Hegde, J.- We do not think that the material on record justifies the conviction of the appellants. The trial Court, i.e., the Court of Sessions, Belgaum, inSessions Case No. 141 of 1959, convicted both the appellants under section 302 read with section 149, Indian Penal Code and sentenced each one of them to suffer imprisonment for life. It also convicted them under section 148, Indian Penal Code and for that offence sentenced each one of them to suffer 18 months rigorous unprisonment. In that Court there were as many as 5 accused; all of them were charged under section 302 read with section 149 as well as under section 148, Indian Penal Code. But A-3 to A-5 were acquitted on the ground that their presence at the time of the occurrence was not satisfactorily established. Curiously enough, the learned Sessions Judge thought that in spite of the acquittal of those accused, he could still convict the appellants under section 302 read with section 149 as well as under section 148, Indian Penal Code, as in his view, for which there is no basis, five persons took part in the attack on the deceased. The prosecution case is that the deceased Tirthappa was in terms of illicit intimacy with Dyamawwa, wife of the first accused; therefore, the appellants who are cousins, along with their friends, the acquitted accused, formed themselves into an unlawful assembly and in prosecution of the common object of that assembly, the members of that assembly hacked the deceased to death on the morning of 30th September, 1959, in front of the house of P.W. 7, Chandrawwa, the sister of the deceased. There is no doubt that the deceased was hacked to death at the time and place mentioned in the charge. He had sustained as many as 13 injuries of which 12 were incised; his neck was almost severed. We have not thought it necessary to go into the question of motive as, in our opinion, the evidence relating to the occurrence is unreliable. But, before examining that evidence, we shall first consider the legality of the conviction of the appellants under section 148 and under section 302 read with section 149, Indian Penal Code. As mentioned earlier, the Court below came to the conclusion that it was not proved that A-3 to A-5 were members of the alleged assembly. But, before examining that evidence, we shall first consider the legality of the conviction of the appellants under section 148 and under section 302 read with section 149, Indian Penal Code. As mentioned earlier, the Court below came to the conclusion that it was not proved that A-3 to A-5 were members of the alleged assembly. The charge framed against the accused clearly mentioned that the 5 persons named therein were members of the unlawful assembly. It was not the prosecution case that any other persons known or unknown were also members of that unlawful assembly. If three out of the five members of that unlawful assembly were acquitted on the ground that it was not proved that they were members of that unlawful assembly, then the Court could not have convicted the remaining two under section 148, Indian Penal Code or for any other offence, by taking the aid of section 149, Indian Penal Code. Cases where it is proved that an unlawful assembly consisted of more than five members but some of them were not identified must be distinguished from those where the Court is doubtful about the presence of some of the persons mentioned as members of an unlawful assembly and if they are excluded from consideration the remaining members are not five or more. In the former case, the existence of an unlawful assembly is established though some of its members are not identified. But in the latter case the existence of an unlawful assembly itself becomes doubtful. The case of the prosecution was that five accused in the Court below were the members of an unlawful assembly. It was not said that it also consisted of some unknown persons. Nor was it alleged that any one or more of the members of that assembly could not be identified. The Court below did not believe that three out of the five accused tried before it were members of that group, which amounts to a finding that the existence of the alleged unlawful assembly is itself doubtful. Hence, there was no occasion for the application of either section 148 or 149, Indian Penal Code. See Bharwad Hepa Dana and another v. The State of Bombay1. In this view, the conviction of the appellants under section 148 as well as under section 302 read with section 149, Indian Penal Code, cannot be sustained. Hence, there was no occasion for the application of either section 148 or 149, Indian Penal Code. See Bharwad Hepa Dana and another v. The State of Bombay1. In this view, the conviction of the appellants under section 148 as well as under section 302 read with section 149, Indian Penal Code, cannot be sustained. But the learned Government Pleader contended that on the facts proved we could convert the conviction of the appellants to one under section 302 read with section 34, Indian Penal Code. The learned counsel for the appellants Sri V. Krishnamurthy resisted that contention on the ground that there was no charge under those provisions. His contention was that an offence under section 302 read with section 149, Indian Penal Code, is an independent offence and that a person charged for that offence cannot be convicted either under section 302, Indian Penal Code or under section 302 read with section 34, Indian Penal Code, which are wholly different offences. He further contended that the conviction of the appellants for an offence with which they were not charged is an illegality and not an irregularity curable by sections 535 and 537, Criminal Procedure Code. In support of these contentions, reliance was placed on the decision of the Supreme Court in Nanak Chand v. State of Punjab1. There their Lordships observed: “A charge for a substantive offence under section 302, or section 325, Indian Penal Code, is for a distinct and separate offence from that under section 302 read with section 149 or section 325 read with section 149. 