D. P. MOHAPATRA, J.

( 1 ) IN this revision petition the accused persons have assailed the appellate judgment of the Second Additional Sessions Judge, Cuttack in Criminal Appeal No. 180 of 1985 confirming the decision of the Sub-divisional Judicial Magistrate, Kendrapara (S. D. J. M.) in I. C. C. No. 156 of 1983 and convicting them under Ss. 323 / 379 read with S. 34 of the Penal Code ('i. P. C. ' for short) and sentencing each of them to pay a fine of Rs. 200/- on each Count.

( 2 ) ON the complaint filed by the opposite party the aforementioned case was registered. The case of the complainant in a nutshell was that shortly before the incident which gave rise to the present case, the accused persons had forcibly entered his house, damaged the door frames, cot, etc. His brother had sent him a telegram about the incident and had lodged a report at the police station. On getting the information, the complainant who was working at Choudwar in a stationeryshop started for his house. On 12-5-1983 at about 6 p. m. the accused persons wrongfully restrained him on the way, abused him in filthy language, assaulted him with fist blows and slaps and questioned him as to why his brother had reported against them at the police station. The complainant alleged that the petitioner, Abhaya Kumar Sahu and Rajan Kumar Sahu snatched away the bag in which he had kept three sarees, one Lungi, one Napkin and fruits worth Rs. 181/ -. Petitioner Madhusudan removed Rs. 200/- from his chest pocket and thereafter all the petitioners left the spot. Since the police failed to take any action on the report lodged by his brother the complainant filed the complaint petition before the S. D. J. M.

( 3 ) THE plea of the petitioners was one of complete denial of their involvement in the case. According to them, a false case was foisted against them.

( 4 ) THE complainant examined himself and three other witnesses who had witnessed the occurrence. One witness was examined on behalf of the petitioners who stated, inter alia, that the petitioners had supported him in a litigation against the brother-in-law of the complainant.

( 5 ) THE trial Court on scrutiny of the evidence on record held that the petitioners had assaulted the complainant on 12-5-83 and that all of them, with common

intention, had committed theft of the articles in question and took away cash from possession of the complainant on the date, at the time and the place of occurrence. On these findings, the learned Magistrate held that the complainant had successfully proved the charges levelled against the accused persons beyond reasonable doubt. Accordingly, he convicted them under Ss. 323/379/34, I. P. C. and sentenced each of them to undergo rigorous imprisonment for a period of 3 months on each count and also to pay a fine of Rs. 200. 00, in default of payment of fine to undergo rigorous imprisonment for a period of one month, with the further direction that the sentences will run concurrently. While considering the question of sentence, the Court observed that it is flashed in newspapers every day that due to the theft and assault by culprits, human life and property are in peril. Considering the nature of the offence and the highhanded action of the accused persons, he did not like to release them under any of the provisions of the Probation of Offenders' Act.

( 6 ) ON appeal by the accused persons, the learned Addl. Sessions Judge on a fresh look at the evidence on record agreed with the finding of the trial Court and confirmed the conviction of the accused persons of the charges noted earlier. Regarding the sentence, the appellate Court was inclined to take a lenient view and held that since the offences committed by the appellants were not gruesome in nature, ends of justice would be served if the order of sentence of fine as imposed by the learned S. D. J. M. was maintained and the order of rigorous imprisonment for 3 months was set aside. Accordingly he directed, the petitioners to pay