section 323, Penal Code, and sentenced to undergo rigorous imprisonment for three months each. Petitioner No. 5, Rupu Koiri, has been convicted under Sections 457 and 354, Penal Code, and sentenced to undergo rigorous imprisonment for one year under each of the sections, the sentences to run concurrently.
2. According to the case of the prosecution in the night between the 4th and 5th of September, 1951, a little before dawn, the complainant Musammat Bhagwatia was sleeping in her house when she woke up and found the petitioner Rupu Koiri sitting on her Bed. On being challenged Rupu asked her to keep silence and made advances towards her. Musammat Bhagwatia gave him a push and raised an alarm in response to which Jaimangal (P. W. 3), Ganesh (P. W. 4) and Tapesar (P. W. 6) came to the lane near the entrance of her door. Rupu attempted to move away, but Musammat Bhagwatia caught hold of him by holding his dhoti and the door was opened. Rupu was secured by the aforesaid three witnesses. In the meantime the other four petitioners arrived at the spot and began assaulting the three witnesses. Ganesh managed to run away after he was assaulted, Tapesar fell down unconscious and Jaimangal was caught hold of by the accused persons and 10 to 15 other persons who happened to come to the house of Sheopujan where he was wrongfully confined,
3. The defence of the accused persons was that they were innocent and were falsely implicated in the case out of enmity. Musammat Bhagwatia was a woman of bad character & was in love with Nanku and on the alleged date of occurrence she having been detected to be with her lover in her house, falsely implicated Rupu Koiri, as being a person who entered her house, in order to save her lover Nanku.
4. The trial Court had convicted all the accused persons, but the learned Additional Sessions Judge acquitted those ten persons whose names were given in the petition of complaint, but had not been given in the first information report lodged by Musammat Bhagwatia.
5. The prosecution examined several witnesses to prove its case and the defence also examined some witnesses to prove their case. The trial Court accepted the prosecution evidence and rejected the defence evidence on a summary discussion of the depositions made by the defence witnesses and on a wrong reading of the documents exhibited on behalf of the defence in the case, The learned Additional Sessions Judge did not consider the case of the defence at all and also some material evidence of the prosecution witnesses which would throw a doubt on the truth of the prosecution case or support the defence version.
6. Mr. Akbar Imam appearing for the petitioners has raised two contentions. His first contention is that joint trial of petitioner No. 5 along with the other petitioners was illegal and the conviction was bad in law. He has submitted that there is nothing on the record to suggest that there was any previous arrangement between the petitioner No. 5 and the other petitioners with regard to the committing of the offence punish- able under Section 354, Penal Code, by petitioner No. 5, nor was there anything to suggest that the other petitioner had got out, in pursuance of that agreement, to rescue petitioner No. 5, if apprehended, and, that being the position, there could not be a joint trial of the petitioners for two distinct offences.
7. Section 233, Criminal P. C., lays down that for every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately, except in the cases mentioned in Sections 234, 235, 236 & 239. Sections 234, 235, 236 and the clauses other than Clause (d) of Section 239 have no application to the present case. Clause (d) of Section 239, however, lays down that persons accused of different offences committed in the course of the same transaction may be charged and tried together, and the point to be decided is whether, in the present case, the offences of rescuing petitioner No. 5, and, in the course of that, of assaulting persons who had apprehended petitioner No. 5, could be said to be a part of the same transaction under which petitioner No. 5 is alleged to have committed the offence of outraging the modesty of a woman.
As already observed, there is no evidence in the case that there was any previous concert amongst the petitioners. It has been held in – Makru Lohar v. Ganga Sahu’ AIR 1947 Pat 74 (A) that no comprehensive formula of universal application can be framed regarding the question whether two or more acts constitute the same transaction; the circumstances which must bear on its determination in each individual case are proximity of time, unity or proximity of place, continuity of action and community of purpose or design. The mere fact that two offences are committed at the same time or place is neither necessary nor decisive as an indication of their being so connected as to form the same transaction, nor are the offences so regarded merely because they may be inspired by one and the same general object. Each case has to be considered on its own facts.
