A person charged with an offense under Section 323 read with Section 149 of the Indian Penal Code cannot be convicted of the substantive offense under Section 323 of the Indian Penal Code without a specific charge being framed for that offense.

JUDGMENT :

Barman, C.J. - The incident out of which this appeal by, the three accused- Appellants Raghunath Das, Sapani Samal and Lambodar Samal arises, was out of a quarrel that took place on June 26, 1963 between the rival parties in village Dinabandhupur of Dhenkanal District over giving of paddy loans from out of the common stock of paddy (Deshkoth fund) under the management of the Marfatdar Lingaraj Panda. In the course of that quarrel there was a suffle between the two rival parties as a result of which injuries were sustained on both sides and one of the members of the prosecution party Maheswar Bhoi died as a result of the assault made by the accused-Appellant Raghunath Das. The prosecution party was led by p.w.1 Kambhunath Sahu and p.w.2 Purushottam Panda, and the accused-party was led by the accused-Appellant Raghunath Das and Jagabandhu Mohapatra who, however, was not charged in connection with the incident.

2. About 10 to 15 clays before the date of occurrence, the Marfatdar Lingitraj Panda who was in charge of Deshkoth paddy refused to advance paddy loans from the Deshkoth fund to some members of the prosecution party; this is said to be at the instance of the accused-Appellant Raghunath Das and Jagabandhu Mohapatra. There appears to have been some resentment over this refusal of paddy loans to a particular section of the village. It is said that the prosecution party put a lock at the door of the granary of the Deshkoth house, in order to prevent the members of the accused party taking paddy loans from the Deshkoth fund.

3. On the date of occurrence June 26, 1963 at about 9 in the morning the members of the prosecution party large in number-including p. ws. 1, 3, 4, 6 to 10, 13 and 17 and the deceased Maheswar Bhoi and others, went to the granary for paddy loans after being called by the village Choukidar Bairagi Naik (p.w.14) and found that the lock put by them had been broken, and that the accused Marfatdar Lingaraj Panda was issuing paddy loans to some members of the accused party. What happened thereafter so far as material for the decision of their appeal, is in substance this: When the accused Marfatdar Lingaraj Panda refused to give loan, there was an altercation between the parties in the course of which the accused-Appellant Raghunath Das is said to have picked up a bamboo lathi (M.O. I) from the small granary and dealt a blow on the head of the victim Maheswar Bhoi with that lathi as a result of which Maheswar Bhoi fell down with his face downwards and became unconscious; he was removed to hospital but did not regain consciousness and died on July 2, 1963. The charge against the other two accused-Appellants Sapani Samal and Lambodar Samal is that they along with other persons (who were charged but acquitted) trampled over the body of Maheswar Bhoi. The further charge against the three accused-Appellants is that p.w.13 Sunia Bhoi while coming to the rescue of Maheswar Bhoi was also assaulted by the three of them with lath is ; they are further alleged to have assaulted p.w.3 Gundicha Dehuri and others in the manner as stated in the respective charges against the three accused-Appellants.

4. On the same day, at 2 p. m. the leader of the prosecution party Kambhunath Sahu (p.w.1) lodged an information at Bhapur Outpost on the basis of which the police made a station dairy entry; the police also seized a bamboo lathi (MO. 1) produced by the informant p.w.1. On the same day at about 3 p.m. a counter information was also filed by accused Routra Samal on the basis of which another station dairy was made. The formal F.I.R. lodged by p.w.1 Kambhunath Sahu was recorded at 3 p.m. on June 27, 1963 at Sadar P.S. 13 miles away from the village of occurrence. There, the names of all the 17 accused persons including the three Appellants were mentioned. In the course of investigation, the police arrested accused. Appellants Raghunath Das and Sapani Samal on June 29, 1963 ; they also arrested accused-Appellant Lambodar Samal