Panchapakesa Ayyar, J.
1. The three petitioners in this case were the three accused in B. C. No. 660 of 1952 on the file of the First Class Bench Court of Erode. They have been convicted under Section 323, I. P. C. The first two petitioners have been sentenced to pay a fine of Rs. 20 each, and the third petitioner to pay a fine of Rs. 40.
2. The case against them was that the third petitioner, Ramaswami Goundan, beat the complainant, Palaniswami Goundan, with a stick on his refusing to pay a tax for running the 'Pavoo' in the usual 'pavidi'. The beating was said to have been at the instigation of the second petitioner. There was nothing alleged against the first petitioner regarding the beating. He was simply said to have removed the crowbar to which the 'pavoo' rope was tied, as the tax was not paid. That, of course, has nothing to do with the beating.
3. The learned Counsel for the petitioners urged two main contentions. The first was that the convictions and sentences were all illegal as the judgment was delivered by two members of the old Bench court, who continued to be members of the reconstituted Bench court. It was admitted that these two members had heard the evidence and arguments in full, and that they alone among the members of the reconstituted Bench had heard the case. It was, however, urged that two more members of the old Bench court had heard the evidence along with these two, and that the convictions and sentences were illegal, as those two persons had not joined in the judgment. Reliance was placed on the ruling in - In re Damarla Krishnarao AIR 1951 Mad 852 (A). That was a ruling or my own, and the facts there were quite different from the facts here. There, three members of the Bench Court heard the case, and all continued to be members, but the judgment was written only by two of the members, who, then and there, pronounced the judgment, and sent it for approval of the third member, who dissented from their opinion. Here, however, the two members, who had heard the case along with these two who delivered the judgment, had ceased to be members of the Bench Court by the time the judgment was pronounced, unlike the third member in the ease relied on.
In cases like the present one, it will be obviously against reason to hold that all cases which have been completely heard by the old Bench Court, and regarding which Judgments only have to be delivered should be reheard by the newly constituted Bench Court. It will be, of course, illegal for the members who have ceased to be members of the Bench Court to join in writing or pronouncing the judgment after they have ceased to be members. There is no rule, so far as I am aware, that two members of a Bench Court cannot deliver the judgment in a case heard by them. There is no minimum number of Bench Court Magistrates who have to join in a judgment. All those who heard the case and who still continue to be members must join. But. if some of the members who have heard the case die, or are removed for misconduct, or resign, or are replaced by others, I do not think that there is anything irregular in the remaining members who heard the case and who continue to be members of the Bench, delivering the judgment. So, I reject this contention and hold that the proceedings were all legal.
4. Then, Mr. Rangaswami Aiyangar, the learned Counsel for the petitioners, argued on the merits. He urged that while the conviction of accused 3 (petitioner 3) could be supported on the evidence of P. Ws. 1 to 3, the conviction of accused 1 and 2 (petitioners 1 and 2) was wholly unjustified on the evidence on record. I agree. Regarding accused 1 (petitioner 1) there was no allegation at all of even abetment. P. Ws. 1 to 3 had all stated that only accused 3 beat P. W. 1, the complainant, and that accused 1 and 2 did not take part in the beating. The complaint itself only implicated accused 2 of abetment and not accused i. So, the conviction of accused 1 was clearly wrong, as it was based on no evidence. His conviction and sentence are set aside, and the fine, if paid, ordered to be refunded to him.
5. Coming to accused 2, though there was some evidence regarding his alleged instigation of accused 3 to beat the complainant, P. W. 1, I agree with Mr. Rangaswami Aiyangar that the evidence of abetment by instigation was not credible. There was no reason whatever for accused 2 to instigate accused 3 to beat the complainant and remain passive himself. Accused 3 was not his servant. Nor was accused 2 a big man acting through a small man like accused 3. If really accused 2 instigated accused 3, he would have also, I have no doubt, beaten the complainant himself. I consider that Mr. Rangaswami Aiyangar is on firm ground when he says that at least the benefit of doubt should be given to accused 2, as he might have been implicated owing to the admitted enmity of all the three accused towards the complainant, P. W. 1, prior to this offence. It is unfortunately very common in India to implicate even persons standing by when one is beaten, on the ground that they had a moral duty to intervene and prevent the beating, and that their failure to do so proves abetment. This is done all the more freely when the persons standing by are old enemies like accused 1 and 2. So I set aside the conviction and sentence of accused 2 also, and order the fine, if paid, to be refunded to him.
6. As regards accused 3, there was ample evidence to support the conviction under Section 323, I. P. C. He was the man who actually beat the complainant, P. W. 1, and this was spoken to by P. Ws. 1 to 3. There was also a medical certificate to prove that actual beatings were administered to P. W. 1 at the time and in the manner alleged. The conviction of accused 3 is confirmed. The sentence is not at all excessive, in the circumstances. It is also confirmed.
7. This revision is therefore allowed in so far as it relates to accused 1 and 2 and dismissed in so far as it relates to accused 3.