JUDGMENT : B.K. Patra, J. - The six Petitioners were convicted by the First Class Magistrate, Rourkela on charges under Sections 148 and 324, Indian Penal Code and each of them, excepting Petitioner No. 1 Khemasil Rout, Petitioner No. 2 Sahadeb Rout and Petitioner No. 4 Brundaban Rout was sentenced to pay a fine of Rs. 25/- on each count and in default to undergo rigorous imprisonment for one month. Petitioners 1, 2 and 4 for their conviction were sentenced to undergo rigorous imprisonment for one month on each count. The sentences were ordered to run concurrently. The appeal preferred by the Petitioners was dismissed by the Additional Sessions Judge, Sundergarh. 2. The prosecution case in short is that in respect of the land in connection with which the occurrence took place, there was a title suit in the Court of the Munsif, Sundergarh, wherein Petitioner No. 1 Khemasil Rout prayed for recovery of possession. That suit was dismissed (Ext. 7). The matter ultimately went up to High Court in second appeal which was dismissed in 1955. Thereafter, Petitioner No. 1 filed an application before the Additional District Magistrate (Ext. 8), Sundergarh praying for settlement of the land with him. This was disposed of in 1970. Petitioner No. 1's application was rejected on the ground that the informant was in possession (Ext. 9). This order of the A.D.M. was later on confirmed by the Board of Revenue. The prosecution case is that while the informant was in possession of the land, all the Petitioners in a body formed themselves into an (sic) assembly came over the land committed rioting and in the course thereof the informant p.w. 1 was injured with a deadly weapon. Charges under Sections 148 and 326, Indian Penal Code were framed against all the Petitioners. The charge u/s 148, Indian Penal Code against all the' Petitioners ran thus: That you on or about the 8th day of June, 1967 at about 7.30 a.m. at Terkera were member of an unlawful assembly and did, in prosecution of the common object of such assembly. viz in assaulting Dhobei Behera with deadly weapons, commit the offence of rioting and at that time were armed with deadly weapons to assault said Dhobei Behera and there by committed an offence punishable u/s 148 of the Indian Penal Code. viz in assaulting Dhobei Behera with deadly weapons, commit the offence of rioting and at that time were armed with deadly weapons to assault said Dhobei Behera and there by committed an offence punishable u/s 148 of the Indian Penal Code. The second charge u/s 326 Indian Penal Code was thus framed: That you on or about the same day, time and place caused grievous hurt to said Dhobei Behera and thereby committed an offence punishable u/s 326 of the Indian Penal Code. 3. The trial Court found that the informant was in possession of the disputed land and that it is the Petitioners who formed themselves into an unlawful assembly and armed with deadly weapons went over the land and assaulted Dhobei Behera p.w. 1 and caused injury to him. The lower Court rejected the Petitioners' contention that they were in possession of the land. In coming to this conclusion, the Court relied upon not only the oral evidence on record but the previous decisions of the Courts already referred to. So far as the causing of the injury is concerned, the specific evidence was that it is Sahadeb Rout Petitioner No. 2 who caused that injury. In view of this finding, the trial Court convicted all the Petitioners u/s 148 and u/s 324, Indian Penal Code. 4. On appeal, the learned Additional Sessions Judge upheld the findings and held that the prosecution had conclusively established that the Appellants before him (Petitioners in this Court) were armed with deadly weapons and formed themselves into an unlawful assembly and trespassed upon the disputed land with the common object of obtaining possession of the disputed land by show of criminal force and in prosecution of their common object accused Sahadeb caused hurt to p.w. 1 by shooting him with an arrow. In view of this finding, the learned Judge thought that prosecution could successfully bring home to the Appellants the charges under Sections 148 and 324/149, Indian Penal Code, and dismissed the appeal. 5. In view of the concurrent findings by the Courts below that the Petitioners formed themselves into an unlawful assembly and trespassed upon the disputed land which was in possession of the informant p.w. 1, it is not open to the learned Advocate for the Petitioner to contend that the findings are justified. 5. In view of the concurrent findings by the Courts below that the Petitioners formed themselves into an unlawful assembly and trespassed upon the disputed land which was in possession of the informant p.w. 1, it is not open to the learned Advocate for the Petitioner to contend that the findings are justified. Even otherwise, he was unable to assail any of the findings recorded by the Courts below. 6. Both the Courts below came to the categorical finding that p.w. 1 was in possession of the land and that on the date of occurrence the prosecution party were on the land when the accused persons in a body trespassed into it and committed the offences alleged against them. Having said so they expressed the opinion that even if it is held that at the time the offence was committed the accused persons were on the land and the prosecution party came thereafter, still in view of the prior settled possession of p.w. 1 over the land the accused persons cannot avail themselves of the right of private defence. 