Bijo Gope and Others vs Emperor

Das, J.—These two applications in revision have been heard together and this judgment will govern both the applications. The eight petitioners were convicted of the offence of dacoity u/s 395, Penal Code, and sentenced to undergo rigorous imprisonment for a period of three years each by the learned Assistant Sessions Judge of Monghyr. Two of them, Parmeshwar Mandal and Bijo Mandal, were also convicted u/s 324, Penal Code, and sentenced to rigorous imprisonment for two years each. Bijo Mandal was also further convicted and sentenced u/s 323, Penal . Code. There was then an appeal to the Court of Session, and the appeal was heard by the learned Additional Sessions Judge of Monghyr. The learned Additional Sessions Judge set aside the conviction and sentences under Sections 324 and 323, Penal Code. He altered the conviction of the petitioners u/s 395, Penal Code, to one u/s 148, Penal Code, in the case of some, and u/s 147, Penal Code, in the case of others. Three of the petitioners, Bijo Mandal, Parmeshwar Mandal and Bhaiya-lal Sahu, have been convicted by the learned Additional Sessions Judge of the offence u/s 148, Penal Code, and each one of them has been sentenced to rigorous imprisonment for one year. Bhaiyalal Sahu has also been sentenced to a fine of Rs. 100, or in default rigorous imprisonment for a further term of one month. The remaining five petitioners, namely, Bhuneshwar Barhi, Garib. Gope, Kanik Gope, Nathone Gope and Sukha Gope, have been convicted of the offence u/s 147, Penal Code, and sentenced to rigorous imprisonment for six months each.

Two main points have been urged on behalf of the petitioners. It has firstly been contended that the learned Additional Sessions Judge has disbelieved the prosecution witnesses in essential particulars with regard to the offence of dacoity : it was not, therefore, open to the learned Additional Sessions Judge to convict the petitioners on the testimony of those very witnesses whom he had disbelieved with regard to essential parts of the prosecution case. It is also contended that the three witnesses, namely, p. ws. 5, 16 and 18, on whom the learned. Additional Sessions Judge has relied, have been particularly disbelieved with regard to essential details. Secondly, it has been contended that the alteration of the conviction u/s 395, Penal Code, to one under Sections 148 and 147, Penal Code, by the appellate Court is illegal and has caused great prejudice, to the petitioners. In order to appreciate the aforesaid two points raised on behalf of the petitioners, it is necessary to state very briefly the essential facts of the prosecution case, The prosecution case was that on 17th day of November 1942, at village Itehari, police station Bukhtiarpur, a mob of about 300 to 400 persons, including the present petitioners, came, variously armed, at about 10 A. M. to i the house of one Johari Lal Sahu (P.W. l). Johari Lal Sahu was on bad terms with the petitioner Bhaiyalal Sahu for some time. In November 1942, Johari Lal Sahu was getting a balcony constructed on the top of his house which projected about 2 to 2 1/2 cubit towards the north. North of the house of Johari Lal Sahu is the house of the petitioner Bhaiyalal. On 14th November 1942, Bhaiyalal had sent an information to the thana through a chauki-dar. On the basis of that information, the Sub.Inspector of Police (P.W. 22) had inspected the place on that day and had ordered Johari Lal not to proceed with the construction till the matter was decided by the authorities. On 17th November 1942, when the plastering work inside the roof of the balcony was in progress, a mob of 300 to 400 persons came there. They dismantled the balcony, effected entrance into the house and assaulted some of the inmates inside. It is alleged that the members of the mob removed iron bars, some maunds of wheat worth Rs. 54 and 10 saris worth about Rs. 50. It was further alleged that some of the materials of the balcony were also taken away by the mob. Information was given to the Sub-Inspector of Police on the same day at about 4.30 P. M. The Sub-Inspector of Police arrived at the spot at about 10.30 P.M. He found that the balcony had been totally dismantled. After investigation he submitted charge-sheet. On this the petitioners were put on trial with the result indicated above. The defence of the petitioners was that they had been implicated falsely in the case.

