JUDGMENT

O'Kinealy, J. - The circumstances out of which this case has arisen are as follows : The appellants with a large number of men armed with spears and tatties went near the house of a man named Ayat Ullah and abused him, and Safat Uilah, the deceased, spoke to them, and then a man from the party of the appellants named Najib Ullah directed him to be beaten. It is said that the appellant Abdul Hakim speared Safat Ullah in the chest, and the appellant Jaban Ullah speared him on the left side as he was falling. Safat Ullah was speared through the heart and died instantaneously.

2. The appellants were charged with offences punishable under Sections 148, 302, 149 and 326 of the Indian Penal Code, and there was an additional charge laid against the appellant Abdul Hakim for an offence punishable u/s 302/149 of the Code.

3. The assessors in the Court below found the appellants guilty of an offence punishable u/s 148 of the Code, and they held that the common object was to take possession of or measure some land. The Sessions Judge was of opinion that this common object was not made out. He found, however, that the appellants were the persons who actually killed Safat Ullah, and convicted them of an offence u/s 326, namely, of causing grievous hurt by a dangerous weapon. He acquitted them of the offence u/s 148.

4. In appeal it has been argued before us that the evidence on the record is not sufficient to support the conclusion arrived at by the Sessions Judge, namely, that the appellants are the persons who actually caused the death of the deceased, and that as they have been acquitted by the Sessions Judge of the offence u/s 148 they must be acquitted.

5. We do not. share the difficulty experienced by the Sessions Judge as regards the common object. Here we have a large body of men armed with dangerous weapons crossing a broad river and marching to the house of an obnoxious individual, and there, under the directions of a leader, attacking Safat Ulliah and killing him. It seems to us that, at the moment at least at which they obeyed the directions of the leader, their common object was to cause hurt, and that they are liable under Sections 149 and 326.

6. Then it is said that we have no power u/s 423 of the Procedure Code to alter the finding and deprive the appellants of the benefit already conferred upon them by an acquittal in respect of the offence u/s 148.

7. We are of opinion that the appellants cannot rely upon Section 403 on the ground that they have been previously acquitted, because the present appeal is not a second trial, but only a continuation of the first trial. u/s 423 the Appellate Court can alter the finding, maintaining the sentence but not enhancing it. The power of the Court to alter the finding, therefore, is not limited in the manner 'claimed by the appellants. There are no doubt some cases to which this procedure would not be appropriate. That depends upon different considerations.

8. We, therefore, alter the conviction u/s 326 to a conviction under Sections 149 and 326, and maintaining the sentence we direct that the appeal be dismissed.

Banerjee, J.

9. I am of the same opinion.

10. The appellants in this case have been convicted by the learned Sessions Judge of Sylhet of the offence of voluntarily causing grievous hurt by dangerous weapons, and they have been sentenced to rigorous imprisonment for six years each.

11. The learned Counsel for the appellants contends that the evidence is not sufficient to prove that the grievous hurt was caused by the appellants. This, contention seems to me to be to some extent well founded; but it cannot, in my opinion, be of much avail to the appellants. For I think the evidence fully proves that the accused were members of an unlawful assembly; that the grievous hurt in question was caused in prosecution of the common object of that assembly; or that at any rate the accused knew that such grievous hurt was likely to be caused in prosecution of that object; and that having regar