JUDGMENT : SHINDE, J. 1. These two appeals arise out of the judgment and order of the Ses. J. Guna. The facts of this case are as follows. Randhirsingh, his four sons Sardarsingh, Lalsaheb, Kaptansingh, Badalsingh and Mulla and Diwansingh, who is absconding, were on inimical terms with the Congress Committee in the village of Barodia. On 16-6-1948, Toransingh deceased, Aman Shamlal and Bhawarlal went to Pachhar to institute proceedings for taking security to keep the peace from the accused. On the morning of 17-6-1948 Aman, Shamlal, Bhawarlal, Diwansingh and Raiselal were standing on the Chabutra where Congress flag was flying. Suddenly Toransingh came to the spot in a frightened condition and told them that the accused were pursuing him to beat him. In the meantime, Diwansingh, Sardarsingh, Lalsaheb, Badalsingh and Kaptansingh and Mulla came to the spot and Diwansingh fired his gun and shot Toransingh dead. After this at Lalsaheb's instance Sardarsingh took aim at Shamlal and fired his gun but missed him. Aman, Shamlal etc. who were standing ran away. Lalsaheb gave a sword blow to Raiselal, who was running away. The blow only caused a slight abrasion on the shoulder. A report was lodged at the police station Pachhar. After investigation the police challaned the accused under S. 292 read with S. 135, Gwalior Penal Code. The committing Mag. framed a charge against Lalsaheb, Sardarsingh, Kaptansingh, Badalsingh and Mulla under Ss. 148, 302 and 307, Penal Code, and against Randhirsingh under S. 109, Penal Code. The learned Ses. J. convicted Sardarsingh under S. 148 and sentenced him to one year's R. I. and also convicted him under S. 307, I. P. C. and sentenced him to three years R. I. He convicted Lalsaheb under S. 148, Penal Code, and sentenced him to one year's R. I. and also under S. 324 and sentenced him to three months' R. I. He also ordered in the case of both the accused that both the sentences were to run concurrently. He convicted Kaptansingh and Badalsingh and Mulla only under S. 148, Penal Code and sentenced them to three months' R. I. All the five accused were acquitted of the other offences with which they were charged. He also acquitted Randhiraingh. Against this order Sardarsingh, Lalsaheb, Kaptansingh, Badalsingh and Mulla have filed an appeal in this Ct. which is Cr. App. No. 25 of 1950. He also acquitted Randhiraingh. Against this order Sardarsingh, Lalsaheb, Kaptansingh, Badalsingh and Mulla have filed an appeal in this Ct. which is Cr. App. No. 25 of 1950. The state has also filed an appeal against Sardarsingh, Lalsaheb, Kaptansingh, Badalsingh and Mulla to set aside the order of acquittal. 2. From the facts stated above, it is clear that Sardar Singh was convicted under S. 307, Penal Code, for his individual act of firing a gun at Shamlal. The Ses. J. also convicted Lalsaheb under S. 324, I. P. C., for his individual act of giving a blow to Raiselal. As already stated all the accused except Randhir Singh were charged with offences under Ss. 302 and 307 read with S. 148, I. P. C. It is difficult to see why they were charged with an offence under S. 148. Section 148 is only an aggravated from (sic) rioting and is applicable only to those persons, who being armed with a deadly weapon or any thing which used as a weapon, is likely to cause death, participate in rioting, it appears from the evidence on record that Sardarsingh had a gun and Lalsaheb had a sword. But all the others had only lathis. It does not appear from the judgment of the learned Ses. J. that Kaptansingh, Badalsingh and Mulla had such Lathis which, used as a weapon of offence, were likely to cause death. The charge mentions three offences under Ss. 149, 302 and 307 against all the five applts. In other words, the committing Mag. sought to impose constructive liability for the acts committed by Diwansingh, Sardarsingh and Lalsaheb. If that be the case the proper section to apply was Ss. 149, 302 and 307. But that section has not been applied. The charge states that the accused applts. participated in an unlawful assembly. If that was the case, then the accused should have been charged with an offence under S. 142, I. P. C. The charge also fails to mention what the common object of the assembly was. Curiously enough the Ses. J. also does not give a clear finding with regard to the common object. As the charge did not specify the common object the parties might have been misled in producing the evidence. This defect in the charge, in my judgment, vitiates the trial. Section 537, Cr. Curiously enough the Ses. J. also does not give a clear finding with regard to the common object. As the charge did not specify the common object the parties might have been misled in producing the evidence. This defect in the charge, in my judgment, vitiates the trial. Section 537, Cr. P. C. no doubt lays down that error or omission in the charge cannot vitiate the trial unless it occasions a failure of justice. A charge which does not mention the common object and fixes liability of the accused under wrong section is bound to mislead the accused in their defence. Vide, Poresh Nath v. Emperor, 33 Cal. 295 : (a Cr. L. J. 516); Sabir v. Queen Empress, 22 Cal. 276. 