1. The petitioners have been sentenced: petitioner 1 to six months rigorous imprisonment under Section 325 I.P.C., and petitioners 2, 3 and 4 to four months' rigorous imprisonment under Section 324, I.P.C.
2. They were originally charged generally that some one or other of them caused the hurt, and all were guilty by reason of Section 14.9, I.P.C. from the fact that they were rioting and the hurt was likely to be committed in prosecution of their common object.
3. The appellate Court has found that they did not riot and had no common object and then proceeds to find them severally guilty of grievous or simple hurt. A man cannot be convicted of hurt unless he is charged with hurt. AS the charge stood accused were not in the least concerned in sifting who caused each particular injury; for all wore to be held liable for the act of each. Therefore it cannot be said that the omission to frame a direct charge occasioned no failure of justice. Theethumalai Gounder v. Emperor A.I.R. 1925 Mad. 1 is distinguishable. There the accused were charged under Sections 326 and 149, I.P.C. and could have been convicted under these sections, but the Judge convicted under Section 326 alone. But here the accused could not be convicted under Section 149. The case bearing more closely upon the present case is Abhi Misser v. Lachmi Narain  27 Cal. 566, I.L.R. 27 Cal. 566 which is affirmed in Theethumalai Gounder v. Emperor A.I.R. 1925 Mad. 1.
4. The petition must be allowed and petitioners acquitted. Their bail is released.