1. This is a reference by the learned District Magistrate of Muzaffarnagar, recommending that the sentences passed by a Tahsildar Magistrate of that District on Barmanand and Jhabboo for offences under Sections 406 and 323, I.P.C., be enhanced. The facts which led to the reference are as follows: The complainant Baldeva and the accused are Sunars by caste. The evidence shows that Barmanand actually carries on the profession of a goldsmith. On 24th April 1935, Baldeva filed a complaint in the Court of the Subdivisional Officer, Jansat, alleging that a few days before the complaint he had taken a pair of gold bangles to the accused Barmanand and offered to sell them to the latter, and that it was agreed that Barmanand would give 1 3/4 tolas of gold and 8 1/4 tolas of silver in lieu of the bangles which were 'sold' to Barmanand. On Baldeva demanding 13/4 tolas of gold and 81/4 tolas of silver, which Barmanand had agreed to give him, the latter said that he would give them after the bangles were melted. Baldeva accepted Barmanand's word and came to him two or three days afterwards and demanded the gold and silver which he had agreed to give.
2. At that time accused 2, Jhabboo, was sitting at the shop of Barmanand. Baldeva insisted on the gold and silver being given to him, which led to some altercation followed by an assault by Barmanand and Jhabboo. Baldeva received some injuries, which were subsequently mentioned by a medical practitioner in an injury report. On the above allegations Baldeva charged Barmanand with offences under Sections 406 and 323,I.P.C., and Jhabboo with an offence under Section 323, I.P.C. The Subdivisional Magistrate transferred the case to a Tahsildar Magistrate of the Second Class, who recorded the evidence of a number of witnesses produced by the complainant and charged the accused Barmanand under Sections 406 and 323 and Jhabboo under Section 323 only. Barmanad pleaded in defence that Baldeva had sold the bangles to him, as admitted by the latter, and that he had given the agreed quantities of gold and silver to Baldeva. It appears from the complaint and the statements of the complainant's witnesses as also from the statements of the accused and the witnesses examined in defence that sufficient attention was not paid to the view on which the reference made by the learned District Magistrate is based. The crucial question in the case is whether Baldeva had transferred his rights in the bangles to Barmanand, so that the property in those articles passed from Baldeva to Barmanand, or Baldeva retained his ownership of the bangles while they were in the custody of Barmanand, who had agreed to hand over to Baldeva the identical gold and silver to be obtained by melting the bangles. In the former case, it is clear, as the learned District Magistrate has pointed out, that no offence under Section 406, I.P.C., can be said to have been committed. In the latter case Section 406 is clearly applicable.
3. The Tahsildar Magistrate believed the witnesses for the prosecution and disbelieved those for the defence so far as the latter attempted to establish that Barmanand had given the agreed quantities of gold and silver to Baldeva. On that finding he assumed that Barmanand committed an offence under Section 406, I.P.C. He also believed the statement of the witnesses for the prosecution that both Barmanand and Jhabboo assaulted Baldeva as alleged by him. He sentenced Barmanand to a fine of Rs. 100 under Section 406, I.P.C., and both Barmanand and Jhabboo to a fine of Rs. 25 each under Section 323, I.P.C. Barmanand and Jhabboo filed an appeal in the Court of the District Magistrate. It was argued before him that on the own showing of the complainant and his witnesses no offence under Section 406 could be said to have been committed in view of the fact that Baldeva had 'sold' the bangle to Barmanand, who had agreed to give certain quantities of gold and silver in exchange. The record of evidence appears to have been then examined in the light of the contention noted above. The learned District Magistrate seems to have appreciated the question of law involved in the contention referred to above; but he expressed the opinion that the Tahsildar Magistrate misunderstood the complainant and that what he and his witnesses meant to say was that Barmanand would, according to the agreement, give the identical gold and silver which would be obtained after melting the bangles. In that view, the learned District Magistrate repelled the contention which had been put forward before him on behalf of the accused. He considered that, having regard to the nature of the offence, the sentence imposed by the trying Magistrate was inadequate.
