JUDGMENT

Broadway, J. - Mula Singh, Wiru, Jagat Singh, Sant Singh and Mohan Lal have been convicted under Section 326, Indian Penal Code, and sentenced, the first two, to seven years' rigorous imprisonment, and the last three, to five years' rigorous imprisonment. Each of them has also been sentenced to pay a fine of Rs. 50 or to undergo three months further rigorous imprisonment in default. They have appealed to this Court through Dr. Nand Lal and I have heard Mr. Rafi on behalf of the Crown.

2. The facts are detailed in the lengthy judgment of the learned Sessions Judge and I need refer to them very briefly. It is said that on the 21st June 1921 one Hira Singh was watering his fields while his son Sohan Singh, was working the well known as Bawewala-Wiru and Guran Ditta came there to water their cattle. After having done so they are said to have allowed the animals to trespass into Sohan Singh's sugarcane and cotton fields. This led to an altercation and a tussle. Hira Singh stopped the fight and Wiru and Guran Ditta went away.

3. Soon after this, according to the prosecution, the five appellants, together with many others, came to the spot in order to take revenge. The deceased, Budh Singh, heard of this and hastened to the spot, with the result that he received injuries to which he ultimately succumbed. The initial report was made at the Police station, which is some six miles away, at 3 A.M. on the 22nd June 1921 by Mangal Singh who named 13 persons including four out of the five appellants; the one not named by him was Wiru Singh. The Police arrived on the spot in due course and Budh Singh was examined. Subsequently, while in hospital, his statement was recorded by a Magistrate, and in it he named 13 persons including four of the appellants, the one omitted by him being Sant Singh. In the course of the inquiry Mangal Singh stated that some of the persons named by him had been named as they had been there and had not attempted to stop the fight but that they had not actually taken any part in the affair. The Police ultimately sent up for trial nine persons, two of whom were, and apparently are, still absconding. The Magistrate making the inquiry framed charges against the other seven, including the five appellants, under Sections 304, 26, 325 and 323, Indian Penal Code. The complainant, however, moved this Court on the revision side urging that the commitment should be under Section 302, Indian Penal Code, and the learned Chief Justice accepting the petition directed accordingly. On the case going back to the inquiring Magistrate the committal was made under Section 302, Indian Penal Code, alone qua all the seven persons. At the commencement of the trial the learned Sessions Judge added charges under Sections 326, 325 and 323. Indian Penal Code, in connection with the injuries inflicted on Mohan Singh, Assa Singh and Sohan Singh, three of the prosecution witnesses No objection was taken to this course when the addition was made and it was only at the conclusion of the case when Counsel for the defence was addressing the Court that exception was taken to this. The learned Sessions Judge's attention was drawn to Shah Din v. Emperor (I) but he found that distinguishable and held that the persons'accused had not been prejudiced in any way by the addition. He also held that they had taken part in the affray with one common intention and were, therefore, all equally liable for the death of Budh Singh. He acquitted two of the persons under trial and convicted the five appellants under Section 326, Indian Penal Code "for causing grievous hurt to Budh Singh, Asa Singh and Mohan Singh."

4. Dr. Nand Lal for the appellants has urged that the appellants were entitled to an acquittal, as the learned Sessions Judge acted illegally in adding charges relating to the injuries sustafhed by Asa Singh, Mohan Singh and Sohan Singh. He referred to Subrahmania Ayyar v. King-Emperor [1902] 25 Mad. 61 as an authority for the proposition that an illegal