Pakenham Walsh, J.
1. The accused is charged with causing grievous hurt to P.W. 1 and hurt to P.W. 2. The learned Sub-Divisional Magistrate acquitted him of both these offences but without framing any fresh charge found him guilty of affray under Section 160, Indian Penal Code. It is contended that this conviction is illegal both because there is no evidence to establish such a charge and secondly because the accused could not be convicted on such a charge without a fresh charge being framed.
2. With regard to the first point the prosecution case briefly was that the accused taxed P. W. 3 with saying that he suspected him of breaking an idol and the accused said he would not let him go until he proved it. In the course of argument accused caught hold of P.W. 3 and threw him on to the ground. Two friends of the accused, who have not been charged, assisted the accused and one of them beat P.W. 3 with his belt. P.W. 2 came from his house about 20 feet away and separated the accused and P.W. 3. The accused then asked him what right he had to separate them, produced an aruval and cut P. W. 2 on the left side of the head. The accused then ran away and P.W. 1 tried to obstruct him by holding out his hand. The accused then cut P.W. 1 on the left shoulder with the same aruval and made good his escape. On this prosecution evidence I. agree that there is no material for a conviction of affray. For a charge under Section 159 there must be two or more persons concerned. There is no finding by the Court as to who the second person concerned is. The statement which the learned Magistrate makes is rather an indefinite one:
I should not be surprised if there was some sort of general street fight.
3. Moreover as to disturbing the public peace the learned Magistrate finds that
there is some discrepancy as to the number of people who collected at the spot and exactly at what stage they collected.
4. He is correct, no doubt, in not attaching much importance to this; with regard to the charge of hurt, it is a matter of importance if the offence is one under Section 159 as to how the public peace was disturbed.
5. On the second point I consider the objection is good also. Begu v. The King-Emperor (1925) L.R. 52 IndAp 191 : I.L.R. 6 Lah. 226 : 48 M.L.J. 643 (P.C.) is quoted by the learned Public Prosecutor where five persons were charged with murder and two of them were convicted of murder and three with disposing of the body, an offence under Section 201. Their Lordships of the Privy Council held that this latter conviction was not illegal because no separate charge was framed. There is, however, a connection between murder and the disposing of the Dody. Moreover it has been laid down in Meher Sheikh v. Emperor I.L.R. (1931) 59 Cal. 8 that if Section 237 is to be applied there must be no doubt about the facts but only about the law applicable to those facts. The learned Judges do not find anything in Begu v. The King-Emperor (1925) L.R. 52 IndAp 191 : I.L.R. 6 Lah. 226 : 48 M.L.J. 643 (P.C.) opposed to this. They say:
The true test is whether the facts charged give the accused notice of the offence for which he is going to be convicted though he was not charged with it, so that he is not prejudiced by the mere absence of a specific charge. A case of no prejudice is met by Section 537, Criminal Procedure Code.
6. It is argued by the learned Public Prosecutor that the conviction can be upheld because there was no prejudice in this case. I am unable to agree. Before being convicted of an affray the accused should have had clear notice as to the person or persons with whom he was fighting, that the place was a public place and that the public peace was disturbed. On all these points he might have adduced defence evidence if a correct charge had been framed against him, and it cannot in my opinion be said that he was not prejudiced by not having notice these facts which constitute the necessary ingredients of the offence. In the result the conviction must be set aside and I consider it unnecessary to order a re-trial. The accused is therefore acquitted. The fine, if paid, will be refunded.