1. The seven petitioners have been convicted of rioting and voluntarily causing simple hurt under Sections 147 and 323, Indian Penal Code, and these convictions have been upheld on appeal. The learned vakil who argues this Criminal Revision Petition endeavours to make three points against the convictions. It is said in the first place that the common object has not been clearly found by the Appellate Court to be established, but I do not think that the view expressed in paragraph 36 of its judgment, that the riot is unlikely to have been organised from Mokkam, has that meaning. On the other hand it is clearly made out that the appellants all joined together to beat the estate writers and from their community of action a common intention could be inferred.
2. The next point is that separate sentences should not have been imposed for the offence of rioting and causing hurt. Two cases have been cited to me as authority for this proposition. One is an unreported case, Criminal Revision Petition No. 209 of 1924, decided by Krishnan, J. and the other a decision of Mr. Justice Campbell of the Lahore High Court in Bishna v. Emperor 73 IndCas 517. The reasoning in both these judgments is similar, namely, that, where the causing of the hurt is itself the particular form of the force or violence which contributed to the offence of rioting, the one offence was included as an ingredient in the other. I have felt a good deal of hesitation in accepting this view, because, if it is logically extended, it would seemingly prevent also separate convictions for rioting and grievous hurt and even for rioting and murder, where the grievous hurt and the murder respectively constituted the only force or violence upon which the charge of rioting was based. Not, however, endeavouring to decide these extreme cases but restricting myself to the present circumstances, I find it very difficult to escape the conclusion that to convict for voluntarily causing hurt where the only violence which formed the act of rioting was the hurt itself offends against the provisions of S.71 of the Indian Penal Code; and it would only be by some such fine-drawn distinction as the learned Public Prosecutor endeavours to draw, on the one hand viewing the act which causes the hurt as one of violence pure and simple without regard to its consequences, which might be enough to satisfy the definition of rioting, and on the other as one the consequences of which were to cause bodily pain, disease or infirmity, which would be necessary in order to satisfy the definition of hurt, that this conclusion could be avoided. I do not feel sufficient confidence in the validity of this distinction to justify me in differing from the view taken in the two judgments above referred to. Accordingly I must set aside the convictions for hurt and sentences of one month's rigorous imprisonment awarded in respect of them.
3. The third and last point taken is that the 3rd petitioner is a boy of 15 and that he should be specially dealt with. The learned Public Prosecutor fully agrees that the sentence which he has already undergone, amounting to some 20 days, is sufficient and that the remainder should be remitted. He will accordingly be released.