Bardswell, J.

1. Originally six persons were accused in this case of whom the first four are now the appellants. The first accused was charged with culpable homicide not amounting to murder and all the accused were charged with rioting armed with deadly weapons and with culpable homicide not amounting to murder under Section 304 read with Section 149, Penal Code. The learned Sessions Judge acquitted accused 5 and 6 holding that there was no unlawful assembly of five or more persons and finding that there was no rioting. The first accused was convicted of the main charge under Section 304, Penal Code, and accused 2, 3 and 4 were convicted under Section 304 read with Section 34, Penal Code.

2. It is contended for appellants 2, 3 and 4 that their conviction under Section 304 read with Section 34, Penal Code, is illegal, the contention being that they were charged with a constructive offence and have bean found guilty of a substantive offence and the decision of Jackson, J., in Rami Reddi, In re 1931 Mad. 240 as to the illegality of a conviction in such circumstances for a substantive offence has been quoted. But this decision does not apply because, in my view, the conviction un