(1.)THESE two appeals arise out of the judgment and order of the Ses. J. Guna. The facts of this case are as follows. Randhirsingh, his four sons Sardaraingh, Lalsaheb, Kaptan singh, Badalsingh and Mulla and Diwansingh, who is absconding, were on inimical terms with the Congress Committee in the village of Barodia. On 16-6-1948, Toranbingh deceased, Aman, Shamlal and Bhawarlal went to Pachhar to institute proceedings for taking security to keep the peace from the accused. On the morning of 17-6-1948 Aman, Shamlal, Bhawarlal, Diwansingh and Raiselal were standing on the Chabutra where Congress flag was flying. Suddenly Toransingh came to the spot in a frightened condition and told them that the accused were pursuing him to beat him. In the meantime, Diwansingh, Sardarsingh, Lalsaheb, Badalsingh and Kaptansingh and Mulla came to the spot and Diwansingh fired his gun and shot Toransingh dead. After this at Lalsaheb's instance Sardarsingh took aim at Shamlal and fired hie gun but missed him. Aman, Shamlal etc. who were standing ran away. Lalsaheb gave a sword blow to Raisalal, who was running away. The blow only caused a slight abrasion on the shoulder. A report was lodged at the police station Pachhar. Alter investigation the police challaned the accused under Section 292 read with Section 135, Gwalior Penal Code. The committing Mag. framed a charge against Lalsaheb, Sardarsingh, Kaptansingh, Badalaingh and Mulla under Sections 148, 302 and 307, Penal Code, and against Randhirsingh under S. 109, Penal Coda. The learned Sea. J. convicted Sardarsingh under Section 148 and sentenced him to one year's R. I, and also convicted him under Section 307, I. P. C. and sentenced him to three years R. I. He convicted Lalsaheb under Section 148, Penal Code, and sentenced him to one year's E. I. and also under Section 334 and sentenced him to three months' R, I. He also ordered in the case of both the accused that both the sentences were to run concurrently. He convicted Kaptansingh and Badalsingh and Mulla only under Section 148, Penal Code and sentenced them to three months' R. I. All the five accused were acquitted of the other offences with which they were charged. He a so acquitted Randhirsingh. Against this order Sardarsingh, Lalsabeb, Kaptansingh, Badalsingh and Mulla have filed an appeal in this Ct. which is Cr. App. no. 25 of 1950, The state has also filed an appeal against Sardargingh, Lalsaheb, Kaptansingh. Badalsingh and Mulla to set aside the order of acquittal.
(2.)FROM the facts stated above, it is clear that Sardar Singh was convicted under Section 307, Penal Code, for his individual act of firing a gun at Shamlal. The Ses. J. also convicted Lalsaheb under Section 324, I. P. C. for his individual act of giving a blow to Raiselal, As already stated all the accused except Randhir Singh were charged with offences under Ss 302 and 307 read with Section 148, I. P. C. It is difficult to see why they were charged with an offence under Section 148. Section 148 is only an aggravated from (sic) rioting and is applicable only to those persons, who being armed with a deadly weapon or any thing which used as a weapon, is likely to cause death, participate in rioting it appears from the evidence on record that Sar arsingh had a gun and Lalsaheb had a sword, But all the others has only lathis. It does not appear from the judgment of the learned Sea, J. that Kaptansingh, Badalsingh and Mulla had such Lathis which, used as a weapon of Hence, were likely to cause death. The charge mentions three offences under Sections 148, 302 and 307 against all the five applts. In other words, the committing Mag. sought to impose constructive liability for the acts committed by Diwansingh, Sardarsingh and Lalsaheb. If that be the case, the proper section to apply was Sections 149, 302 and 307. But that section has not been applied. The charge states that the accused applts. participated in an unlawful assembly. If that was the case, then the accused should have been charged with an offence under Section 142, I. P. C. The charge also fails to mention what the common object of the assembly was. Curiously enough the Ses. J. also does not give a clear finding with regard to the common object. As the charge did not specify the common object the parties might have been misled in producing the evidence. This defect in the charge, in my judgment, vitiates the trial. Section 537, Cr. P. C. , no doubt lays down that error or omission in the charge cannot vitiate the trial unless it occasions a failure of justice. A charge which does not mention the common object and fixes liability of the accused under wrong section is bound to mislead the accused in their defence. Vide, Poresh Nath v. Emperor, 33 Cal. 295: (2 Cr. L. J. 516); Sabir v. Queen Empress, as Cal. 276.
(3.)THE learned Sea. J. has convicted Sardarsingh under Section 307, I. P. C. , and Lalsaheb under Section 324, I. P. C. for their individual acts. This is also illegal. Both these accused were charged under Sections 302 307 read with Section 148, I. P. C. In other words, they were charged with the said offences not for their own individual acts but for the acts done by others. The liability imposed on them was constructive. In these circumstances they cannot be convicted for their individual acts under Sections 307 and 324, I. P. C. , because they are not charged with these offences and they are not minors to or included in a charge under Section 148/307 and 148/303, I. P. C. : Vide Panahu Das v. Emperor, 34 Cal. 698: (5 Cr. L. J 427) and Dasarath Mandal v. Emperor, 34 Cal. 325: (5 Cr. L. J. 424) and Bijo Gope v. Emperor A. I. R. (32) 1940 pat. 376: (47 Cr. L. J. 691 ).