JUDGMENT H.P. Asthana, J. - The Applicants Bhagwan Singh, Sardar Singh, Kishan Singh and Babu Singh, a long with one Nihal Singh, were charged Under Sections 148, 324, 325 and 326 I.P.C. read with Section 149 I.P.C. for forming an unlawful assembly with the common object of beating. Har Narain with deadly weapons and in prosecution of the aforesaid common object they caused grievous and simple injuries to him by lathis, pharsa and spear on the 22nd June, 1952 at 8 a.m. in village Digrauta, Police Station Khera Garha, in the district of Agra. Nihal Singh was given the benefit of doubt and acquitted as the charges were not proved against him. Sardar was convicted u/s 326 I.P.C. and was sentenced to 18 month's igorous imprisonment and a fine of Rs. 250. Bhagwan Singh was convicted u/s 324 I.P.C. and was sentenced to 9 month's rigorous imprisonment and a fine of Rs. 200 and in default of payment of fine to 3 Month's further rigorous imprisonment. Babu and Kishan Singh were convicted u/s 323 I.P.C. and they were each sentenced to a fine of Rs. 250 and in default of payment of fine to 3 month's rigorous imprisonment. They were all acquitted of the charges Under Sections 148 and 149 I.P.C. 2. The prosecution case was that on the 22nd June 1952 at about 8 a.m. in the morning Har Narain, who is a resident of village Digrauta, was going to Kagarol Seed Store for the payment of the price of seed which he had purchased from the said Seed Store; that when he reached near dhobi's gali he was surrounded by the applicants who were armed with pharsas, spears and lathis and they all started beating him. It was alleged that there was enmity between the complainant Har Narain and the accused Sardar because the latter's cattle had damaged the former's crop during the previous cold season and the other accused belonged to the party of Sardar. The first information report was made by Har Narain only against the accused Bhagwan Singh, Kishan Singh, Babu Singh and Sardar Singh. He subsequently filed a complaint implicating Nihal Singh also. After the necessary investigation the four accused against whom the report had been made by Har Narain were sent up for trial. Nihal Singh was also tried on the basis of the complaint which had been filed against him. 3. He subsequently filed a complaint implicating Nihal Singh also. After the necessary investigation the four accused against whom the report had been made by Har Narain were sent up for trial. Nihal Singh was also tried on the basis of the complaint which had been filed against him. 3. The accused denied that they had beaten the complainant Har Narain and stated that they had been falsely implicated on account of enmity. 4. The prosecution examined Har Narain, Jamuna Prasad, Roop Ram and Tula Ram, who are all eye-witnesses of the occurrence, in support of the case. Except Tula Ram, the other prosecution witnesses were named in the first information report. Besides these witnesses Dr. Mittal (P.W. 5) who examined the injuries of Har Narain, was also examined in the case and his evidence disclosed that Har Narain was examined on the 22nd June 1952; that he had 20 injuries on his person; that out of these injuries 6 were punctured wounds, 2 were incised wounds and that there were a number of contusions and bruises. The accused in their defence also examined several witnesses. Some of them deposed about alibi and some stated that the occurrence took place in a different manner than alleged by the prosecution. D.W. 1 Bahadur, D.W. 4 Bhola Singh and D.W. 5 Tunda deposed that Bahadur and Tunda were assaulted by Har Narain and his four companions with lathis because Bahadur and Tunda instisted on ploughing a certain plot of land against the wishes of Har Narain; that when these two persons were beaten they too in their self-defence beat Har Narain and inflicted a number of injuries on him. 5. Both the courts below after a consideration of the entire evidence did not accept the defence case that Har Narain had been beaten by Bahadur and Tunda in the manner alleged by them. They were of the opinion that the prosecution version was correct and that the complainant Har Narain had been beaten by the applicants on account of the previous enmity which existed between Har Narain and one of the applicants, namely, Sardar. The applicants were, therefore, convicted and sentenced as above. 6. They were of the opinion that the prosecution version was correct and that the complainant Har Narain had been beaten by the applicants on account of the previous enmity which existed between Har Narain and one of the applicants, namely, Sardar. The applicants were, therefore, convicted and sentenced as above. 