1. Three persons, of whom the petitioner is one were sent up for trial for an offence under Section 147, Indian Penal Code. The petitioner and one of the other persons were tried and convicted under that section and sentenced to pay a line of Rs. 25 each. On an appeal preferred by the petitioner and the co-accused who had been convicted the learned District Magistrate acquitted the co-accused of the petitioner and altered the conviction of the petitioner from that under Section 147, Indian Penal Code to one under Section 323, Indian Penal Code maintaining the sentence passed upon him.
2. The petitioner has obtained a Rule to show cause why his conviction and sentence should not be set aside on the ground amongst others that such an alteration of the conviction is not permissible as the petitioner had not been tried on a charge under Section 323, Indian Penal Code. The contention seems to be supported by the decision of this Court in the case of Genu Majhi v. King-Emperor 26 Ind. Cas. 152 : 18 C.W.N. 1276 : 15 Cr.L.J. 704 where following the decision in the case of Yakub Ali v. Lethu Thakur 30 C. 288, it was held by this Court that in the absence of a charge under Section 323, Indian Penal Code, framed during trial, the conviction under Section 147, Indian Penal Code, cannot be altered to one under Section 323, Indian Penal Code.
3. The Rule is accordingly made absolute. The conviction and sentence passed on the petitioner are set aside and the fine, if paid will be refunded.