ORDER : This rule was obtained by four persons namely, Katimal Brahma, Dhaneswar Boro, Mangal Boro and Orga Boro. All these four persons were convicted under Sec. 147, Indian Penal Code and sentenced to 18 months rigorous imprisonment each. Petitioners Katimal Brahma and Dhaneswar Boro were further convicted under Sec. 325 read with Sec. 34, Indian Penal Code and each was sentenced by the trial court to four years rigorous imprisonment and a fine of Rs. 500/- but on an appeal being preferred, the sentence in case of these two persons under section 325/34, Indian Penal Code was reduced to three months' rigorous imprisonment and a fine of Rs. 200/- and the fines if realised were directed to be paid as compensation to the heirs of Lalit Brahma who was alleged to have been injured by these two persons, who as a result of the assault collapsed and died. 2. The prosecution story was that the accused Dhaneswar Boro made an application before the Brahma Somaj of the locality for settlement of the dispute between the petitioners and others on one side and Lalit and his relations on the other. On the day of occurrence, namely 25th September 1956 the Brahma Somaj was to be held at Ramphal village and the deceased Lalit and his brother Enla and his son Dhanla appeared there. The Somaj however was held in a neighbouring village by the name of Moinaguri but the three persons Lalit, Enla and Dhanla were detained in the Ramfal bil village and during the course of detention, they are alleged to have been assaulted by some ten or twelve persons including the four accused petitioners. It was further alleged that Katimal Brahma and Dhaneswar Boro inflicted serious injuries on Lalit and when he was presented in the Somaj a few hours later, he collapsed immediately and the other two persons Enla and Dhanla also became unconscious, who complained to the Somaj that they had been severely assaulted by the petitioners and others at Ramfal bil village. Ramesh Chandra Brahma was the president of the Somaj and he lodged a first information report in the Kokrajhar Police Station the next day, wherein he stated about the death of Lalit and prayed for investigation by the police. Ramesh Chandra Brahma was the president of the Somaj and he lodged a first information report in the Kokrajhar Police Station the next day, wherein he stated about the death of Lalit and prayed for investigation by the police. The police registered a case and started investigation and on completion of the investigation submitted a charge-sheet against seven persons including the present set of accused. The committing court sent up seven persons with two charges, namely, under Sec. 147, Indian Penal Code against all the accused and section 325, Indian Penal Code against the two accused Katimal Brahma and Dhaneswar Boro. The learned Assistant Sessions Judge who presided over the court of sessions, added section 149, Indian Penal Code to the charge under Sec. 325, Indian Penal Code as already framed. He found six of the persons guilty under Sec. 147 and further found Katimal Brahma and Dhaneswar Boro guilty under Sec, 325 read with Sec. 34 Indian Penal Code and convicted and sentenced them accordingly. On an appeal being filed by the six accused so convicted, the learned Additional Sessions Judge affirmed the conviction and sentence of the four petitioners and acquitted two of the appellants before him. In regard to Katimal and Dhaneswar the sentence was reduced as I have already indicated above. It is against this order of conviction and sentence that the present rule is obtained. 3. It is not denied that Lalit succumbed to the injuries received by him and the other two persons Enla and Dhanla also received serious injuries as is evidenced by the deposition of the Doctors who held the post mortem examination as well as examined the injuries on Enla and Dhanla. The accused persons do not deny the assault but they plead that they were not parties to the assault and as such pleaded not guilty. The learned Additional Sessions Judge has mainly relied on the deposition of two persons Dhanla and Enla who were P. Ws. 8 and 9 respectively and on the deposition of two other witnesses Nareng Brahma and Amin who were P. Ws. 6 and 7 respectively. These two persons stood surety for presenting Lalit and his two relations before the Somaj and they actually presented them at the Ramfal bil village. Their presence is not denied as such. Since P. Ws. 8 and 9 respectively and on the deposition of two other witnesses Nareng Brahma and Amin who were P. Ws. 6 and 7 respectively. These two persons stood surety for presenting Lalit and his two relations before the Somaj and they actually presented them at the Ramfal bil village. Their presence is not denied as such. Since P. Ws. 8 and 9 were the only persons who witnessed the assault, the learned Additional Sessions Judge scrutinised their evidence and he came to the finding that their evidence was entirely reliable. The evidence was to the effect that Katimal and Dhaneswar got upon the chest of Lalit and gave him kicks and blows in that position. It was further proved that Mangal and Orga tied Enla and Dhanla and it was in this condition that they were presented before the Somaj in the Moinaguri village. The President of the Somaj who lodged the first information report, supports this aspect of the case. The evidence is quite exhaustive to prove that Mangal Boro and Orga Boro were members of the unlawful assembly along with Katimal and Dhaneswar, and Katimal and Dhaneswar being stated to have inflicted the injuries on Lalit some of which were major injuries including the breaking of the ribs. They were justly convicted under Sec. 325 read with Sec. 34, Indian Penal Code. 4. The contentions raised by the learned Advocate for the petitioners before me were - (1) that the original charge being under Sec. 325 read with Sec. 149, Indian Penal Code, the conviction of the petitioners under Sec. 325 read with Sec. 34, Indian Penal Code was bad, (2) that the cases of individual accused were not considered and (3) that the evidence was not adequate for the purpose of conviction of the petitioners. 