Trevelyan and Beverley, JJ.
1. We have heard these two rules together.
2. In the first of them (Rule 202), six prisoners have been convicted and sentenced by the Magistrate. On appeal to the Sessions Judge, the sentences, were in some respects modified. As they stand at present, four of the accused have been convicted of, and sentenced for, offences falling under Sections 147 and 323, Indian Penal Code, and the only question which we have to consider is-whether these sentences were legal.
3. Mr. Woodroffe contended that separate sentences under those sections could not be imposed, relying upon a decision of a Full Bench of this Court, given in the appeal of Nilmoni poddar v. Queen-Empress I.L.R. 16 Cal. 442. That decision has, we think, no application to the facts of the present case. The decision in question dealt with the liability of one rioter for offences actually committed by another rioter. It in no way affects the question of the liability of a rioter for the acts committed by himself. The Judges who referred that case to the Full Bench did not refer the appeals of the persons who actually committed acts of grievous hurt, but dismissed the appeals of those persons. In the Full Bench case, Tottenham, J., says: 'The actual perpetrator is unquestionably punishable both for rioting and for any further offence he commits,' and for this proposition of law there is ample authority -see Queen-Empress v. Ram Sarup I.L.R. 7 All. 757.
4. In the present case the accused have been separately convicted and punished for acts committed by themselves in the course of the riot. Kali Roy is convicted of having voluntarily caused hurt to Prankristo by hitting him with a lathi. Makhan Roy is convicted of having caused hurt to Khiroda by hitting her with a lathi. Tenu Sheikh, of having caused hurt to Prankristo, by hitting him with a stick, and Mohur Mir, of having caused hurt to Prankristo, by hitting him with a shoe.
5. We are of opinion, therefore, that the sentences passed upon those persons are legal.
6. Mr. Woodroffe. further drew our attention to a passage in the judgment in Lokenath Sarkar v. Queen-Empress I.L.R. 11 Cal. 349, which runs as follows: 'If it had been found that the causing of hurt was the force or violence which alone constituted the rioting in the present case, then we should be prepared to hold that the prisoners could not be punished both for causing hurt and for rioting; but the facts of the case do not warrant such a finding, for rioting was being committed before the hurts were inflicted, and the two men wounded.' Without assenting to the proposition of law, as thus laid down we would remark that in this case also the evidence shows that the offence of rioting was committed before Prankristo and his companions were actually struck. The accused who appeared to be zemindary peons, were deputed to bring Prankristo and Lal Behary to the zemindary cutcherry; and they appear to have used considerable violence to them in attempting to do so before they struck them.
7. In the second case (Rule 203), Kali Rai has been convicted and sentenced both for rioting under Section 147 and under Section 325 for voluntarily causing grievious hurt to Kuree Ram by breaking one of his ribs; and the other three accused have been convicted and sentenced under Sections 147 and 325 read with Section 109, that is to say, for abetting the causing of grievous hurt to Kuree Ram by Kali Rai. We do not think that the conviction under this latter section was right, inasmuch as although the evidence shows that they themselves beat Kuree Ram, there is nothing to show that they abetted Kali Roy in inflicting the particular blow which broke his rib. We think, therefore, that these three accused should have been acquitted on that head of the charge, and we accordingly set aside that portion of the conviction and the sentence of three months' rigorous imprisonment imposed in respect of it.
8. In other respects we discharge the two Rules.