To establish an offense under Section 298 IPC, the prosecution must affirmatively establish that the act was done with the deliberate intention of wounding religious feelings.

R. L. NARASIMHAM, C. J.

( 1 ) THE five petitioners were convicted under Section 298 I. P. C. and sentenced to a fine of Rs. 15/- each by the S. D. M. of Talcher, on the allegation that with the deliberate intention of wounding the religious feelings of the villagers in Kandhala alias Ramchandrapur they offered Balis and worshipped two of the deities, namely, brahmani Dei and Pitabali Dei on inauspicious days.

( 2 ) THE aforesaid deities were established in the village long ago and it appears that the descendants of the original Brahmin families who were brought here from puri claimed a special right to manage the affairs of the said deities. It was also alleged that according to a long standing tradition and custom, animal sacrifices used to take place before the said deities only twice a year, once in the month of chaitra and again in the month of Bhadrab. The actual dates for performing animal sacrifices were also fixed by the Brahmins after discussion in a Sabha. It was further alleged that the dates as fixed by the Brahmins in the Sabha were final and no other villager was entitled to fix any other date, in pursuance of this age-old practice Bali was offered before the deities on the 20th August 1960 which was the suspicious day fixed by the Brahmins in the Sabha, but the petitioners wanted permission to offer Bali on another date, namely, 31-8-61 as there was Gomadak (cattle epidemic disease) in the village and they wanted to propitiate the deities. The Brahmin priests refused as it was against the custom. It was alleged that being dissatisfied with the decisions of the Brahmins, the petitioners offered Bali before the said deities on 31-8-61 with the help of petitioner Chakra who acted as the priest and then they poured the Bali blood on the deities.

( 3 ) THE learned Magistrate held that though the motive of the petitioners in thus offering Bali to the deities on a wrong date through a different priest might have been bona fide, nevertheless their action amounted to deliberate intention of wounding the religious feelings of the other villagers, and hence he held them guilty under Sec. 298 I. P. C.

( 4 ) I am however unable to accept this finding. If an unauthorised person performs worship in a shrine on an inauspicious day, it may, in some circumstances, amount to invasion of the civil rights of other persons. But to hold the petitioners guilty of an offence under Section 298 I. P. C. the prosecution must establish affirmatively that the act was done with the deliberate intention of wounding their religious feelings. It is true that intention has to be gathered from the conduct of the parties and the surrounding circumstances. But here it is admitted that the petitioners performed the worship through their priest in the proper manner. There was no act in the rituals performed which could possibly have wounded the feelings of any other person. The petitioners' religious fevour while performing the worship was never challenged. They wanted to propitiate the deities, because of the prevalence of cattle disease in the village. P. W. 5 rightly admitted in his cross-examination,

"it may be that the accused persons made the Puja and offered Ball just to satisfy the deities without meaning to insult or annoy or wound our religious feelings. "

However unauhorised their action may be, on this admission of p. W. 3 it must be held that they had no intention, whatsoever, of wounding the religious feelings of any other co-villagers. Mere invasion of civil rights of certain Sevaks of a shrine or even an attempt to change the mode of performance of the rituals does not amount to an offence under Section 298 I. P. C. unless it can be inferred either from the acts alleged to have been performed or from the words uttered by the petitioners or by other means that their intention was to wound the religious feelings of other persons.

( 5 ) THE learned lower court was undoubtedly right in pointing out that "motive" and "intention" are diff