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Madras High Court
In Re: Srinivasulu Naicken And … vs Unknown on 25 March, 1927
Equivalent citations: AIR 1928 Mad 21
Author: Jackson


Jackson, J.

1. Three points are raised: (1) That having eliminated Section 325, I.P.C. the learned Sessions Judge should hove reduced the sentences accordingly. The Public Prosecutor concedes that the three years under Section 325 should give place to two years under Section 352. as set forth in para, 11 of the Assistant Sessions Judge’s judgment as regards accused 1.

2. As regards ‘the other accused 3, 4, 7, 9, 10 and 12 now that they are acquitted under Section 325 their culpability seems to be less and their sentence is reduced to nine months rigorous imprisonment; and that of the 13th accused to one year and nine months and fine.

(2) The charge against accused 6 that he was a member of this unlawful assembly on 30th October is an illegality vitiating the whole trial. It is a question of fact, not of law. The trial Court found that the charge was unsubstantiated and acquitted him. If the facts as charged had been proved there would have been no illegality.

(3) It is urged that Section 352, cannot be coupled with Section 147, because the latter necessarily embraces the former.

3. Persons may riot without actually committing an offence under Section 352 and this theory that one section em-braces the other is fallacious.

4. The petition is dismissed except as indicated above.

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