Beverley and Ameer Ali, JJ.
1. This appeal arises out of the first of the trials in connection with the riot that took place in the northern part of the town of Calcutta last May. In that trial the eight appellants were convicted by a jury of various offences, and sentenced to various terms of imprisonment, as set out below. The names of the eight appellants are--
1. Shaik Ferasat.
2. Shaik Ismail.
3. Shaik Masand.
4. Shaik Hisabul.
5. Shaik Manir Khan.
6. Shaik Abdul.
7. Shaik Jan.
8. Shaik Shairu.
2. In the first place all the appellants have been convicted of rioting, being armed with deadly weapons, and under Section 148 of the Penal Code have been sentenced to three years' rigorous imprisonment for that offence. In the next place they have all been found guilty of assaulting and obstructing the police when endeavouring to suppress the riot, and, under Section 152 of the Penal Code they have all (with the exception of Shairu) been sentenced to an additional term of two years' imprisonment for that offence.
3. Then Shaik Ismail has also been found guilty of causing hurt to Corporal Shankar Singh, and for that offence he has been sentenced, under Section 332, to an additional term of two years' imprisonment.
4. Similarly, Shaik Manir Khan has been convicted of causing hurt to Constable May, Constable Rose, and Superintendent Robertson, and has been sentenced to an additional term of two years.
5. And Shaik Shairu has been convicted of causing grievous hurt to Superintendent Robertson, and under Section 333 has been sentenced to an additional term of five years.
6. Now, the first point taken by Mr. Garth on behalf of the appellants is that the learned Sessions Judge has contravened the provisions of Section 71 of the Penal Code by imposing separate sentences for the offences under Section 148 and Section 152. in this contention we think Mr. Garth is right. The common object of the unlawful assembly is set out in the charge as being to resist the execution of a decree obtained by Suresh Chunder Deb against Shaik Ali Yar in the Court of the Second Subordinate Judge of Alipore, dated the 30th April 1891; and also by means of criminal force or show of criminal force to overawe the members of the police force in the execution of their lawful powers as police officers.' Were it not for certain observations in the learned Sessions Judge's charge to the jury, we should have supposed from the manner in which the indictment is worded that the intention was to charge the accused with being members of an unlawful assembly which had in view the double object of resisting the execution of the decree and overawing the police. The offence as charged is one--one unlawful assembly with a common, though two-fold, object. There is no indication in the charge of two distinct assemblies with two distinct objects.
7. What the learned Sessions Judge says on this matter is this. He begins by saying: 'You will observe that it is a double object, but either of the two objects set out, if proved to be the common object of the assembly, would be sufficient to bring it within the definition of an unlawful assembly under Section 141.' Further on he says: 'Had the persons composing the assembly a common object, and if so, what was that object? This is the first question that arises for your decision in the case. The case for the prosecution is that the men assembled in the manner described for the common object of resisting by force, &c.; (quoting the words of the charge as set out above).' In another passage he says: 'Next morning when Sub-Inspector Binod Behari Singh went to the spot, a crowd of about 200 people assembled there. Whether they were already assembled when he arrived, or whether they assembled immediately after his arrival, is one of the points to which cross-examination was directed.' And again: 'The case for the prosecution is, not that execution was actually taken out, but that the persons composing the assembly were under an apprehension of the removal of the mosque in execution of the decree, and that they came there armed to resist that execution.'
8. From these and other passages in the charge it would appear that one of the questions in the case was whether there was an unlawful assembly before the arrival of the Police. There is no distinct finding upon this point by the jury however; they were not asked to say what the common object of the assembly was; they merely returned a verdict upon the charge as framed, and having regard to the wording of that charge, we must take it that the common object found was, partly at any rate, to resist the Police.
9. That being so, resistance to the Police was one of the component parts of the offence of rioting of which the appellants have been convicted, and for which they have been sentenced to the maximum punishment provided by the Code The maximum punishment under Section 152, which deals with the offence of assaulting or obstructing a public servant when suppressing a riot, is the same.
10. Section 71 of the Penal Code says:
Where 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 his offences, unless it be so expressly provided. Where several acts of which one or more than one would by itself or themselves constitute an offence, constitute, when combined, a different offence, the offender shall not be punished with a more severe punishment than the Court which tries him could award for any one of such offences.
11. The finding of the jury, we take it, was that the common object of the unlawful assembly was to obstruct the Police, and the violence used to the Police was the element which rendered the members of the unlawful assembly guilty of rioting.
12. For this reason we are of opinion that the additional sentences passed upon seven of the appellants under Section 152 were illegal, and must be set aside,
13. We think there is another objection to the conviction of the appellants under Section 152, to which, however, we need do no more than refer in passing. Section 152 appears to contemplate an assault or obstruction to some particular public servant. But the charge as framed in this case is to the effect that the accused 'assaulted and obstructed members of the Police Force in the discharge of their duties, etc.'
14. The next point urged by Mr. Garth was that separate sentences under Section 152 and under Sections 332 and 333 were illegal. In this contention also we agree with him. The hurt inflicted upon certain Police officers was the violence used towards them, which constitutes the essence of the offence under Section 152. As, however, we have said that the sentences under that section must be set aside, we think it unnecessary to say more upon this point.
15. The next point which Mr. Garth argued before us was that the cumulative sentences passed upon Ismail and Munir Khan under Sections 148 and 332 were illegal. Mr. Garth contended that under the same Section (71 of the Penal Code) the punishment imposed for both offences could not exceed the maximum punishment provided for either offence, and that the maximum punishment under Section 332 being three years only, and these appellants having been already sentenced to three years' imprisonment under Section 148, they were not liable to additional punishment under Section 332.
