SUNDAR SINGH Vs. STATE

JUDGEMENT

(1.) I have read the judgment of my brother Mukerji. Criminal Revision No. 27 of 1953 came up before nay brother Brij Mohan Lall. He referred the case to a Bench as the question had been frequently mooted before him whether if X is found to be a member of an unlawful assembly which assembly has committed an offence punishable under Section 323, he could be convicted and sentenced both under Section 147 and Section 323/149, Penal Code, if it had transpired that the prosecution had failed to prove that X himself caused the hurt with his own hands. There was a decision of my brother Brij Mohan Lall J. in -- 'tiny v. State', AIR 1952 All 92 (A), where it was held that X could be so convicted, while there was a later decision by my brother Kidwai J. in -- 'abdur Rashid Khan v. The State', AIRule 1953 All 315 (B) where he had taken a contrary view. The case came up before Mr. Justice Agarwala and myself and for the reasons given in the referring order we thought it necessary that the case should go before a Full Bench. Criminal revision No. 239 of 1953 was connected with it as the same question of law arose in that case also. Since both these cases were referred by me to a Full Bench I would like to state briefly my opinion on the questions of law raised.

(2.) I agree with my brother Mukerji that Section 149, Penal Code, does not create a new offence but makes a member of an unlawful assembly vicariously liable for offences committed by others in furtherance of the common object.

(3.) AS my learned brother has pointed out 'force' is defined in Section 349, Penal Code, but every force used against a human being need not necessarily result in 'hurt'. 'hurt' is denned in Section 319 as 'bodily pain, disease or infirmity' caused to a person. In Section 146 two words have been used, 'force' or 'violence', and the section provides that "whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting. " While the word 'force' has been denned in Section 349, the word 'violence' has not been defined in the Code.