SARJU RAI Vs. STATE OF BIHAR

JUDGEMENT

(1.) This application in revision is directed against an order of conviction passed by the Second Additional Sessions Judge, Bhagalpur, convicting all the petitioners except petitioner No. 5 (Mahendra Rai) under Section 143, Indian Penal Code, and sentencing each of them to undergo rigorous imprisonment for two months and to pay a fine of Rs. 100/ - or, in default, to suffer further rigorous imprisonment for one month. Petitioner No. 5 (Mahendra Rai) was convicted under Section 144, Indian Penal Code, and sentenced to undergo rigorous imprisonment for four months and to pay a fine of Rs. 200/ - or, in default, to undergo further rigorous imprisonment for two months.

(2.) The facts leading to the present application may be summarised as follows : According to the prosecution case, Pratap Manjhi (P. W. 6), the complainant, was in possession of plot No. 578 appertaining to Khata No. 11 in village Chutiari, on which he had grown paddy. On the day of occurrence, that is, on 2 -12 -1963, these petitioners along with many others came to the land and they directed the other reapers to harvest the paddy, which they did. They also carried away the harvested paddy. It is said that petitioner No. 5 was armed with a bhala and others carried lathi. The complainant then filed a complaint before the Sub -divisipnal Magistrate of Banka on 3 -12 -1963. The matter was sent for enquiry to the Mukhiya of the Gram Panchayat, and on receipt of his report, cognizance was taken and the petitioners were put on trial. They were convicted by the Honorary Judicial Magistrate, First Class, Banka, under Section 379, Indian Penal Code, and each of them was sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 250/ - or, in default, to suffer simple imprisonment for two months. They were further convicted under Section 427, Indian Penal Code, and each of them was sentenced to undergo rigorous imprisonment for six months and also to pay a fine of Rs. 250/ - or, in default, to suffer simple imprisonment for two months. The two sentences were ordered to run concurrently. All the petitioners, except petitioner No. 5 (Mahendra Rai) were further convicted under Section 143 and petitioner No. 5 under Section 144, Indian Penal Code, but no separate sentence was passed against them under these counts. Then there was an appeal to the Sessions Judge of Bhagalpur, and the appeal was heard by the Second Additional Sessions Judge, and he convicted and sentenced the petitioners as aforesaid. He acquitted them of the charges under Sections 379 and 427, Indian Penal Code, but convicted and sentenced them under Sections 143 and 144, Indian Penal Code, as indicated earlier. It is against this order of conviction that the present application has been filed before this Court.