The learned Assistant Sessions Judge who tried the case accepted the prosecution case to be true and convicted the petitioners of the offence of dacoity u/s 395, Penal Code. He also convicted some of the petitioners under Sections 324 and 323, Penal Code, as stated above. The learned Additional Sessions Judge, however, did not accept the prosecution case in its entirety. He found that the story of looting the properties, such as several maunds of wheat, saris, etc., was not true. In this view of the matter, he came to the conclusion that the charges u/s 395, Penal Code, could not be sustained. He, however, relied on the evidence of some of the witnesses, particularly P. Ws. 5, 16 and 18, regarding the demolition of the balcony (chhaja). He then considered the evidence against each one of the accused persons and came to the finding that the petitioners were members of an unlawful assembly with the common object of causing the destruction of Johari''s balcony. He also disbelieved the evidence regarding the individual acts alleged against the petitioners Parmeshwar Mandal and Bijo Mandal which formed the subject-matter of the charges under Sections 324 and 323, Penal Code.

I first take up the point raised on behalf of the petitioners as to whether it was open to the appellate Court to alter the conviction u/s 395, Penal Code, to one under Sections 147 and 148, Penal Code. The learned Additional Sessions Judge has relied on AIR 1925 130 (Privy Council) . The learned Additional Sessions Judge has further stated that there cannot be any question of prejudice to the accused persons, because the circumstances on which the charges under Sections 147 and 148, Penal Code, are based were stated against the accused persons in evidence and, therefore, they were not taken by surprise, and the accused persons met the case so brought forward by the prosecution. The question as to whether it is open to the appellate Court to alter the conviction in the manner done by the Additional Sessions Judge in this case has to be looked at from two points of view; firstly, there is the question of prejudice to the accused persons; secondly, there is the question if the appellate Court can alter a finding u/s 423(1)(b), Criminal P. C, in such a way as to convict an accused person of an offence with which he was not charged, untrammelled by the provisions of Sections 236, 237 and 238 of the Code. The learned standing counsel, appearing for the Crown, has conceded that if there is prejudice to an accused person in convicting him of an offence with which he was not charged, then the conviction cannot stand. He has, however, contended that there has been no prejudice in the present case, and the provisions of Section 423(1)(b) of the Code are not in any way dependent upon or restricted and controlled by Sections 236, 237 and 238 of the Code. He has contended that the powers of the appellate Court are wide enough to allow the alteration of a conviction u/s 395, Penal Code, to one under Sections 148 and 147, Penal Code. He has relied on Sharif v. Emperor A. I. R. 1933 Pes. 9, decided by the learned Judicial Commissioner of Peshawar, and also on In re Krishnan Chetty A. I. R. 1917 Mad. 687. As against these decisions in support of the contention of the learned standing counsel, there are other decisions which have expressed the view that the powers of an appellate Court u/s 423(1)(b) of the Code, though very wide, are subject to the provisions of Sections 234 to 238 of the Code : see Sheo Narain Singh v. Emperor A. I. R. 1936 Oudh 44 , Mahabir Prasad Vs. Emperor , Padmanabha Payikanniah v. Emperor (10) 33 Mad. 264. There is also an earlier Madras decision, Golla Hnnumappa v. Emperor (11) 10 I.C. 372, which has been considered in In re Krishnan Chetty A. I. R. 1917 Mad. 687. No case of this Court directly bearing on the question as to whether the powers of the appellate Court u/s 423(1)(b) are restricted or controlled by Sections 236, 237 and 238 of the Code, has been brought to my notice. There are, however, several cases of this Court in which it has been held that it is illegal for a Court of appeal to alter the conviction to one for an altogether different offence, with which the accused person was not charged in the trial Court : vide the cases in Raghu Singh v. Emperor A. I. R. 1920 Pat. 590, Mayadhar Mahanty v. Danardan Kund A. I. R. 1921 Pat. 496. The case in Mallu Gope v. Emperor A.I. R. 1929 Pat. 712, merely emphasises the rule that if an accused person is misled in his defence by the absence of any charge or an error in the charge, a retrial is to be ordered, and this rule applies to cases in which the conviction was. in compliance with the terms of the law as to cases in which the conviction was irregular. There are some cases of this Court in which it has been held that the Court of appeal can alter the conviction, provided there is no prejudice : it has been stated that the principle laid down in Section 535 would apply to such a case : see for example, Ulfat Khan v. Emperor A. I. R. 1928 Pat. 359. In Bhondu Das v. Emperor A. I. R. 1929 Pat. 11, it has been observed that the real test whether a conviction can be upheld upon a charge which was not expressly formulated is whether the facts which it was necessary to prove and on which evidence was given on the charge upon which the accused is actually tried are the same as the facts upon which he is to be convicted of the substantive offence; it has been observed that if they are the same, and if the accused is put to no disadvantage and would have had to adduce no further evidence, then he may be rightly convicted of the substantive offence, notwithstanding that the charge was originally framed under Sections 147, 148 or 149, Penal Code.

