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6. There can, therefore, be no doubt that where the accused are charged with an offence under Section 147 and an offence under Section 323 read with Section 149, provided the offences are proved, the accused can be convicted under both the sections, 147 and 323/149. There can also be no doubt that they can be sentenced separately under the two sections. The question arises whether the separate sentences are subject to any of the restrictions contained in Section 71, Penal Code, section 71 is as follows :

22. If a man causes simple hurt by one blow and grievous hurt by another, then he can be convicted but not punished both under Sections 323 and 325, I.P.C. Section 235, Criminal P. C., makes provision for the trial of a person for more offences than one when such offences are committed during the course of the "same transaction", though at the same time a man may be tried for acts constituting one offence as also constituting another offence when combined together. Sub-section (4) of this section, however, says : "Nothing contained in this section shall affect the Indian Penal Code, Section 71." Section 71, Penal Code, is in these words : (After quoting the section, the Judgment proceeds as under :) This section provides two illustrations. Illustration (a) is worded thus :

29. As has been pointed out, Section 71, I.P.C., regulates the province of punishment. It has nothing, to say in regard to the convictions to which a person may be liable for acts which he has committed. Section 71, I.P.C., further does not take away the right of punishment inflictable for the various offences committed. The first part of that; section only limits the amount of punishment awardable by courts under certain circumstances.

30. Wharton in his Criminal Law has pointed out that when a single impulse causes an offence then a single indictment lies no matter how long the action of that single impulse may continue, but if successive impulses are separately given, even though all unite in swelling a common stream of action, then separate indictments would lie. The test, therefore, is whether individual acts fall within the prohibition of Section 71 or the whole course of action constitutes the offence; if the former, then each act is punishable separately, if the latter then there can be but one penalty. As was pointed out by Mr. Justice Sutherland in --- 'Harry Blockburger v. United States', (1931) 76 Law Ed 306 (L), where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offences, or only one, is whether each provision requires proof of another fact which the other does not : to wit, whether there was only force or violence or whether there was further "hurt" caused as a result of that force or violence.

32. Another case which has to be noticed is the decision in AIR 1954 All 80 (E). This case was not cited before us for the obvious reason that the decision was not available in the law reports at the time when the case was argued before us. In this case Dayal and Asthana, JJ. have held that the scope of Section 71, Penal Code, was that when, there was a charge against a person both under Section 409, Penal Code, and under Section 5(1)(c) of Act 2 of 1947, the offender had to be punished within the "lower limit" provided for either of the two offences. With respect, I have to say that this view is not in consonance with the true meaning of Section 71, Penal Code. Section 71 of the Code provides that :