( 1 ) THE question referred to the Pull Bench is this :

"can a High Court in an appeal from conviction under Section 323, Penal Code, alter the conviction of the appellant to one under Section 302, Penal Code, with which he had been charged and, in exercise of its revisional jurisdiction, after having previously given notice for enhancement of the sentence, enhance the sentence of imprisonment to one of death or transportation for life. "

( 2 ) THE circumstances in which this reference to the Full Bench has come to be made may be briefly indicated. Eight persons in all were put upon their trial for offences under Section 148 and Sections 302, 325 and 323 read with Sections 149, Penal Code. As the result of the trial by the Sessions Judge, five of the accused persons were acquitted altogether i. e. , of all the charges, while the three appellants were acquitted only of the charges under Section 148 and Sections 302 and 325 read with Section 149, Penal Code. They were, however, convicted of an offence under section 323, Penal Code, and were sentenced each to rigorous imprisonment for one year.

( 3 ) THE three appellants filed an appeal in this Court challenging their conviction under Section 323, Penal Code. It is criminal Appeal No. 937 of 1949, while Bundu Khan, one of the victims of the assault, made an application in revision praying that this Court may in exercise of its powers under Section 439, Criminal P. C. , find the appellants guilty under Section 302, Penal Code read with Section 34, Penal Code and enhance their sentences. The appeal as well as the revision were heard together by a Bench of this Court. The learned Judges constituting the Bench, on the facts, reached the conclusion that the appellants had the common intention of giving a beating to bundu Khan and his helpers and that, therefore, each of them was responsible for the result of the entire attack under Section 34. Penal Code. They were of the opinion that the appellants might be found guilty under Section 302 read with Section 34 or Section 304 read with Section 34, Penal Code, for causing the death of one Chota and under Section 325 read with s. 84, Penal code, for causing grievous injuries to Bundu Khan. 3a. A question, however, arose whether it was open to the Court to alter the finding of the learned Sessions Judge and find the appellants guilty under Section 302, Penal Code, and to enhance the sentence. In view, however, of the conflict of opinion in this Court as well as of some other High Courts, as also in view of the general importance of the question, the Bench considered it desirable to refer the question mentioned above to a larger Bench.

( 4 ) THE determination of the question referred to us depends primarily on the interpretation of certain provisions of Sections 423 and 439, Criminal P. C. Section 423, Criminal P. C. deals with

"the powers of appellate Court in disposing of appeal," while Section 439, Criminal P. C. deals with the High Courts power of revision. Section 423 (1) inter alia, provides that : an appellate Court may

(a) in an appeal from an order of acquittal, reverse such order and direct that further enquiry be made, or that the accused be retried or committed for trial as the case may be, or find him guilty and pass sentence on him according to law;

(b) in an appeal from a conviction (1) reverse the finding and sentence, and acquit or discharge the accused, or order him to be retried by a Court of competent jurisdiction subordinate to such appellate Court or committed for trial or (2) alter the finding maintaining the sentence, or, with or without altering the finding, reduce the sentence, or, (3) ,with or without such reduction and with or without altering the finding alter the nature of the sentence, but, subject to the provisions of Section 106, Sub-section (8) not so as to enhance the same; (c) In an appeal from any other order, alter or reverse such order. " section 439 reads:

(1) In the case of any proceeding th