(3.) Mr. Prem Shankar Sahay, learned Counsel for the petitioners, has urged that in view of the fact that the petitioners have been acquitted of the main charges under Sections 379 and 427, Indian Penal Code, they should not have been convicted for the offences under Section 143 or 144, Indian Penal Code. In support of his view, he has relied upon a decision of this Court reported in Ramphal Gope and Ors. v. The State of Bihar 1964 Cr. L.J. 111. In that case, the parties had composed the offence under Section 323, Indian Penal Code, and so it was observed that the charge under Section 147 should also fail when the common object of the unlawful assembly was to assault. That case can be distinguished on facts. To commit riot is a distinct offence from being a member of an unlawful assembly. When force or violence is used by any member of an unlawful assembly, every members of that assembly is guilty of the offence of rioting. If it is established that no force or violence was used by the members of the unlawful assembly, it can be argued that the charge tinder Section 147, I. P. C. had not been established. But that is not the case when the charge is only under Section 143 or 144, I.P.C. In the present case, more than five persons had assembled at the paddy field; five of them being armed with lathi and one with bhala, to get the paddy crop harvested and taken away by force. The learned Additional Sessions Judge has observed in Paragraph 9 of his judgment.: ...the clear evidence of all the witnesses is that the appellants had not taken part in the harvesting but were only standing with their respective weapons on the ridges while the reapers were harvesting the crop. They had thus only got the crop harvested and removed and not harvested or removed it themselves. On this finding they cannot be held guilty under Section 379, I.P.C. or under Section 427, I.P.C. In his opinion, the present petitioners would be guilty of abetting these offences but as there was no specific charge of abetting, they were not convicted. In my opinion, it is, not a correct proposition of law. If the charge of theft has failed and the evidence shows that the accused persons had abetted the crime of theft, they can be held guilty under Section 379/511, Indian Penal Code, even though there was no specific charge for the abetment of the offence. In the case of Damodar Sahu and Anr. v. The State , a Divisional Bench of the Orissa High Court held that it could not be laid down as an inflexible rule that a conviction for abetment cannot be made in a case where the accused is charged with the main offence only, and no separate charge has been framed under Section 109, Indian Penal Code. If the accused had notice of the facts, which constituted abetment, although the charge was one for the main offence, and if there has been no prejudice to the accused by the omission to frame a separate charge for abetment, he can be convicted for abetment even though the charge for the main offence fails. Any way, these petitioners have been acquitted of the charge under Sections 379 and 427 of the Penal Code and the State Bank has not cared to prefer any appeal. So the matter may be allowed to rest there. 4. The second question which falls for determination is that in view of the acquittal of these petitioners under Sections 379 and 427, Indian Penal Code, their conviction ; under Sections 143 and 144 is legally sustainable or not. In Section 141 of the Indian Penal Code, an "unlawful assembly" has been defined, and it means an assembly of five or more persons with the common object of doing some criminal act as given in the five clauses of that Section. Section 143 provides punishment for being a member of an unlawful assembly. It is, therefore, clear on a plain reading of the Section itself that the common object of the unlawful assembly may not be translated into action. If the common object is fulfilled and the criminal act is done, then every member of the assembly is guilty of another distinct offence. Similar views were expressed in the case of Ch. Inder Singh and Ors. v. The State . In that case, the charge under Section 186, Indian Penal Code, failed because of want of complaint in accordance with Section 195(1)(a), Code of Criminal Procedure, and it was held that the accused persons could be held guilty of the offence under Section 143, Indian Penal Code. In the case of Sheo Ahir and Ors. v. Emperor A.I.R. 1938 Pat. 548, it was observed that being a member of an unlawful assembly and resisting the process of law are two separate offences though they may be committed in the course of the same transaction. In another case of this Court, Gurunarayan Das and Ors. v. Emperor A.I.R. 1948 Pat. 58 a Division Bench consisting of Meredith and Bennett, JJ. held that no acquittal could be allowed for the offence under Sections 147 and 148 by reason of the compromise in regard to the offences under Sections 323, 324 and 325, I.P.C. In the case of State v. Kamalakar Prabhakar Juvekar A.I.R. 1960 Bom. 269 their Lordships of the Bombay High Court pointed out that the compounding of the offence under Section 337, I.P.C. will not prevent the prosecution from being continued under Section 279, I.P.C. Similar views were expressed in a case of Rajasthan High Court in the case of Mangilal and Anr. v. The State 1957 Cr. L.J. 158, to the effect that composition of the offences under Sections 323 and 504, I.P.C. would not stand as a bar to the trial of the accused for the offence under Section 330, I. P. C. which was non -compoundable. To quote one more instance, in a recent case of this very Court in Deonarain Rai and Ors. v. State of Bihar 1967 B.L.J.R. 64, it was pointed out that the composition of one offence will not bar a prosecution for a distinct offence of which the accused might have been charged on the same facts. Even though the accused had been acquitted of the charges under Sections 323 and 324, Indian Penal Code, for the commission of assault on the complaint, by reason of the composition of these offences, the fact remains that they were members of an unlawful assembly, the common object of which was to use force, and with that end in view, they were there, and that charge had been proved against them. There is no actual difference in law if the acquittal is obtained after trial or by virtue of composition. In a trial the charge may fail on a technical ground. Similarly, the compounding of an offence does not mean that the offence has not been committed, but that it has been committed, though the victim is either willing to forgive it or to accept some form of solatium as sufficient compensation for what he has suffered. So, in consideration of what has been discussed above, I think the conviction of the five petitioners under Section 143 and of petitioner No. 5 under Section 144 of the Indian Penal Code cannot be held to be bad in law. Moreover, both the Courts have found that these petitioners being armed were present at the scene of the occurrence giving strengthening support to the actual wrong doers, Of course, they did not themselves participate in the criminal act of stealing the paddy crop after harvesting the same. 5. Coming to the question of sentence, I find that a lenient view can be taken in the circumstances of the case when the petitioners have been acquitted of the charge under Sections 379 and 427 of the Indian Penal Code. More over, petitioner No. 3 is the father of petitioner No.