Emperor vs Shivputraya Durdundaya and Another

Norman Macleod, Kt. C.J.

The two accused were charged before the First Class Magistrate with having committed an offence u/s 326, Indian Penal Code, and on conviction were sentenced to two years rigorous imprisonment each, and, in addition, to a fine. On appeal, for reasons which are not very apparent, the Sessions Judge altered the conviction to one of voluntarily causing simple hurt to the complainant and reduced the sentence in each case of six months rigorous imprisonment. On the application of Government u/s 439, Criminal Procedure Code, a rule was issued for the enhancement of the sentences, and also for the convictions u/s 323, Indian Penal Code, being altered to convictions u/s 326, Indian Penal Code. We must take it that on the order of the Sessions Judge the accused were acquitted of the offence u/s 326, so that under the powers given to the Court u/s 439, Criminal Procedure Code, we cannot convert a finding of acquittal into one of conviction. It was argued on the authority of a Punjab case Bhola v. King-Emperor (1904) P.R. No. 12 of 1904 (Cr.) that "acquittal" in Section 439 means a complete acquittal on all the charges framed but we cannot agree with that view. Unless we set aside the conviction and direct a retrial we can only enhance the sentence up to the limit which, is admissible u/s 323, Indian Penal Code. On a consideration of all the circumstances of the case, and specially the fact that a very serious assault was committed by the accused, we think the sentences must be enhanced, to a period of one year''s rigorous imprisonment in each case, in spite of the fact that the period of imprisonment directed by the Sessions Judge has already expired. The period already suffered will be taken into account when enforcing the enhanced sentences.