ABUBAKER Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioners were charged under S.148, 323, 324,326 and 451 read with S.149 T. P. C., for having formed themselves into an unlawful assembly and in prosecution of the common object for having trespassed into the house and causing grievous hurt and simple injuries to P. Ws. 1 to 4. The learned Munsiff-Magistrate of Alwaye accepted the prosecution evidence and convicted the accused as charged. The learned Additional Sessions Judge of Parur who heard the appeal thought that the omission to specify the common object of the unlawful assembly has seriously prejudiced the accused and acquitted them of the offence of rioting and set aside the conviction under S.147, 148, and 149, but he found the accused guilty for their individual acts, the first accused under S.451 and 324 I. P. C., the second accused under S.451 and 323 I. P. C., the third accused under S.323 and 326 I. P. C., and accused 4 and 5 under S.323 I. P. C. Aggrieved with the order the revision petition has been filed to set aside the order.

(2.) It is contended on behalf of the petitioners that their conviction for the specific offences under S.323, 324, 326 and 451 I. P. C., is bad in the absence of any direct and individual charges against them in respect of these specific offence and the entire trial is, therefore, vitiated. This argument gains support from certain observations found in two decisions of the Supreme Court.

(3.) In the other case Nanak Chand v. State of Punjab (A. 1. R.1955 S. C. 274) also the same question arose for decision and it was held that a person charged with an offence read with S.149 cannot be convicted of the substantive offence without specific charge being framed as required by S.233 Cr. P. C. It was found in that case also that the appellant was in fact misled in his defence.