5. In regard to the third contention I have not much to add, since there is sufficient evidence to prove the presence of all these accused persons in the unlawful assembly which was evidently formed for the purpose of assaulting Lalit and his two relations. No reason has been shown as to why P. Ws. 8 and 9 should not be believed who had suffered severe injuries, as is evidenced. In regard to the second contention, namely that the case of the individual accused was not considered, it is also not substantiated. No reason has been shown as to why P. Ws. 8 and 9 should not be believed who had suffered severe injuries, as is evidenced. In regard to the second contention, namely that the case of the individual accused was not considered, it is also not substantiated. The learned Additional Sessions Judge has gone into details and has found categorically that all these persons had participated in the matter of assault on Lalit and his two relations. It is also proved that there was some ill feeling between the parties and Katimal had taken the initiative in the matter of placing the matter before the Somaj. Therefore the only contention that is worth consideration is the one relating to conviction under Sec. 325 read with Sec. 34, Indian Penal Code when the charge as originally framed in the sessions court was one under Sec. 325 read with Sec. 149, Indian Penal Code. The learned Advocate has relied on the case of Nanak Chand v. State of Punjab reported in (S) AIR 1955 SC 274 . The observation to which my attention was drawn in this case is to the effect that the person charged with an offence read with Sec. 149, Indian Penal Code cannot be convicted of the substantive offence without a specific charge being framed as required by section 233 of the Criminal Procedure Code. This decision however, came up for consideration in some of the subsequent cases tried by the Supreme Court. One of the decisions is reported in (S) AIR 1956 SC 116 , Willie (William) Slaney v. State of Madhya Pradesh. This was heard by a Bench consisting of five Judges in which Justice Imam was a party, who was the presiding officer in the earlier case in (S) AIR 1955 SC 274 as afore-mentioned. In this case the effect of technicalities and procedure was considered. This case in (S) AIR 1956 SC 116 . came on a reference occasioned by the fact that in Nanak Chand's case it was stated specifically that the parallel case under Sec. 34, Indian Penal Code also stood on the same footing. Their Lordships while discussing Secs. 34, 114 and 149. This case in (S) AIR 1956 SC 116 . came on a reference occasioned by the fact that in Nanak Chand's case it was stated specifically that the parallel case under Sec. 34, Indian Penal Code also stood on the same footing. Their Lordships while discussing Secs. 34, 114 and 149. Indian Penal Code, all of which provided for criminal liability viewed from different angles, observed as follows : "In such a situation, the absence of a charge under one or other of the various heads of criminal liability for the offence cannot be said to be fatal by itself, and before a conviction for the substantive offence, without a charge, can be set aside, prejudice will have to be made out. In most of the cases of this kind, evidence is normally given from the outset as to who was primarily responsible for the act which brought about the offence and such evidence is of course relevant." Their Lordships further went to observe : "The gravity of the defect will have to be considered to determine if it falls within one class or the other. Is it a mere unimportant mistake in procedure or is it substantial and vital? The answer will depend largely on the facts and circumstances of each case." There is still a later decision of the Supreme Court where we find a categorical answer to this question, in the case of B. N. Srikantiah v. State of Mysore reported in AIR 1958 SC 672 . The relevant observation is in paragraph 9 of the judgment, which runs as follows : "The omission to mention S. 34 of the Indian Penal Code in the charge cannot affect the case unless prejudice is shown to have resulted in consequence thereof. The charge was that the appellants and others were members of an unlawful assembly, the common object of which was to murder the deceased. The charge was that the appellants and others were members of an unlawful assembly, the common object of which was to murder the deceased. Although there is a difference in common object and common intention, they both deal 'with combination of persons who become punishable as sharers in an offence', and a charge under Sec. 149, Indian Penal Code is 110 impediment to a conviction by the application of Sec. 34 if the evidence discloses the commission of the offence in furtherance of the common intention of all." Applying these observations of their Lordships to the facts of the present case I find that the accused persons though originally charged under section 325 and at a later stage a charge under section 149, Indian Penal Code is added, - I have only to examine whether the conviction of the two petitioners Katimal and Dhaneswar was justified under Sec. 325 read with Sec. 34 of the Indian Penal Code. It is in evidence that these two accused petitioners acted jointly and in furtherance of the common intention, -since both of them trod upon the deceased and caused him severe injuries, which is accepted as a fact by the trial court as well as by the appellate court. Having regard to the circumstances and evidence in this case I do not think there was any illegality in the matter of conviction of these two accused petitioners under section 325 read with Sec, 34, Indian Penal Code. 6. The sentence cannot in any sense be said to be stringent. I further find no substance in the contentions as raised by the learned Advocate for the petitioners as I have already indicated. The result is that the rule is discharged and the accused persons are to surrender and serve out the rest of the sentence imposed on them and they should pay the fines if not realised. Rule discharged.