6. It has been contended before me on behalf of the applicants that their conviction for the specific offences Under Sections 325, 324 and 323 I.P.C. was bad in absence of any direct and individual charges against them in respect of these specific offences. In support of the contention reliance has been placed on a decision of the Supreme Court in Suraj Pal v. State of Uttar Pradesh 1955 A.W.R. (H.C.) 365. In this case a number of accused were committed to Sessions by the Magistrate by framing charges Under Sections 147, 323/149, 307/149 and 302/149 I.P.C. There were no direct and individual charges against the accused for the specific offences Under Sections 307 and 302 I.P.C. The Sessions Judge found all the accused guilty of the various offences as charged and sentenced them. On appeal the High Court acquitted some of them and as regards one of the accused who was suspected of firing his pistol against the deceased, the High Court while setting aside the convictions and sentences of all the other accused Under Sections 307/149 and 302, convicted and sentenced him u/s 307 for transportation for life and to death u/s 302. It was held by the Supreme Court that there being no direct and individual charges against the accused for the specific offences Under Sections 307 and 302 I.P.C., the conviction and sentence Under Sections 307 and 302 I.P.C. could not be maintained because the absence of specific charges against the accused under these sections was a very serious lacuna in the proceedings and had materially prejudiced the accused. The facts of the case before me are very similar to this case of the Supreme Court. The facts of the case before me are very similar to this case of the Supreme Court. The only difference between the two cases is that in the case before me four out of the five accused have been convicted and sentenced, one u/s 325, another u/s 324 and two u/s 323 I.P.C. whereas in the case cited above only one of the accused was convicted and sentenced Under Sections 307 and 302 I.P.C. I, however, do not see any difference in the principle of the two cases. The underlying principle in the decision of the Supreme Court is that by virtue of the charge u/s 149 I.P.C. the accused were not called upon to meet the specific charges and they were liable for the offences by virtue of their being members of the unlawful assembly someone of which committed the various offences in prosecution of the common object of the assembly. If specific charges were framed against the accused persons for the different acts committed by them then they would have had an opportunity of meeting them and producing their evidence in rebuttal. In my opinion the above decision of the Supreme Court is applicable to the facts of the present case and in view of this decision the conviction of the applicants for the offences Under Sections 325, 324 and 323 I.P.C. cannot be maintained. 7. It has been contended for the prosecution that, the applicants could be convicted of the various offences with the aid of Section 34 IPC in spite of the fact that there was no charge under this section and they were charged with the aid of Section 149 IPC. It appears that the lower appellate court on a consideration of the evidence was not satisfied that there was a common intention between the 4 accused who were convicted to cause grievous and simple hurt and it was for this reason that the different accused were convicted only of those offences which had been respectively committed by them. There can be no doubt that if the offence had been committed by the applicant in furtherance of a common intention they all should have been convicted Under Sections 325, 324 and 323 IPC. There can be no doubt that if the offence had been committed by the applicant in furtherance of a common intention they all should have been convicted Under Sections 325, 324 and 323 IPC. The question of common intention is a question of fact which has to be determined on the evidence on the record and in view of the fact that the lower appellate court has found against the prosecution in this case and has convicted the various applicants only for those offences which were committed by them individually, I do not think that the applicants can be convicted of the various offences with the aid of Section 34 IPC. 8. It has also been contended that the investigating officer during his cross-examination was questioned to give the various dates on which he examined the several prosecution witnesses during the course of investigation. He could not answer this question orally and when he was asked to look into the case diary and answer it, he stated that he did not consider it necessary to refer to the case diary in order to answer the question. It is rather unfortunate that the learned Sessions Judge did not compel the witness to look into the case diary which was before him and answer on what date or dates the various prosecution witnesses had been examined by him during the course of the investigation. He was satisfied by the answer given by the investigating officer that he did not wish to look into the case diary. The result was that there was nothing on the record to indicate when the various prosecution witnesses were examined by the investigating officer during the investigation--whether they were examined shortly after the occurrence or after a long time. There is no doubt that in case they were examined after some delay it was open to the counsel for the defence to argue that their evidence was not reliable. There can be no doubt that on account of the above conduct of the investigating officer the accused have been somewhat prejudiced. 9. These revisions are, therefore, allowed and the convictions and sentence of the various applicants are set aside. As they are on bail they need not surender; their bail bonds are discharged.