JUDGMENT : R.N. Misra, J. - The two Petitioners along with 11 others were charged of offences punishable under Sections 147, 333 and 333/149, Indian Penal Code. The learned Assistant Session Judge who tried these accused persons ultimately convicted 5 of them u/s 332/149, Indian Penal Code and imposed a sentence of 2 year's R.I. He convicted the self Same accused persons also u/s 147, Indian Penal Code and sentenced them to R.I. for one year with a direction that the two sentences would run concurrently. The learned Sessions Judge upon appeal set aside the conviction of some and retained that of the two Petitioners. He modified the sentence. 2. The prosecution case shortly stated is that on 27-10-1964 p.w. 2 who was the Sub-Permanent Way Inspector of the South Eastern Railway was coming from his headquarter at Tapang to Khurda Road Railway Station in a trolley. He was then on duty. The accused persons stopped him and assaulted him as a result whereof he received grievous hurt. The accused persons were temporary gunmen who had refused to work according to the yard-stick and p.w. 2 in his official duty bad reported against them as & result whereof these accused persons were discharged. To venge for what had been done by p.w. 2 they formed themselves into an unlawful assembly and assaulted him. The defence was a clear denial. The prosecution case was accepted in to in the trial Court and as I have already indicated the learned Appellate Judge discarded bulk of it in appeal and maintained the conviction and sentence against the present two Petitioners. 3. Two questions are raised by Mrs. Padhi for the Petitioners. Firstly, in view of the case made out by the prosecution the conviction u/s 147, Indian Penal Code was no more maintainable with the acquittal of three persons by the appellate Court. The second contention is that bulk of the prosecution case having been discarded it really became difficult for the Court to know where the truth lay and, therefore, the entire case should have been discarded. 4. Coming to the first aspect, the charge in this case was that 13 persons in all as named therein had participated in the unlawful assembly. By the process of elimination upto he appellate stage 11 had gone out a d only 2 remained. 4. Coming to the first aspect, the charge in this case was that 13 persons in all as named therein had participated in the unlawful assembly. By the process of elimination upto he appellate stage 11 had gone out a d only 2 remained. In the circumstances the number being reduced below 5 the charge u/s 147, Indian Penal Code would no more be substantial. Law on the point seems to be well established and reference may be made to a case of their Lordships of the Supreme Court in Kartar Singh v. State of Punjab AIR 1961 S.C. 1787 , as an authority for the proposition. In that view of the matter the conviction u/s 147, Indian Penal Code must be set aside. 5. Similarly the conviction u/s 149, Indian Penal Code would no more be sustainable. The two Petitioners have been convicted u/s 332/149, Indian Penal Code. It is a charge for a substantive offence read with Section 149, Indian Penal Code and is a distinct offence different from the charge u/s 332, Indian Penal Code. In Dhian Singh Sobha Singh and Another Vs. The Union of India (UOI) it was held: After an examination of the cases referred to on behalf of the Appellant and the prosecution we are -of the opinion that the view taken by the Calcutta High Court is the correct view, namely, that a person charged with an offence read with Section 149 cannot be convicted of the substantive offence without a specific charge being framed as required by Section 238, Code of Criminal Procedure. The legal position was restated in A.V. D'costa Vs. B.C. Patel and Another thus: The liability of a person in respect of the latter (Section 302) is only for acts directly committed by him), while in respect of the former (Section 149), the liability is for acts which may have been done by anyone of the other members of the unlawful assembly provided that it was in prosecution of the common object of the assembly or was such as the members knew to be likely to be so committed. A charge u/s 149, Indian Penal Code puts the person on notice only of two alleged mots, viz, (1) that the offence was committed by one or other of the members of the unlawful assembly of which he is one, and (2) that the offence was committed in prosecution of the common object or is such that was known to be likely to be so committed. Whether or nor Section 149, Indian Penal Code creates a distinct offence (as regards which there has been conflict of views in the High' Courts), there can be no doubt that it creates a distinct head of criminal liability which has come to be known as constructive liability' - a convenient phrase not used in the Indian Penal Code. There can, therefore, be no doubt that the direct individual liability of a person can only be fixed upon him wit reference to a specific charge in respect of the particular offence. Such a case is not covered by Sections 236 and 237, Code of Criminal Procedure. The framing of a specific and distinct charge in respect of every distinct head of criminal liability constituting an offence is the foundation for a conviction and sentence therefor. The absence, therefore, of specific charges against the Appellant under Sections 307 and 302, Indian Penal Code in respect of which he has been sentenced to transportation for life and to death respectively, is a very serious lacuna in the proceedings in so far as it concerns him. Their Lordships thereafter examined the question as to whether this lacuna prejudice the accused in his trial and concluded: In all the circumstances above noticed, we are satisfied that the absence of specific charges, against the Appellant...has materially prejudiced him. 6. Tested in these standards I have no doubt in my mind that the two Petitioners would be prejudiced substantially if I alter the conviction to one u/s 332, Indian Penal Code. It is quite possible that if they were charged for the direct assaults they could have taken the plea - and established the settle even - that they were merely there to ventilate their grievance and did not commit any overt acts. Such a plea could not be taken by them on account of the charge of constructive liability. 7. I would accordingly allow this revision, set aside the conviction of the Petitioners and acquit them. Such a plea could not be taken by them on account of the charge of constructive liability. 7. I would accordingly allow this revision, set aside the conviction of the Petitioners and acquit them. Their bail bonds are discharged. Final Result : Allowed