1. This is an appeal by Kiamuddi Karikar, who was tried by the learned Additional Sessions Judge of Dacca and a jury. By the unanimous verdict of the jury he was found guilty of an offence under Section 147, I.P.C. and of an offence under Section 325 read with Section 149. The jury found him not guilty under Section 325, Section 304 and Section 304 read with Section 149.
2. Shortly stated the facts were these:
The police were summoned for the purpose of preventing a considerable number of people from fishing in a certain tank. In the first instance, the police were attacked, but the next thing that happened was that the people, who had assembled for the purpose of fishing, apparently gave way and retreated. The allegation was that then some of the people, who were with the police, and the police themselves pursued the retreating crowd. The deceased man, who was aged about sixty, fell at the rear of the crowd, and he was so severely beaten that he died on the spot.
3. The accused, according to the evidence, was alleged to have been one of those who beat the deceased man. But, as I have already said, the jury acquitted him of the charge under Section 325 and also of the charge under 8. 304. The learned vakil, who argued the case very well, relied mainly upon an alleged misdirection as to the accused being a member of an unlawful assembly. It is clear that the assembly, of which the accused was a member, was in the first instance a lawful assembly, and that was pointed out by the learned Judge. But the case of the prosecution was that after the people, who had come to fish in the tank, retreated and after there was no further necessity for any violence, some of those who formed the police party turned, themselves into an unlawful assembly with the common object of unnecessarily beating some of those who had come to fish and the learned vakil argued that the learned Judge had not sufficiently directed the jury upon this point.
4. The main part of the summing up in this respect, was as follows : - The learned Judge dealt fully with the facts. Then he said: 'Now I come to the law. The first charge is under Section 147. To understand it, you should know Section 141 read and explained.' Therefore, it is clear that the learned Judge explained to the jury what was necessary to constitute an unlawful assembly under Section 141 - 'common object is essential.' Therefore, the learned Judge directed the attention of the jury to the fact that a common object was essential : and, I find that in a later part of his summing up he indicated that the alleged common intention was to beat the fishing party. Then he proceeded to say in his charge to the jury. 'An assembly not unlawful at the inception may become so later. Then again, illegal act by one or two not acquiesced in by others does not change its character.' There, I think, the learned Judge roust have been explaining to the jury that, if the police party in the first instance constituted a lawful assembly, the fact that one or two of them committed the alleged illegal act would not change the character and nature of the assembly, but that it would require five persons or more than five persons, who were actuated by a common intention, namely, that of beating the fishing party, to change the character of the assembly from a lawful one to an unlawful one.
5. In considering the learned vakil's point it must be remembered that these were 'heads of charge' only, and it was impossible for the learned Judge to write down everything he said to the jury. I am satisfied, on the summing up; taking it as a whole, that the learned Judge appreciated the point and that he drew the attention of the jury to it.
6. Consequently, in my judgment, there was no misdirection in that respect.
7. Another point, to which the learned vakil drew our attention, was that there were certain witnesses, who were not called on behalf of the prosecution : and, he argued that the learned Judge ought to have directed the jury that they were entitled to assume from that fact that, if those witnesses had been called, they would not have supported the case for the prosecution. The learned Judge did not say this in so many words, but in effect what he did say on that point, in my judgment, was sufficient.
8. The last point, with which it is necessary for me to deal, is the question of sentence. The learned Judge sentenced the accused to two years' rigorous imprisonment under Section 147, I.P.C. He then proceeded to pass a further sentence under Section 325 read with Section 149, namely, for three years' rigorous imprisonment, and directed that the sentences should run concurrently.
9. The learned vakil drew our attention to the case of Nilmoney Poddar v. Queen-Empress  16 Cal. 442 (F.B.). In that case, the accused had been convicted of an offence under Section 148, and there was a further conviction under Section 324 coupled with Section 149. A sentence of two years' rigorous imprisonment was passed upon the Appellant under Section 148 and a further sentence of one year's rigorous imprisonment was passed for the offence under Section 324 read with Section 149. The learned Counsel for the Crown admitted that the case, which we are now considering, cannot be distinguished in principle from the case in Nilmoney Poddar v. Queen-Empress  16 Cal. 442 (F.B.). The learned Chief Justice in that case said: '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.' In the result, the Court set aside the sentence of one year's rigorous imprisonment passed upon the Appellants under S324 read with Section 149. In the present case, the first conviction was under Section 147, I.P.C, instead of Section 148 as in the Full Bench case; and the second conviction was under Section 325/149 instead of Section 324/149 as in the Full Bench case. It being admitted that the Full Bench decision is applicable to the present case, the infliction of separate punishments for the two offences is illegal under para. 1 of Section 71 of the Indian Penal Code. It was suggested by the learned Counsel for the Crown at one time during the course of the argument that there was a difference between the case, which we are now considering, and the Full Bench case, inasmuch as the learned Judge who tried this case directed that the two sentences should run concurrently. I do not understand how that can make any difference. The provisions of para. 1 of Section 71 forbid the infliction of separate punishments for the two offences in a case to which those provisions apply. In this case the learned Judge inflicted a sentence of two years under Section 147 and a sentence of three years under Section 325 read with Section 149, I.P. Code. As the learned Chief Justice said in the Full Bench case, consequently the infliction of 'separate punishments for the two offences is illegal under it.' In my judgment, the learned Judge had no jurisdiction to sentence the accused in this case for both offences. If he had thought that it was necessary that the accused should be punished with a sentence of three years' rigorous imprisonment, he could have inflicted a sentence for that period under Section 325 read with Section 149, and he need not have passed any sentence under Section 147. As a matter of fact, he punished the accused first under Section 147 and then proceeded to pass a further sentence under Section 325 read with Section 149. In my judgment, the sentence under Section 325 read with Section 149 should be set aside.
10. The result is that, in my judgment, the conviction of the accused under Section 147 and the sentence of two years rigorous imprisonment passed upon him must stand. The conviction under Section 325 read with Section 149 must also stand, but the Sentence passed thereunder must be set aside.
11. I agree generally with the judgment which has just been delivered by the learned Chief Justice. At the same time, I desire to make it clear that 1 am not prepared to hold that, where, as in the present case, two separate sentences have been passed - one for rioting under Section 147 and the other for constructive grievous hurt under Section 325 read with Section 149 - the Court is obliged necessarily to maintain the one which was passed first in point of time and to set aside the sentences which come second in point of time. Obviously, this might possibly reduce the question as to what sentence the accused would get to a lottery depending on the order in which the Judge or Magistrate passed the sentences and result in a serious miscarriage of justice. Section 71 provides that an accused person shall not be punished with the punishment of more than one of his offences which provision is obviously met by making all the sentences which have been imposed run concurrently. In the present case, I am, however, of opinion that the ends of justice will be met by the sentence of two years' rigorous imprisonment.