1. The appellants, Puttu Lai and His brother, Lain Earn, residents of village Dhai, P. 8. Kalan, were committed to session, charged under Sections 304, read with Section 34, Penal Code. Before the commencement of the trial in the Court of session, a charge under Section 342, I. P. C., was also framed against the appellants. The Sessions Judge of Shahjahan pur, who tried the case, found (the appellants guilty under Sections 325 and 843 read with Section 34, I. P. 0. and convicted them accordingly. Each of them was sentenced to rigorous imprisonment for three years under Section 325, I. P. 0., and for one year under Section 342, I. P. 0.
2. The appellants are Mahabrahmana. A fortnight before the occurrence, Lala Ram appellant had gone to collect jajmani dues from his clients. He had taken Bam Chandar with him. While they were staying at village Saidapur, Bam Chandar stole Bs. 30 belonging to Lala Ram and disappeared. When Lai Ram return. ed to his village, on 19 5 1946, he along with the other appellant, Puttu Lai, went to the house of Ram Chandar, charged him with theft and asked for the return of his money. Ram Chandr denied having stolen the money and refused to pay anything. The intervention of the village patwari proved ineffectual. The appellants then took Bam Chandar to their house, beating him on the way. Earn Chandar's mother and certain other persons asked the appellants to release Bam Chandar, but they refused to do so unless he returned the money. The appellants then confined Ram Chandar inside their house and chained it from outside. Earn Chandar's mother proceeded to make a report at the police station. The appellants went after her, brought her back and gave a few slaps on her face. Ajodhi and others arrived on the scene. When Ajodhi asked the appellants not to beat the woman, they struck him with lathis and he fell down. He died after a few days on the 28th May 1946.
3. The learned Sessions Judge found that the appellants had wrongfully confined Bam Chandar and had given a beating to Ajodhi with. lathis. He further found that the appellants common intention was to cause grievous hurt to Ajodhi and not to inflict such bodily injuries as were likely to cause his death.
4. The learned Counsel for the appellants has not challenged the findings recorded by the trial Court; and in my opinion, the findings are correct. It has, however, been contended that OS the facts proved, in the absence of any evidence to show as to who had caused the grievoua hurt, the appellants could not have been convicted under Section 325,1. P. C. Reliance has been placed upon the ruling reported in Dipa v. Emperor 1947 A. L. J. E. 208 (A.I.R. (34) 1947 ALL. 408: 48 Cr. L. J. 858). That ruling, however, has application to a case to which the provisions of Section 84 or Section 149,1. P. C, can be made applicable. In the present case, the trial Court found that the appellants had acted in furtherance of a common intention and the provisions of Section 34, Penal Code, were applied; while in Dipa's case : 1947 A.L. J. E. 208: A. I. R. (84) 1947 ALL. 408: 48 Cr, L. J. 858) the said provisions were held to be inapplicable. The appellants having acted in furtherance of a common intention, both of them were equally responsible.
5. The appellants' learned Counsel has further contended that as the appellants were committed to session for trial under Section 804, Penal Code, the Sessions Judge had no power to add a new charge under S 342, Penal Code. The contention appears to be based on a decision of this Court under the old Code of Criminal Procedure, reports in Queen-Empress v. Kharga and Ors., 8 ALL. 665 In that case in some-what similar circumstances it was doubted whether the Sessions Judge could add a new charge. The provisions of S 226 of the Code of 1889 were similar to those of 3. 226 of the Code of 1898, now in force except in so far that in the present Code we find three illustrations appended to Section 226. Illustration 2 clearly goes to show that a Court of Session has power to add a new charge. If the evidence produced in the Court of the committing Magistrate and the circumstances of the case justify the framing of a new charge, it can be added. In the circumstances of the pre-, sent case, the learned Sessions Judge was fully justified in adding the charge under Section 842.
6. I, therefore, see no reason to interfere with to the conviction of and the sentence imposed upon the appellants. The appeal is dismissed.