JUDGMENT

Agarwal, J - This is an application for revision by the applicants against their convictions under Sections 147 and 323, Penal Code. They have been sentenced to six months' rigorous imprisonment under Section 147 and to a fine of Rs. 25 under Section 323 read with Section 149 and in default of payment of the fine each has been ordered to undergo further rigorous imprisonment for two months. The applicants were convicted by a Magistrate of the first class and their convictions were upheld by the learned Sessions Judge, The prosecution story in the words of the learned Judge is as follows:

One Kailu Julaha of village Barwaranpurwa sold a bullock to one Kallu Banjara on the morning of 15th October for Rs. 3-8-0. Some village people, namely, Adhar, Jangali, Shankarlal and Buley Sirwar objected to this sale. One Hira Lal who is a Brahman by caste asked Ram Adhar Sirwar to inform Kallu Julaha that by selling his bullock to the Banjara he had done a bad act and that he would suffer the consequence of this act. On this Kallu got frightened and took back the bullock from Kallu Banjara and returned the purchase money to him. On the same evening at about 7 P.M. Hira Lal along with the other appellants and others went to the house of Kallu Julaha armed with lathis. Hira Lal caught hold of Kallu Julaha and took him to Bhartiwa talab and tied him to a mahua tree with rope and demanded Rs. 15 as fine. Mt. Madina, Kallu's wife, had also followed the party to the talab in order to rescue her husband. Shortly after some persons of Sirpurwa, namely, Sattar, Yusuf and Jhingur also arrived at the talab and wanted to intervene. The appellants chased these people to their village. In the meantime Kallu Julaha managed to get free and he also ran away from there. The appellants chased the Sirpurwa people and threw brickbats at them. At Sirpurwa the appellants also broke the tiles of the houses of Jhingur and Sattar. An alarm was raised by the Sirpurwa men and on hearing this alarm SafdarMukhia along with 15 other persons ran towards the village. The appellants also assaulted this party. In the course of the lathi fight, Shahadut, Fazul and Safdar Mukhia received injuries. The son of Safdar was present and he cried out that his father was dead. On hearing this the appellants took to their heels.

2. This Btory was believed by both the Courts. The charge against the applicants was as follows:

That you on or about 15th day of October 1941 at village Barwaranpurwa sometime after sunset formed an unlawful assembly and in prosecution of the common object of extorting Rs. 15 from Kallu Julaha of the said village tied him (Kallu) with a rope and put him in fear of a beating. When people of Sirpurwa and Bulahan came to intervene and rescue him, you also assaulted them and caused simple injuries on the persons of Safdar Mukhia, Shahadat and Fazal Hasan and thereby committed an offence punishable under Sections 147 and 384/511 and 323 read with Section 149, Penal Code.

3. It has been argued before me that the prosecution case set up in the evidence and found proved was different from that set out in the charge-sheet and according to the prosecution case there ought to, have been separate charges for each offence and the applicants ought to have been tried separately for each offence. The charge was that all the offences were committed at Barwaranpurwa where Kallu was tied with a rope but that was not the prosecution case. According to the prosecution case, some people of Sirpurwa came to the place where Kallu was tied and when they wanted to intervene the applicants chased them up to Sirpurwa where they broke the tiles of the houses of Jhingur and Sattar and it was there, that is, in Sirpurwa that Shahdat, Fazal and Safdar Mukhia, residents of Bulahan turned up and were assaulted. Safdar Mukhia died before he could be examined. The prosecution witnesses have stated that when these persons of Bulahan remonstrated with the accused for what they were doing