SAHAB RAJ SINGH Vs. EMPEROR

JUDGEMENT

(1.) THIS is a reference by the Additional Sessions Judge of Jaunpur recommending that the sentence passed on the accused under Section 323, Indian Penal Code, be set aside. The facts appear to be that one Sarabjit had incurred the displeasure of certain persons who were on the look out to beat him. On 14 March 1932 he was going to Jaunpur in connection with a case and some of the accused in the present case threatened him by saying that they would beat him on his return from the Court. When -Sarabjit finished his work in Court he took care to start after the accused and their men had left Jaunpur. The accused however lay in ambush for him and when Sarabjit reached the culvert near Lahirpur he was assaulted by a number of persons. Seven of these persons were convicted by a Magistrate under Section 147, Indian Penal Code, and sentenced to a fine of Rs. 40 and under Section 323, Indian Penal Code, read with Section 149, Indian Penal Code. They were sentenced to pay a fine of Rs. 10. In revision before the learned Judge it was contended that separate sentences under Secs.147 and 323, I.P.C., were not maintainable inasmuch as the injury caused to the complainant was an essential ingredient under Section 147, Indian Penal Code, and to convict the accused again under Section 323, Indian Penal Code, and to punish them thereunder was to convict them twice and punish them twice for the same offence, and in doing so the provisions of Section 71, Indian Penal Code, were contravened.

(2.) THE learned Sessions Judges has relied upon certain cases of Lahore, Madras and Oudh. THEy are A.I.R. 1926 Lah. 581, Manak Chand V/s. Emperor A.I.R. 1927 Mad. 970, Kunnammal Mayan V/s. Emperor and Prag V/s. Emperor. I have considered those cases and I find that the Oudh case is clearly distinguishable. Indeed, in that case it was distinctly held that the accused could be convicted both under Section 147, Indian Penal Code, as well as under Section 323, Indian Penal Code. In that case the accused were further convicted under Section 296, Indian Penal Code, and it was held that separate convictions under Secs.147 and 296, Indian Penal Code, were not legal inasmuch as the gravamen of the offence under Section 147, Indian Penal Code, was the insulting of the tazias, but the case so far as it goes is against the view entertained by the learned Sessions Judge. THE Lahore case does not contain any reasoning and simply purports to follow certain earlier cases. THE Madras case is undoubtedly in favour of the accused but the learned Judge who decided that case was very doubtful about extending the principle beyond the facts of that particular case and it does not appear from a perusal of that judgment whether a single hurt was caused or more. So far as this Court is concerned the case law has been summarised by Sulaiman, J., in Chhidda V/s. Emperor and I am in entire agreement with the views laid down therein. As soon as the first injury is caused to any person force is used and the offence of rioting is complete. Subsequent injuries though inflicted in pursuance of the same common object would be distinct injuries justifying a conviction under Section 323, Indian Penal Code. In the present case it appears from the medical evidence that three persons were injured on the side of the complainant and each one of them received a number of injuries. For these reasons, I refuse to accept the recommendation of the learned Sessions Judge and maintain the conviction and the sentence passed by the trial Magistrate. Let the record be returned