As stated above, no case of this Court, directly bearing on the question as to whether the powers u/s 423(1)(b), are subject to the provisions of Sections 236, 237 and 238 of the Code, has been brought to my notice. I find it a little difficult to understand how the appellate Court can have larger powers in this respect than the trial Court. One of the fundamental principles of criminal law as administered in this country is that there should be a separate charge for every distinct offence, and the accused person must have notice of the charge which he has to meet. Certain exceptions are provided to this general rule by Sections 236, 237 and 238 of the Code. The peculiar circumstances mentioned in those sections under which the Court can convict an accused person of an offence with which he was not charged must apply equally to the appellate Court as well as the Court of first instance. If We consider an appeal as a continuation of the original trial, it would follow that what could not be done by the original Court cannot be done by the appellate Court. The paragraph from Sir John Wood-roffe''s commentary, referred to in Sharif v. Emperor A. I. R. 1933 Pesh. 9, does not really support the contention that the powers of the appellate Court u/s 423(1)(b), are not in any way dependent upon or restricted and controlled by Sections 236, 237 and 238, Criminal P. C. The words "may alter the finding" in Section 423(1)(b) are no doubt very general. In my view, they must be construed in harmony with other provisions of the ''Code and not as overriding them.

Though I have expressed my view on the powers of the appellate Court u/s 423(1)(b), Criminal P. C, it is not necessary to rest the decision of this case on that view. Assuming that the appellate Court has general powers to alter the finding irrespective of the provisions of Sections 236, 237 and 238 of the Code, the question still remains whether the petitioners in this case have been taken by surprise and if they have been prejudiced in their defence. The learned Additional Sessions Judge has come to the finding that there is no prejudice in this case. I am unable to agree with the learned Additional Sessions Judge. The charge against the petitioners was u/s 395, Penal Code. The particulars necessary for proving a charge u/s 395, Penal Code, are different from the particulars necessary for x''roving a charge under Sections 147 or 148, Penal Code. The existence of an unlawful common object is an essential ingredient for a charge under Sections 147 or 148, Penal Code. Obviously, the petitioners had no notice of meeting a charge involving the existence of an unlawful common object. In such circumstances, I am of the view that the petitioners have been seriously prejudiced, and the principle laid down in Section 535, Criminal P. C, would not apply. The learned Additional Sessions Judge has relied on the case in AIR 1925 130 (Privy Council) . That decision of their Lordships of the Judicial Committee has been explained in many subsequent cases, such as, Istahar Khondkar and Others Vs. Emperor, , Goloke Behari Takal and Others Vs. Emperor, . It is now well settled that Section 237 is controlled by Section 236 of the Code. The very opening words of Section 237 refer to "a case mentioned in Section 236 of the Code." There are several cases of this Court in which it has been held that Section 237 of the Code is controlled by Section 236, and Section 236 applies only when from the evidence led by the prosecution it is doubtful which of several offences has been committed by the accused person. If the evidence which has been led by the prosecution leads to one result and one result only, it cannot possibly be said that it is doubtful which of the offences has been committed by the accused: Mt. Sheoratni v. Emperor AIR 1920 Pat. 512; Bhownath Singh v. Emperor A. I. R. 1918 Pat. 628 . Similar views have been expressed in Dibakar (Bene) Vs. Saktidhar Kabiraj, . This case is important in the sense that the alteration of a conviction u/s 379, Penal Code, to one u/s 143, Penal Code, was held to have caused prejudice to the accused person. In Jatu Singh v. Mahabir Singh (1900) 27 Cal. 660 it was held that the accused who was called upon to answer a charge of theft could not fairly be convicted on appeal of an offence of an entirely different character, such as, being a member of an unlawful assembly. It has been very clearly explained in Goloke Behari Takal and Others Vs. Emperor, that

the uncertainty referred to in Section 236 of the Code must necessarily be an uncertainty arising out of a postulated set of facts, not an uncertainty regarding the facts which the prosecution may be ultimately able to establish. Therefore, Section 237 does not deal with a case where the evidence falls short of proving the offence which the prosecution had set out to prove; that would be governed by Section 238 if it could be made to apply.