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 233, Criminal Procedure Code. A wrong conviction under section 302/34 cannot be converted into one under section 302”. (As summariesed in the head-note). The observations above referred read by themselves do appear to support the contention of Sri V. Krishnamurthy. But that decision will have to be read along with the other decisions of the Supreme Court. The later decisions of that Court have explained the scope of that decision. It appears that decision must be confined to the facts of that case. Now we shall refer briefly to the facts of that case. But that decision will have to be read along with the other decisions of the Supreme Court. The later decisions of that Court have explained the scope of that decision. It appears that decision must be confined to the facts of that case. Now we shall refer briefly to the facts of that case. In that case, the appellant along with others, was charged under section 302 read with section 149, Indian Penal Code; but the trial Court found the appellant and 3 others guilty of an offence under section 302 read with section 34, Indian Penal Code. In appeal, the High Court of Punjab convicted the appellant alone under section 302, Indian Penal Code, but acquitted the remaining accused. It modified the conviction from one under section 302 read with section 34, Indian Penal Code, to one under section 302, Indian Penal Code. In the course of the arguments the decision in Karnail Singh v. State of Punjab2 where a conviction under section 302 read with section 149, Indian Penal Code, had been converted into a conviction under section 302/34, was pointed out to their Lordships. The learned Judges did not dissent from that decision. The Supreme Court has consistently taken the view that if no prejudice is caused to the accused, he may be convicted under section 302/34, Indian Penal Code, even though he was charged under section 302/149, Indian Penal Code. The first decision to which we would like to make reference is the decision in Lachman Singh and others v. The State3. In that case the very question that is before us came up for decision. Fazl Ali, J., speaking for the Court repelled the contention similar to the one advanced by Sri Krishnamurthy in this Court with the following observations: “..................It was also contended that there being no charge under section 303 read with section 34, Penal Code, the conviction of the appellants under section 302 read with section 149 could not have been altered by the High Court to one under section 302 read with section 34, upon the acquittal of the remaining accused persons. The facts of the case are however such that the accused could have been charged alternatively, either under section 302 read with section 149 or under section 302 read with section 34, The point has, therefore, no force.” If we may say so, with respect, the above conclusion flows from the: language of sections 236 and 237, Criminal Procedure Code. Section 236 says: “If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; of he may be charged in the alternative with having committed some one of the said offences.” Section 236, Criminal Procedure Code, deals with cases where there are no doubts about the facts proved but there is doubt as regards the offence made out by the proved facts. Such a difficulty some times does arise when the Court is called upon to decide whether the facts established give rise to an inference of “common object” as contemplated in section 149, Indian Penal Code or “common intention” within the meaning of that expression found in section 34, Indian Penal Code. That being so, the provisions of section 237, Criminal Procedure Code, are Attracted. That section reads: “If, in the case mentioned in section 236, the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of that section, he may be convicted of the offence which he is shown to have committed although he was not charged with it.” If the trial Court could have convicted the appellants under section 302 read with section 34, Indian Penal Code, by having recourse to section 237, Criminal Procedure Code, then this Court could also do the same thing. The scope of section 237, Criminal Procedure Code, was considered by the Supreme Court in Bejoy Chand Patra v. State of West Bengal1. Therein, the Court upheld the conviction of the appellant who was convicted under section 326, Indian Penal Code, though charged under section 307, Indian Penal Code. The scope of section 237, Criminal Procedure Code, was considered by the Supreme Court in Bejoy Chand Patra v. State of West Bengal1. Therein, the Court upheld the conviction of the appellant who was convicted under section 326, Indian Penal Code, though charged under section 307, Indian Penal Code. We may now take up the decision in Willie (William) Slaney v. State of Madhya Pradesh2, wherein the scope of the decision in Nanak Chand’s case3, came up for consideration. Bose, J., speaking for himself and for S.R. Das, Acting Chief Justice observed: “The Code is a code of procedure and like all procedural laws, is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. The object of the Code is to ensure that an accused person gets a full and fair trial along certain well established and well understood lines that accord with our notions of