Kuppuswami Ayyar, J.
1. This is a petition by the complainant in Bench Case No. 6 of 1943 on the file of the Bench Court of Kollegal. The two accused there were sentenced to pay a fine of Rs. 30 each for an offence punishable under Section 323 of the Indian Penal Code. On appeal the Sub-Divisional First Class Magistrate of Kollegal acquitted the accused, and it its this order of acquittal that is sought to be revised.
2. The case for the prosecution was that on the date of occurrence P.W. 5 along with others who were playing in the street raised a cloud of dust and the second accused who was passing along scolded the boy P.W. 5 and gave him a slap. His father who was sitting on a pial witnessed it, came and remonstrated. P.W. 1 and the second accused quarrelled with each other. Just then the first accused, the father of the second accused, and others came and there was an exchange of abusive language between P.W. 1 and the second accused and it is stated for the prosecution that the first accused beat P.W. 1 and also asked the second accused to bring seme-thing. The second accused brought an axe. But others intervened and they were dispersed.
3. Besides P. Ws. 1 and 5 three others P. Ws. 2 to 4 were examined. They are said to have come there sometime during the course of this incident. The first accused pleaded alibi and said that he was not present there at all and that the complaint was a result of ill-feelings between them and P.W. 1. The second accused also denied the offence. A number of witnesses were examined for the defence to prove the ill-feelings and also to prove that the first accused was not there. The Bench of Magistrates disbelieved the defence version, believed the evidence for the prosecution, found the accused guilty and sentenced them as stated above. The Bench also recorded notes of evidence. The appellate Magistrate after perusing the notes of evidence recorded by the Bench found that several points in the evidence were not taken into consideration by the Bench and came to the conclusion that the accused were not guilty. He also referred to the fact that the name of P. W, 4 was not stated in the 11st of witnesses in the complaint.
4. It is urged before me that under Sections 263 and 264, Criminal Procedure. Code, no other record except the judgment and the register maintained under Section 263 could be looked into as no other paper but those are the records in the 'case. In King-Emperor v. Maung Po Saw I.L.R.(1934) Rang. 225 it is pointed out that even if the Magistrates had recorded the evidence, that could not be looked into unless it is embodied in the judgment. In Nagoor Kanni Nadura v. Sithu Naick (1926) 52 M.L.J. 32 also it is stated that the judgment in the case is the only record that can be looked in to by the appellate Court and that the appellate Court could not base its decision on anything not contained in that judgment. In Chockalinga Pandaram, In re (1937) 55 M.L.J. 117 it is stated that even the complainant's sworn statement cannot be looked into. In the light of these rulings, I should think that the appellate Magistrate was wrong in having looked into the notes of evidence when the same was not embodied in the judgment. But I do not think it could be said that a complaint in the case is not part of the records. The complaint is a paper filed into Court by the party and the records referred to in Section 264, Criminal Procedure Code, will be the record of proceedings in Court apart from the complaint. Viewed in this light the complaint can be looked into, and in the complaint P.W. 4's name is not mentioned.
5. The next question for consideration is whether this is a case in which I will be justified in interfering with the order of the appellate Magistrate acquitting the accused. The case is a very trivial one, the injuries inflicted were very trivial. It is only a boy's quarrel which parties thought it necessary to take to Court. That there have been ill-feelings between the two parties is clear from the evidence referred to in the judgment of the Bench Court. Even at noon on the day on which the occurrence is said to have taken place there was a quarrel. The fact that the neighbours were not attracted and they did not come is not a circumstance from which the Bench would be justified in finding that the evidence was false. So far as the second accused is concerned,' I dp not think he committed any offence, when all that he did was chastising the boy who raised dust which was interfering with the passers-by. Technically it would amount to an act done in the exercise of the right of private defence. The boy was causing injury to the passers-by of whom the second accused was one when he was raising a cloud of dust, and if he prevented the boy or chastised him and beat him I do not think it could be said he was committing any crime. With regard to the other accused, namely, the first accused, this is a case in which the benefit of the doubt should be given to him. There is the evidence of the defence witnesses that he was not there and if as stated by the prosecution he was so annoyed as to think it necessary to ask the second accused to fetch an axe, it is quite unlikely that no further injury would have been caused in spite of the fact that others interceded.
6. In these circumstances I do not think I will be justified in interfering with the order of acquittal and accordingly dismiss the petition.