KATWARU RAI Vs. EMPEROR

JUDGEMENT

(1.) KATWARU Raiand six other persons have been convicted of an offence of rioting tender Section 147 of the Indian Penal Code, and for that offence have been sentenced to varying terms of rigorous imprisonment. They went in appeal to the Sessions Judge of Ghazipur and that Court confirmed the sentences passed, dismissing the appeals. They have now come here in revision. Of the four grounds taken in the application for revision only two have been argued before me, and those two are---(1) that separate convictions and punishments under Sections 147 and 323 are not warranted by law, and (2) that the sentences are too severe. The main contention before me is that whatever may have been the case before the year 1898 and whatever conflict the rulings of various High Courts may have had, the alteration introduced by Act V of 1898 into the Criminal Procedure Code makes it illegal now to convict and sentence accused persons of offences which are separable offences coming within the provisions of Section 71 of the Indian Penal Code, inasmuch as they are no longer distinct offences within the meaning of Section 35 of the Criminal Procedure Code. The question, therfore, which I have to consider is whether, in the light of the explanation added by Act V of 1898 to Section 35 of the Criminal Procedure Code, the offences of rioting and of voluntarily causing hurt are or are not distinct offences.

(2.) THE argument is that an offence under Section 143 of the Indian Penal Code does not reach the stage of rioting until force or violence has been used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly. A definition has been given to the word "force" in Section 349 of the Indian Penal Code. Violence, so far as I know, has not been made the subject of a definition in the same Code. If we adopt the definition given in Section 349 of the Indian Penal Code, members of an unlawful assembly would be guilty of the offence of rioting as soon as any member of the unlawful assembly in prosecution of the common object of the assembly caused motion to any person against whom that assembly was acting. To turn this into simpler language, the offence of rioting would be complete if any member of the unlawful assembly in prosecution of a common object of the assembly pushed any person against whom that assembly was acting; but no offence would have been caused under Section 323 unless that act of pushing caused bodily pain, disease, or infirmity to the person so pushed. In the case before me the finding, which I take in revision as the finding of the lower Court, is that (1) hurt was caused to one Raghunandan Rai, and (2) hurt was also caused by a separate act to Sakal Rai. THEre is evidence as to various other acts which might amount to force as defined in Section 349. But the finding regarding them is rather vague, and I take it that by one of the acts complained of, viz., that to Raghunandan Rai rioting was committed, while by the act committed on the body of Sakal Rai hurt was caused. Turning to Section 235 of the Code of Criminal Procedure it will be found in illustration (g) of Section 235 that where A with six others commits the offence of rioting, grievous hurt, and assaulting a public servant, etc, A may be separately charged with and convicted of offences under Sections 147 and 325, etc., of the Indian Penal Code. Perhaps the more remarkable case is to be found in the illustration (i) which stands in the same section, in which A wrongfully strikes B with a cane, A may be separately charged with and convicted of offences under Sections 352 and 323 of the Indian Penal Code. But it may be urged that Clause (4) of Section 235 says that nothing contained in this Section shall affect the Indian Penal Code, Section, 71. It is hardly to be conceived that with that Clause staring them in the face the Legislature would have gone on to give illustrations which would be ruled out by Clause (4). But when Section 71 is read and carefully compared, it seems to me that it in no way conflicts Which the illustrations which I have alluded to. Offences falling under Section 323 and under Section 147 of the Indian Penal Code need not be separable, but distinct offences. In the present case the offence of causing hurt to Sakal Rai is distinct and apart from the offence under Section 147. This view is in conformity with both Full Bench decisions arrived at before the explanation was added to Section 35 of the Criminal Procedure Code and with one case of later date of this Court which is before me now, namely the case of Anup Singh and others (Criminal Revision No. 689 of 1911 decided on the 1st of February 1912). 2. Looking to the injuries inflicted I am not prepared to say that the sentences passed erred on the side of severity. THE more salutary provision would probably have been to take action binding down the applicants to keep the peace and in that case a substantive sentence might have been, without danger to the public, lighter. THE application is dismissed.