Indian Kanoon - Search engine for Indian Law

18. The offences proved against the accused-appellants therefore are of rioting, and of volun- tarily causing grievous hurt by the unlawful assembly with such common object i. e., Under Section 147 and Section 325/149, IPC The question is whether they can be convicted of both these offences and also punished for them both. Section 235 (3), Criminal P. C, refers to trial for one or more acts constituting one offence but when combined of a different offence. Section 35, Criminal P. C, and Section 71, IPC deal with the question of punishment for such offences. Section 141, IPC states the definition of an unlawful assembly. Section 143, IPC lays down that being a member of an unlawful assembly is punishable and the punishment therefor. Section 146 lays down the definition of "rioting" and it must be remembered that so long as no force or violence is used by an unlawful assembly no rioting can be said to have been committed but at that stage the conviction, if any, must stop short at Section 143, IPC Section 147 lays down the punishment for the said offence and Section 149 lays down the final stage of the commission of an offence or offences by an unlawful assembly with a common object.

20. As the two offences Under Section 147 and Section 325/149, IPC were held to have been committed by the same acts and the accused convicted therefor the offenders are not Under Section 71, IPC liable to be punished with the punishment for more than one of such offences. There is, however, divergence of opinion in different decisions of different High Courts, One view is that separate sentences in such cases are not legal while the other is that they are. The following decisions take the former view that separate sentences are not legal viz., in 'Empress v. Ram Partab', 6 All 121 (A). The accused were members of an unlawful assembly the common object of which was to voluntarily cause grievous hurt and such hurt was caused, separate sentences for Section 147 and Section 325/149 were held to be not legal.

In 'Queen Empress v. Bisheshar", 9 All 645 (K), the rioting Under Section 147 could not be held to be a part of voluntarily causing grievous hurt Under Section 325 and the provisions of Section 71, IPC were held to be inapplicable. In 'Queen Empress v. Bana Punja', 17 Bom 260 (L), which follows 7 All 757 (J)', it is held that separate sentences for Section 147 and Section 323/149, IPC are legal if the total punishment does not exceed the maximum for any of the offences. In 'Raghubar v. Emperor' AIR 1939 Oudh 91 (M), convictions were Under Section 147 and Section 324/149 on an offence Under Section 324 by only one member of the assembly. Two sentences were held legal.