Chandra Reddy, J.
1. The six appellants along with 27 others were tried by the Sessions Judge, Cuddapah on various counts in connection with a rioting that took place in a village called Parlapad, Cuddapah District on 26-1-1954. The Sessions Judge found all the appellants guilty under Section 148, Penal Code, and Sentenced them rigorous imprisonment for one year ment for one year. In addition, he also found them guilty under Section 326, Penal Code, and sentenced them to rigorous imprisonment for three years with a direction that the sentences should run concurrently.
2. The prosecution case in brief is this. On the critical day, P. W. 1 was passing by the house of 1st accused by about 5 P.M. The 1st accused suddenly caught his neck and shouted out when all the other accused gathered there. P. W. 1 freed himself and tried to escape but he was chased and all the appellants instigated by the 1st accused speared him on various parts of his body. Pws. 2 and 3, his brothers, who intervened also received the same treatment. The next morning a report was sent by the village Munsiff to the police with regard to this incident.
3. The prosecution case is supported by the evidence of P. Ws. 1 to 3. P. W. 1 stated that there was a land dispute between him and 1st accused and this led to two factions in the village, all the accused siding 1st accused, and some of the villagers taking the side of P. W. 1. On 26-1-1954, when he was passing on the road near the house of the 1st accused, 1st accused caught his neck, abused him in vulgar language and then shouted out when all the other accused gathered there, some of them armed with spears, hatchets and others with sticks and guns.
Meanwhile, he got himself realised from the hold of the 1st accused and began to run towards his house, but all the accused chased him and before he could enter the house he was beaten with a hatchet by the 3rd accused on the left side of the forehead, accused 2 speared him on the left side of the back, while accused 11 speared him near the right arm-pit on the outer part, and accused 12 struck him with a stick on the right knee.
At that time P. Ws. 2 and 3, his brothers, appeared on the scene and tried to prevent the assailants from beating P. W. 1 further. They were also attacked. 22nd accused wounded P. W. 2 with a spear on the left flank, while 9th accused stabbed P. W. 3 on the right upper arm with a spear and accused 4 beat him with a stick on the dersum of the right hand. Some of the other accused also caused some injuries to either one or other of P. Ws. 1 to 3. Thereupon, the witness and P. Ws. 2 and 3 ran into their house and bolted the door from inside.
Thereafter their father returned home and seeing the state of affairs fetched the village munsiff at about midnight to whom a report was given. P Ws 2 and 3 support in general, P. W. 1 with regard to the attack on all the three. There are some variations, but that is only with regard to the details such as the part played by each of the accused, and it is not necessary to set out their evidence especially having regard to the contentions urged in this appeal.
4. The plea of the accused in the lower court was one of denial.
5. The lower Court believed P. Ws. 1, 2 and 3 and convicted only such of the accused to whom overt acts were attributed and against whom at least two witnesses spoke. As regards A-l, in his view, his presence at the place of offence was doubtful having regard to the admissions made by the witnesses that his right hand could not be freely used by reason of his having received a gun shot wound 10 years before. So he was acquitted.
According to the learned Judge, the prosecution party attacked the accused's party earlier and wounded accused 1, 4, 5 and 7 and killed one Konda Reddi. Infuriated by this, all the appellants along with some of their partisans formed themselves into an unlawful assembly with the common object of beating these three witnesses and in pursuance of that object belaboured P. Ws. 1 to 3.
6. In this appeal, two points are urged by Mr. Ramaiinga Reddi, (1) that the appellants acted in the exercise of the right of private defence and (2) that the convictions of the appellants under Section 326, Penal Code, are unsustainable as the charges against them were under Section 307 read with either Section 149 or Section 34 Penal Code.
7. On the first point the argument was that in view of the findings of the learned Judge that the accused and their partymen were first attacked by the prosecution party, the learned Judge should have held that the appellants were acting in the exercise of the right of private defence. It was maintained by him that the accused other than those injured rushed to the rescue of persons Who were being attacked by the prosecution party, and in the fight that ensued the injuries on P. Ws. 1 to 3 were inflicted, and only so much force as was necessitated by the circumstances was used by them.
It is difficult to accept this theory. Not a suggestion was made to any of the prosecution witnesses that the appellants other than accused 1 and 4 came on the scene only to help accused 1, 4, 5, 7 and Konda Reddi, That part, there does not seem to be any basis for the plea of the right of private defence. In the lower court, the accused other than accused 1, 4, 5 and 7 pleaded complete ignorance of the occurrence.
In fact, some of them set up 'Alibi'. There is nothing to show that the other accused came to the place on hearing the cries of the victims of the attack by the prosecution party. The surrounding circumstances and the evidence of P. Ws. 1 to 3 clearly support the conclusion of the learned Judge that it is by way of reprisal that the faction of the accused attacked P. Ws. 1 to 3. No foundation at all was laid for this defence of right of private defence.
The learned Judge has acted on the evidence of P. W. 1 only to the extent that all the three Witnesses spoke against any particular accused who is alleged to have played a definite part in the melee.
8. But with regard to the 4th accused, there seems to be force in the submission of Mr. Ramalinga Reddi that he was not likely to have taken part in the rioting having regard to the fact that he was grievously injured shortly before this occurrence. Exhibit P-8, the wound certificate granted to this accused reveals three injuries, (1) an incised wound on the anterior 'lateral aspect of lower end. of right arm 2J' X 1 1/2' X 3' ; (2) an incised wound on the posterior aspect of middle of right arm 2' X 1' X 3' on discommunication with wound No. 1; and (3) on relating to wound muscle fibers on the posterior aspect of right arm here found out 1 1/2' X 1' X 3/4'.
