Tottenham and Ghose, JJ.
1. We see no reason to differ from the Court below as to the facts found by it. These are that both the prisoners took part in a riot, being armed with deadly weapons; that in the prosecution of the common object of the rioters the prisoner Sachani Sheikh caused hurt with a dangerous weapon to one Kamala Kant Poddar, and another of the rioters caused hurt with a dangerous weapon to one Joydhur.
2. Upon these facts both of the prisoners have been convicted under Section 148 of the Penal Code; both have been convicted under Section 324 by the operation of Section 149 in respect of the hurt caused to Joydhur. Loke Nath Sarkar has been further convicted under the same section in respect of the hurt caused to Kamala Kant; and Sachani Sheikh has been further convicted under Section 324 only in respect of the latter hurt caused by himself.
3. Separate sentences have been passed upon the prisoners in respect of each separate conviction. The sentences on Loke Nath Sarkar amount in the aggregate to three and a half years' rigorous imprisonment and a fine of Rs. 200; and the sentences on Sachani Sheikh aggregate to three years' rigorous imprisonment and a fine of Rs. 50; and in default of payment of the fines the prisoners are to suffer further imprisonment each for nine months.
4. Babo Ambica Churn Bose, who appeared for the appellants, contended that the prisoners could not legally be convicted of more than one of the offences, the whole of which formed parts of the same transaction; or, that at any rate, though the several convictions might be legal, the prisoners could not lawfully be sentenced in respect of more than one of them. He relied upon the rulings of this Court in The Queen v. Durzoolla 9 W.R. Cr. 33; The Queen v. Dina Sheikh 10 W.R. Cr. 63; The Queen v. Shahabut Sheikh 13 W.R. Cr. 42 and Empress v. Jubdur Kazi I.L.R.6 Cal. 718 which more or less support his contention.
5. We have not, however, been able entirely to follow the reasoning of the learned Judges by whom those eases were decided; and we think that in the present case it is unnecessary for us to express either assent to, or dissent from, the law laid down by them. The terms of the former Codes of Criminal Procedure, with reference to which those cases were decided, were perhaps less clear than the provisions of the Code now in force. By Section 35 of that Code, as well as by Section 314 of the previous Code, it is provided that, when a person is convicted at one trial of two or more distinct offences, the Court may sentence him for such offences, to the several punishments prescribed therefor, which such Court is competent to inflict, subject to certain provisions as to maximum which are not material in the present appeal. Then Section 235 provides in Clause (1) which seems to apply to the present case, that if in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence; and, if tried, he must be either acquitted or convicted.
6. As regards punishments, this section enacts nothing beyond this, that 'nothing contained in this section shall affect the Indian Penal Code, Section 71.' That section, as amended by Act VIII of 1882, Section 4, contains the same provisions as to limit of punishment which were embodied in Clauses 2 and 3 of Section 454 of the former Code of Criminal Procedure. As the law now stands, therefore a person, tried and convicted of several offences under Section 235 of the Code of Criminal Procedure, is liable to be punished for each such offence, unless he is protected by Section 71 of the Penal Code. Section 71 then provides: (1) that 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 for more than one of such offences, unless it be so expressly provided; (2) that if a single act falls within two separate definitions of offences, the offender shall not receive a more severe punishment than could be awarded for either of them; and (3) that if several acts, of which one or more would by itself constitute an offence, form, when combined, a different offence, the offender must not receive a punishment more severe than that provided for any one of such offences.
7. It seems to us that the present case does not come within the purview of Section 71.
8. The offences, of which the prisoners have been convicted, are distinct: (l) rioting armed with deadly weapons; (2) voluntarily causing hurt with a dangerous weapon to Karaala Kant Poddar; (3) a similar offence with regard to Joydhur.
9. The several acts, in support of which the prisoners were charged, do not in combination form any other offence defined by any law with which we are acquainted; nor do they fulfil any other condition of Section 71 which would protect the accused from more than one punishment or limit the severity of the sentence passed upon them.
10. 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 on the two men wounded.
11. We note that the view of the law which we have taken was adopted by the High Court at Allahabad in the recent case of Queen Empress v. Dungar Singh I.L.R. 7 All. 29.
12. It appears to us, therefore, that the convictions and the several sentences passed were strictly legal, and that they cannot be set aside on the grounds put forward by the vakeel for the appellants.
13. But we think that we may, under the circumstances of the case, mitigate the punishment to some extent. We accordingly reduce the sentences passed under Section 148 to rigorous imprisonment for one year in the case of Loke Nath Sarkar, and to six months in thd case of Sachani Sheikh; and that the fines imposed in respect of the second head of the charge be reduced to Rs. 100 and to Rs. 30 respectively.