Judgment

RAGHUBAR DAYAL, J. : Jamuna Singh appeals, by special leave, against the order of the Patna High Court dismissing his appeal and confirming his conviction and sentence under Ss. 323 and 436 read with S. 109 I. P. C.

2. Along with the appellant, four other person were prosecuted for committing riot and the offence under S. :323 I. P. C. Jodha Singh, one of them, was also prosecuted for committing the offence under S. 436 I. P. C. The Assistant Sessions Judge acquitted one of the five persons and convicted the other four of the offence under S. 323 I. P. C. He also convicted Jodha Singh of the offence under S. 436 I. P. C.

3. These four convicted persons appealed to the High Court. The High Court acquitted two of the appellants before it. It acquitted Jodha Singh of the offence under S. 436 I. P. C. but maintained his conviction under S. 323 I. P. C. Jamuna Singh s.appeal was dismissed. He has come up on appeal to this Court.

4. Learned counsel for the appellant did not question the conviction of the appellant under S. 323 I. P. C. He has contended that the conviction of the appellant for the offence under S. 436 read with S. 109 I. P. C. is had in law, when Jodha Singh who is s