P.Dayal - (1.) THE facts giving rise to this petition are that the revisionists are alleged to have beaten Ram Kumar on 26-11-80 at about 10 a.m. in Itaunja, P. S. Itanja, district Lucknow. THE informant Rajendra Prasad Nigam went to their rescue and he was also beaten. He lodged a FIR. It is further alleged that the police personnel reached there and arrested Jai Prakash Pandey and Ramji Tripathi.
(2.) THE revisionists were prosecuted for offences punishable under Sections 147, 323, 149 IPC. Some of the witnesses had turned hostile and only Rajendra Prasad Nigam who was the informant gave his statement in support of the prosecution. The learned Magistrate acquitted the revisionists for an offence punishable under Section 323 IPC and convicted and sentenced them under Section 147 IPC each to pay a fine of Rs. 80/- and in default to undergo ten days' imprisonment. Section 147, laying down the punishment for rioting, provides that whosoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both.
(3.) THE term ' rioting ' has been defined that whenever force and violence is used by an unlawful assembly or by any member thereof, all such assembly or any member thereof is guilty of offence punishable under Section 147 IPC. Thus it is evident from the definition of word " rioting " that force or violence should be applied and then only Section 147 comes into play. In the instant case, the learned Magistrate acquitted the revisionists of an offence punishable under Section 323 IPC which meant that any force or violence was not applied by them. Consequently they could not be convicted and sentenced for an offence punishable under Section 147 IPC also, with the result that this revision succeeds.;