JUDGMENT 1. - Undisputed and admitted fact is that cartilaginous part of the nose of Kishna Ram PW 1 was completely chopped off from his face by Kanwara Ram accused at about 2.00 p m. of August 27, 1976 along with a part of the medium nasal septum by a sharp edged cutting instrument. Facts disputed, however, are that while according to Kishna Ram PW 1, when he was returning with his son Beerbal aged 4 years and the herd of his cattle after making the herd drink water in a 'nadi' (water pond) adjoining the public way leading from village Benan to village Rama Bas in Tehsil Bilara, district Jodhpur, the accused persons Kanwara Ram, Bhaga Ram and Kheeya Ram, all sons of Lixman Ram, came following each other, started beating him, dragged him to their field which is at a distance of about 40 foot steps from the public way, Bhaga Ram straightway asked the remaining accused persons to cut his nose, Bhagaram sat on his chest, Kheeyaram and Shamboora on his shoulders and the two ladies Misrai and Uchki on his both legs, Kanwararam played the leading role of cutting his nose by a knife, his hands had been tied with a leather string, Bhagaram brought "akra" flowers, Kanwararam dropped the milk of "akra" flowers in his both eyes and made him naked by untying the 'dhoti' which he was wearing and challenged Baboo Lal Bhambi PW 2 who had raised an alarm and who happened to see the incident from a distance of about 50 foot-steps while going from village Benan to village Ramra Bas to meet his sister, that he may also come if he wanted to intervene, the version of the defence, on the, other hand, is that Smt. Uchki wife of Bhagaram accused had gone from the field to the 'nadi' to fetch water, at that time Kishnaram PW 1 committed sexual intercourse with her which was seen by Shamboora alias Shimbhoo Ram Bawri who raised an alarm and thereupon Kanwararam accused came rushing to 'nadi' and seeing Kishnaram PW 1 committing the aforesaid nefarious act with Smt. Uchki, he was suddenly and gravely provoked and he immediately chopped of the nose of Kishnaram PW 1 by a "kasiya" or "dantla" and made Kishnaram run away leaving his '"pagarkhi" and 'dhoti' behind on the spot. 2. 2. The Judicial Magistrate, Bilara, by his judgment dated May 8, 1979 convicted all the. six accused persons and sentenced each of them to six' months' rigorous imprisonment for the offence under Section 148 I.P.C., two years rigorous imprisonment and a fine of Rs. 500/-each for the offence under Section 326 read with Section 149 I.P.C. three months' rigorous imprisonment for the offence under Section 342 I.P.C. and three months rigorous imprisonment for the offence under Section 323 I.P.C. and in default of payment of the aforesaid amount of fine to further rigorous imprisonment of three months. Substantive sentences were to run concurrently. 3. On appeal by the convicted persons, the Additional Sessions Judge No. 2 Jodhpur held that participation of Shambhoo Ram and the two ladies Smt. Misrai and Smt. Uchki in the crime was not clearly established and, therefore, he acquitted these three persons from all the charges. As to the remaining three accused persons, who are petitioners before this Court, the Additional Sessions Judge held the prosecution case to have been well proved. He rejected the defence version as mentioned by me above. Accordingly on November 17, 1979, the Additional Sessions Judge No. 2, Jodhpur held the petitioners guilty for the offence under Section 326 read with Section 34 I.P.C. and also for the offences under Section 342 I.P.C. and maintained the sentences awarded to them by (he Judicial Magistrate, Bilara. So far as the offence under Section 148 I.P.C. was concerned, the petitioners were acquitted of the charge in respect of this offence. 4. Both the Judicial Magistrate, Bilara and the Additional Sessions Judge No. 2, Jodhpur have believed the testimony of the injured Kishnaram PW 1 and the eye-witness Baboo Lal PW 2 that on the day of the incident at about 2.00 p.m. while Kishnaram was returning with the herd of his cattle after drinking them water in the 'nadi' along with his minor son Birbal, the petitioner came on the public way and started beating Kishnaram. They then dragged Kishnaram to the field of Kanwararam. Bhagaram told that nose of Kishnaram may be chopped off. While Bhagaram sat on the chest of Kishna Ram Kheeyaram sat on his hands. Both the hands of Kishnaram had been tied by a leather string. They then dragged Kishnaram to the field of Kanwararam. Bhagaram told that nose of Kishnaram may be chopped off. While Bhagaram sat on the chest of Kishna Ram Kheeyaram sat on his hands. Both the hands of Kishnaram had been tied by a leather string. Kanwararam petitioner chopped off the nose of Kishnaram by a knife, Dhoti which Kishnaram was wearing was untied and he was made naked. Baboo Lal PW 2 was at that time going from village Benan to village Ramra Bas to meet his sister and he saw the incident. Baboo Lal has fully supported the statement of Kishnaram PW 1. He has also deposed that when he raised an alarm, he was also threatened by Kanwararam petitioner to come and meet the same fate. The prosecution evidence of both these witnesses also find support from the medical evidence of Dr. P.G. Gandhi PW 9. Apart from the injury No. 1 mentioned in Ex. P 7 which relates to the suiting of cartilaginous part of the nose, there are several bruises on both the hips of Kishanaram which corroborate the prosecution theory that Kishna Ram was dragged from the public way to the field of Kanwararam. Ram Chandra PW 10 who investigated the case also seized the leather string & the 'dhoti' of Kishnaram from the field of Kanwararam under the seizure memo Ex. P 6. Thus, the incident of cutting of nose took place in the field of Kanwararam and not at the Nadi where Kishnaram had taken the herd of his cattle for the purposes of drinking dam water. On behalf of the petitioners, suggestion was put both to Kishnaram PW 1 and Baboo Lal PW 2 in cross-examination that Kishnaram was forcibly committing sexual inter course with Smt. Uchki near the Nadi and both of them emphatically denied the suggestion. 