7. Mr. Mohanty, learned Counsel for the Petitioners takes exception to the second part of the observations of the Courts below. In view of the specific finding of the Courts that the prosecution party was not only in possession of the land but at the time the occurrence took place they were on the land and the accused party came and trespassed into it, the further discussion retarding the alternative plea was unnecessary. The alternative approach however is that if the prosecution party were in settled possession of the land and were temporarily absent therefrom on the date of occurrence, and taking advantage of their temporary absence the accused party came over the land, and thereafter the prosecution party came there and called upon the trespassers to leave the land, the right of private defence of property in those circumstances would not be available to the accused. In my opinion, the Courts below were right in saying so. The entire law on the subject has recently been discussed in a Full Bench decision of this Court in State of Orissa v. Rabindranath Dalai and Anr. ILR 1973 Cutt 393. In my opinion, the Courts below were right in saying so. The entire law on the subject has recently been discussed in a Full Bench decision of this Court in State of Orissa v. Rabindranath Dalai and Anr. ILR 1973 Cutt 393. That case has laid down the law that where 'A' is in settled possession of the land, but during his temporary absence therefrom 'B' trespasses on it, 'A' on return to the land and finding the trespasser can exercise right of private defence to property and evict 'B', if necessary, by use of force. But the case before us is a much stronger one because here it is the trespasser who caused injury to the person who was in lawful possession of the land. By no stretch of imagination can the right of private defence of property would be available to the trespasser. 8. The only substantial point that arises for consideration is whether a specific charge u/s 324 read with Section 149 Indian Penal Code having not been framed against the Petitioner, it was open to the Courts to convict each of them u/s 324, Indian Penal. Code when the specific finding is that the particular injury found on the person of p.w. 1 was caused by Petitioner No. 2 Sahadeb. The concluding portion of the judgment of the learned sessions Judge shows that he was under the impression that a charge u/s 324/149, Indian Penal Code had been framed in this case. But that is not correct. Admittedly no such charge had been framed, although a charge u/s 148 had been framed against all the Petitioners and the common object specified in that charge was that it was to assault Dhobei Behera with deadly weapons with which the Petitioners were charged as having been armed. In other words, the question is where the accused persons are charged only u/s 324. Indian Penal Code whether their conviction u/s 324/149, Indian Penal Code is justified. 9. The law is well settled that the only test to decide whether a conviction can be sustained or not is to find out whether the absence of such a charge has resulted in prejudice to the accused persons. Here, in this case, there was a specific charge u/s 148, Indian Penal Code. The common object also has been specified. 9. The law is well settled that the only test to decide whether a conviction can be sustained or not is to find out whether the absence of such a charge has resulted in prejudice to the accused persons. Here, in this case, there was a specific charge u/s 148, Indian Penal Code. The common object also has been specified. The Petitioners therefore cannot complain that they had no notice of the ingredients of the offence u/s 149, Indian Penal Code. No prejudice has therefore resulted to the accused-Petitioners. In Madan Mohan Mohapatra and Others Vs. The State despite absence of a specific charge u/s 142, Indian Penal Code the conviction of one of the accused persons was upheld because he was charged with an offence u/s 148. Indian Penal Code and while describing that charge, the common object of the unlawful assembly, namely, assault on p.w. 1 in that case and others was specified. It was further mentioned m the charge that the accused persons were armed with deadly weapons like bows and arrows. It is therefore that in every case where such a question arises the only consideration which should weigh with the Courts is whether the accused would in any way be prejudiced if he is convicted under the substantive section read with Section 149, Indian Penal Code, where the charge is only for the substantive offence. A similar consideration also will weigh in convicting an accused under the substantive section read with Section 34 when Section 34 is not mentioned in the charge. In Haramohan Naik and Anr. v. State 36 (1970) C.L.T. 731, certain persons were charged u/s 302/149, Indian Penal Code. Some of the accused persons were acquitted and the question arose whether the others can be convicted u/s 302 read with Section 34, Indian Penal Code. Having regard to the facts of the case, the Court came to the conclusion that the accused persons had information of the fact that they were sought to be charged with constructive liability and their conviction u/s 302/34, Indian Penal Code should be upheld. Dhansai Sahu and Another Vs. State of Orissa is another case where despite the fact that Section 34 had not been added to the charge u/s 302, Indian Penal Code framed against the accused persons, they were ultimately convicted u/s 302 read with Section 34, Indian Penal Code. Dhansai Sahu and Another Vs. State of Orissa is another case where despite the fact that Section 34 had not been added to the charge u/s 302, Indian Penal Code framed against the accused persons, they were ultimately convicted u/s 302 read with Section 34, Indian Penal Code. In view of the circumstances of this case, I am satisfied that the accused persons were not prejudiced in their defence by the absence of a specific charge u/s 149, Indian Penal Code. 10. In the result, therefore, no exception can be taken to the conviction of the Petitioners u/s 324/149. Indian Penal Code although Section 149 had not been added to the charge u/s 326, Indian Penal Code framed against them. There is no merit in this petition which is hereby dismissed. Final Result : Dismissed