1. The Petitioners in this case have been convicted of rioting as punishable under Section 147, Indian Penal Code and of the substantive offence of voluntarily causing simple hurt as punishable under Section 323, Indian Penal Code. They have been sentenced in all to 3 months' rigorous imprisonment each, two months for the rioting and one month for the causing hurt. They have also each of them been fined Rs. 15 for each offence. The only point that has now. to be considered is that of whether the two separate punishments were legal.
2. For the Petitioners reliance is placed upon the decision of Curgenven, J., in Kunnammal Mayan In re : (1927)53MLJ656 . In that case the learned Judge has held, though with some hesitation and while admitting that he saw a difficulty in arriving at his conclusion, that when a person is convicted both under Section 147 and Section 323, I. P. C, he could not be awarded a separate sentence for each of the offences. He has followed a decision, apparently, unreported, of Krishnan, J., in C.R.P. No. 2C9 of 1924 and a decision of the Lahore High Court reported in Bishna v. Emperor (1922) 73 I.C. 517. The principle of these decisions is 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 was included as an ingredient of the other. Curgenven, J., followed this principle and found it 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 Section 71, Indian Penal Code. A different opinion, however, has been expressed by Wallace, J., in a decision which is also to be found in Anthoni Udaiyan v. Royappudayar : (1927)53MLJ653 , Therein he has pointed out that
Causing hurt and using force are not the same thing and the word 'force' does not appear in the definition of 'hurt'. The use of criminal force is no doubt an ingredient of the offence of rioting and the use of force may be an ingredient in the offence of rescuing cattle, but the force necessary to constitute these offences may fall far short of ' causing bodily pain' and if further force is used which does cause bodily pain, then, in my view, the offences which involve and are complete by mere use of' criminal force have been exceeded and that excess constitutes another offence, viz., that of causing hurt, or, causing whatever more serious form of bodily hurt has been the result.
3. With all respect I think that the view thus taken by Wallace, J., is correct; and what he says as to force is equally applicable to violence. The same view has also been taken by a Divisional Bench of this Court in Krishna Ayyar v. Emperor (1918) 20 Cri.L.J. 145, a decision which does not appear to have been brought to the notice of either of the learned Judges whose decisions, above referred to, appear in 53 M.L.J. In that case it is remarked that
It has been well settled that where the object of an unlawful assembly is to. cause hurt, then a member of that unlawful assembly, if he is convicted under Section 147, cannot be convicted also under Section 323 or 325 read with Section 149, except that such of the accused as are proved themselves to have caused hurt in the riot would be rightly convicted of the offence of hurt in addition to the offence of rioting.
4. The convictions, therefore, of certain of the accused under Sections 147 and 323, Indian Penal Code, were confirmed. With regard to the constructive Section 149, Gour's commentary shows that there is a conflict of opinion between the various High Courts but with that section we are not now concerned, as all the petitioners in this case have been convicted of offences of hurt individually committed. Except in the case of the Lahore Court in Bishna v. Emperor (1922)73 I.C. 517 there seems to have been no such conflict among the other High Courts as to its being legal to inflict a separate punishment on a rioter, on a substantial conviction under Section 323, from that awarded for the offence under Section 147. This was held by the Calcutta High Court in In the matter of the Petition of Mohur Mir v. The Queen-Empress I.L.R. (1889) 16 Cal. 725, and more recently, in Ram Angutha Singh v. Emperor I.L.R. (1913) 40 Cal. 511. There are similar decisions in Queen-Empress v. Bana Punja I.L.R. (1892) 17 Bom. 260 when the matter was considered by a Full Bench, and in Queen-Empress v. Dungar Singh I.L.R. (1884) 7 All. 29 and in Queen-Empress v. Ram Sarup I.L.R. (1885) 7 All. 757. Queen-Empress v. Dungar Singh I.L.R. (1884) 7 All. 29 dissented from a previous decision of that Court to the contrary. None of these cases has been referred to by the learned Judge who decided the case in Bishna v. Emperor (1922)73 I.C. 517. It is the Allahabad view which has been followed in Calcutta and Bombay. As remarked in Queen-Empress v. Dungar Singh I.L.R. (1884) 7 All. 29:
The offence of voluntarily causing hurt or of voluntarily causing grievous hurt obviously can be committed without the commission of the offence of rioting and, in like manner, rioting can be committed without the commission of the two other mentioned offences.
5. This is putting in general terms what has been put more particularly by Wallace, J., in the quotation from his judgment given above. Taking this as the correct position as, in my opinion, it should be and as, indeed, has been found by a Bench of this Court to be settled, Section 71, Indian Penal Code, can have no application. I would hold, then, that the Petitioners have been properly and legally awarded separate sentences, one for rioting and one for having caused simple hurt.
6. The sentences cannot be said to be excessive but, seeing that this case has been hanging over the Petitioners for over a year, that none of the injuries caused was of a serious character, and that they have already served out about half of their several terms of imprisonment, I do not think it necessary to send them back to jail. Their not being sent back is likely to be the more conducive to future harmony between them and the opposite party, and they have had their lesson. I would, therefore, reduce their sentences to rigorous imprison-ment for the period already undergone and now set them at liberty, discharging their bail bonds. The sentences of fine and of imprisonment in default should stand as also the order for compensation to P. Ws. 1 to 4.
Horace Owen Compton Beasley, C.J.
7. I agree.