JUDGMENT 1. This is a Rule calling upon the Magistrate of the district to show cause why the conviction of the accused No. 1, Hansa Pathak, under sec. 379 I. P. C., read with sec. 114 should not be set aside on the ground that there is no finding of fact sufficient to warrant such a conviction. The facts found are that Hansa Pathak, the accused No. 1, was a member and, in fact, the leader, of an unlawful assembly the common object of which was to commit trespass and theft and that theft was actually committed by certain members of this unlawful assembly. Upon these facts Hansa Pathak has been convicted of theft under sec. 379 read with sec. 114 of the Indian Penal Code. It is not found that Hansa Pathak himself committed any theft by removing any property, nor is it found that Hansa Pathak had made any previous preparation for committing any theft or aiding anyone in the commission of theft. That being so, we do not think that the conviction of Hansa Pathak under sec. 379 read, with sec. 114 can stand. This last-mentioned section enacts that "whenever any person who, if absent, would be liable to be punished as an abettor, is present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have committed such act or offence." Now, bearing in mind the facts found as to what Hansa Pathak has done, we do not think that, if he had been absent, he would have been punishable for any offence as an abettor. His connection with the offence of theft arose from his being a member of the unlawful assembly the common object of which was to commit theft and some members of which assembly actually committed theft. Therefore, as we have observed, that being his only connection with the case, if he had been absent it could not be said that he would have been liable to be punished as an abettor and so sec. 114, I. P. C., did not apply. The view we take is in accord with that taken by this Court in the case of Abhi Misser v. Lachmi Narain 4 C. W. N. 546 : s. c. I. L. R. 27 Cal. 566 (1900). 114, I. P. C., did not apply. The view we take is in accord with that taken by this Court in the case of Abhi Misser v. Lachmi Narain 4 C. W. N. 546 : s. c. I. L. R. 27 Cal. 566 (1900). It might be said that although this is so, and although the conviction of Hansa Pathak for theft under secs. 379 and 114, I. P. C., can not stand, yet his conviction for theft might stand as one under sec. 379 read with sec. 149, I. P. C. The learned vakil for the Petitioner with reference to this point argued, that although that may be so and the conviction for theft, so altered, may be sustainable, no separate sentence for theft can be passed, having regard to the provisions of the first paragraph of sec. 71, I. P. C., as explained by the Full Bench of this Court in the case of Nilmoney Poddar v. Queen-Empress I. L. R. 16 Cal. 442 (1890). If it had been necessary in this case to consider the question whether a separate sentence for theft could be passed, we should have been inclined to hold that the case of Nilmoney Poddar v. Queen-Empress I. L. R. 16 Cal. 442 (1890) was distinguishable from the present case and that this case did not fall within the first paragraph of sec. 71, for the reason that the other offence of which the accused has been convicted and for which he has been separately sentenced, namely, an offence under sec. 144 of the Indian Penal Code is not one of which actual theft is a necessary ingredient, in the same manner as the use of actual force or violence consisting in the causing of grievous hurt was a necessary ingredient in the offence of rioting of which the accused was convicted in the case before the Full Bench. But it is unnecessary to pursue this discussion any further in the view we take, namely, that the sentence passed under sec. 144, I. P. C., upon the accused Hansa Pathak is sufficient to meet the requirements of justice. The result then is that the conviction and sentence in the case of the accused Hansa Pathak under sec. 379 read with sec. 114, I. P. C., are set aside.