5. The petitioners have not been able to establish that any sexual inter-course was committed by Kishna Ram PW 1 with Smt. Uchki at or near the 'nadi' and that this alleged rape of Smt. Uchki led Kanwara Ram to cut the nose on the face of Kishna Ram. 5. The petitioners have not been able to establish that any sexual inter-course was committed by Kishna Ram PW 1 with Smt. Uchki at or near the 'nadi' and that this alleged rape of Smt. Uchki led Kanwara Ram to cut the nose on the face of Kishna Ram. It is very pertinent to note that neither Kanwara Ram nor Bhaga Ram and nor Smt. Uchki lodged any First Information Report at the Police Station of the alleged rape of Smt. Uchki by Kishna Ram PW 1 and no explanation what so ever has been given for not lodging a First Information Report in this respect. It is also important to note that the incident took place during the day at about 2 p.m. in an open public place and at that time minor son of Kishna Ram was also with him. Such a place like Nadi and near which a public way also passed leading from village Benan to village Ramrabas could conceivably be no time and no place to commit rape with a lady whose husband's field and Dhani were quite close to the place. Smt. Uchki DW 2 has stated in her cross-examination that she did not receive any injury on her body. Had the alleged defence version of the petitioner been true, Smt. Uchki must have received at least some injuries on her body if there was a rape committed with her by Kishna Ram. Smt. Uchki also did not submit herself to any medical examination even farfetchedly to prove that there had been a recent sexual inter course. In such circumstances, the defence theory of right of private defence of the person of Smt. Uchki and consequently cutting of the nose of Kishna Ram PW 1 by Kanwara Ram petitioner under grave and sudden provocation cannot be accepted and, in my view, the defence theory was rightly rejected by the courts below. 6. In such circumstances, the defence theory of right of private defence of the person of Smt. Uchki and consequently cutting of the nose of Kishna Ram PW 1 by Kanwara Ram petitioner under grave and sudden provocation cannot be accepted and, in my view, the defence theory was rightly rejected by the courts below. 6. A ground has also been taken by the petitioners in their revision petition that the trial court had framed charge against the petitioners and 3 more acquitted accused persons under Section 326 read with Section 149, I.P.C. However, the learned Additional Sessions Judge while acquitting the three other accused persons, convicted the petitioners for the offence under Section 326 read with Section 34, I.P.C. It has been pleaded that the conviction of the petitioners could not be converted from Section 326 read with Section 149, I.P.C. to Section 326 read with Section 34, I.P.C. I do not find any force in this ground taken by the petitioners. It has been held by their Lordships of the Supreme Court in B.N. Srikantiah v. State of Mysore, AIR 1958 SC 672 where in it was held that charge under Section 149 is no impediment to conviction under Section 34 if the evidence discloses commission of offence in furtherance of any common intention of all and no prejudice to the accused is caused. Apart from there being difference in common object and common intention for both deal with combination of persons who became punishable as sharers in an offence. Section 34 is only a rule of evidence and does not create a substantive offence. The facts to be proved and the evidence to be adduced with reference to the charge in the instant case under Section 149 would be the same if the charge were under Section 34, I.P.C. Mere failure therefore, to charge the petitioners under Section 34, I.P.C. would not result in any prejudice and in such cases, the substitution of Section 34 for Section 14 must be held to be of a formal matter. Reference in this connection may be made to the decision in Karnail Singh v. State of Punjab AIR 1954 SC 204 . In the present case, there is evidence that all the three petitioners went together following each other to the public way and assaulted Kishna Ram. Bhaga Ram asked the minor accused persons to cut the nose of Kishna Ram. In the present case, there is evidence that all the three petitioners went together following each other to the public way and assaulted Kishna Ram. Bhaga Ram asked the minor accused persons to cut the nose of Kishna Ram. All the petitioners dragged Kishna Ram and brought him to the field of Kanwara Ram and all of them actively assisted in the cutting of nose of Kishna Ram. Thus, the common intention of the petitioners to commit the offence under Section 326, I.P.C. is fully made out from the prosecution evidence. 7. Consequently, there is no merit in this revision and it is hereby dismissed. The petitioners are on bail. The Judicial Magistrate, First Class Bilara will take steps to take the petitioners in custody and commit them by warrant to jail to undergo the sentence awarded to them by the Additional Sessions Judge No, 2, Jodhpur by this judgment dated November 17, 1979 in criminal appeal No. 45 of 1979 of his Court.Revision Dismissed. *******