JUDGMENT : Barman, C.J. - The incident out of which this appeal by, the three accused- Appellants Raghunath Das, Sapani Samal and Lambodar Samal arises, was out of a quarrel that took place on June 26, 1963 between the rival parties in village Dinabandhupur of Dhenkanal District over giving of paddy loans from out of the common stock of paddy (Deshkoth fund) under the management of the Marfatdar Lingaraj Panda. In the course of that quarrel there was a suffle between the two rival parties as a result of which injuries were sustained on both sides and one of the members of the prosecution party Maheswar Bhoi died as a result of the assault made by the accused-Appellant Raghunath Das. The prosecution party was led by p.w.1 Kambhunath Sahu and p.w.2 Purushottam Panda, and the accused-party was led by the accused-Appellant Raghunath Das and Jagabandhu Mohapatra who, however, was not charged in connection with the incident. 2. About 10 to 15 clays before the date of occurrence, the Marfatdar Lingitraj Panda who was in charge of Deshkoth paddy refused to advance paddy loans from the Deshkoth fund to some members of the prosecution party; this is said to be at the instance of the accused-Appellant Raghunath Das and Jagabandhu Mohapatra. There appears to have been some resentment over this refusal of paddy loans to a particular section of the village. It is said that the prosecution party put a lock at the door of the granary of the Deshkoth house, in order to prevent the members of the accused party taking paddy loans from the Deshkoth fund. 3. On the date of occurrence June 26, 1963 at about 9 in the morning the members of the prosecution party large in number-including p. ws. 1, 3, 4, 6 to 10, 13 and 17 and the deceased Maheswar Bhoi and others, went to the granary for paddy loans after being called by the village Choukidar Bairagi Naik (p.w.14) and found that the lock put by them had been broken, and that the accused Marfatdar Lingaraj Panda was issuing paddy loans to some members of the accused party. What happened thereafter so far as material for the decision of their appeal, is in substance this: When the accused Marfatdar Lingaraj Panda refused to give loan, there was an altercation between the parties in the course of which the accused-Appellant Raghunath Das is said to have picked up a bamboo lathi (M.O. I) from the small granary and dealt a blow on the head of the victim Maheswar Bhoi with that lathi as a result of which Maheswar Bhoi fell down with his face downwards and became unconscious; he was removed to hospital but did not regain consciousness and died on July 2, 1963. The charge against the other two accused-Appellants Sapani Samal and Lambodar Samal is that they along with other persons (who were charged but acquitted) trampled over the body of Maheswar Bhoi. The further charge against the three accused-Appellants is that p.w.13 Sunia Bhoi while coming to the rescue of Maheswar Bhoi was also assaulted by the three of them with lath is ; they are further alleged to have assaulted p.w.3 Gundicha Dehuri and others in the manner as stated in the respective charges against the three accused-Appellants. 4. On the same day, at 2 p. m. the leader of the prosecution party Kambhunath Sahu (p.w.1) lodged an information at Bhapur Outpost on the basis of which the police made a station dairy entry; the police also seized a bamboo lathi (MO. 1) produced by the informant p.w.1. On the same day at about 3 p.m. a counter information was also filed by accused Routra Samal on the basis of which another station dairy was made. The formal F.I.R. lodged by p.w.1 Kambhunath Sahu was recorded at 3 p.m. on June 27, 1963 at Sadar P.S. 13 miles away from the village of occurrence. There, the names of all the 17 accused persons including the three Appellants were mentioned. In the course of investigation, the police arrested accused. Appellants Raghunath Das and Sapani Samal on June 29, 1963 ; they also arrested accused-Appellant Lambodar Samal on July 29, 1963. 5. The 17 accused persons were charged, committed and sent up for trial before the learned Additional Sessions Judge who however acquitted 14 of them and convicted the three Appellants. In the course of investigation, the police arrested accused. Appellants Raghunath Das and Sapani Samal on June 29, 1963 ; they also arrested accused-Appellant Lambodar Samal on July 29, 1963. 