(1) The five accused before the Courts below are the petitioners in this revision petition. Accused I is the brother-in-law of the complainant P.W. 1. Accused 2 is the brother of Accused 1. Accused 3, 4 and 5 arbitration the sons of Accused 1. They are all residents of a village known as Neelavar in the District of South Kanara, residing in an Island in the middle of a river. They are members of a Christian family. There was some kind of a controversy in regard to the operations carried on by some members of the family for capturing bats on which the family lives, in consequence of which, there was an altercation between them which gave rise to a complaint and counter complaint, the allegations in which were to the effect that there were offences of rioting and hurt. Mr. Deshpande, the learned Advocate for the petitioners, informs me that in the prosecution commenced on the basis of the complaint of the petitioners there has been an Order of discharge of P.Ws. 1 and 2 and the other members of their party.
(2) But in the prosecution commenced at the instance of P.W.1, the petitioners were charged with offence punishable under Ss. 148, 326 and 324 read with 149 of the Indian Penal Code. The accusation was that P.Ws. 1 and 2 were Both belabored by the Accused who formed themselves into an unlawful assembly. So, there was a charge of rioting. There was a charge of grievous hurt by dangerous weapons by an unlawful assembly. The Magistrate acquitted the accused of the charges under sections 148 and 326. In regard to the hurt caused to P.W. 1 all the accused were convicted under S. 324 read with S. 149 of the Indian Penal Code. In these accused were sentenced to three months rigorous imprisonment.
(3) These convictions and sentences were confirmed by the Court of Session.
(4) In this revision presented by the accused, the correctness of the convictions is challenged on more than one ground. There is also an application presented by the petitioners along with P.Ws. 1 and 2 that I should, under the provisions of S. 345 of the Code of Criminal Procedure, permit them to compound the offence.
(5) It is of course obvious that since the offence punishable under S. 149 of the Indian Penal Code is not offence which can be allowed to be compounded, the application for the composition in the form in which it is made is not sustainable. But Mr. Deshpande contended that if the petitioners succeed in demonstrating that the conviction under section 149 is unsustainable, no further impediment remains in the way of the proposed composition. It is no doubt so, and so I should proceed to advert to the consideration of the question whether the conviction under section 149 is unsustainable. The main submission made by Mr. Deshpande in this context, is hat when once the accused were acquitted of the offence of rioting punishable under section 148, it was no longer possible for the Magistrate to convict the accused of an offence punishable under section 149 read with section 324.
(6) The argument maintained was that the offence of rioting with which the accused were charged was the offence stated to have been committed by them by the enjoyment of force and violence to P.Ws. 1 and 2 as member of an unlawful assembly in the prosecution of its compound object. Mr. Deshpande is right in making this submission. The essence of the offence of rioting with which the accused were charged was the employment of force of violence by them as members of an unlawful assembly in pursuance of its common object. If the Magistrate found it possible to say that that offence was not committed and he nevertheless convicted all the accused of an offence punishable under S. 324, and Accused 4 of an offence punishable. Under S. 324 with respect to the injury to P.W. 2, it follows that the Magistrate did not doubt that the accused had employed force or violence, but that he doubted whether they were members of an unlawful assembly and whether the injuries caused to P.Ws. 1 and 2 were caused by that unlawful assembly in the prosecution of its common object. The necessary implication of the finding of the Magistrate that there was no offence of rioting is that either there was no employment of force or violence against P.Ws. 1 and 2 or that there was no unlawful assembly or that the employment of force or violence even if any such force or violence was employed was not in prosecution of the common object of the assembly. That is always the inevitable deduction which should be made when there is an acquittal in respect of the offence of rioting.
(7) But, in this case, it is not possible to say that the acquittal was founded on the view that there was no employment of force or violence since all the accused were convicted of the offence of having caused hurt to P.W. 1 and since Accused 4 was also convicted of the offence of having caused hurt to P.W. 2. so what follows is that the acquittal in respect of the offence of rioting was attributable to the view taken by the Magistrate that one of the other two ingredients the establishment of which is necessary to sustain a conviction under S. 148, did not exist. It should therefore, follow that the clear implication of the acquittal in respect of the offence of rioting in the present case is that either there was no unlawful assembly or that the employment of force or violence on P.Ws. 1 and 2 was not in prosecution of the common object of the assembly. But a conviction under S. 149 can be sustained only if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly knew is likely to be committed in prosecution of that object. Since what follows from the acquittal in respect of the offence of rioting is that there was no unlawful assembly or no employment of force or violence in prosecution of its common object, it should further follow that no offence under S. 149 could be said to have been committed unless it could be said that the offence committed by the causing of hurt to P.Ws. 1 and 2 was such as the members of the unlawful assembly knew was likely to be committed in prosecution of a common object. There was no finding to that effect either by the Magistrate or by the Court of session.
(8) In my opinion, the acquittal of the accused in respect of the offence punishable under S. 148 made it impossible for the Magistrate in the case before him to convict them of an offence punishable under S. 149. So the conviction in respect of that offence cannot be sustained. It is accordingly set aside and the accused are acquittal of that offence.
(9) Now what remains to be considered is only the sustainability of the conviction under S. 324 of the Indian Penal Code. All the accused have been convicted of an offence punishable under that section in respect of the injury caused to P.W. 1 and Accused 4 has been convicted in respect of injury caused to P.W. 2. Now all the accused and P.Ws. 1 and 2 seek permission to compound that offence. The Offence is not compoundable without the permission of the Court. It seems to me that I should accord the permission sought for composition. The accused and P.Ws. 1 and 2 are very near relations and they are all residents of an isolated land in the middle of a river. The Counter case against P.Ws.1 and 2 and others has ended in an Order of discharge. P.Ws. 1 and 2 and the accused believe that it I permit the composition they will be able to live in peace and harmony which is so essential to the well being of the community, particularly when a small community like that to which the parties before me belong resides in an out of the way and isolated place. I am therefore, of the view that I should permit the composition sought. I accordingly grant the permission under sub-s. (5-A) of S. 345 of the Code of Criminal Procedure to compound the offence punishable under S. 324 with which the accused were charged. The effect of the composition which I have permitted is that the accused are acquitted of this offence also.
(10) Accused acquitted.