Lakshmiammal vs Samiappa Goundar and Others

(1) The appeal and revision arise out of the judgment in C.A. No. 230 of 1964 by the Sessions Judge, Coimbatore Division. The appellant is the

complainant. The revision petitioners are the accused.

(2) The complainant filed a private complaint against the accused before the Sub-Divisional Magistrate, Erode, alleging that the accused formed

themselves into an unlawful assembly armed with deadly weapons and caused extensive damage and mischief to the water-pipes laid by the

complaint for taking water from a channel to his lands, punishable under Ss. 148 of 430, I.P.C. The Sub-Divisional Magistrate convicted the

accused under both the charges and sentenced each of the accused to pay a fine of Rs. 100 under S. 148, I.P.C. and a fine of Rs. 50 under S.

430, I.P.C. On appeal, the Sessions Judge confirmed the conviction and sentence under S. 430, I.P.C., but acquitted them under S. 148, I.P.C.

Hence, the complainant preferred the appeal against the acquittal under Sec. 148, I.P.C. and the accused filed the revision petition against the

order of the Sessions Judge confirming their conviction and sentence under S. 430, I.P.C.

(3) So far as the revision petition is concerned, the learned counsel for the petitioner is unable to challenge the findings of the lower Court. Both the

lower Courts accepted the evidence of the prosecution witnesses and found that the accused were armed with deadly weapons and they broke the

cement water-pipe belonging to the complainant. The accused have not claimed a right of private defence of property; but they denied the offence

and contended that the case was foisted on them because of enmity. There is no substance in the revision petition. It is, therefore, dismissed.

(4) As regards the appeal, the learned counsel for the appellant contended that the learned Sessions Judge who acquitted the accused under Sec.

148, I.P.C., had misconceived the definition of rioting. There appears to be substance in his contention. The learned Sessions Judge found that the

accused were armed with deadly weapons like knife, hammer, crowbar and spade; but, however, he held that the common object of the unlawful

assembly was to break open the pipe and cause damage to P.W. 1 and not to cause threat or bodily injury to P.W. 1 and further held that though

the accused were armed with weapons of the nature mentioned above, they cannot be said to be deadly weapons as they were not intended to be

used as weapons of offences and so the accused have not committed the offence of rioting much less rioting with deadly weapons. There is

obviously an error in this finding. It is necessary to set out the relevant provisions in the Indian Penal Code which deal with unlawful assembly and

rioting. ""Unlawful assembly"" is defined under Sec. 141, I.P.C., which is as follows:-

An assembly of five or more persons is designated an ''unlawful assembly'', if the common object of the persons composing that assembly is--

First--to overawe by criminal force, or show of criminal force, the Central or any State Government or Parliament or the Legislature of any State,

or any public servant in the exercise of the unlawful power of such public servant; or

Second--to resist the execution of any law, or of any legal process; or

Third--to commit any mischief or criminal trespass, or other offence; or

Fourth--by means of criminal force, or show of criminal force, to any person to take or obtain possession of any property, or to deprive any

person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, as to enforce

any right or supposed right; or

Fifth--by means of a criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to do what he is

legally entitled to do............

(5) In this case, the common object of the accused has been found by both the Courts to commit mischief to the water-pipes which satisfies the

third clause of S. 141, I.P.C. The conviction of the accused under S. 430, I.P.C. (mischief) has been confirmed by the Sessions Judge. therefore,

there cannot be any doubt that the accused were the members of the unlawful assembly. ''Rioting'' is defined under S. 146, I.P.C. Section 146,

I.P.C., says:

Whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly,

every member of such assembly is guilty of the offence of rioting.

Punishment for rioting is provided under S. 147, I.P.C., extending to a period two years'' R.I. or with fine, or with both. If a member of the

unlawful assembly is guilty of rioting armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death,

shall be punished with imprisonment extending up to three years, or with fine, or with both under Sec. 148, I.P.C.

(6) It is clear under Sec. 146, I.P.C., that the gravamen of the offence of rioting is use of force or violence by an unlawful assembly. ''Violence'' is

not defined in the Indian Penal Code. But ''criminal force'' is defined u/s 350, I.P.C., which is as follows:--

Whoever intentionally uses force to any person, without that person''s consent, in order to the committing of any offence, or intending by the use

of such force to cause, or knowing it to be likely that by the use of such force he will cause injury, fear or annoyance to the person to whom the

force is used, is said to use criminal force to that other.

Force"" refers to force to a person used either directly or indirectly causing injury, fear or annoyance to that person. This definition excludes force

or violence to property. Admittedly, no force was used to any person by the accused in this case. So, the next point to be considered is, to sustain

the conviction for rioting, whether violence was used.

(7) In the Shorter Oxford English Dictionary ''violence'' is defined as the exercise of physical force, so as to inflict injury on or damage to persons

or property. When two words are used, ''force'' or ''violence'' in Sec. 146, I.P.C., each word will connote a different and distinct concept. While

''force'' is narrowed down by the definition under Sec. 350, I.P.C., to persons, the word ""violence"" is comprehensive and is used to include

violence to property and other inanimate objects.

(8) It has been held in Samaruddin v. Emperor, ILR (1913) Cal 367, that the word ''violence'' in Sec. 146, I.P.C., is not restricted to force used

against persons only but extends also to force against inanimate objects. Subsequently, Venkatasubbiah v. The Crown, AIR 1923 Mad 603,

Sankarapandia Thevar v. Emperor, 1933 MWN 182, Mt. Bayyan Khan v. Emperor, AIR 1935 Pesh 65 and Kali Das Mukherji and Others Vs.

Emperor, , approved the decision in ILR (1913) Cal 367. I respectfully agree with those decisions. It has been proved beyond reasonable doubt

that the petitioners with the common object of causing mischief to the water-pipes, caused violence to the pipes by breaking them. The petitioners

are, therefore, guilty of rioting within the meaning of Sec. 146, I.P.C.

(9) They were also armed with weapons like knife, hammer, crowbar and spades. They are undoubtedly deadly weapons. The learned Sessions

Judge was under a misapprehension that unless the weapons are carried for the purpose of using them as weapons of offence, they cannot be

called deadly weapons. The test is not the purpose for which they were carried; but the nature of the weapons are such that, if used as weapons of

offence, are likely to cause death. As already stated, the weapons carried by the petitioners were weapons if they were used were likely to cause

death. The petitioners will be guilty under Sec. 148, I.P.C.

(10) For the foregoing reasons, the appeal is allowed and the conviction by the trial Court under S. 148, I.P.C., is restored. However, taking into

consideration the circumstances of the case, I impose a sentence of fine of Rs. 10 on each of the petitioners, in default, each of them to undergo

R.I. for two weeks. if fine amount is realised, Rs. 50 will be paid as compensation to P.W. 1. Time for payment 10 days.

(11) Appeal allowed. Revision dismissed.