1. The three applicants, Bhurey Singh, Munshi Lal and Shankar Dayal, were convicted with three other persons by a special Magistrate of offences under Sections 147 and 325 read with Section 149 of the Penal Code. On appeal the Sessions Judge set aside the conviction of two accused with the result that the conviction under Section 147 could not be sustained, the Sessisons Judge not accepting the allegation that there were other persons also concerned in the affair who had not been brought to trial. The Sessions Judge accordingly converted the conviction of the three applicants to one under Section 325 read with Section 34, Penal Code. The application has been argued on two grounds. The first is that the Courts below were not justified in believing the witnesses as against some accused when they disbelieved them as against others. This ground is not infrequently put forward in applications of this kind, but it is not really a ground upon which a revision application can be founded. It is no doubt a valid ground in an appeal, It not infrequently happens in cases of this kind that a Court believes part of a witness's story as against certain accused while disbelieving another part of his evidence as against other accused. And no legal objection can be taken to this. The only valid legal ground is the second, that the Sessions Judge was not justified in transforming a conviction for rioting and an offence committed in the course of the riot into a conviction for an offence under Section 325 read with Section 34.
2. Learned Counsel for the applicants cited a single Judge case of this Court, Chheda Singh v. Emperor ('24) 1 A.I.R. 1924 All. 766. The facts there were rather different in that there had been no conviction for rioting. There had merely been a conviction under Section 323 and Section 34 had not been referred to in the charge. The learned Judge held that on this account Section 34 could not be taken into consideration. Another case cited was a case of the Calcutta High Court, Panchu Das v. Emperor ('07) 34 Cal. 698. In that case the charge was a charge of rioting and of offences committed in the course of the rioting. The conviction was under Section 325 only. Section 34 is not referred to in the judgment. Apparently no case of this Court on the point has been reported since that in Chheda Singh v. Emperor ('24) 1 A.I.R. 1924 All. 766 but so far as I am aware the recent trend of legal opinion has been that it is permissible for an appellate Court, where the number of persons found on appeal to have been concerned does not justify a conviction for rioting and offences committed in the course of a riot, to convict for such other offences as are proved to have been committed. And in determining what offence has been committed it is permissible to invoke the provisions of Section 84, Penal Code, though that section has not been referred to in the charge. As the section merely enunciates a principle of law, there is no necessity for reference to be made to it in the charge. It seems to me, therefore, that the cases cited cannot be followed and would not generally be accepted at present as good law. It is a matter of personal experience that the law as propounded in these cases has not been followed in numerous cases by this and other Courts. I can, therefore, see no reason to allow the application on this ground. It may perhaps be desirable to add that a different view might be taken if it was possible for the accused to show that they had been prejudiced by such a transformation of the case against them, but in most cases I think it would not be possible for them to show this. There has been at least no suggestion of: prejudice in the present case. The application is accordingly dismissed.