natural justice. If he does, if he is tried by a competent Court, if he is told and clearly understands the nature of the offence for which he is being tried, if the case against him is fully and fairly explained to him and he is afforded a full and fair opportunity of defending himself, then, provided there is substantial compliance with the outward forms of the law, mere mistakes in procedure, mere inconsequential errors and omissions in the trial are regarded as venial by the Code and the trial is not vitiated unless the accused can show substantial prejudice.” Their Lordships further observed: “Except where there is something so vital as to cut at the root of jurisdiction or so at horrent to what one might term as natural justice, the matter resolves itself into a question of prejudice.” Dealing with the decision in Nanak Chand’s case3 they said: “Now it is true that there are observations there which, without close examination would appear to support the learned counsel for the appellant. But those observations must be construed in the light of the facts found, the most crucial fact being that patent prejudice was disclosed. But those observations must be construed in the light of the facts found, the most crucial fact being that patent prejudice was disclosed. It was found that the appellant there was in fact misled in his defence and one of the factors taken into consideration, as indeed must always be the case, was that when he was told that he was to be tried under section 302 read with section 149, Indian Penal Code, that indicated to him that he was not being tried for a murder committed by him personally but that he was only being made vicariously liable for an act that another had done in prosecution of the common object of an unlawful assembly of which he was a member. But that was only one of the matters considered and it does not follow chat every accused will be so misled. It all depends on the circumstances.” Chandrasekhara Aiyar and Jagannadhadas, JJ., observed: “There is much difference in the scope and applicability of sections 34 and 149, though they have some resemblance and are to some extent overlapping. Section 34 does not by itself create any offence, whereas section 149 does. In a charge under section 34, there is active participation in the commission of the criminal act; under section 149 the liability arises by reason of the membership of the unlawful assembly with a common object, and there may be no active participation at all in the perpetration or commission of the crime.” But, proceeding further, their Lordships observed: “Sections 34, 114 and 149 of the Indian Penal Code provide for criminal liability viewed from different angles as regards actual participants, accessories and men actuated by a comma object or a common intention; and the charge is a rolled-up one involving the direct liability and the constructive liability without specifying who are directly liable and who are sought to be made constructively liable. 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.” Imam, J., who delivered the judgment in Nanak Chand’s case1, was a member of the Bench which decided the above case and generally speaking he agreed with the judgment delivered by Chandrasekhara Aiyar, J. Now we may proceed to consider the decision in Khacheru Singh and others v. State of Uttar Pradesh2. At the outset it may be mentioned that the judgment of the Court was delivered by Imam, J. In that case eleven accused were charged under sections 148, 323 and 326 read with section 149, Indian Penal Code. It was proved that out of them three accused had attacked the complainant in the first incident. In that incident certain injuries were suffered by the complainant although no injury was caused by a spear. The complainant ran away followed by these three accused and the complainant and his companions were again attacked by these three accused. The Sessions Judge acquitted 8 accused and convicted the three accused. The High Court in Revision held that as a result of the Sessions Judge’s judgment the three accused could not be convicted under section 148 or sections 323 and 326 read with section 149 as the ingredients to establish the existence of an unlawful assembly were absent. The High Court, however, convicted these three accused under sections 323 and 326 read with section 34, Penal Code. The Supreme Court held: ‘The provisions of section 34 were applicable. These three accused assaulted the complainant, in the first incident. They pursued the complainant and they persisted in assaulting him and those who had come to his help. The clear implication of this was that the assault in the second incident was the result of the previous concert. The evidence to prove the common intention was the same which would have proved the common object if it had been established that there had been an unlawful assembly. The accused therefore, could be convicted under sections 323 and 326 read with section 34." The last decision cited at the Bar is the one reported in Bharwad Hepa Dana v. State of Bombay3. The accused therefore, could be convicted under sections 323 and 326 read with section 34." The last decision cited at the Bar is the one reported in Bharwad Hepa Dana v. State of Bombay3. In that decision, their Lordships laid down that a mere error in the charge, in the absence of prejudice, is insufficient to set aside the conviction. We have gone into the above controversy in some detail as that controversy was being debated before this Court repeatedly ever since Nanak Chand’s case.1 The difficulty of the prosecution in this case is not one of law. The prosecution has to fail on facts. P.W. 7 Chandrawa, P.W. 6 Basappa, P.W. 5 