SOTHAVALAN ALIAS IRULAN Vs. RAMA KONE

JUDGEMENT

(1.) The Petitioners in this case have been convicted of rioting as punishable under Section 147, Indian Penal Code and of the substantive offence of voluntarily causing simple hurt as punishable under Section 323, Indian Penal Code. They have been sentenced in all to 3 months rigorous imprisonment each, two months for the rioting and one month for the causing hurt. They have also each of them been fined Rs. 15 for each offence. The only point that has now. to be considered is that of whether the two separate punishments were legal.

(2.) For the Petitioners reliance is placed upon the decision of Curgenven, J., in Kunnammal Mayan In re . In that case the learned Judge has held, though with some hesitation and while admitting that he saw a difficulty in arriving at his conclusion, that when a person is convicted both under Section 147 and Section 323, I. P. C, he could not be awarded a separate sentence for each of the offences. He has followed a decision, apparently, unreported, of Krishnan, J., in C.R.P. No. 2C9 of 1924 and a decision of the Lahore High Court reported in Bishna V/s. Emperor (1922) 73 I.C. 517. The principle of these decisions is that where the causing of the hurt is itself the particular form of the force or violence which contributed to the offence of rioting, the one was included as an ingredient of the other. Curgenven, J., followed this principle and found it difficult to escape the conclusion that to convict for voluntarily causing hurt, where the only violence which formed the act of rioting was the hurt itself, offends against the provisions of Section 71, Indian Penal Code. A different opinion, however, has been expressed by Wallace, J., in a decision which is also to be found in Anthoni Udaiyan V/s. Royappudayar , Therein he has pointed out that Causing hurt and using force are not the same thing and the word force does not appear in the definition of hurt . The use of criminal force is no doubt an ingredient of the offence of rioting and the use of force may be an ingredient in the offence of rescuing cattle, but the force necessary to constitute these offences may fall far short of causing bodily pain and if further force is used which does cause bodily pain, then, in my view, the offences which involve and are complete by mere use of criminal force have been exceeded and that excess constitutes another offence, viz., that of causing hurt, or, causing whatever more serious form of bodily hurt has been the result.

(3.) With all respect I think that the view thus taken by Wallace, J., is correct; and what he says as to force is equally applicable to violence. The same view has also been taken by a Divisional Bench of this Court in Krishna Ayyar V/s. Emperor (1918) 20 Cr.L.J. 145, a decision which does not appear to have been brought to the notice of either of the learned Judges whose decisions, above referred to, appear in 53 M.L.J. In that case it is remarked that It has been well settled that where the object of an unlawful assembly is to. cause hurt, then a member of that unlawful assembly, if he is convicted under Section 147, cannot be convicted also under Section 323 or 325 read with Section 149, except that such of the accused as are proved themselves to have caused hurt in the riot would be rightly convicted of the offence of hurt in addition to the offence of rioting.