5. The 17 accused persons were charged, committed and sent up for trial before the learned Additional Sessions Judge who however acquitted 14 of them and convicted the three Appellants. Accused a Appellant Raghunath Das was convicted u/s 304, Part II, Indian Penal Code and sentenced to 4 years rigorous imprisonment; he was also convicted u/s 323 Indian Penal Code and sentenced to 6 months rigorous imprisonment-both the sentences to run concurrently. The other two accused Appellants Sapani Samal and Lambodar Samal were both convicted u/s 323 Indian Penal Code and sentenced to 6 months rigorous imprisonment each. It is these three accused Appellants who have filed this criminal appeal against their aforesaid conviction and sentence. 6. The accused-Appellants denied the charges against them. Accused Sapani Samal, while denying the charges, stated that the prosecution story of assault by him is false and that he did not trample over the body of Maheswar Bhoi or assault-anybody as alleged. Accused Lambodar Samal stated that he had gone away with the paddy before Maheswar and his party come to the Deshkoth on the date of occurrence and denied that he bad knowledge of the occurrence. The defense of the accused Appellant Raghunath Das in his statement u/s 342 Code of Criminal Procedure made on April 23, 1965, so far material, is this: On the date of occurrence I had gone to Deshkoth house for paddy loan. Lingaraj Panda was sitting there and Bikal Samal was writing in the Deshkoth paddy loan book. I sat with them. Some time after, p. ws. 1, 2, 10, Maheswar Bhoi in all about 40 persons came in a body to Deshkotha House and p.w.1 told Lingaraj Panda that they would take paddy loan forcibly p. ws. 1 and 2 directed Maheswar Bhoi, p.w.17, Nakula Bhoi, p. ws. 13, 8, 9, 4 to bring out paddy forcibly from the Deshkoth granary. All of them came with bags, baskets, lathis and Kathis. After p.w.1 directed the said persons to bring out paddy forcibly. Maheswar Bhoi climbed over the ladder. P.W.17 Nakula Bhoi and others stood in front of the Deshkoth Kothi, and to protect the Deshkoth paddy from being looted away I pulled the ladder. All of them came with bags, baskets, lathis and Kathis. After p.w.1 directed the said persons to bring out paddy forcibly. Maheswar Bhoi climbed over the ladder. P.W.17 Nakula Bhoi and others stood in front of the Deshkoth Kothi, and to protect the Deshkoth paddy from being looted away I pulled the ladder. I was also assaulted by Gurubari Naik (p.w.7) and p w. 9. After I was assaulted, there was mutual assault on both sides and I cannot say the details as I came away. The defence as suggested and argued in this Court is, in substance, the alleged right of private defence of property (Dashkoth paddy) in exercise of which accused Appellant Raghunath Das pulled down the ladder by which the deceased Maheswar Bhoi was climbing up to get into the granary and get injuries due to fall from the ladder as stated by the accused. It is significant, however, that in his statement before the Committing Court recorded about a year earlier-on May 22, 1964 the accused-Appellant Raghunath Das did not mention anything about, the ladder story which he stated subsequently at the trial stage before the Sessions Judge. 7. The prosecution case is based on the direct testimony of the eye-witnesses including p.ws. 3, 8 and 13 who were themselves victims of the incident. The evidence of p.w.3 Gundicha Dehuri is that when the deceased Maheswar Bhoi proceeded towards the granary, accused-Appellant Raghunath Das dealt a lathi blow on his head as a result of which he fell down with his face downwards and that he (pw. 3) was close to him. Banka Bhoi p.w.8 Bunia Bhoi p.w.13 who were also present and received injuries in the course of the incident, also said to the same effect. If the prosecution version as stated by these eyewitnesses is correct, then the ladder story purported to he in support of the plea of right of private defence subsequently given out by the accused-Appellant Raghunath Das, cannot be accepted. 8. The question is: Is the ladder story sought to be set up in defence believable? The examination of the prosecution witnesses commenced from April 14, 1965 and upto April 19, 1965, as many as 13 prosecution witnesses were examined. 