1. In this case the applicants before us were placed upon their trial on charges under Sections 147 and 353 of the Indian Penal Code; the general charge against them being that it being known to them that the Sub-Inspector of Excise was making preparations to search their houses and have them arrested by the regular Police, they gathered in a body with the intention of preventing by force the fulfillment of his duty by the Sub-Inspector of Excise. The charge actually framed against the applicants was that they were members of an unlawful assembly with the common object of resisting the arrest and rescuing the persons arrested by the Excise Sub-Inspector Zainul Abdin Kuli.

2. After going into the evidence the Deputy Magistrate who tried the case was of opinion that the common object of the assembly was not to resist the arrest but to resist the search. He, therefore, acquitted the applicants of the offence charged under Section 147 but convicted them under Section 323, with which offence they had not been charged.

3. On appeal to the Sessions Court the learned Judge pointed out that the conviction on the charge under Section 323 could not be maintained; but on going into the facts of the case he found that the intention of the unlawful assembly was to snatch away the cocaine phials and avoid arrest. He, therefore, found that the common object stated in the charge was at least one of the common objects of the assembly, and that, therefore, the assembly was unlawful and that the applicants should have been convicted of rioting. Therefore, under the provisions of Section 423 he altered the conviction under Section 323 to a conviction under Section 147, maintaining the sentences imposed under Section 323.

4. In this Court we are asked to revise this decision on two grounds. Firstly, that the learned Judge had no power to convict of an offence on which there had already been an acquittal, and secondly, that the charge as framed was so vague, containing as it did only a part at least of the common object of the assembly, that the accused have been prejudiced in their trial with regard to it.

5. On the first part of this argument the case of Queen-Empress v. Jabanulla 23 C. 975 : 12 Ind. Dec. (N.S.) 648 is indistinguishable. This case has been followed, as Mr. Desai's notes in the Index of Cases shows, in all the Courts in India.

6. It is true that in Dhanpat Singh v. Emperor 42 Ind. Cas. 598 [LQ/PatHC/1917/279] : (1917) Pat. 297 : 2 P.L.W. 188 : 18 Cri. L.J. 982 Chapman, J., apparently was not required to go further than to say that where the law had been improperly applied to the facts found, an Appellate Court had power to alter a finding of acquittal to a finding of conviction This too is the limit to which Beachcroft, J., felt it necessary to go in the case of Romesh Chandra Bannerjee v. Emperor 23 Ind. Cas. 985 : 18 C.W.K. 498 : 41 C. 350 : 15 Cri. L.J. 385. We see no reason to limit the section in the way suggested upon the basis of these two cases. The learned Judges in these two cases were, not required to go further than they did, and there is nothing in their judgments to suggest that they would not have been prepared to go further if necessary. The section as it stands empowers the Court to alter the finding, maintaining the sentences, and if it be conceded that a finding of acquittal may be altered to a conviction on a point of law, we can conceive no valid reason for limiting the word finding to a finding upon a point of law as distinct from a finding upon a point of fact.

7. Upon the second point urged, it is found by both the Courts in effect that the common object of the assembly was to thwart the Excise Officers in the execution of their duty; and it cannot be suggested that the particular wording of the common object as contained in the charge was a wording which could in any sense have misled the applicants in their defence. We must, therefore, decline to interfere in this case. The applicants will surrender to their bail and serve out the remainder of their sentences.