- (1.) THIS is a revision against the decision of the learned Sessions Judge, Bharatpur, dated 31st of July, 1953, by which he altered the conviction of the petitioners Gaddar and Ramhet from one under section 147 of the Indian Penal Code, and reduced the sentence from three months' rigorous imprisonment to a fine of Rs. 25/- each.
(2.) THE case for the prosecution is very simple. THE complaint Behari Lal had his cattle tied on a plot of land which belonged to him. Chajju came some time later, and after untying the cattle of Behari Lal, tied his own cattle at the spot. When Behari Lal came, he untied Chajju's cattle and again tied his own. This led to a verbal alteration between Behari Lal and Chajju, and Chajju told Behari Lal that he would be made to suffer the consequences for the quarrel. About an hour later Chajju is alleged to have come with more than 20 persons, including the petitioner Gaddar and Ramhet, and gave a beating to Behari Lal and some others who were there. A report was made to the police, and 22 persons were challaned, and while some were discharged, the trial proceeded against five persons, and while the rest were acquitted, Gaddar and Ramhet were convicted under section 148 of the Indian Penal Code, and sentenced to three months' rigorous imprisonment. THEy, were also convicted for an offence under sec. 323 of the Indian Penal Code, and sentenced to one month's rigorous imprisonment. THE sentences were to run consecutively. On appeal, a compromise was filed by the complainant on the charge under section 323 of the Indian Penal Code, and the petitioners were acquitted. THE other conviction under section 148 was altered, and sentence reduced, as above Learned counsel for the petitioners argued that the charge in this case was not properly made out, as the common object of unlawful assembly was not mentioned in it. He relied on Allah Dad vs. Emperor (1), where a defect of this sort in the charge was stated to be sufficient for the acquittal of the accused. On going through the report it seems that the accused in that case were acquitted on another ground as well, and this particular defect was mentioned as an additional ground for coming to the same conclusion. On the other hand there is ample authority for the proposition that an omission to mention common object in the charge does not vitiate the trial or render the conviction bad, and it is necessary to see in each case whether or not the accused had been misled by the omission, and the omission has caused a failure of justice. It was held in Kudrutulla vs. Emperor (2 ). that omission to state the common object of the assembly in the charge did not vitiate a conviction if there was evidence on the record to show it. The earlier case of Basiruddin vs. Queen Empress (3) was referred to. In Yashvant Satva Chaugule vs. Emperor (4), Macleod C. J. and Crump J. held that where the common object of an unlawful assembly was specified in the complaint and found by the court, its omission in the charge did no vitiate trial. In Bishnath vs. King Emperor (5) it was held that failure to specify the common object in a charge under sec. 147 of the Indian Penal Code was only an irregularity covered by sec. 537 of the Code of Criminal Proce-dure. In order to find whether the accused had been prejudiced a good test would be to see whether the accused had no notice during the trial of the case of the prosecution as to the common object so as to enable them to meet it in their defence and in cross-examination. In this case, the common object which has been proved in that the account, along with others came with the object of causing hurt to Behari Lal. This has been mentioned not only in the statement of several witnesses, but definite question were put to the accused asking them to explain if they had formed an unlawful assembly with the common object of causing hurt to Behari Lal. The accused of course gave the answers in the negative. The main prosecution story that Chajju gave a challenge to Beharilal and came with others some time later and assaulted Beharilal and his companions leave no room to doubt that the prosecution case as developed from the very beginning gave notice to the accused that they were being called upon to answer the charge under sec 147 along with the charge under sec. 323 of the Indian Penal Code In the circumstances of this case no prejudice has been caused to the accused by the omission of the mention of the particular common object in the charge, and the contention raised by learned counsel has no force, It was next contended that one witness Dr. Katare, was examined at the end of the defence for the purpose of proving injuries alleged to have been caused to Behari Lal and Gyasi, and the accused were neither questioned under sec. 342 Cr. P. C. after the statement of the doctor had been recorded nor were they given further chance for leading defence the procedure adopted by the Magistrate was certainly bad, but nothing turns on this because the conviction under sec. 323 of the Indian Penal Code has already been set aside by the compromise, and that was the charge which the Medical Officer had tried to prove. It was next contended that out of the 22 persons who had been challaned only two persons had been convicted, and it could not, therefore, be said that there were more than five persons involved in the offence so as to make applicability of sec. 147 of the Penal Code possible, one finding of the trial court was that 18 persons formed into an unlawful assembly including the petitioners, who had come with the common object of assaulting Behari Lal and some of the members caused hurt to Behari Lal and Gyasi. It is a matter of surprise that in the fact of that finding the learned Magistrate acquitted 3 of the companions of the petitioners, who, according to him had taken part in the riot. Be that as it may, the finding being that more than five person formed into unlawful assembly, and committed riot, it is immaterial that the petitoners happened to be convicted, while others were acquitted. This revision has no force, and his accordingly dismissed. . ;