8. The question is: Is the ladder story sought to be set up in defence believable? The examination of the prosecution witnesses commenced from April 14, 1965 and upto April 19, 1965, as many as 13 prosecution witnesses were examined. It was not until April 20, 1965 that p.w.14 Bairagi Naik (Choukidar) said for the first time that when Maheswar was climbing the ladder, which was set to the big granary door, the accused Raghunath Das pulled the ladder as a result of which Maheswar Bhoi fell down on the ground. Immediately the witness was declared hostile. He also said that he did not state before the Investigating A.S.I. that Babaji Raghunath Das dealt a blow to Maheswar Bhoi on his head by means of a bamboo thenga as a result, of which he fell down. Until p.w.14 was examined, there was not even a suggestion to any of the witnesses p.ws. 1 to 13 in cross examination by the defence, about the ladder. After p.w.14 was examined, the only other witness to whom the ladder was suggested was p.w.17 Panchu Naik who was examined on April 21, 1965; he denied in cross-examination the suggestion that the deceased Maheswar climbed the ladder which was set up to the Deshkoth granary to bring out paddy forcibly; he said that it was not a fact that accused Raghunath Das did not assault Maheswar and that Maheswar fell down from the ladder when it was pulled down by Raghunath. On the same day the Investigating Officer A.S.I. p.w.18 well examined. He said that on June 27, 1963, that is the day following the occurrence, he examined p.w.14 Bairagi Naik, the Choukidar who stated before him that accused Raghunath Das dealt a blow to Maheswar on his head by means of a bamboo thenga as a result of which he fell down. The Investigating Police Officer did not flay that the Choukidar pw. 14 mentioned to him anything about Maheswar having climbed up the ladder and accused Raghunath Das having pulled down the same. 9. It, was not until April 23, 1965 that the accused-Appellant Raghunath Das himself in his statement u/s 342, Code of Criminal Procedure quoted above mentioned about the ladder. 14 mentioned to him anything about Maheswar having climbed up the ladder and accused Raghunath Das having pulled down the same. 9. It, was not until April 23, 1965 that the accused-Appellant Raghunath Das himself in his statement u/s 342, Code of Criminal Procedure quoted above mentioned about the ladder. While deposing, before the learned Additional Sessions Judge as d.w.3 on April 26,1965 this accused-Appellant, while reiterating the same story, stated that he pulled down the 'ladder in order to prevent Maheswar and his partymen from taking away paddy from the Deshkoth granary as a result of which Maheswar fell down on the ground on his right side. 10. In the ultimate analysis of the evidence, it is clear that the ladder story, purported to be in support of the plea of right of private defence of property was a subsequent embellishment of the defence case. This view is further supported by the fact that the alleged ladder was neither seized nor even produced before the police in the course of investigation. 11. In support of the ladder story, the defence sought to rely on the evidence of the Doctor p.w.5 who held the post-mortem examination of the deceased and found the following injuries: (i) Lacerated wound of irregular size and shape with formation or crust on left elbow joint. (ii) A large abrasion at the back of right shoulder which was of irregular size. (iii) One depressed fracture on the right side of the frontal bone of the skull and penetration of fractured fragments inside the brain. The Doctor, p w. 5 in cross-examination, stated that if a person falls from a height of 10 feet or more with his head first striking the hard substance on the ground and the body with all its weight following, it is possible an injury like injury No. 3 can be caused without external laceration. It is possible to get injury Nos. 2 and 3 by one fall in re-examination, the Doctor further stated that the possibility of injury Nos. 2 and 3 being caused by one fall is not a remote possibility. But a somewhat different view was expressed by the other Doctor p.w.16 who examined the deceased immediately after he received the injuries on the date of occurrence, June 26, 1963. 2 and 3 being caused by one fall is not a remote possibility. But a somewhat different view was expressed by the other Doctor p.w.16 who examined the deceased immediately after he received the injuries on the date of occurrence, June 26, 1963. He found three injuries: (1) multiple bruises on the left scapular region, (2) multiple bruises on the right ankle, and (3) one swelling on the right parietal region of the head; he expressed the view that injuries 1 and 3 are not possible by a simple fall injury No. 3 can be caused by a fall with head downwards; injury Nos. 1 and 3 are possible to have been caused more by assault than by a fall. Thus the two Doctors differ on the point as to whether the injuries were caused by a fall from the ladder or by assault. 