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Criminal Revision No. 512 of 1967, decided on 14th November 1968.

S. 439 read with S.345(5), (S‑A)‑Compounding offence‑Exceptional power of High Court to record compromise in suitable case in revision Ordinarily not to be used where proceedings before Courts below disclose no irregularity or impropriety.

The accused were convicted and sentenced for offences under sections 147, 324 and 325, P. P. C. and their appeal was dismissed by the Sessions Judge. In revision, the High Court found that the Courts below had discussed the evidence and come to independent findings oil facts. The concurrent findings recorded were quite reasonable and the accused had been rightly convicted. The Advocate of the accused, however, filed a petition for permit ting the parties to compromise the case. The Advocate appearing for the complainant also joined with him. No such petition had ever been filed before the Courts below Held, the offence under section 147 of the Penal Code is non‑compoundable. The offences under sections 324 and 325, P. P. C., though compoundable should not be allowed to be compromised at this stage. The composition of these offences shall have the effect of acquittal of the accused persons. This compromise will nullify the conviction of the accused against the overwhelming evidence on record. The High Court acting in the exercise of its revisional power may allow compromise but in view of the evidence and materials on record there are difficulties to accede to the prayer. The High Court will always be reluctant to grant leave for compromise when it finds that the accused persons have been rightly convicted. Having regard to the provisions of section 345(5‑A), Cr. P. C. and the objects of the Legislature, the High Court can record the compromise in suitable cases in revision but this exceptional power of the High Court should not ordinarily be used in a case where the proceedings before the Courts below disclose no irregularity or impropriety. The subsection (5‑A) of section 345, Cr. P. C. should be interpreted very strictly and the discretion conferred upon the High Court should be exercised very sparingly and only in suitable cases.

Baburalf Sardar and others v. Kala Chand Bepari and others A I R 1939 Cal. 728; 48 Cr. L J 433 and 53 Cr. L J 1144 ref.

Ss. 147, 324 & 325 read with S. 71‑Hurts caused in rioting after forming unlawful assembly Sentence‑Causing of hurt (simple or grievous) itself form of force or violence constituting offence of rioting‑Separate sentences for offences of rioting and hurt‑Held, cannot be awarded, in circumstances of case.

Where the causing of the hurt was itself the particular form of the force or violence which contributed to the offence of rioting, the one offence was included as an ingredient in the other. Where the offence committed is made up of parts and the minor offence or offences are component parts of the greater offence and the two or more offences are merged in one another, the first part of section 71, P. P. C. is attracted and separate sentences cannot be awarded, as the first clause of this section applies. Separate sentences for the offences of rioting and hurt simple or grievous cannot be imposed upon a member of an unlawful assembly where the offence of rioting was not itself complete until the hurt was actually inflicted, that is to say, where the causing of the hurt was itself the form of force or violence which constituted the offence of rioting. But they can be legally awarded where distinct offences not made up of parts are proved to have been committed by one member of the assembly in prosecution of the common object of that assembly or where the members of it knew that such offences were likely to be committed in prosecution of that object. Where an unlawful assembly proceeds with a particular common object and some of them commit a completely different and distinct offence, benefit of the first clause of section 71, P. P. C. shall not, however, accrue to the offenders. In each case the distinction shall have to be made by the facts of its own case, otherwise it would seemingly prevent also separate sentences for rioting and murder where the murder constituted the only force or violence upon which the charge of rioting was based.

Mangal Singh and others v. Emperor A I R 1917 Lah. 358; Sarat Chandra Ghose and others v. The Emperor A I R 1923 Cal. 408; Manak Chand and others v. Emperor A I R 1926 Lah.581; Kunnam mal Mayan and others v. King‑Emperor A I R 1927 Mad. 970; Kitabdi v. Emperor A I R 1931 Cal. 450 and 8 D L R 95 ref.

Serajul Huq for Petitioners.

Mozammel Huq Khan for the Opposite‑Parties.

This Rule is directed against an order of conviction of the 7 petitioners under section 147, P. P. C. the petitioner No. 1 under section 325, P. P. C. and the petitioners Nos. 2 and 3 under section 324, P. P. C. passed by Mr. S. M. Hossain, Magistrate, 1st Class, Narayanganj.

