To make out a case under Section 153 I. P. C., it is necessary to establish that (1) the accused did an act which is illegal (2) that by such act he gave provocation to others; and (3) that he did sit malignantly or wantonly intending or knowing it to be likely that such provocation will cause the offence of noting to be committed.

R. K. DAS, J.

( 1 ) THIS is an appeal by the Stale against the order of the Magistrate 1st Class, panposh acquitting the respondent of an offence under Section 158 and some other sections of the I. P. C.

( 2 ) IT is the prosecution case that on 14-3-1954, a train carrying some refugees arrived at Rourkela railway station at about 9 p. m. A passenger travelling 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 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 Sections 153, 448/ 149 and 332/149. I. P. C.

( 3 ) 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 againsf him,

( 4 ) 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

( 5 ) THE learned Magistrate who tried the case found that no case was made against the respondent under any of the charges levelled 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 Section 153 I. P. C. is concerned

( 6 ) THE main question for consideration is whether the case under Section 153 I. P c has been made out To make oul a case under Section 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 others; and (3) that he did sit malignantly or wantonly intending or knowing it to be likely that such provocation will cause the offence of noting 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 section 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 before I proceed to find out if the essentials necessary to constitute the offence under Section 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 poiso