1. The undisputed facts are that the three accused, resenting complainant's conduct, entered the house, where he was working and attacked him. His ear-rings were removed, one being cut off with his right ear and the other torn from his left. The accused were originally convicted, 1st accused of offences punishable under Sections 826 and 392, Indian Penal Code, 2nd accused under Sections 326, 325 and 109 and 3rd accused under Sections 325 and 392 of the Indian Penal Code. The learned Sessions Judge, for reasons which are not clear, substituted convictions under Sections 325 and 392 with 109 as regards 1st accused.
2. The first objection to this, that the convention should be under Section, 223, not 325, must be sustained. The only grievous hurt disclosed by the evidence is the' injury to the right ear. For the left ear has healed and is intact. But the learned Sessions Judge conceded in effect that identification of the accused, who caused that injury, was impossible on the evidence. He convicted, because, all three accused having joined with one common intent, it was immaterial which inflicted the wound. Each accused, however, was charged separately without any allegation of any common intent that an incised wound should be caused, the charge on 3rd accused in particular excluding the existance of such intent, since it was limited to Section 323 and was, therefore, inconsistent with his responsibility for the use of a knife. The charges as framed did not admit of the application of Section 34 and accused can adorningly be held answerable only for the general violence used. Convictions under Section 323 must, therefore, be substituted for those under Section 325.
3. The convictions under Section 392 are attacked, because there is no evidence that the accused kept the jewels, since they may have fallen on the ground, and complainant admits that he did not look for them there, and since the learned Session Judge found that accused were not common robbers and intended rather to punish complainant than to steal his ear rings.' There was, however, evidence that they took the jewels from complainant's ears and it was for them to show that they did not do so in order to keep them. The punishment, which, as the learned Session Judge held, they meant to inflict on complainant, may as well have been by deprivation of his property as by causing pain. This objection, therefore, fails.
4. In view of the substitution of Section 325 for 326 the sentences of rigorous imprisonment are reduced to one month in, the case of each aroused. The fines and sentences in default are confirmed.
5. The orders to give security are, it is argued, not authorised by Section 106, Criminal Procedure Code, because accused have not been convicted of 'assault or other offence involving a breach of the peace,' assault including only the offence specified in Sections 351 or 358, Indian Penal Code, and the breach of the peace contemplated being a breach of the public peace, not one committed as this was on private premises. The order against accused must be justified, if at all, as one, of the latter class; and it seems to me to fall within it. The English Law is not a guide to the construction of Section 106, since under the Criminal Law Consolidation Act, 1861, security may be required on conviction of any offence except murder; and I have not been shown and cannot find that the expression 'breach of the peace' has any recognized or definite meaning in England as including only breaches of the public peace or otherwise In India also it has nowhere been defined But the reference in Section 504, Indian Penal Code, to 'the public peace' and in Section 107, Criminal Procedure Code, to persons 'likely to commit a breach of the peace or disturb the public tranquility', show how the restricted interpretation of Section 106 claimed by accused could and presumably would, if it bad been intended, have been expressed. Neither rioting nor assault, the two offences specified in the latter section, necessarily involves a breach of the public peace; and there is, therefore, no ground for the application of the doctrine of ejusdem generis. The first case relied on by the accused, Muthiah Chetti v. Emperor 3 Cri. L.J. 461, and the two Calcutta cases referred to therein are not relevant, since they decide that only an actual breach of the peace must be an element in the offence established, before Section 106 can be applied. In Queen v. Kunhiya 4 N.W. P.H.C.R. 154 it was, no doubt, held by a single Judge that Section 280 (meaning presumably 489) of the Code then in force (corresponding with Section 106) referred only to offences against the public tranquillity. But the former, like the latter provision, refers to the breach of the peace only generally and the judgment gives no reasons for restricting the application of the terms used. In Muthurakka Thevan, In re 30 Ind. Cas. 435 : 18 M.L.T. 181 Spencer, J., without distinguishing between breaches of the public and other peace, held that robbery was not an offence involving a breach of the peace; but he also gave no reasons for his conclusion and apart from the distinction referred to, which he did not mention, I am respectfully unable to follow him. When, as is the case, that distinction is supported by no dearer authority and is not required by the wording of the section, it should not, in my opinion, be recognized. That the conduct of persons who enter on premises where their enemy is, use violence to him, out and tear his ears and deprive him of his jwellery involves a breach of the peace in the wider sense of the expression needs no demonstration. The order was, in my opinion, proper and must stand as part of the sentence.
6. The criminal revision petition is allowed to the extent stated as regards the sentence of rigorous imprisonment and is dismissed in other respects.