The prosecution case, in short, is that on 8 8‑b5 at about 5‑30 a.m. when P. W. 1 Md. Tara Mia was going to Sibpur Launch Ghat to attend his duty as a driver of the E. P. R. T. C. and reached near the house of P. W. 5 Ramizuddin of the same village, accused Hafizuddin, Reasat Ali, Rafizuddin, Ramizuddin, Kafiluddin, Dulu Mia, Manik Mia and others forming an unlawful assembly, armed with various weapons, suddenly came out from the nearby jute field and surrounded him from all sides. Accused Hafizuddin struck hire with a roller on his left hand, accused Reasat Ali gave a dao blow on his back and accused Ramizuddin struck him with a lathi on his right hand while the others were holding him down. He raised alarm an on hearing his cry when P. W. 2 Sirajuddin came to his rescue, accused Reasat Ali dealt a dao blow on his head causing bleeding injury and then stood on his neck to strangle him to death.

On these allegations the accused petitioners were charged under section 147, P. P. C. and the petitioner No. 1 was further charged under section 325, P. P. C. and the petitioners Nos. 2 and 3 were further charged under section 324, P. P. C. and were accordingly put on trial before the learned Magistrate.

The accused pleaded not guilty to the charges and claimed to be tried.

15 witnesses for the prosecution and 2 for the defence were examined in the case. The learned Magistrate on appraisal of the evidence aid materials on record, convicted and sentenced the accused petitioners under section 147, P. P. C. to pay a fine of Rs. 50 each, in default to rigorous imprisonment for 15 days each and further convicted and sentenced the petitioner No. 1 under section 325, P. P. C. to suffer rigorous imprisonment for three months and to pay a fine of Rs. 100 in default to rigorous imprisonment for one month more and the petitioners Nos. 2 and 3 under section 324, P. P. C. to suffer rigorous imprisonment for one month and to pay fine of Rs. 50 each, in default to rigorous imprisonment for 15 days more.

The accused preferred an appeal before the Sessions Judge, Dacca against the said order of conviction and sentence. The learned Additional Sessions Judge, 2nd Court, Dacca by an order dated 28‑4‑67 affirmed the order of conviction and sentence. The accused petitioners thereafter moved this Court and obtained the present Rule.

P. Ws. 1 and 2 are the victims of the occurrence. They have narrated the prosecution case in detail. They stated in their depositions as to how the accused persons forming an unlawful assembly attacked them and caused the injuries cm their persons. They corroborated each other on material particulars. The evidence of these two witnesses were also corroborated by P. Ws. 3, 4, 5, 6, 7 and 15. The doctor P. W 12 who examined the two victims also corroborated the prosecution case. Thus there are over whelming evidence on record to bring home the respective charges against the accused persons.

Both the Courts below have dealt with the separate charges brought against the accused with reference to the evidence on record. They have discussed the evidence and come to indepen dent findings on facts. Defence suggestions have been duly considered. The concurrent findings of facts recorded therein are quite reasonable. The accused petitioners have been rightly convicted in the case.

Mr. Serajul Huq, learned Advocate appearing for the petitioners has filed a petition for permitting the parties to com promise the case. The learned Advocate appearing for the complainant has also joined with him. No such petition was ever filed before the courts below. The offence under section 147 of the Penal Code is non‑compoundable. The offence under sections 324 and 325, P. P. C., though compoundable should not be allowed to be compromised at this stage. The composition of, these offences shall have the effect of acquittal of the accused persons. This compromise will nullify the conviction of the accused against the overwhelming evidence on record. The High' Court acting in the exercise of its revisional power may allow compromise but in view of the evidence and materials on record I find difficulties to accede to the prayer. The High Court will always be reluctant to grant leave for compromise when it finds that the accused persons have been rightly convicted. Having A regard to the provisions of section 345 (5‑A), Cr. P. C. and the objects of the Legislature, the High Court can record the com promise in suitable cases in revision but this exceptional power of the High Court should not ordinarily b; used in a case where the proceedings before the Courts below disclose no irregularity or impropriety. The subsection (5‑A) of section 345, Cr. P. C. should be interpreted very strictly and the discretion conferred upon the High Court should be exercised very sparingly and only in suitable cases. In this connection, the cases reported in A I R 1939 Cal. 728, 48 Cr. L J 433 and 53 Cr. L J 1144 may be referred to.

