JUDGMENT

Ryves, J.

1. Fourteen men were put on their trial before a Magistrate of the First Class on the following charge: "That you on the 15th day of August 1921 at 4 p.m. all committed a riot upon Daoo at... the common intention of your unlawful assembly being to assault Daoo, and it was in pursuance of this common object that you all moved in a body and did cause bodily injury to Daoo and thereby committed an offence punishable under Section 147 of the Indian Penal Code." The Magistrate convicted all the accused and sentenced them to various terms of imprisonment and fine. They appealed. Now, there was no question that Daoo had been assaulted by some one. The medical evidence proved that, According to his evidence all fourteen men took part in beating him. He was corroborated also by his son who came up while the beating was going on and deposed to the same effect. The learned Sessions Judge, however, on appeal, thought that, having regard to the small amount of injury actually received by Daoo, he had exaggerated the number of persons who had beaten him. Now, one of the witnesses called was Purna, a Chaukidar, to whom Daoo bad made a statement shortly after the occurrence. In cross-examination Purna admitted that Daoo had told him that the persons who had beaten him were Jagannath, Hanuman, Masua and (Bodhan. Acting on this evidence, the learned Sessions Judge acquitted the other ten accused but confirmed the conviction of these four, holding that it was proved to his satisfaction that these four combined together in beating Daoo. But, as there were only four, he altered the conviction to one under Section 323, and he reduced the sentence of imprisonment. In revision before me it is argued that, having regard to Section 238, Criminal Procedure Code, and certain rulings of the Calcutta High Court, it was not open to the learned Judge, on appeal to alter the conviction from one under Section 147 to one under Section

323. I am not prepared to accept this contention. The Judge has found as a fact that these four men and not fourteen combined in a joint assault on Daoo. Whether Section 147 is applicable or not depends on the number of persons concerned. Section 149 is not in question. I think there is no force in the other grounds raised and, therefore, reject the application.