The opinion of the Doctor was that injuries. Nos. 1 and 2 were grievous in nature. It is not likely that the physical condition of this accused after being wounded thus would have been such as to enable him to participate in the riot. The learned Sessions Judge has not considered this aspect of the matter. The criticism levelled by him against the prosecution case so far as 1st accused is concerned applies with equal force to this accused also. In my opinion, therefore, this accused should be given the benefit of doubt.
9. As regards the other accused, I agree with the Sessions Judge that the charge under Section 148. Penal Code, has been made out against them all and their convictions and sentences in respect of Section 148, Penal Code, are confirmed.
10. On the second question, it was contended that the convictions of the appellants under Section 326, I. P. C. are unsustainable because the charges were either under Section 307 read with Section 34, I. P. C. The foundation for this argument is a ruling of the Supreme Court in Nanak Chand v. State of Punjab (S) : 1955CriLJ721 (A). There, the charges against the appellant, who was tried along with a number of others, were under Sections 148 and 302 read with Section 149, I. P. C.
The Sessions Judge convicted the appellant and : three others under Section 302 read with Section 34, I. P. C. On appeal by three of the accused, the High Court acquitted two of the accused and confirmed only the convictions of the appellant for murder. Section 34 I. P. C. had to be deleted because there was only one person who was convicted by the High Court.
On further appeal to the Supreme Court, the point debated was whether the appellant could be convicted under Section 302 I. P. C. when originally the charge framed against him as one under Section 302 read with Section 149 I. P. C. The Supreme Court decided that it was not permissible to do so because a person could not be convicted of an offence with which he was not charged and that the provisions of Section 236, Criminal P. C. could not be attracted to a case of that type.
11. That decision does not furnish any assistance in the present case. When a person is charged with an offence read with Section 149, I. P. C. he is only put on notice of two facts that he was a member of unlawful assembly, and that an offence was committed in prosecution of the common object or he knew that an offence was likely to be committed. He is therefore called upon to meet only the points mentioned above, and is not called upon to show that he has not committed any individual act.
Section 149 I. P, C. creates a distinct offence, at any rate, a distinct head of liability. So a person charged with constructive liability cannot be convicted for a substantive offence. It is not the case with Section 34, I.P.C. which does not purport to create an offence, but only lays down a rule of law.
12. This distinction is well brought out, if I may say so with respect, by the Privy Council in Barendra Kumar v. Emperor AIR 1925 PC 1 (B), at page 7, the principle is stated by Their Lordships in the following words:
There is difference between object and intention for though their object is common, the intentions of the several members may differ and indeed may be similar only in respect that they are all unlawful, while the element of participation in action which is the leading feature of Section 34 is replaced in Section 149 by membership of the assembly at the time of the committing of the offence.
Both sections deal with combinations of persons, who become punishable as sharers in an offence. Thus they have a certain resemblance and may to some extent overlap, but Section 149 cannot at any rate relegate Section 34 to the position of dealing only with joint action by the commission of identically similar criminal acts, a kind of case which is not in itself deserving of separate treatment at all.
Those observations are extracted by Imam J. in (S) : 1955CriLJ721 (A). It is seen that the reason of the rule is that the accused is very much prejudiced when he is convicted for substantive offence without a specific charge because his attention is not focussed on any individual act. But the position is different when a person is charged with an offence read with Indian Penal Code. Overt acts are attributed to the accused and they have opportunities of meeting that case. Consequently, the conviction for the substantive offence does not occasion any prejudice to the accused.
13. In this particular case, there is one charge under S 307 read with Section 149 I. P. C. but the appellants have been acquitted of that charge. In regard to other charges which are called in question, there is no scope for any complaint of prejudice because the specific act committed by each of them is mentioned in the charge. Section 307 was invoked as the resultant of the acts of the persons charged as the attempt to murder the victim. Each one of the appellants knew the act, that is ascribed to him. The weapon used by him and the injury caused by him are also specified in the charge.
There can therefore be no basis for the complaint that any of the appellants has in any way been prejudiced by lack of a specific charge for a substantive offence. To the extent it is proved that a particular accused wounded any one he can certainly be convicted of that substantive offence. The power of the court to convict the appellants under S 326 while the charge is under Section 307 is not disputed. For these reasons, the contention based on the ruling of the Supreme Court in : 1955CriLJ721 , fails and is rejected.
14. This leads me to the point whether the evidence on record warrants the conviction of the appellants 1 and 3 to 6 under Section 326 I. P. C. It looks to me that the conviction of appellants 3 to 6 under S 326 I P. C. is unsustainable. The opinion of the doctor is that wounds caused by those accused were of a simple nature.
No grievous hurt is attributed to any of these appellants. Since they caused simple hurt with a deadly weapon the conviction could only be for an offence under S 324, I. P. C. Thus the conviction of appellants 3 to 6 has to be altered into one under Section 324 and their sentences reduced to 18 months' rigorous imprisonment.
15. As regards A-3 (1st appellant) on the evidence of P Ws. 1 to 3 and the doctor, P. W. 4, there can be little doubt that he caused grievous hurt to P W. 1. In the circumstances, his conviction has to be' upheld. The sentence of three years' imprisonment cannot be said to be excessive.
16. For the reasons already mentioned, A-4 is acquitted and the conviction of the other appellants under Section 148 and that of A-3 under Section 326 I. P. C. are confirmed. The conviction of appellants 3 to 6 is converted into one under Section 324 I. P. C. and the sentence reduced to 18 months' rigorous imprisonment. The sentences will run concurrently.