Govind Mahto vs Emperor

Das, J.

1.The petitioner, who was charged with having committed an offence u/s 379, Indian Penal Code, has been convicted of an offence u/s 381 read with Section 109, Indian Penal Code, and has been sentenced to undergo rigorous imprisonment for one month. In my view the conviction is unsustainable on two grounds, first on the ground that the facts found by the learned District Magistrate do not establish that the petitioner abetted any offence by the principal offender, and secondly on the ground that he should not have been convicted u/s 381 read with Section 109, Indian Penal Code, when he was not charged with having committed that offense.

On the first point the evidence against him is that he was standing by the thief, Now there is no evidence at all to lead one to the conclusion that he was engaged in any conspiracy with the principal offender for the doing of the theft, and I do not think that on the evidence the learned District Magistrate should have come to the conclusion that he was guilty of abetting the theft. The learned Magistrate says:

I cannot agree that a man who comes with a thief to steal an article and stands by to receive that article is not aiding and abetting theft.

Now the only fact deposed to by the witnesses is that he was actually standing by the side of the man who ultimately turned out to be a thief. The learned District Magistrate has assumed that he was standing by to receive the article and that he accompanied the principal offender knowing that he was out to steal an article. I am of opinion tint the conviction is unsustainable on facts.

In the next place, he should not have been convicted of an offense u/s 381 read with Section 109 since he was not charged with having committed that offence. I dealt with this point at some length in the case of Sheoratni v. Emperor 54 Ind. Cas. 252 : 21 Cr. L.J. 44. I pointed out in that case that "Section 237 of the Criminal Procedure Code is limited by the express provision of that section only to the case mentioned in Section 236", that is to say, to a case where it is doubtful which of several offences the facts which can be proved will constitute. In such a case Section 237, Criminal Procedure Code, authorizes the Court to convict a person of an offence with which he has not been charged but with which he might have been charged under the provisions of Section 236, Criminal Procedure Code. I pointed out that Section 235, which must control Section 237, only applies when from the evidence led by the prosecution it is doubtful which of the offences has been committed by the petitioner. Now in this case if the evidence which has been led by the prosecution leads to one result and one result only, it cannot, in my view, possibly be said that it is doubtful which of the offences has been committed by the petitioner.

I hold that the conviction is unsustainable and order that the petitioner be set at liberty,