JUDGMENT 1. The Petitioners in this case, 4 in number, were charged under sec. 147, I. P. C., with rioting. The charge upon which they were tried, did not set out the common object of the unlawful assembly but merely alleged that the accused committed "rioting--an offence punishable under sec 147, I.P.C." It has been found by the Magistrate that the alleged disturbance arose out of a quarrel between Musamat Rupia and the complainant on the previous days, that the Petitioners took the part of Musamat Rupia, and that they entered the complainant's house with the object of beating her. As to what took place then, the Magistrate has found that the Petitioner Budhu gave orders to the other accused to beat the complainant; that the Petitioners Buluk and Menea give the complainant 2 or 3 blows with lathis and the Petitioner Gopal pulled off her clothes and threw her down, while Musamat Rupia dragged her by the hair and that the accused (it is not mentioned which) used a good deal of force against her. The Petitioners were sentenced to rigorous imprisonment for a period of 3 months each and Musamat Rupia was fined Rs. 30, or in default to be rigorously imprisoned for 1 month. The Appellate Court has upheld the convictions and sentences. 2. A rule was granted by this Court to show cause why the conviction and sentence passed on the Petitioners should not be set aside on the ground that the charge did not set out the common object of the unlawful assembly of which the Petitioners were found to be members. 3. Sub-sec. 2 of sec. 221, Cr.P.C., directs that if the law which creates the offence gives it any specific name, the offence may be described in the charge by that name only; and sec. 225, Cr.P.C., lays clown that no error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice. 4. It has been held in a number of cases in this Court that it is necessary that the common object, where there is a charge of rioting under sec. 4. It has been held in a number of cases in this Court that it is necessary that the common object, where there is a charge of rioting under sec. 147, should be stated; and in some cases where the common object has not been stated and there has been a conviction, the conviction has been set aside. 5. We agree that, in all cases in which there is a charge under sec. 147, the common object ought to be stated. But we are not prepared to say that, where the common object is not stated and a conviction has been had upon the charge, the conviction is necessarily bad. It is necessary to see whether or not the accused has been misled by the omission and the omission has caused a failure of justice. 6. In the present case there is a finding by the Magistrate against each of the accused, as has already been pointed out; and it the finding be correct, there can be no doubt at all that each one of the Petitioners took a very active part in the outrage upon the complainant. 7. The Sessions Judge in his judgment has stated that "there never was any doubt as to what the prosecution alleged the common object to be" and has expressed an opinion that "the conviction might be altered to one under sec 323 without in any way prejudicing the accused." 8. Had there been no clear finding by the Magistrate as to the part which each took in the attack upon the complainant, the case would have been different. 9. In a trial upon a charge properly framed under sec. 117 where an assault has followed whoever took part in the unlawful assembly would be liable for the acts proved to have been committed by the others in furtherance of the common object whereas in a trial upon a charge under sec. 323 of the Penal Code it is necessary to prove the part which each person took in the transaction. The grounds of defence, therefore, in the two cases stated might be different. In the former case if the unlawful assembly were established it would be useless to show that individuals, beyond being present, did not take any active part in the assault which followed. The grounds of defence, therefore, in the two cases stated might be different. In the former case if the unlawful assembly were established it would be useless to show that individuals, beyond being present, did not take any active part in the assault which followed. But in the latter case it would be open by cross-examination or otherwise to show that particular individuals took no part in the assault. 10. In the present case however the facts are very simple and we think there can be no ground for thinking that the Petitioners were in any way misled. These are distinct findings as to the part which each took in the assault upon the complainant and in the circumstances of the case we consider that the Petitioners were not prejudiced by the omission to set out in the charge the common object of the assembly. We therefore discharge the rule.