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1. This is an appeal by special leave. Before the Additional Judicial Commissioner Chotanagpur at Daltongunj, fourteen persons were put up for trial for offences punishable under Sections 147, 148, 302, 302 read with Section 149 of the Indian Penal Code and Sections 19(E) and 19(F) of the Arms Act. The Additional Judicial Commissioner convicted nine out of the fourteen persons. He convicted the 1st accused Shambhu Nath Singh for the offence under Section 302 and for offences under Sections 302 read with Section 149 and Section 148 of the Indian Penal Code and 19(F) of the Arms Act. For the offence under Section 302 of the Indian Penal Code, the 1st accused Shambhu Nath Singh was sentenced to transportation for life; for the other offences no separate sentences were passed. The learned Judge convicted accused Nos. 2, 3 and 4 for offences under Section 326 read with Section 149 and 148 of the Indian Penal Code and sentenced each of them for the offence under Section 326 read with Section 149 to suffer rigorous imprisonment for six years. For the offence under Section 148 of the Indian Penal Code, he did riot impose a separate sentence. He convicted accused Nos. 5, 6, 7, 8 and 14 for offence under Section 326 read with Section 149 and 147 of the Indian Penal Code. He also convicted the 7th accused for an offence under Section 19(E) of the Arms Act. The learned Judge sentenced accused Nos. 5, 6, 7, 8 and 14 for the offence under Section 326 read with Section 149 of the Indian Penal Code to suffer rigorous imprisonment for four years and did not pass any sentence under Section 147 of the Indian Penal Code. For the offence under Section 19(E) of the Arms Act, the 7th accused was ordered to suffer rigorous imprisonment for six months. Accused Nos. 9, 10, 11, 12 and 13 were acquitted. Against the order of conviction and sentence, the accused who .were convicted appealed to the High Court of Judicature at Patna. In appeal, the convictions of these accused persons were confirmed subject to a modification regarding the order of conviction of the 7th accused for the offence under Section 19 (E) of the Arms Act.

3. The learned Additional Judicial Commissioner held that on the day of the incident, Baran Kahar was in possession of the land in which rioting took place and that the accused who were convicted had formed themselves into an unlawful assembly and had committed rioting and that the common object of the unlawful assembly was to commit an assault and that the members of the unlawful assembly, because they were armed with diverse weapons "must have known that grievous hurt was likely to be caused" in prosecution of the common object. He accordingly held accused Nos. 2 to 8 and 14 guilty of offences under Section 326 read with Section 149 of the Indian Penal Code for the act of the 1st accused in causing gun shot injuries resulting in the death of Baran Kahar and his son Nanhu Kahar. The 1st accused Shambhu Nath Singh was convicted for the offence under Section 302 of the Indian Penal Code. For some reason which it is not easy to appreciate, the learned Judge convicted the 1st accused also of an offence under Section 302 read with Section 149 of the Indian Penal Code.

5. The question which then falls to be determined is whether the conviction of accused Nos. 2 to 8 and 14 for the offence under Section 326 read with Section 149 of the Indian Penal Code may be sustained when no offender is found guilty of the substantive offence under Section 326 of the Indian Penal Code. Counsel for the appellants submits that these accused were acquitted of the offence under Section V read with Section 149 of the Indian Penal Code and in the absence of evidence to prove that grievous hurt was in prosecution of the proved common object caused by a member of the assembly their conviction for the offence under Section 326 read with Section 149 is in law unwarranted. The 1st accused Shambhu Nath Singh has been convicted of the offence under Section 302 read with Section 149 of the Indian Penal Code and the other accused have been convicted of the offence under Section 326 read with Section 149 of the Indian Penal Code. Counsel for the appellants contends that in the absence of evidence to show that grievous hurt was caused by one of the accused in prosecution of the common object, the court was incompetent to record a conviction for the offence under Section 326 read with Section 149 of the Indian Penal Code.

7. Therefore a conviction for an offence under Section 326 read with Section 149 of the Indian Penal Code may be recorded against the members of an unlawful assembly, even if it be established that an offence of murder was committed by a member of that assembly. The offence under Section 326 of the Indian Penal Code is in its relation to the offence of murder a minor offence and the language used in Section 149 of the Indian Penal Code does not prevent the court from convicting for that minor offence merely because an aggravated offence is committed. Counsel for the accused however sought to place reliance upon certain authorities in support of his contention. We may briefly deal with those authorities.