I am, therefore, of the view that the learned Additional Sessions Judge is in error in thinking that this case was governed by Section 237 of the Code, and that he could convict the peti-tioners of an offence with which they were not charged under that section. The learned standing counsel for the Crown has contended before me that the case might be governed by Section 238 of the Code, if not by Section 237. In my opinion, this contention is not correct. Section 238 of the Code refers to a case where an offence consists of several particulars, a combination of some only of which constitutes a complete minor offence. I have already stated that the particulars which constitute the offence of dacoity are not the same aa the particulars which constitute the offence u/s 147 or 148, Penal Code. It cannot be said that some of the particulars which go to make the offence of dacoity constitute the minor offence of being a member of an unlawful assembly. In my opinion, these two are entirely different offences, and Section 238 of the Code has no application to such a case. The provisions of Section 238 have been explained in Emperor v. Abdul Rahiman Akramdin AIR 1936 Bom. 193 and Makkhan and Others Vs. Emperor, . As has been observed in the latter case, Section 238 of the Code does not define what is a major offence and what is a minor offence. The gravity of the offence no doubt depends upon the severity of the punishment that can'' be inflicted. But the major and minor offences referred to in Section 238 of the Code must be cognate offences which have the main ingredients in common. Judged by that principle, it cannot be said that the offence of being a member of an unlawful assembly is an offence minor to the offence of dacoity. I am, therefore, of the view that Section 238, Criminal P. C, is of no help to the Crown in this case.

The net result, therefore, is that the alteration of the conviction by the appellate Court in this case cannot be supported either unde Section 237 or 238 of the Code; the conviction of the petitioners of an offence with which they were not charged has caused prejudice and occasioned a failure of justice. The next question is whether there should be a retrial of the case. In my opinion, there should be no retrial. The learned Additional Sessions Judge has disbelieved most of the prosecution witnesses. The three on whom he has relied have" also been disbelieved with regard to essential parts of the prosecution story. Learned Counsel for the petitioners has referred me to the cases in Phatali Singh v. Emperor A. I. R. 1918 Pat. 536 and Ghurpat Pandey v. Emperor AIR 1921 Pat. 473 in which it has been held that where the prosecution case is false materially and substantially, it would be improper to convict the accused person upon the residue of the prosecution case. . The learned standing counsel has referred to the case in Leda Bhagat v. Emperor AIR 1931 Pat. 384 where it has been held that, if the prosecution story is disbelieved as to some essential details, it is still open to the Court to rely on a part of the story for the purpose of convicting the accused person. The case in Phatali Singh v. Emperor A. I. R. 1918 Pat. 536 was not followed in this case. The question as to whether prosecution witnesses can be believed in part, if their testimony is unworthy of acceptance with regard to some of the essential parts of the prosecution story is not really a question of law it is really a matter based on human experience and must be decided with reference to the facts of each particular case. No hard and fast rule like a rule of law can be laid down in the matter. The three witnesses on whom the learned Additional Sessions Judge has relied have been disbelieved with regard to the looting story. P.W. 5 has been characterized as a chance witness. He is contradicted by P.W. 22 with regard to some of the details. Similarly, P.W. 16 has also been contradicted by the Sub-Inspector of Police. The evidence of P.W. 18 is no better than that of P.W. 16. That being the position, I am unable to agree with the learned Additional Sessions Judge that on their testimony the petitioners could be found guilty of being members of an unlawful assembly with the common object mentioned by the learned Additional Sessions Judge. There is no doubt that the balcony was demolished : this is proved by the evidence of the Sub-Inspector of Police. The demolition of the balcony does not necessarily mean that the petitioners were members of an unlawful assembly with the common object of demolishing the balcony. For these reasons I do not think that this is a case in which there should be any order for retrial on a charge u/s 147 or 148, Penal Code.

The result, therefore, is that the applications are allowed and the conviction and sentences passed against the petitioners are set aside. The fine, if paid, should be refunded. This may be an unfortunate result in view of the fact that the balcony of Johari Sahu has undoubtedly been demolished; but if parties come to Court with an exaggerated and false story, such unfortunate results cannot be avoided.