12. In the ultimate any lysis of the consistent direct testimony of the eye-witnesses and the subsequent introduction of the improbable defense of story of the ladder in support of the plea of the right of private defence of property at the belated stage and in the manner it was done, the defence version relying on the ladder cannot be accepted. 13. That apart, there is no evidence that the deceased Maheswar Bhoi and his companions were the aggressors. The fact is that both sides wanted to get paddy loans from the Deshkoth granary. There is no evidence that the deceased and his companions were carrying any arms when they proceeded towards the granary. The deceased was wholly defenceless; there is also nothing to show that Maheswar threatened to assault the accused Raghunath Das. In this background of complete absence of circumstances leading to a reasonable apprehension in the mind of the accused Raghunath that death or grievous hurt would be the consequence, this Court is unable to hold that the plea of right of private defence of property was available to the accused Raghunath Das. In any event the alleged right of private defence of property, even if any, did not extend to the causing of death of Maheswar Bhoi in the manner it was done; the accused Raghunth exceeded the limits. There is no reason why this Court should interfere with the order of conviction and sentence passed on the accused Raghunath Das; the order must be upheld. 14. There is no reason why this Court should interfere with the order of conviction and sentence passed on the accused Raghunath Das; the order must be upheld. 14. As regards the other two accused-Appellants Sapani Samal and ambodar Samal, their conviction u/s 323 Indian Penal Code cannot stand. The position is this: They were both charged u/s 148 and u/s 302/149 Indian Penal Code along with 15 other accused persons. They were also changed u/s 323/149 Indian Penal Code along with 8 other accused persons-all as members of an unlawful assembly in prosection of the common object of such assembly as mentioned in the charges. The learned Sessions Judge convicted both the accused-Appellants Sapani Samal and Lambodar Sa mal u/s 323 Indian Penal Code but acquitted them of the other charges, namely, those under Sections 148 and 149 Indian Penal Code. 15. According to the settled position in Nanak Chand Vs. The State of Punjab a charge for a substantive offence u/s 323 Indian Penal Code is for a distinct and separate offence from that u/s 323 Indian Penal Code read with Section 149 Indian Penal Code. A person charged with an offence read with Section 149 Indian Penal Code cannot be convicted of the substantive offence without a specific charge being framed for that offence as required by Section 233 Criminal Procedure Code. If there is conviction for a charge not framed, it is an illegality and not a mere irregularity curable by the provisions of Sections 536 and 537 Criminal Procedure Code. The irregularity is not curable because the two accused Appellants were misled in their defence by the absence of a charge u/s 323 Indian Penal Code. By framing a charge u/s 323 read with Section 149 Indian Penal Code against the two accused Appellants Sapani Samal and Lambodar Samal, the Court indicated that it was not charging these Appellants with the offence of assault; and then to convict them for assault and sentence them u/s 323 Indian Penal Code was to convict them of an offence with which they had not been charged. In defending themselves these two Appellants were not called upon to meet such charge and in their defence, they may well have considered it unnecessary to concentrate on that part of the prosecution case. 16. In defending themselves these two Appellants were not called upon to meet such charge and in their defence, they may well have considered it unnecessary to concentrate on that part of the prosecution case. 16. In this view of the case, therefore, the order of conviction and sentence passed on the two accused Appellants Sapani Samal and Lombodar Samal is set aside and they are acquitted. 17. In the result, therefore, the Criminal Appeal of accused-Appellant Raghunath Das is dismissed, and the Criminal Appeal of accused-Appellants Sapani Samal and Lambodar Samal is allowed. Final Result : Dismissed