The Judgment of the Court was as follows:—
Sanderson, C.J:— This is an appeal by Kiamuddi Karikar, who was tried by the learned Additional Sessions Judge of Dacca and a jury. By the unanimous verdict of the jury he was found guilty of an offence under sec. 147, I.P.C and of an offence under sec. 325 read with sec. 149, the jury found him not guilty under sec. 325, sec. 304 and sec. 304 read with sec. 149.
Shortly stated the facts were these:—
The police were summoned for the purpose of preventing a considerable number of people from fishing in a certain tank. In the first instance the police were attacked, but the next thing that happened was that the people, who had assembled for the purpose of fishing, apparently gave way and retreated. The allegation was that then some of the people, who were with the police, and the police themselves pursued the retreating crowd. The deceased man, who was aged about sixty, fell at the rear of the crowd, and he was so severely beaten that he died on the spot.
The accused, according to the evidence, was alleged to have been one of those who beat the deceased man. But, as I have already said, the jury acquitted him of the charge under sec. 325 and also of the charge under sec. 304. The learned vakil, who argued the case very well, relied mainly upon an alleged misdirection as to the accused being a member of an unlawful assembly. It is clear that the assembly, of which the accused was a member, was in the first instance a lawful assembly, and that was pointed out by the learned Judge. But the case of the prosecution was that after the people, who had come to fish in the tank, retreated and after there was no further necessity for any violence, some of those who formed the police party turned themselves into an unlawful assembly with the common object of unnecessarily beating some of those who had come to fish: and the learned vakil argued that the learned Judge had not sufficiently directed the jury upon this point.
The main part of the summing up in this respect, was as follows:—The learned Judge dealt fully with the facts. Then he said: “Now I come to the law. The first charge is under sec. 147. To understand it you should know sec. 141 read and explained.” Therefore, it is clear that the learned Judge explained to the jury what was necessary to constitute an unlawful assembly under sec. 14141 “common object is essential.” Therefore, the learned Judge directed the attention of the jury to the fact that a common object was essential: and, I find that in a later part of his summing up he indicated that the alleged common intention was to beat the fishing party. Then he proceeded to say in his charge to the jury, “An assembly not unlawful at the inception may become so later. Then again, illegal act by one or two not acquiesced in by others does not change its character.” There, I think, the learned Judge must have been explaining to the jury that if the police party in the first instance constituted a lawful assembly, the fact that one or two of them committed the alleged illegal act would not change the character and nature of the assembly, but that it would require five persons or more than five persons, who were actuated by a common intention, namely, that of beating the fishing party, to change the character of the assembly from a lawful one to an unlawful one.
In considering the learned vakil's point it must be remembered that these were “heads of charge” only, and it was impossible for the learned Judge to write down everything he said to the jury. I am satisfied, on the summing up, taking it as a whole, that the learned Judge appreciated the point and that he drew the attention of the jury to it.
Consequently in my judgment, there was no misdirection in that respect.
Another point, to which the learned vakil drew our attention, was that there were certain witnesses, who were not called on behalf of the prosecution; and, he argued that the learned Judge ought to have directed the jury that they were entitled to assume from that fact that if those witnesses had been called they would not have supported the case for the prosecution. The learned Judge did not say this in so many words, but in effect what he did say on that point, in my judgment, was sufficient.
The last point, with which it is necessary for me to deal, is the question of sentence. The learned Judge sentenced the accused to two years' rigorous imprisonment under sec. 147, I.P.C He then proceeded to pass a further sentence under sec. 325 read with sec. 149, namely, for three years' rigorous imprisonment, and directed that the sentences should run concurrently.
