Paltu Singh And Others Accused v. Emperor Opposite Party.

Mullick, J.:— The petitioners Paltu, Sarju, Jinpal and Jahar Singh have been sentenced for rioting with the common object of committing theft in respect of the crops of the complainant Juglal. Juglal and his brother Hitlal were injured on Juglal's side, while Paltu was injured on the side of the petitioners. The trial Court found all the petitioners guilty of rioting under S. 147, and of grievous hart under S. 325 read with S. 149, I.P.C, and sentenced them to six months' rigorous imprisonment for each offence, the punishments taking effect consecutively. On appeal the learned Sessions Judge has affirmed the convictions and two of the sentences, observing that Sarju and Jinpal had been shown by the evidence to have taken part in the assault and that in their case the application of S. 149, I.P.C, was not necessary. In regard to the other two appellants before him the learned Sessions Judge observed that although they were not shown to have themselves 1 struck any one separate sentences were not illegal. The learned Judge has relied on Queen-Empress v. Bana Punja(1), but reduced the sentences on Paltu and Jahar to one month's rigorous imprisonment for the offence under Ss. 325 and 149, I.P.C Now the only question that has been argued before us is whether separate sentences are legal. The learned Sessions Judge has not altered the convictions recorded by the trying Magistrate, and we take it that Sarju and Jinpal still re ream convicted, not of the substantive offence of grievous hurt under S. 325, I.P.C, but of a constructive offence under that section by reason of the application of S. 149, I.P.C Obviously the learned Sessions Judge could not have set aside the convictions under Ss. 325 and 149, I.P.C, and substituted a conviction under S. 325, I.P.C, because these two petitioners were not charged with the substantive offence in the trial Court, nor would it be proper for us in revision to convict them of this offence in the absence of any opportunity to plead to a charge in respect of it.

2. We will therefore only consider whether the separate convictions and sentences under S. 325 read with S. 149, I.P.C, against all the petitioners are legal. Here upon the facts it is not clear whether the offence of rioting was complete before grievous hurt was caused to Juglal and Hitlal. It may be that the blows which caused these injuries were themselves the acts which turned the unlawful assembly into a riot. As has been observed in Queen-Empress v. Bisheshar(2), it is not generally possible in a not of this kind to say that the offence of rioting was complete before the grievous hurt was caused. It is contended however that assuming that the grievous hurt was itself the act which turned the unlawful assembly into a riot, the law justifies separate sentences. I think it is clear that the weight of authority in the High Courts of Allahabad and Bombay is in favour of the view that not only can separate convictions be recorded under S. 146, I.P.C, and S. 325 read with S. 149, I.P.C, but separate punishments may also be imposed. On the point whether the punishments are controlled by S. 71, I.P.C, the opinion in the Allahabad Court is in the negative while no clear decision exists in the Bombay Court: see Queen-Empress v. Ram Sarup(3) and Queen Empress v. Bana Punja.

3. In the High Court of Calcutta the view now accepted is that separate convictions and therefore also separate sentences are illegal and that in any event S. 71, I.P.C, applies: Nilmony Poddar v. Queen-Empress(4). This view seems to be based upon the consideration that although the acts may constitute offences falling under two separate definitions, it is unfair to convict a man for two offences for the same acts.

4. In regard to the point whether in addition to a conviction under S. 147, I.P.C, an accused who has caused grievous hurt himself can be convicted under S. 325, I.P.C, the recent cases in the High Court of Calcutta are against a separate conviction: see Ramdihal v. Empress(5), Hridoy Mondal v. Jagananda Das(6). On the other hand the Allahabad and the Bombay Courts seem to be of opinion that separate convictions are legal and that the punishment is not controlled by S. 71, I.P.C: Queen-Empress v. Dungar Singh(7), Queen-Empress v. Bana Punja. It is to be noted that the opinion of the Bombay High Court upon this point was an obiter dictum, and that in the present case, upon my view of the learned Sessions Judge's order, the question of a separate sentence under S. 325, I.P.C, does not arise.

5. Following the view accepted by the High Court of Calcutta, I think that in the present case the convictions under Ss. 825 and 149, I.P.C, cannot be sustained. In this Court we have adopted the principle that where there is a long course of decisions by the High Court of Calcutta upon a particular pointy this Court will not depart from that settled course.

6. Separate convictions and sentences, therefore under S. 325 read with Ss. 149 and 147, I.P.C, cannot be sustained. We will however follow the course which was adopted in Hridoy Mondal v. Jagananda Das by Prinsep and Stanley, JJ., and treat the sentence in regard to each prisoner as a consolidated sentence, and while setting aside the conviction under S. 147, I.P.C, we sentence the petitioners before us under S. 325, I.P.C, read with S. 149, I.P.C, to rigorous imprisonment for one year each in the case of Sarju and Jinpal and 7 months in the casa of Paltu and Jahar.

7. Thornhill, J.:— I agree.

V.S/R.K

8. Order modified.