The omission to specify S. 34, Indian Penal Code in the charge does not vitiate the conviction under S. 302, Indian Penal Code, if there is no prejudice caused to the accused.

Judgment

J. L. KAPUR J. : These two appeals under Art. 134(1) (c) of the Constitution arise out of the judgement and order of the High Court of Mysore at Bangalore confirming the convictions and sentences passed upon the appellants who were accused Nos. 2, 3 and 4 respectively by the Third Additional District Judge, Bangalore.

2. Accused Nos. 1, 5 and 6 who have been acquitted : and the appellants were charged as follows :

" I. . . . .. .. . . hereby charge you A-1 Sanjeeva Rao, A-2 Srikantiah, A-3 Sidda, A-4 Kidaripathi, A-5 Hanumantha and A-6 Pujari Anantha as follows :

1. That you on or about the 25th day of August 1952 at Mayasandra in Magadi Taluk were members of an unlawful assembly the common object of which was to murder deceased Anne Gowda and thereby committed an offence punishable under S. 143 of the Indian Penal Code and within the congnizance of the Court of Sessions.

2. That you A-2 Srikantiah, A-3 Sidda, A-4 Kadaripathi, A-5 Hanumantha and A-6 Pujari Anantha, on or about the 25th day of August 1952 at Mayasandra in Magadi Taluk did commit murder by intentionally causing the death of Anne Gowda and thereby committed an offence punishable under S. 302 of the Indian Penal Code, and within the congnizance of the Court of Sessions.

3. And that you A-1 Sanjeeva Rao on or about the 25th day of August 1952 at Mayasandra in Magadi Taluk abetted the commission of the offence of murder by A-2 to A-6 which was committed in consequence of your abetment and thereby committed an offence punishable under Ss. 109 and 302 of the Indian Penal Code, and within the cognizance of the Court of Sessions."

Thus all of them were charged with being members of an unlawful assembly, the common object of which was to murder the deceased, Anne Gowda. The appellants along with Hanumantha accused No. 5 and Pujari accused No. 6 were further charged with committing murder of Anne Gowda by intentionally causing his death. No doubt the charge does not contain the words "in furtherance of the common intention of all" but short of that the charge is as near them as it could be. Accused No. 1 Sanjeeva Rao was further charged with abetting the offence of murder. The trial Court acquitted all the accused of the charge under S. 143, Indian Penal Code and accused Nos. 5 & 6 of the charge under S. 302 /109 and the appellants under S. 302 and sentenced them all the transportation for life. They took an appeal to the High Court and the State appealed against the order of acquittal of accused Nos. 5 & 6 and the order of acquittal under S. 143. The High Court acquitted accused No. 1 Sanjeeva Rao of abetment of murder after the matter was referred to a third judge under S. 429 of the Criminal Procedure Code as there was a difference of opinion between the two Judges of the Division Bench hearing the appeal and thus the case of abetment set up by the prosecution failed. It upheld the acquittal of accused Nos. 5 & 6. The charge of unlawful assembly of which the common object was the murder of Anne Gowda the deceased also failed because of the acquittal of Sanjeeva Rao accused No. 1 Hanumantha accused No. 5 and Pujari accused No. 6 thus leaving only the appellants. Their conviction for an offence under S. 302, Indian Penal Code and the sentence of transportation was upheld. The trial Courts finding against them was as follows :

"So far as A-2 Srikantiah, A 3 Sidda and A4 Kadaripathi alias Kunta are concerned, there is ample tevidence to show that they alone inflicted injuries on the deceased Anne Gowda and caused his death. Thus a prima facie case has been made out against them for the murder of Anne Gowda."

3. The High Court in appeal said :

"The evidence on the whole is consistent and in fact it is so consistent that it was being urged on behalf of the accused that each witness was repeating what the other says. Some of the important witnesses have been mentioned in the First Information Report and the inquest itself was over within 24 hours after the incident. Taking the