Hanmant and and P.W. 8 Parwatavva were examined as eye-witnesses to the occurrence. From the Panchanama prepared in the case (Exhibit 7 (b)) as well as from the evidence on record, it is clear that there are large number of houses near the scene of occurrence. Yet surprisingly no independent witness was examined in this case. P.Ws. 7 and 8 are the sisters of the deceased. P.W. 5 is the brother-in-law of the deceased. P.W. 6 is the cousin of P.W. 5. Admittedly one Dyamappa had witnessed the occurrence and had even separated the accused from the deceased. Yet he was not examined and no reason is forthcoming for his non-examination. This is not all. Now coming to the evidence of P.Ws. 5 to 8, all these witnesses, though close relations of the deceased, had turned hostile to the prosecution. None of them had supported the prosecution case. P.W. 8 Parwatavva stated in Court that she knew nothing about the occurrence. She was treated as hostile to the prosecution. P.W. 6 Basappa, again has completely turned turtle. The prosecution cannot take any assistance from his evidence. The deceased was murdered according to the prosecution in front of the house of his sister Chandrawa (P.W. 7). Even this witness did not support the prosecution in the trial Court. She went back on the version given by her in the committal Court. She was naturally permitted to be cross-examined by the learned Public Prosecutor and her evidence given in the committal Court was brought on record under section 288, Criminal Procedure Code. But we can place no reliance on that testimony without sufficient and independent corroboration. Is there any such corroboration? She was naturally permitted to be cross-examined by the learned Public Prosecutor and her evidence given in the committal Court was brought on record under section 288, Criminal Procedure Code. But we can place no reliance on that testimony without sufficient and independent corroboration. Is there any such corroboration? The learned Government Pleader commended to us the evidence of P.W. 5 Hanmant for corroborating the testimony of P.W. 7 given in the Committal Court. This witness had laid the first information in the case (Exhibit-8 {a)) which reads as follows: "To-day in the morning at about half an hour after sunrise my brother-in-law Tirthappa went from my house saying that he will come after meals and went to his sister Chandra, wife of Hanmant Naikar’s house. After about half an hour as usual for going to my cooli work of hammering the pieces of stones I went up to my village road. From my behind my cousin Basawantappa Yellappa Malegimani came running and shouted that the said Tirthappa was being beaten and assaulted by Bhimappa and Yellappa (A-1 and A-2) and others and I came running. Myself and he came together near the place where said Tirthappa was being assaulted. At that time, in front of Yardey, the house of Chandrawa (1), Bhimappa Laxmappa Gangal (2), Yellappa Tippanna Gangal (3), Hingappa Hanmant Irapannavar (4), Yellappa Fakirappa Chalmatti (5), Fakirappa Yellappa Hubliyawar (A-1 to A-5), all of our village had made the said Tirthappa to fall down. Out of them Yellappa had an axe in his hand and he was cutting Tirthappa. Rest of them were throwing stones and were instigating Mallappa to cut. At that time Dyamappa Ningappa Parasnaikar and said Chandrawa and Parwatawa, wife of Fakirappa Goravankolle were present and 1 hey were engaged in separating. We both being afraid did not go nearer to them. The said accused went after cutting the Tirthappa. At that time we went there and saw Tirthappa had big injuries near his ear and head. He had breathed his last and his corpse was laying facing to ground.’ But in the trial Court he completely changed his version. There he deposed as follows: "As I was proceeding one Basawantappa met me half way and told me that there was a row in front of Chandrawa’s house and that Tirthappa was being assaulted. He did not tell me as to who were assaulting Tirthappa. There he deposed as follows: "As I was proceeding one Basawantappa met me half way and told me that there was a row in front of Chandrawa’s house and that Tirthappa was being assaulted. He did not tell me as to who were assaulting Tirthappa. Therefore, both of us ran back to the village. We both went to my house. I kept my implements in my house. Thereafter, both of us went as far as the bullock cart that was standing in front of the house of Dyamappa. When we went there, we saw four persons running away and one more, viz., Yellappa, accused No. 2 standing in front of Chandrawa’s house where Tirthappa was cut. Accused No. 2 was armed with an axe. I did not see any weapon in the hands of the four persons who ran away." The learned Government Pleader frankly conceded that this witness is not a truthful witness. Therefore, there is no point in considering his evidence for the purpose of corroboration. Next, reference was made to the circumstantial evidence available in the case. We are told that articles 13, 16 and 17 which were all blood-stained, were recovered during the search of the house of A-1 and that they are incriminating against him (A-1). In the first place, it is not proved that any one of those articles were stained with human blood. They were not sent to the Serologist at all, which was sheer callousness. Again it is not the prosecution case that those articles were recovered on the information given by A-1. Nor is there any other evidence to show that those articles were in his possession. For the reasons mentioned above, the prosecution case fails. In the result, this appeal is allowed and both the appellants are acquitted. They shall be released forthwith. S.V.S. ----- Appeal allowed.