An appellate court can impose a sentence on a petitioner under Section 143 of the Indian Penal Code even though no separate sentence was passed against them by the courts below.

M.R.Verma, J.

1. Out of the ten petitioners, seven have been found guilty under Sec. 427 of the Indian Penal Code and sentenced to undergo rigorous imprisoment for three months each. They were also found guilty under Sec.143 of the Indian Penal Code, but no separate sentence was passed on that count. Three of the petitioners, namely, Petitioner No. 10 Ganesh, Petitioner No. 7 Jhamlal and Petitioner No. 3 Sundar, were also found guilty, but they were not given any punishment, but were discharged after due admonition under Sec.3 of the Probation of Offenders Act.

2. The occurrence is said to have taken place in village Balaitha, P.S. Sonbarsa, in the district of Saharsa, in the early hours of the 26th/27th November, 1967. It is said that these petitioners, along with others, raided the field of the complainant Hariballabh Jha, whose master was Brajeshwar Thakur. He found that Meth crops were being grazed by 20-25 heads of buffaloes and the petitioners were cutting and removing the crops also. The complainant raised hulla which attracted the prosecution witnesses who saw the occurrence. According to the complainant, damage worth Rs. 600 was caused to him. The motive for the occurrence is said to be enmity between Brajeshwar Thakur and some of these petitioners. Both the Courts below have found the occurrence as having been completely proved, and it is against this order of conviction and sentence that the present revision application has been filed.

3. Mr. Brahmanand Singh, learned Counsel appearing for the petitioners, has raised two points before me. The first contention is that, though this petition has been admitted on the question of sentence only, he could show from the evidence that the charges were not brought home to the petitioners. In support of his contention, he placed before me the case of Suggi Bind V/s. State, AIR 1968 Pat 382, In that case, this Court held that, even when the revision has been admitted on the question of sentence only, the hands of the revisional Court are not fettered in scrutinising the evidence and to come to a conclusion whether the charge had been established or not. He has argued that it was not possible for these petitioners to have gone there in a body and get the Meth crop damaged in the early hours at about 3 a. m. and it is also not possible for the prosecution witnesses, who are residents of village Balia, to go there on hulla and to witness the occurrence. No person from village Balaitha, where the field lies, had been examined on the point of occurrence. As observed in the judgment of the lower appellate Court, there is no evidence that there is any house near the place of occurrence and the basti portion of Balaitha is at a distance of 5-7 rassis from the place of occurrence.

There is further evidence to show that Balaitha and Balia have a common boundary. The Appellate Court has remarked that two of the witnesses cannot be said to be interested, but they are quite independent. The evidence does not show that the residents of Balaitha also appeared at the place of occurrence, because only in that case the argument would have been available that they were independent persons and some of them ought to have been examined in the case. The evidence does not show that any person from village Balaitha had come there. Of course, in all criminal cases mostly partisan witnesses are examined, and it would not be a healthy procedure to reject their evidence only on account of interestedness. In such cases, the Court has to see their evidence with caution and, in the words of felicitous metaphor, separate the grain from the chaff. Learned Counsel has taken me through the evidence of the four eye-witnesses who have spoken about this occurrence. I find that they are not consistent as to the actual part played by these petitioners for the offence of mischief. P. W. 1 stated that some of these petitioners were getting the Meth crop grazed; some were themselves cutting the crop, while some o