3. The learned Ses. j. has convicted Sardarsingh under S. 307, I. P. C., and Lalsaheb under S. 324, I. P. C. for their individual acts. This is also illegal. Both these accused were charged under Ss. 302, 307 read with S. 148, I. P. C. In other words, they were charged with the said offences not for their own individual acts but for the acts done by others. The liability imposed on them was constructive. In these circumstances they cannot be convicted for their individual acts under Ss. 307 and 324, I.P.C., because they are not charged with these offences and they are not minors to or included in a charge under S. 148/307 and 148/302, I. P. C. : Vide Panchu Das v. Emperor, 34 Cal. 698 : (5 Cr. L. J. 427) and Dasarath Mandal v. Emperor, 34 Cal. 325 : (5 Cr. L. J. 424) and Bijo Gope v. Emperor, a.i.r. (32) 1946 Pat. 376 : (47 Cr. L. J. 691). 4. For the reasons given above, we are of the opinion that it is a fit case for retrial under S. 232, Cr. P. C. We, therefore, allow the appeal of the accused and set aside the order of conviction and sentence passed by the learned Ses. J. We also allow the appeal of the State and set aside the order of acquittal of Sardarsingh, Lalsaheb, Kaptansingh, Badalsingh and Mulla and direct that the Ses J. should alter the charge suitably in the light of Ss. 233 and 239, Cr. P. C. and following the provisions of S. 231, Cr. P. C. try the case according to law. 5. 233 and 239, Cr. P. C. and following the provisions of S. 231, Cr. P. C. try the case according to law. 5. Dixit, J. :-I agree that considering the evidence on the record and the charge framed against the applt. that Sardarsingh, Lalsaheb, Kaptansingh, Badalsingh, and Mulla should ba retried for the offence under S. 148, I. P. C. and for offences under Rs. 302 and 307 read with S. 149, I. P. C. The committing Mag. framed a single charge against all the applts. under Ss. 148, 302 and 307, I. P. C. and on this charge the applts. were tried by the Ses. J. Guna. This charge is defective for more than one reason. Apart from the fact that separate charges should have been framed against each of the accused, the common object of the unlawful assembly should have been specifically stated in the charge and it should have been made clear therein whether the accused persons were being made liable constructively or individually for the offences under Ss. 302 and 307. The charge omits to mention the common object and although it purports to make the applts. constructively liable for offences under Ss. 302 and 307, it does not at all contain any particulars to show whether this constructive liability was being fastened on them, under S. 34, I. P. C., or under S. 149, I. P. C. The failure of the learned Ses. j. to notice these defects before the commencement of the trial has led him to arrive at the inconsistent finding of convicting the above named applts., under S. 148, I. P. C. and acquitting them of the offences said to have been committed in prosecution of the common object of the assembly on the ground that the common object to commit murder is not proved. The learned Ses. J. should have also noted the fact that the applts. Sardarsingh and Lal Saheb could not be held guilty for their individual acts under Ss. 307, 324, I. P. C. when they were not so charged and sought to be made liable for their individual acts. If it was doubtful whether any of the applts. was liable for any offence constructively or individually he should have been charged for that offence firstly constructively and in the alternative individually. The conviction and sentences imposed on the applts. If it was doubtful whether any of the applts. was liable for any offence constructively or individually he should have been charged for that offence firstly constructively and in the alternative individually. The conviction and sentences imposed on the applts. Sardarsingh, Lalsaheb Kaptansingh, Badalsingh, and Mulla must, therefore, be quashed and the Ses. J-must retry them after suitably framing charges in the light of these defects and bearing in mind the provisions of S. 231, Cr. P. C.