The learned Advocate for the petitioners has next contended that in view of the provisions of section 71 of the Penal Code, separate sentences under sections 147 and 324 or 325, P. P. C. for the offences of rioting and simple hurt or grievous hurt are bad in law. He wants to say that the common object alleged of the unlawful assembly being "to assault or cause hurt", separate sentences for rioting and hurt simple or grievous is illegal and contrary to the provisions of section 71, P. P. C.

Section 71 of the Penal Code runs as follows :‑‑-

"Where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such offences, unless it be so expressly provided.

Where anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, or

Where several acts of which one or more than one would by itself or themselves constitute an offence, constitute when combined, a different offence,

the offender shall not be punished with a more severe punishment than the Court which tries him could award for anyone of such offences."

I his section governs the whole Code and regulates the limit of punishment in cases in which the greater offence is made up of two or more offences. The first part of the section provides that where an offence is made up of parts, each of which constitutes an offence the offender should not be punished for more than one offence unless expressly provided.

In the instant case the common object of the unlawful assembly was to assault and thereby to cause hurt. A hurt simple or grievous was caused in prosecution of that object. Where the causing of the hurt was itself the particular form of the force or violence which contributed to the offence of rioting, the one offence was included as an ingredient in the other. Where the offence committed is made up of parts and the minor offence or offences are component parts of the greater offence and the two or more offences are merged in one another, the first part of section 71, P. P. C. is attracted and separate sentences cannot be awarded, as the first clause of this section applies. In my opinion separate sentences for the offences of rioting and hurt simple or grievous cannot be imposed upon a member of an unlawful assembly where the offence of rioting was not itself complete until the hurt was actually inflicted, that is to say, where the causing of the hurt was itself the form of force or violence which constituted the offence of rioting. But they can be legally awarded where distinct offences not made up of parts are proved to have been committed by one member of the assembly in prosecution of the common object of that assembly or where the members of it knew that such offences were likely to be committed in prosecution of that object. Where an unlawful assembly proceeds with a particular common object and some of them commit a completely different and distinct offence, benefit of the first clause of section 71, P. P. C. shall not, however, accrue to the offenders. In each case the distinction shall have to be made by the facts of its own case, otherwise it would seemingly prevent also separate sentences for rioting and murder where the murder constituted the only force or violence upon which the charge of rioting was based.

Considering the facts, circumstances and all other aspects of the case, it seems the point raised by the learned Advocate has considerable force. The contention of the learned Advocate receives support from the cases reported in A I R 1917 Lah. 358; A T R 1923 Cal. 408; A I R 1926 Lah. 581; A I R 1927 Mad. 970; A I R 1931 Cal. 450 and 8 D L R 95. In all those cases it hag been held that in the given circumstances, separate sentences on both the counts are bad in law and contrary to the provisions of section 71 of the Penal Code.

I find no reason to disagree with the decisions referred to above. The common object charged and the offence actually committed in the case being substantially the same, I think, separate sentences under sections 147 and 324 or 325, P. P. C. are not proper. Sentence on one count may serve the purpose.

Having regard to the provisions of section 71 of' the Penal Code and the principles of law enunciated in the above cases, I set aside the sentence of the accused petitioners Nos. 1 to 3 under section 147, P. P. C. Their conviction on that count is, however, maintained. The conviction and sentence of the petitioner No. 1 under section 325, P. P. C. and that of petitioners Nos. 2 and 3 under section 324 are affirmed.

Lastly, the learned Advocate has submitted that the sentences passed f)n accused petitioner No. 1 under section 325, P. P. C. and on petitioners Nos. 2 and 3 under section 324, P. P. C. are too severe. Section 324, P. P. C. provides for imprisonment for a term of 3 years or fine or both. The punishment under section 325, P. P. C. may extend to 7 years and also fine. The sentences imposed on them are not at all severe. The manner in which the accused assaulted P. Ws. 1 and 2 does not deserve any sympathetic consideration in the case.

With the modification indicated above, the Rule is discharged.

The petitioners Nos. 1 to 3 would surrender to their bail bonds and serve out the remainder of the sentences.

Order accordingly.

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