1. In this case four persons named Patal Ghose, Kanta Das, Nalini Chandra Katu alias Nalini Kalir and Gui Ram Mullik were originally convicted by the Sub-Divisional Magistrate of Barrackpur, under Sections 458 and 325, Indian Penal Code, and sentenced under the first section to be detained till the rising of the Court and to pay a fine of Rs. 100 each and in default to one month's rigorous imprisonment, and under the second section to pay a fine of Rs. 200 each and in default to two months' rigorous imprisonment. There was an appeal to the learned Second Additional Sessions Judge of the 24-Pergannas and that officer, while maintaining the conviction of Kanta Das under Section 458 and 325, altered the conviction of the petitioners Patal, Nalini and Gui Ram into one under Section 323 from Section 325 and reduced the fine on these three petitioners to a fine of Rs. 100 each and in default to two months' rigorous imprisonment.
2. The learned Sub-Divisional Magistrate of Barrackpur found that the four persons, whose names have been set out above, had been guilty under Section 325 of the offence of grievous hurt, inasmuch as they had broken the knee-cap of the complainant. The learned Additional Judge by his judgment found that, so far as the injury to the knee-cap was concerned, that had been caused by the accused, Kanta Das, and he came to the conclusion that the petitioners before us had been guilty of the offence under Section 323, inasmuch as they had inflicted other injuries on the complainant.
3. Mr. Mukherjee, who appears for the petitioners, has pointed out that the petitioners before us were not originally tried before the learned Sub-Divisional Magistrate of Barrackpur for any offence relating to the infliction of injuries other than the injury to the knee-cap and that, therefore, the alteration of the conviction from Section 325 to Section 323 by the learned Additional Sessions Judge of 24-Pergannas was unauthorised, inasmuch as these three petitioners had not been given any opportunity of answering the charge in the first instance of inflicting injuries other than the injury to the knee-cap. We think that this contention must prevail and accordingly we set aside the conviction and sentence passed upon three petitioners under Section 323.
4. The result, therefore, is that while the conviction and sentence under Section 323 as regards the three petitioners before us is set aside, their conviction under Section 458, Indian Penal Code, which was maintained by the Second Additional Sessions Judge remains unaffected.