W. Comer Petheram, C.J., Mitter, Prinsep and Wilson, JJ.
1. We are of opinion that the questions referred in this case should be answered in the negative.
2. The appellants Nos. 1, 3, 4 and 5 were found guilty of rioting, armed with deadly weapons, under Section 148 of the Indian Penal Code, and each of them was sentenced to three years' rigorous imprisonment for that offence. Two of their co-appellants, whose appeals are not before us, are found to have committed, in prosecution of the common object of the unlawful assembly of which they were all members, acts which amounted to voluntarily causing hurt under Section 324 of the Indian Penal Code. The appellants Nos. 1, 3, 4 and 5 were, therefore, also found guilty of voluntarily causing hurt under Section 324 of the Indian Penal Code, coupled with Section 149 of the Indian Penal Code. For this offence each of them was sentenced to a further period of rigorous imprisonment for one year. We think that under the first paragraph of Section 71 of the Indian Penal Code these separate sentences are not legal.
3. Paragraph 1 of Section 71 of the Indian Penal Code is to the following effect:
Where anything which is an offence is made up of parts, any of which part is itself an offence, the offender shall not be punished with the punishment of more than one of such his offences unless it be so expressly provided.
4. In this case the offence of voluntarily causing hurt under Section 324, coupled with Section 149 of the Indian Penal Code of which these appellants have been found guilty, is primarily made up of two parts, viz., (1) of their being members of an unlawful assembly, by which force and violence was used in prosecution of its common object, and the members of which were armed with deadly weapons; and (2) of the offence of voluntarily causing hurt being committed by two other members of the unlawful assembly in prosecution of its common object. The first of these two parts is itself an offence, viz., rioting, armed with deadly weapons, under Section 148 of the Indian Penal Code. It is nowhere expressly provided in law that, under the circumstances set forth above, the offender may be punished separately for the two offences constituted by the whole and the part respectively. Therefore we find that all the conditions laid down in paragraph 1 of Section 71 of the Indian Penal Code are present here. Consequently the infliction of separate punishments for the two offences is illegal under it.
5. The following cases were cited before us: Empress v. Ram Partab I.L.R. 6 All. 121; Loke Nath Sarkar v. Queen-Empress I.L.R. 11 Cal. 349; Queen-Empress v. Dungar Singh I.L.R. 7 All. 29; Queen-Empress v. Pershad I.L.R. 7 All. 414; Queen-Empress v. Ram Sarup I.L.R. 7 All. 757; Queen-Empress v. Sakharam Bhau I.L.R. 10 Bom. 496; Queen-Empress v. Nirichan I.L.R. 12 Mad. 36.
6. With the exception of the first two, the other cases do not appear to us to be any authority upon the question under our consideration. In some of the Allahabad cases Mr. Justice Brodhurst expressed his opinion upon it; but we do not find that this question legitimately arose in them.
7. For the reasons set forth above, we agree with the view expressed by Mr. Justice Straight in Empress v. Ram Partab I.L.R. 6 All. 121.
8. The result is that the sentence of one year's rigorous imprisonment passed upon each of the appellants Nos. 1, 3, 4 and 5, under Section 324, coupled with Section 149 of the Indian Penal Code, will be set aside.
9. In my opinion the separate sentences passed upon the appellants Nos. 1, 3, 4 and 5 for offences under Sections 148 and 324 of the Penal Code are legal. The legality of the convictions is not in dispute before us, and it seems to me that the prisoners are each liable under Section 35 of the Code of Criminal Procedure to receive sentences in respect of each of these offences, unless Section 71 of the Penal Code protects them from being punished for each offence.
10. Section 71, as amended by Act VIII of 1882, provides for three cases in which the offender shall not be liable to be punished for more than one of two or more offences of which he may have been convicted.
11. The first clause of that section is the only one that need be considered in this case; for that is the one, if any, which may be applicable to this case.
12. The first clause then is in these words: 'When anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such offences, unless it be so expressly provided.'
13. The prisoners have been convicted of offences punishable under Sections 148 and 324 of the Penal Code. It is true that the offence punishable under Section 148 is made up of parts, either of which parts is itself an offence, viz., being a member of an unlawful assembly, armed with a deadly weapon (Section 144), and rioting (Section 147); but Section 148 expressly provides a higher punishment than could be awarded for either of those two offences.
14. The offence under Section 324, of which also the prisoners have been convicted, is not necessarily made up of parts, any of which parts is itself an offence: so that Section 71 does not very clearly affect the liability of the prisoners to be separately sentenced for each offence.
15. But an opinion has been expressed that, because the conviction of the prisoners of the offence punishable by Section 324 is justified only by the provisions of Section 149, therefore that offence is in this case made up of parts, any of which parts is itself an offence, the parts being offences under Sections 143 to 147 and 148 by the prisoners themselves, and an offence under Section 324 committed by another person.
16. I am unable to adopt this view. I could perhaps do so if Section 149 defined and made punishable any specific offence; but it does not do this. It simply declares that under certain circumstances every person, who is a member of an unlawful assembly, is guilty of the offence committed by some other member of it, whatever that offence may be; and, if he is guilty, 1 apprehend he is liable to be punished for it.
17. He is not convicted of an offence punishable under Section 149, but of an offence punishable under whatever section such offence is made punishable. Section 149 simply makes the participators in an unlawful assembly equally liable with the actual perpetrator for any offence committed by him in prosecution of the common object.
18. The actual perpetrator is unquestionably punishable both for rioting and for any further offence he commits; and if such further offence is committed in prosecution of the common object of the rioters, Section 149 declares that each one of these is guilty, notwithstanding that he did not do the act or abet it. It places each member of. the unlawful assembly in the same position as the actual perpetrator of the further offence. This seems to me to be the plain meaning of the law, and I cannot agree in holding that the offence punishable under Section 324 is made up of several parts upon the ground that it is Section 149 which declares the guilt of the prisoners.
19. I think the sentences passed are legal.