Courtney-Terrell, C.J:— This is an application for the revision of an order by the Sessions Judge of Patna affirming on appeal the convictions of the ten petitioners some of whom were charged with rioting, some of whom were charged both with rioting and with theft and one of whom was charged with theft only. The trial took place before the Sub-Divisional Magistrate of Barh. The circumstances alleged by the prosecution may be very briefly stated as follows: The accused persons belong to a village called Bhatgawan. Three quarter of a mile from that village there is a field which is owned by some persons who reside at another village called Akbarpur. On the day in question the owners of the field went half an hour before sunset to inspect the crops growing there. They there saw four persons who are the petitioners Nos. 1, 2, 9 and 10 in this case engaged in uprooting the crops. They are said to have captured one of the thieves, that is to say, petitioner 10, and were in the act of taking him to their own village in order that they might charge him with theft. When they had gone a short distance from their field they were set upon by a mob of 20 or 25 people including the petitioners whom I have mentioned, that is to say, Nos. 1, 2 and 9 and the other petitioners and they were there assaulted by these people with deadly weapons.
2. The petitioners were placed on trial, Nos. 1, 2, 9 and 10 were charged with theft, No. 10 being charged with theft alone under S. 379, Nos. 1 and 2 were charged with an offence under S. 326 and under S. 148 with rioting with deadly weapons. No. 9 was charged with theft and also charged with rioting under S. 147. Nos. 3 to 6 inclusive were charged under S. 326 and S. 148, Nos. 7 and 8 were charged under S. 147 and therefore a trial took place in which some of the petitioners were accused of theft, and some were accused of the offence connected with rioting although they were not charged with or tried under the accusation of theft. It is said that the not and the attack upon the complainants was with the object of rescuing the petitioner No. 10 who had been caught in the act of stealing the crops and Twas in the custody of the complainants.
3. The objection taken by Mr. Jyotirmoy Chatterji on behalf of the petitioners is in substance that the trial was bad under Section 2-39 of the Cr PC. He says that the offences of rioting and the use of deadly weapons upon the complainants were not part of the same transaction as the offence of theft with which some of the petitioners have been charged. In my opinion that contention is sound.
4. The learned Sessions Judge has stated his view that the offences were in the course of the same transaction because they are in the relation of cause and effect but that would be true of any case of violence effected in the rescue of a person from custody. The rescue and the violence would not have taken place had not petitioner 10 been taken into custody for the offence. It does not necessarily follow that the rescuers of a person in custody have been in collusion with him in the commission of the offence for which he is in custody. We have been unable to find any trace in the judgment of any finding that the persons charged with rioting and the use of deadly weapons were directly or indirectly concerned with the theft. Had there been evidence that the rescuers had been in collusion with the thieves committing the theft and had stood by with the object of effecting a rescue then there would have been such a connexion between the two sets of offences as to make them one and the same transaction, and that would have justified the trial of the two sets of offences together; but in this case there is no race of any such connexion. It therefore follows that the joint trial was bad. Petitioner 10 was only charged with theft and sentenced to one month's rigorous imprisonment and has already served his sentence. Petitioner 9 has been sentenced to six months rigorous imprisonment in respect of the theft but that is probably a mistake on the record because as far as we can see there is nothing to make his case worse than that of the other persons accused of theft who have all been sentenced to one month's rigorous imprisonment in respect of the theft. We see no reason to send the case back for retrial in respect of those who are accused of theft only, nor indeed of any further investigation of the crime of theft but it is necessary in the interests of justice that petitioners 1 to 9 inclusive be retried on the charges' for which they were originally tried excluding the offence of theft under S. 379. The convictions and sentences will therefore be set aside and the case in this respect will go back to the Magistrate for fresh trial. These petitioners will be on bail to the satisfaction of the District Magistrate to appear this day fortnight before the Magistrate.
Macpherson, J.:— I agree.
P.N/R.K
5. Order accordingly.
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