16. It has been laid down by a Pull Bench of this Court in Nilmony Poddar v. Queen-Empress I.L.R. 16 Cal. 442 that 'separate sentences (to quote the head note) passed upon persons for the offences of rioting and grievous hurt are not legal where it is found that such persons individually did not commit any act which amounted to voluntarily causing hurt, but were guilty of that offence under Section 149 of the Penal Code.' But it seems to be taken for granted in that case, and it has been ruled in other cases, that where a particular person causes hurt in the course of a riot, he may be punished both for causing the hurt and for taking part in the riot. Chundra Kant Bhattacharjee v. The Queen-Empress I.L.R. 12 Cal. 495 Mohur Mir in the matter of v. The Queen-Empress I. L R. 16 Cal. 725? Empress v. Ram Partab I.L.R. 6 AIL 121; Queen-Empress v. Pershad I.L.R. 7 All. 414; Queen-Empress v. Ram Sarup I.L.R. 7 All. 757. But Mr. Garth's contention is that although separate sentences may be legal, yet that in the aggregate they cannot exceed the maximum punishment provided for either offence. On this point we have not been able to find any distinct authority. The sentences passed in this case are clearly legal, unless they contravene the provisions of Section 71 of the Penal Code. Mr. Garth admits that the first and third Clauses of that section will not apply, but he relies on the second Clause. That clause runs as follows: 'Where anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, &c.;' We are unable to see how this clause can possibly apply to the case before us. The clause is intended to apply to acts which might be offences under different Statutes or under different sections of the same Statute, as, for instance, offences under Sections 152 and 353 of the Penal Code. The two offences of rioting and causing hurt are distinct offences; the accused were guilty of rioting independent of the hurt they caused, they were guilty of causing hurt independent of the riot. They could be punished for rioting even though they had not themselves caused hurt; they could be punished for causing hurt even though they had not themselves been members of the unlawful assembly. We think there is nothing therefore in Section 71 that limits the punishment that may be imposed for these offences, and we do not think the sentences imposed are illegal.
17. There remains the question of punishment generally, and Mr. Garth has contended that all the sentences imposed are unnecessarily severe.
18. The riot in question arose out of a belief--a mistaken belief no doubt--that an attempt was to be made that day to pull down a mosque that stood on the land for which Suresh Chunder Deb had obtained a decree. The rioters, in the first instance at any rate, were all Mahomedans, and their religious enthusiasm was doubtless worked upon and excited by the harangues of the Moulvi or Muezzin, Shaik Ali Yar, who subsequently lost his life in the riot. It would appear that the first attack was made upon some dhangar coolies who, though really only spectators, had, it was believed, been brought to the spot for the purpose of demolishing the mosque. But at that time the Police were on the spot, though some of them were in plain clothes, and the attack upon the dhangars seems to have been immediately followed by an attack on the Police. The Police were driven back, and even after reinforcements arrived, they were again and again defeated. Ultimately the mob became so excited and was so swelled by increasing numbers, that it required nearly the entire Police force of the town to put down the riot. Now, whatever may have been the initial cause of the disturbance, however misguided and blinded by fanaticism the actors in it may have been, we think that we are bound to take these circumstances into consideration, and while making allowance for the religious excitement under which the rioters were no doubt labouring, to take care that the majesty of the law is sufficiently vindicated. There can be no doubt, we think, that whatever may have been the object with which the mob originally assembled, their offence was very grossly exaggerated by the unprovoked and sustained attack upon the duly constituted authorities. It is a far worse case, we think, than the riots which unhappily so frequently take place between the adherents of rival zemindars regarding the possession of land. In the fight that ensued, several persons on both sides were severely injured and more than one person was killed. We think, therefore, that the punishment ought to be such as to mark our sense of the gravity of the offence by the defiance of the authorities. At the same time, as regards those who have merely been convicted of rioting, and against whom no specific acts of violence have been proved, we think that some allowance may fairly be made for the state of religious fanaticism to which their feelings had been roused by the exhortations of their religious leaders, and that it is not necessary to exact the maximum penalty allowed by the law. In the case of those appellants therefore against whom no overt act of violence has been proved, that is to say, in the case of Ferasat, Masand, Hisabul, Abdul, and Jan, we reduce the sentence under Section 148 from three to two years, and reverse that under Section 152 altogether. These appellants will therefore undergo rigorous imprisonment for a term of two years only, instead of five.
19. As regards the other appellants, specific acts of violence have been proved against them, and it may be presumed therefore that they were ringleaders or at any rate active participators in the riot. We see no sufficient reason therefore to reduce the sentence under Section 148 in their case, but the sentence under Section 152 will be reversed in the case of Ismail and Manir Khan. These appellants have also been sentenced to two years' imprisonment under Section 332, but having regard to the fact that they have already been sentenced under Section 148, we do not think that the sentence under Section 332 should exceed that provided by Section 323. We accordingly reduce the punishment under Section 332 to one year. The result is that these two appellants will suffer four years' imprisonment, instead of seven years.
20. The appellant Shairu has been sentenced to five years under Section 333 in addition to three years under Section 148. Looking to the nature of the injuries that Superintendent Robertson is proved to have received, we are of opinion that an additional sentence of two years under Section 333 will meet the ends of justice. His aggregate sentence therefore will be reduced from eight years to five years.