JUDGMENT
Macpherson, J.
1. This application is directed against the order of the District Magistrate of Gaya who in appeal upheld the conviction of the petitioner under Section 323 of the Penal Code and maintained the sentence of imprisonment for three weeks and fine of Rs. 25 upon each of them which the trial Court had passed under Section 147 of the Indian penal Code. The trial Court had convicted them under Sections 147 and 323 but passed sentence under Section 147 only and expressly did not pass any separate sentence under Section 323.
2. In Support of the rule it is contended first that the sentence passed in appeal is illegal as it is an enhancement of sentence; and, secondly, that the conviction ought not to be maintained because practically all the evidence went to show that not only the three petitioners but also five other persons who were also convicted along with them under Section 147 and fined Rs. 25 by the trial Court were participants in the offence of rioting of which the Appellate Court acquitted all the accused.
3. As to the second plea, it cannot prevail. It is clear that the Appellate Court laying special stress on certain facts, such as the saneha recorded at the thana from the chaukidar after the latter had talked with Sheobalak, the injured man, and the unreliability of the Civil Court peon, entertained doubts as to whether the minor accused assisted or accompanied the present petitioners when, as the Court found, the latter assaulted Sheobalak, that is to say, the learned District Magistrate held that the charge of rioting could not be sustained because as many as five persons were not found to be concerned. He did not distrust the prosecution story fundamentally but only in a detail, The conviction under Section 323 is sound.
4. As to the first point, an Appellate Court is under Section 423 (1) (b) of the Code of Criminal Procedure empowered to alter the finding maintaining the sentence. For the Crown it is contended that that is what has been done in the present case. On behalf of the petitioners Mr. Gupta urges that in reality the District Magistrate has effected an enhancement of sentence such as only the High Court can make. He relies upon the decisions in Ramzan Kunjra v. Ramkhelawan Chowbe 24 C. 316 and Queen-Empress v. Hanma 22 B. 760. The question really is whether an apparent maintenance of the sentence is a real enhancement of it. Manifestly it does not follow that if the conviction on one of several charges in a trial is set aside while one or more other are affirmed, there must necessarily be a reduction of sentence. It depends on the circumstances of the particular case whether the retention of the sentence awarded by the trial Court constitutes an enhancement of sentence. The present case presents no difficulty. Here eight persons including the petitioners were found guilty of rioting with the common object of rescuing attached cattle and the petitioners with the further offence of voluntarily causing hurt to the decree holder’s servant, The fact that for the same offence under Section 147 the petitioners were sentenced to imprisonment and fine whereas their co-accused were sentenced to fine only though there was no differentiation in degree of guilt, shows that the Magistrate whilst stating that he did not pass a separate sentence under Section 323 actually passed under e. 147 a combined sentence for the two offences. It is also clear that in this combination the sentence of fine represents the guilt under Section 147. Accordingly the apparent maintenance of the sentence upon the alteration of the finding was in reality an enhancement and was ultra vires.
5. This Court will now pass the sentence which the lower Court ought to have passed, that is to say, the sentence of fine is set aside. The rule is thus made absolute in part. The petitioners must surrender to undergo the unexpired portion of their sentences.
6. The attention of the District Judge is drawn to the misconduct of the Civil Court peon Nur Muhammad in respect of the evidence he gave.