In – ‘Raghu Dusadh v. Emperor’ AIR 1930 Pat 159 (B), a Division Bench case of this Court, the facts were that a thief was captured, and, while he was being led by the complainants, several persons armed with deadly weapons assaulted the latter and rescued the thief. The thief and the rescuers were jointly tried, the former for theft and the latter for rioting and hurt. There was no evidence, as in the present case, to show that the rescuers had acted in collusion with the thief in the act of theft, and had stood by to rescue him. In these circumstances, their Lordships held that the joint trial was bad as there was no evidence to show that the offences of rioting and the use of deadly weapons upon the complainants were part of the same transaction as the offence of theft. There are decisions to this effect of the other High Courts also, but it is not necessary to multiply the authorities on the point when a Division Bench of this Court is clear on this point.
8. On consideration of the authorities and of the facts and circumstances of this case, I am of opinion that petitioners could not be tried to gether for the two sets of offences alleged to have been committed by them, and, therefore, it follows that the joint trial was bad in law. In such cases ordinarily an order of remanding the case for re-trial is passed, but, in view of the fact that even on merits the prosecution has not got evidence to sufficiently establish the guilt of the petitioners, I do not think (sic) to order for a retrial.
9. In order to prove the immoral character of the complainant Bhagwatia, the defence examined her husband as D. W. 1, who deposed that she was of a bad character and used to leave his house off and on as a result of which he was tired of her and had to execute a bazidawa divorcing her. That bazidawa is exhibit B in this case. The defence has also produced a complaint petition, Ext. C, filed by the mother-in-law of the complainant, Musammat Bhagwatia, alleging about her immoral character and complaining that the villagers wanted to take advantage of her position to grasp her property. The learned Magistrate has simply referred to the evidence of the defence witnesses and characterised them as being formal witnesses. I fail to understand how the defence witness No. 1, the husband of Musammat Bhagwatia, who had definitely come to prove her immorality could be said to be a formal witness. The learned Magistrate discarded the evidence of the defence witnesses in a very summary way by only saying that all these defence witnesses are of no help to the defence and have not been examined to rebut the prosecution witnesses.
With respect to the complaint petition filed by the mother-in-law of Musarnmat Bhagwatia (Ext. C), the learned Magistrate simply said that he has already discussed about this document in an earlier portion of his judgment. In the earlier portion, however, instead of considering this petition of complaint he considered the petition of complaint that was filed in this very case and discussed that document. Thus it appears that the defence case was not even considered, as it ought to have been, by the learned Magistrate. The learned Additional Sessions Judge, as I have already observed, is absolutely silent even over the plea of defence. He has not even taken care to know as to what the defence was.
10. Coming to the evidence of the prosecution witnesses Mr. Akbar Imam appearing for the petitioners has drawn my attention to certain pass-ages in the evidence of those prosecution witnesses. Ordinarily, as a Court of revision I would not like to look into the evidence and to consider that. But Mr. Imam has argued that he had himself argued the case before the learned Additional Sessions Judge and he had pointed out those passages to him for consideration, but he had not considered those passages at all.
According to the prosecution case, Musammat Bhagwatia was in her house which was locked from inside, and, as it would not be possible for any one to enter her house without breaking open the door, she made out a case that petitioner No. 5 came to her house by scaling over the wall, going upon the thatched tiles and then entering her house from the roof. She has also stated that she pointed out to the investigating officer the broken thatched tiles through which petitioner No. 5, Rupu Koiri, entered her house, but the investigating officer has said that he did not find any mark of scaling in the eastern thatched house of Musammat Bhagwatia. If there was no mark of scaling over the wall or of entering into the house through the broken thatched tiles, the entry of Rupu Koiri in the house becomes impossible. This evidence ought to have been considered by the learned Additional Sessions Judge.
Mr. Akbar Imam has also argued that the investigating officer did not believe the story of scaling over the wall and, therefore, he did not submit any charge-sheet under Section 456, Penal Code, but the view taken by the investigating officer is not binding on the Court &, therefore, I am of opinion that this has got no importance. If the entry of Rupu Koiri in the house of the complainant Musammat Bhagwatia is not accepted, the entire prosecution case with regard to the outraging of her modesty and to the committing of assault in the action of rescuing Rupu Koiri, when apprehended, fails.
11. In the result the petition is allowed, the order of conviction and sentence passed on the petitioners is set aside and they are acquitted. The bail bonds stand cancelled and the fines if paid shall be refunded.
