Mathura Rai and Others vs Emperor

Jwala Prasad, J.—The petitioners, fifteen in number, were convicted by the Magistrate Of rioting, in the course of which hurt and grievurs hurt were caused to the complainant''s party. Their conviction has been up-held on appeal by the learned Sessions Judge of Shahabad as follows:

The petitioners Mahabir Rai and Satram Ahir have been convicted by the lower Appellate Court under Sections 148, 324 and 326 read with Section 149, Indian Penal Code. With of them has received one year''s rigorous Imprisonment u/s 148, six months u/s 324 and another six months u/s 326, read with Section 149, the sentences are to run consecutively in other words these petitioners have received two years rigorous imprisonment.

The remaining thirteen persons have been convicted by the Sessions Judge under Sections 147 and 326 read with Section 149, Indian Penal Code. Bash of them has received one year''s rigorous imprisonment u/s 147. No separate sentence has been passed under Sections 326/149, Indian Penal Code.

Mr. Sen appearing on behalf of the petitioners has contended that the petitioners Mahabir Rai and Satram Ahir could not be convicted and sentenced u/s 324 and 326/149 Indian Penal Code, and the other petitioners u/s 326, when they had already been convicted u/s 148 and 147 of the Code respectively inasmuch as the common object of the unlawful assembly as found by the Court below was to "commit (sic) on Ram Lal Thakur, Daya Thakur and the three other injured persons,"

In support of his contention Mr. Sen has relied upon a decision of this Court in the case of Paltu Singh v. Emperor 48 Ind. Cas. 677 : 3 P.L.J. 641 : 20 Cr. L.J. 37. That case as well as another case of this Court, Ramdular Jha v. Emperor, Criminal Revision No. 349 of 1919, are based upon a consideration of the authorities of the Calcutta High Court, namely Nilmony Poddar v. Queen-Empress 16 C. 442 : 8 Ind. Dec. (N.S.) 292 and Hridoy Mondal v. Jagananda Das 4 C.W.N. 245. The point was recently considered by me in the case of Nemdhari Singh v. Emperor 61 Ind. Cas. 833 : 2 P.L.T. 91 : 22 Cr. L.J. 449, In that case, as in the present case, the charge stated two common objects of the unlawful assembly: (1) to commit assault on the people on the side of the complainant and (2) to remove the crops from the land in question. The only ground, upon which separate sentences could be questioned, is that based upon a consideration of Section 71, Indian Penal Code, That section can only apply to simple assault which has been stated as the common object of the assembly in the charge framed in the case and certainly the punishment of the petitioners for using mere violence or committing assault as well as for rioting u/s 147 would have been illegal inasmuch as violence is necessary for constituting riot u/s 147 (vide the definition of rioting). But if in the prosecution of the common object "to commie assault" more than mere violence or assault, sash as grievous hurt or death, is caused by the members thereof, Section 71 will have obviously no application. In the present case, the petitioners have been convicted under sessions 148 and 24, Indian Penal Code. 1 do not think that the conviction or the separate sentences passed under these sections are, in any way, illegal or in contravention of Section 71 Indian Penal Code. For the same reason the conviction and the sentence u/s 326/149 will not be illegal, if it be found that the offense u/s 326 was caused in the prosecution of the common object to commit assault tide Nilmony Poddar v. Queen-Empress 16 C. 442 : 8 Ind. Dec. (292For a farther and detailed discussion refer to my decision in the aforesaid case, Nemdhari Singh v. Emperor 61 Ind. Cas. 883 : 2 P.L.T. 91 : 22 Cr. L.J. 449, But in the circumstances of the case is not desirable to pass separate sentence consecutively under the aforesaid sections. I would, therefore, following the sourse adopted in the case of Hridoy Mondal v. Jagananda Das 4 C.W.N. 245 and of Faltu Singh v. Emperor 48 Ind. Cas. 677 : 3 P.L.J. 641 : 20 Cr. L.J. 37 award a consolidated sentence of 18 months'' rigorous imprisonment on cash of the petitioners Mahabir Rai and Satram Ahir. As regards the remaining 13 petitioners, it is not disputed that the conviction u/s 117 is, in any way, illegal, but it is contended on behalf of the petitioners that the sentence passed upon them is somewhat severe. No separate sentence has been passed against them u/s 326/149, although they have been convisted under that section. The result is that cash of them has received one year''s rigorous imprisonment. The reason urged in support of the contention is that these petitioners have not been shown to have taken any active part in the riot. The riot itself was a very serious one, and I do not think that the sentence passed against them san reasonably be reduced.

The last contention of Mr. Sen relates to the identification of four of the petitioners Jaijairam, Mahabir Rai, Mathura Rai and Mukha Rai. Toe learned Judge has considered the evidence of some of the witnesses on behalf of the prosecution as being unsatisfactory, but upon the rest of the evidence whish in itself appears to be very overwhelming as summarised by the learned Sessions Judge, the finding of the Court is that the petitioners mentioned above were properly identified as being members of the mob. I do not think that it is possible in revision to enter into a detailed consideration of the evidence and to differ from the estimate thereof by the Court below.

The result is that the centense passed upon two of the petitioners Muhabir Rai and Satram Ahir is redused to 18 months rigorous imprisonment. In other respects the application is rejected.