Authored By : William Comer Petheram, Mitter, Henry ThobyPrincep, Arthur Wilson, Loftus Richard Tottenham

William Comer Petheram, C.J., Mitter, Henry Thoby Princepand Arthur Wilson, JJ.

1. We are of opinion that the questions referred in thiscase should be answered in the negative.

2. The appellants Nos. 1, 3, 4 and 5 were found guilty ofrioting, armed with deadly weapons, under Section 148 of the Indian Penal Code,and each of them was sentenced to three years rigorous imprisonment for thatoffence. Two of their co-appellants, whose appeals are not before us, are foundto have committed, in prosecution of the common object of the unlawful assemblyof which they were all members, acts which amounted to voluntarily causing hurtunder Section 324 of the Indian Penal Code. The appellants Nos. 1, 3, 4 and 5were, therefore, also found guilty of voluntarily causing hurt under Section324 of the Indian Penal Code, coupled with Section 149 of the Indian PenalCode. For this offence each of them was sentenced to a further period ofrigorous imprisonment for one year. We think that under the first paragraph ofSection 71 of the Indian Penal Code these separate sentences are not legal.

3. Paragraph 1 of Section 71 of the Indian Penal Code is tothe following effect:

Where anything which is an offence is made up of parts, anyof which part is itself an offence, the offender shall not be punished with thepunishment of more than one of such his offences unless it be so expresslyprovided.

4. In this case the offence of voluntarily causing hurtunder Section 324, coupled with Section 149 of the Indian Penal Code of whichthese appellants have been found guilty, is primarily made up of two parts,viz., (1) of their being members of an unlawful assembly, by which force andviolence was used in prosecution of its common object, and the members of whichwere armed with deadly weapons; and (2) of the offence of voluntarily causinghurt being committed by two other members of the unlawful assembly inprosecution of its common object. The first of these two parts is itself anoffence, viz., rioting, armed with deadly weapons, under Section 148 of theIndian Penal Code. It is nowhere expressly provided in law that, under thecircumstances set forth above, the offender may be punished separately for thetwo offences constituted by the whole and the part respectively. Therefore wefind that all the conditions laid down in paragraph 1 of Section 71 of theIndian Penal Code are present here. Consequently the infliction of separatepunishments for the two offences is illegal under it.

5. The following cases were cited before us: Empress v. RamPartab I.L.R. All. 121; Loke Nath Sarkar v. Queen-Empress I.L.R. Cal. 349;Queen-Empress v. Dungar Singh I.L.R. All. 29; Queen-Empress v. Pershad I.L.R.All. 414; Queen-Empress v. Ram Sarup I.L.R. All. 757; Queen-Empress v. SakharamBhau I.L.R. Bom. 496; Queen-Empress v. Nirichan I.L.R. Mad. 36.

6. With the exception of the first two, the other cases donot appear to us to be any authority upon the question under our consideration.In some of the Allahabad cases Mr. Justice Brodhurst expressed his opinion uponit; but we do not find that this question legitimately arose in them.

7. For the reasons set forth above, we agree with the viewexpressed by Mr. Justice Straight in Empress v. Ram Partab I.L.R. All. 121.

8. The result is that the sentence of one years rigorousimprisonment passed upon each of the appellants Nos. 1, 3, 4 and 5, underSection 324, coupled with Section 149 of the Indian Penal Code, will be setaside.

Loftus Richard Tottenham, J.

9. In my opinion the separate sentences passed upon theappellants Nos. 1, 3, 4 and 5 for offences under Sections 148 and 324 of thePenal Code are legal. The legality of the convictions is not in dispute beforeus, and it seems to me that the prisoners are each liable under Section 35 ofthe Code of Criminal Procedure to receive sentences in respect of each of theseoffences, unless Section 71 of the Penal Code protects them from being punishedfor each offence.

10. Section 71, as amended by Act VIII of 1882, provides forthree cases in which the offender shall not be liable to be punished for morethan one of two or more offences of which he may have been convicted.

11. The first clause of that section is the only one thatneed be considered in this case; for that is the one, if any, which may beapplicable to this case.

12. The first clause then is in these words: "Whenanything which is an offence is made up of parts, any of which parts is itselfan offence, the offender shall not be punished with the punishment of more thanone of such offences, unless it be so expressly provided."

13. The prisoners have been convicted of offences punishableunder Sections 148 and 324 of the Penal Code. It is true that the offencepunishable under Section 148 is made up of parts, either of which parts isitself an offence, viz., being a member of an unlawful assembly, armed with adeadly weapon (Section 144), and rioting (Section 147); but Section 148expressly provides a higher punishment than could be awarded for either of thosetwo offences.

14. The offence under Section 324, of which also theprisoners have been convicted, is not necessarily made up of parts, any ofwhich parts is itself an offence: so that Section 71 does not very clearlyaffect the liability of the prisoners to be separately sentenced for eachoffence.

15. But an opinion has been expressed that, because theconviction of the prisoners of the offence punishable by Section 324 isjustified only by the provisions of Section 149, therefore that offence is inthis case made up of parts, any of which parts is itself an offence, the partsbeing offences under Sections 143 to 147 and 148 by the prisoners themselves,and an offence under Section 324 committed by another person.

16. I am unable to adopt this view. I could perhaps do so ifSection 149 defined and made punishable any specific offence; but it does notdo this. It simply declares that under certain circumstances every person, whois a member of an unlawful assembly, is guilty of the offence committed by someother member of it, whatever that offence may be; and, if he is guilty, 1apprehend he is liable to be punished for it.

17. He is not convicted of an offence punishable underSection 149, but of an offence punishable under whatever section such offenceis made punishable. Section 149 simply makes the participators in an unlawfulassembly equally liable with the actual perpetrator for any offence committedby him in prosecution of the common object.

18. The actual perpetrator is unquestionably punishable bothfor rioting and for any further offence he commits; and if such further offenceis committed in prosecution of the common object of the rioters, Section 149declares that each one of these is guilty, notwithstanding that he did not dothe act or abet it. It places each member of the unlawful assembly in the sameposition as the actual perpetrator of the further offence. This seems to me tobe the plain meaning of the law, and I cannot agree in holding that the offencepunishable under Section 324 is made up of several parts upon the ground thatit is Section 149 which declares the guilt of the prisoners.

19. I think the sentences passed are legal.

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Nilmony Poddar and Ors.vs. Queen-Empress (21.03.1889 -CALHC)