The incorrect application of legal provisions, such as Section 34 of the Indian Penal Code, can lead to defects that vitiate a trial and necessitate a fresh trial.

JUDGMENT

Walmsley, J. - The appellants are four brothers Anirudha Mana; Madchab Mana, Gopal Mana and Gobinda Mana. They were all found guilty u/s 147 and u/s 304 (second part) read with Section 34, Indian Penal Code and each of them was sentenced to undergo two years' rigorous imprisonment on the first count and ten years' rigorous imprisonment on the second count, the sentences to run concurrently.

2. The story told for the prosecution was this. On 28th November the complainant Baikanta went to out paddy grown by him on a plot of land which his father had bought many years previously from the aunt of the appellants. He had with him, ten labourers. The appellants and others interfered and when he persisted in cutting the paddy, they assaulted him and the labourers. The result of the assault was that three of the labourers Jitu Das, Kailash Pradhan and Naba Jana received Injuries which proved fatal.

3. The charges framed against the accused by the committing Magistrate were u/s 147 and Section 304, Indian Penal Code. The common object in the former was said to be that "of causing hurt to Baikunta Panda and his men." In the latter the names of the three dead men were inserted in one charge.

4. The learned Judge amended the charge u/s 304 by inserting the words "in furtherance of your common intention, namely, to prevent Baikunta Panda from cutting paddy from his land and thereby" before the words "committed culpable homicide," and by adding Section 34 to Section 304, Indian Penal Code.

5. He also drew up three separate charges of culpable homicide, in regard to Jitu Das against Aniruddha, Gopal and Madhab, in regard to Kailash Pradhan against Gobinda and Madhab, in regard to Naba Jana against Gopal and Madhab. In each of these charges he referred to Section 34, Indian Penal Code and in formulating the charge he used these words "In furtherance of the common intention of you all, to wit, to prevent Baikunta Panda to cut the paddy grown by him In the disputed plot."

6. Objection is taken on behalf of the appellants to these charges, and also to the learned Judge's direction in regard to the meaning of Section 34, Indian Penal Code.

7. In my opinion the charges are thoroughly bad. On the allegations it was right that there should be a charge of rioting although I think that the common object was wrongly stated. The cause of the fray was the claim to the land, and the charge u/s 147, Indian Penal Code, should have dealt with that. This, however, is not the subject of the objection, and I merely mention it in passing.

8. After the charge of rioting there should have been charges in regard to the fatal injuries caused to each man, with reference to Section 149, Indian Penal Code, that is to say, there should have been charges u/s 302 and Section 304 and Section 825, Indian Penal Code read with Section 149 in regard to the injuries caused to Jitu Dass, another set of charges on the same lines in regard to the injuries caused to Kailash Pradhan, and a third set in regard to the injuries caused to Naba Jana.

9. Then there should have been charges against Individuals in regard to individual acts, that is charges of causing death, causing grievous hurt, or simple hurt, as the case may be. These charges would have enabled the Judge to advise the Jury as to the result of finding that possession was not with Baikunta, or of finding that the particular acts of violence lay outside the common object of the unlawful assembly.

10. Instead, however, of framing the charge in this well recognised form; and of using section which is obviously applicable, the learned Judge had recourse to a section which I think can hardly have been applicable on any view of the facts. More than this in making use of it he employs language which from the outset indicates a failure to understand its true purport, for the common intention which ho mentioned in the amended charge and the new charge was "to prevent Baikunta from cutting paddy on his land." The learned Judge has thu