Mithoo Singh and Seven Others vs Gopal Lal

We have carefully considered the evidence in this case, and we are of opinion that there are no sufficient grounds for our interference on the merits. With respect, however, to the sentences passed upon the Petitioners, it has not been shown that any one of them individually committed theft and it is consequently only by the application of sec. 149 of the Penal Code that this offence has been or could be brought home to them. Their conviction under secs. 147 and 379 read with sec. 149 of the Code was quite proper; but under sec. 71 as interpreted by the Full Bench of this Court in Nilmony Poddar v. Queen-Empress ILR 16 Cal. 442 (1889) it was improper to pass sentence upon them both for rioting and theft since the former offence was but an element of the latter. Under sec. 71 they were liable to punishment Only in respect of one or other of these offences. We accordingly set aside the sentence of 3 months'' imprisonment awarded under sec. 379 read with sec. 149 in the case of all the prisoners.