4. The District Magistrate was apparently under the impression that the Tahsildar had convicted the accused under Section 325, I.P.C. This is clear from his remark that the sentence of imprisonment was compulsory and fine only did not meet the requirements of the case. Accordingly he submitted the record of the case to this Court, recommending that the sentences on both counts be enhanced. In showing cause why the sentences should not be enhanced, the learned advocate for the accused argued the case in all its aspects, contending that the evidence did not justify the conviction of Barmanand under Section 406, I.P.C. We have been taken through the evidence by counsel on both sides, and are of opinion that though there is much to be said in favour of the view which commended itself to the learned District Magistrate, the case is not free from doubt. It would be somewhat unusual for an owner of a gold ornament to transfer out and out his right therein to a goldsmith in consideration of the latter's promise to give certain quantities of gold and silver. It is more probable that the owner of an ornament desirous of obtaining its gold would have it melted and the gold given to him; but a transaction of the first kind is easily conceivable, and if the evidence in the present case is consistent with a transaction of that kind, the Court should not construe it so as to make it a case of the second kind. The learned District Magistrate thought that through some mis-understanding the word 'farokht' became part of the evidence of the witnesses; but we find from the complaint itself that the ornaments had been sold' in lieu of 13/4 tolas of gold and 8 1/4 tolas of silver. It is alleged in the complaint that, after the agreement was concluded, the complainant there and then demanded the agreed quantities of gold and silver.
5. It is argued on behalf of the accused that it was not part of the bargain that Barmanand should give the identical gold and silver of which the ornaments were composed, and that, as was indicated by immediate demand made by Baldeva, it was open to Barmanand to give any other gold and silver of the agreed quantities. We have examined the complainant's statement at the back of the complaint, his evidence and that of his witnesses, and are unable to say that they are inconsistent with the interpretation which is placed on them by the accused. The word 'sell' occurs in all of them. There is no clear indication anywhere that the agreement between the parties was that the identical gold and silver composing the ornament were to be given to Baldeva.
6. The record is quite consistent with the supposition that property in the ornament had passed from Baldeva to Barmanand in consideration of the latter agreeing to give certain quantities of gold and silver not necessarily the identical gold and silver of which the bangles were composed. As already stated, the case is not free from doubt. The accused cannot, in these circumstances, be convicted under Section 406, I.P.C.
7. As regards the other offence, we find on a reference to the charge sheet that they were tried under Section 323, and not Section 325. The medical evidence shows that Baldeva had a contusion 3'x 3' on the dorsum of the left hand, probably due to dislocation of meta-tarso-phalangeal joints of the middle and ring fingers of the left hand. Besides this injury two other injuries were noted in the injury report, but they are swellings due to the first injury. The doctor's evidence does not show positively that there was a dislocation of a finger joint. The doctor attributed the injury No. 1 to the probability, and distinguished from certainty, of there being a dislocation of the joint named by him. In that state of the evidence the Tahsildar Magistrate was right in charging the accused under Section 323, I.P.C. We may point out that, even if it were otherwise, we cannot straight away alter the conviction from Section 323 to Section 325, for which the accused have not been tried. While we hold that the accused were rightly convicted under Section 323, I.P.C., we think that the fines imposed for that offence by the trying Magistrate are inadequate. Having regard to the nature of the injuries received by Baldeva and the circumstances in which they were caused, we think that the case calls for a severer sentence than that imposed by the trying Magistrate. The result of our findings is that Barmanand is acquitted of the offence under Section 406, I.P.C. His conviction for that offence is set aside, and the fine, if paid, shall be remitted. The sentence of Barmanand and Jhabboo under Section 323, I.P.C., are enhanced from Rs. 25 to Rs. 50 in the case of each of the two accused. Out of the fine, if recovered, Rs. 50 shall be paid to Baldeva as compensation.