The learned vakil drew our attention to the case of Nilmoney Poddar v. Queen-Empress . In that case the accused had been convicted of an offence under sec. 148, and there was a further conviction under sec. 324 coupled with sec. 149. A sentence of two years' rigorous imprisonment was passed upon the Appellant under sec. 148 and a further sentence of one year's rigorous imprisonment was passed for the offence under sec. 324 read with sec. 149. The learned Counsel for the Crown admitted that the case, which we are now considering, cannot be distinguished in principle from the case in Nilmoney Poddar v. Queen-Empress . The learned Chief Justice in that case said: “In this case the offence of voluntarily causing hurt under sec. 324 coupled with sec. 149 of the Indian Penal Code, of which these Appellants have been found guilty, is primarily made up of two parts, viz.: (1) of their being members of an unlawful assembly, by which force and violence was used in prosecution of its common object, and the members of which were armed with deadly weapons; and (2) of the offence of voluntarily causing hurt being committed by two other members of the unlawful assembly in prosecution of its common object. The first of these two parts is itself an offence, viz., rioting, armed with deadly weapons, under sec. 148 of the Indian Penal Code. It is nowhere expressly provided in law that, under the circumstances set forth above, the offender may be punished separately for the two offences constituted by the whole and the part respectively. Therefore we find that all the conditions laid down in paragraph 1 of sec. 71 of the Indian Penal Code are present here. Consequently the infliction of separate punishments for the two offences is illegal under it.” In the result, the Court set aside the sentence of one year's rigorous imprisonment passed upon the Appellants under sec. 324 read with sec. 149. In the present case the first conviction was under sec. 147, I.P.C instead of sec. 148 as in the Full Bench case; and the second conviction was under secs. 325/149 instead of secs. 324/149 as in the Full Bench case. It being admitted that the Full Bench decision is applicable to the present case, the infliction of separate punishments for the two offences is illegal under para. 1 of sec. 71 of the Indian Penal Code. It was suggested by the learned Counsel for the Crown at one time during the course of the argument that there was a difference between the case, which we are now considering, and the Full Bench case, inasmuch as the learned Judge who tried this case directed that the two sentences should run concurrently. I do not understand how that can, make any difference. The provisions of para. 1 of sec. 71 forbid the infliction of separate punishments for the two offences in a case to which those provisions apply. In this case the learned Judge inflicted a sentence of two years under sec. 147 and a sentence of three years under sec. 325 read with sec. 149,1. P. Code. As the learned Chief Justice said in the Full Bench case, consequently the infliction of “separate punishments for the two offences is illegal under it.” In my judgment, the learned Judge had no jurisdiction to sentence the accused in this case for both offences. If he had thought that it was necessary that the accused should be punished with a sentence of three years' rigorous imprisonment, he could have inflicted a sentence for that period under sec. 325 read with sec. 149, and he need not have passed any sentence under sec. 147. As a matter of fact he punished the accused first under sec. 147 and then proceeded to pass a further sentence under sec. 325 read with sec. 149. In my judgment, the sentence under sec. 325 read with sec. 149 should be set aside.
The result is that, in my judgment, the conviction of the accused under sec. 147 and the sentence of two years' rigorous imprisonment passed upon him must stand. The conviction under sec. 325 read with sec. 149 must also stand but the sentence passed thereunder must be set aside.
Cuming, J.:— I agree generally with the judgment which has just been delivered by the learned Chief Justice. At the same time I desire to make it clear that I am not prepared to hold that where, as in the present case, two separate sentences have been passed—one for rioting under sec. 147 and the other for constructive grievous hurt under sec. 325 read with sec. 149—the Court is obliged necessarily to maintain the one which was passed first in point of time and to set aside the sentence which come second in point of time. Obviously this might possibly reduce the question as to what sentence the accused would get to a lottery depending on the order in which the Judge or Magistrate passed the sentences and result in a serious miscarriage of justice. Sec. 71 provides that an accused person shall not be punished with the punishment of more than one of his offences which provision is obviously met by making all the sentences which have been imposed run concurrently. In the present case I am, however, of opinion that the ends of justice will be met by the sentence of two years' rigorous imprisonment.
J.N.R
Appeal allowed.