Abdur Rahim, J.
1. The accused were tried on a charge under Section 147 of the Indian Penal Code for being 'members of an unlawful assembly and having in prosecution of the common object of such assembly, viz., to enforce a right or supposed right to the barber's land in Sorobogodo Pubodo in Pattupur committed the offence of rioting at Pattupur' and were convicted of that offence by the Sub Magistrate. On appeal the Appellate Magistrate held that the charge under Section 147 could not be sustained as he was unable to find that more than four persons were concerned in the occurrence but found the accused guilty of offences under Sections 447 and 323 instead of the offence of rioting as found by the Trial Magistrate, and reduced, the sentence from three months' to one month's rigorous imprisonment in the case of each accused. The learned Sessions Judge has referred the case to us for revision being of opinion that the Appellate Magistrate had no power to convict the accused under Sections 447 and 323, offences with which they were not charged and for which they were never tried, I may mention that no appeal has been preferred by the Government against the acquittal of the accused with respect to the charge of rioting.
2. The point for consideration arises whether the convictions under Sections 447 and 323 pf the Indian Penal Code by an Appellate Court can be sustained by virtue of Section 238 of the Code of Criminal Procedure. I am of opinion that they cannot. The common object of rioting as charged in the case was neither criminal trespass nor hurt nor any of the latter offences, a necessary ingredient of an offence under Section 147 of the Indian Penal Code, so that it could not be said that the accused were charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence or that being so charged, facts have been proved which reduce it to a minor offence. The illustrations to Section 238 show the class of oases comprehended by that section, and to convict the accused under Sections 447 and 323 of the Indian Penal Code in this case would be to convict them of charges which they were never called upon to meet. The case of Queen v. Salamut Ali 23 W. R. Cr. 59. is authority for the proposition that a man charged with rioting cannot be convicted of house trespass. Similarly in Dasarath Mandal v. Emperor 5 Cri. L. J. 424 : it was ruled that when certain accused persons were charged under Sections 304 and 325 of the Indian Penal Code read with Section 147 of the Indian Penal Code; that is, with offences of culpable homicide and grievous hurt as being members of an unlawful assembly in the prosecution of a common object of which those offences were committed, and the offence of unlawful assembly was not proved, they could not be convicted of an offence under Section 323 of the Indian Penal Code with which they were not charged.
3. The conviction and sentence under Sections 147 and 323 of the Indian, Penal Code must, therefore, be set aside. There is, however, evidence which, if believed, would support these charges against the accused if they were properly tried. This order will not, therefore, prevent the Magistrate taking cognizance of a complaint or charge under Sections 447 and 323 of the Indian Penal Code.
4. This case arises out of a disturbance that took place in a barber's main land in Pattupur village on the 27th June 1916. It arose out of a dispute as to the ownership of the land. The Karji reported to the Police that two parties had gone to the land intending to fight there. Undoubtedly, the fight took place. Eleven persons who are charged in the present case were arrested by the Police on the spot and the persons belonging to the other party who are charged in the counter-case were likewise arrested at the same time. Thirteen sticks and two khodnas were seized from the accused party at the time. Seven persons received injuries and were sent to the medical officer one of the person so injured receiving twenty contused wounds and abrasions Both parties were charged and convicted of rioting by the second Class Magistrate of Aska town in Calendar Oases Nos. 47 and 48 of 1916. On appeal before the Deputy Magistrate, the accused in C. C. No. 48 of 1916 were acquitted on the ground that they exercised the right of self-defence, the Appellate Court being of opinion that the land was in their possession and the Magistrate obviously thinking that this finding was sufficient to dispose of the charge against them. Whether that view is correct or not, need riot be considered here as there is no appeal by Government before us. With regard to the accused in Calendar Case No. 47 of 1916 the Magistrate, without giving any reasons for disbelieving the evidence of the Police Officer who says he arrested them on the spot, states that it is hard to say whether the accused other than Nos. 1,2, 10 and 11 were really present or took any part in the affair, and so only convicts accused Nos. 1, 2, 10 and 11 who received injuries. He accordingly altered the conviction from one under Section 147, Indian Penal Code, to one under Sections 447 and 323, Indian Penal Code.
5. The Sessions Judge has now referred, the case on the ground that the accused were not charged under those sections, and they having been acquitted of rioting, he is of opinion that the conviction should be set aside. There is, undoubtedly, authority for this position. But speaking for myself, I am not quite satisfied that the case does not fall within Section 238, Criminal Procedure Code and that hurt is not a minor offence, the hurt being clearly proved in this case. As my learned brother takes a different view following the authorities, I will not press my doubts and I agree with my learned brother in the order proposed by him under which the matter can be further enquired into if thought necessary.