Bhup Sing and others Vs The Emperor on the prosecution of Bhikho Rai

1. The only matter in respect of which we need interfere in this case is the conviction and sentence passed under sec. 447, I.P.C. It appears that the Petitioners were charged with three distinct offences, one under sec. 147, another under sec. 447, and a third under sec. 323 coupled with sec. 149 of the Indian Penal Code, the common object of the riot being stated to be to cut the crops upon the land of the complainant; and, so far as the offence of criminal trespass under sec. 447 was concerned, the charge was that the Petitioners unlawfully entered upon the land of the complainant; the finding of the Magistrate in respect of both these charges, as we understand it, being that the object of the accused was to cut the crops belonging to the complainant. We think that though secs. 147 and 447, I.P.C., are distinguishable in this wise, that while in the one case you have to look at the common object, in the other case you have to see what the intention of the party was while he was committing trespass; yet, in the present case, whether you call it the common object, or the intention, it is substantially the same, and, therefore, it seems to us, having regard to the illustration in sec. 35, Cr.P.C., that the Petitioners could not rightly be convicted of the offence under sec. 447, I.P.C., separately from the offence which they committed under sec. 147, I.P.C. It is quite possible that they might have been charged and convicted under sec. 426 for the offence of mischief. But they were not charged with the commission of such an offence, nor has the Magistrate found them guilty of it. We accordingly set aside the conviction and sentence under sec. 447, I.P.C., and affirm the conviction and sentence under the other sections.