JUDGMENT
Jwala Prasad, J.
1. The petitioners in this case have been convicted on a summary trial under Section 323 of the Indian Penal Code for causing hurt to the complainant Raghunath Lal on the 5th March 1918. The petitioners were summoned under Section 323 of the Indian Penal Code for a charge of assault laid against them by the complainant Raghunath Lal in his following statement on oath made at the time when he lodged the complaint:
I complain against Janaki Das, Chandi Prasad and Jhauri today 8-30. I went to Janaki Das’ gola, having been called. He asked for Rs. 18-13-0 due. 1 said I had paid it: then he said he had not got it. We abused and Janaki and Chandi hit me with shoes, Jhauri slapped and fisted me. I had bought cloth from them.
2. But the Magistrate does not appear to have convicted the accused upon the above case of the complainant. He has clearly disbelieved the complainant as to his allegation that he had paid the sum of Its. 18-13-0 to the accused, and does not appear to have accepted the account of the assault given by the complainant and his witnesses. The Magistrate has apparently convicted the accused upon the statement of constable Pardip Singh, which the Magistrate has recorded thus: “Constable Pardip Singh states that on order of Sub-Inspector he went from Thana close by to see what the holla was. He saw all four fighting in the street and reported accordingly. The fighting stopped when the witness and two other constables arrived.”
3. According to the complainant he was assaulted suddenly at the accused’s gola on his (complainant’s) refusal to pay the money due from him, while the constable came there at a later stage after having been deputed by the Sub-Inspector and saw the three accused and the complainant “all four fighting in the street.” The constable doss not prove any assault by the accused upon the complainant, nor does he say that the complainant was injured in that affray, but only proves a row or an affray in the street which would be an offence under Section 160, and not 323. All that the Magistrate finds is that “complainant was assaulted with some violence and there was a disgraceful now in the street.” This is not a finding for conviction under Section 323, under which it must be found that each of the accused voluntarily caused hurt to the complainant. The Magistrate convicted the accused under Section 323, because as stated by him in the explanation submitted to this Court he thought that “hurt was caused jointly by the accused to the complainant.” The Magistrate is probably thinking of Section 34 of the Indian Penal Code. Brit there is no finding that the particular hurt on the complainant was caused in furtherance of the common intention of all, which is necessary under Section 34 of the Indian Penal Code.
4. The result is that the accused have been convicted, not upon the case of the complainant who attributed specific acts of assault to each of the accused in the accused’s gola, but upon the evidence of the constable of a subsequent fight in the street. This appears to me to be wrong. The record of the evidence of the constable made by the Magistrate does not at all disclose any offence against the accused under Section 323 standing by itself, or read with Section 34 of the Indian Penal Code. Upon the statement of the constable the accused could at best be charged with an affray in the public street under Section 160 of the Indian Penal Code, but they have not been convicted under that section. It has been pointed out repeatedly in a series of cases that the finding and the reasons required to be recorded under Section 263(h) of the Criminal Procedure Code should be so stated as that High Court in revision may judge whether there was sufficient material before the Magistrate to support the conviction. It is needless to quote all the authorities. A reference to Kash Mahomed v. Empress 10 C.W.N. 79 : 3 Cr. L.J. 178 : 2 C.L.J. 565 will suffice. In this case on the record as shown above there is neither any material nor any finding for the conviction of the accused under Section 323. The conviction is, therefore, set aside.
5. As in this case the complainant has been disbelieved as regards the story about payment of the dues to the accused and as it is not shown on the record as to who provoked the affray, I am not prepared to direct a trial of the accused for an affray in the public street under Section 160 of the Indian Penal Code.
6. The fines, if already paid, should be refunded to the petitioners.