Govind Mahton vs Emperor

Das, J.—The petitioner, who was charged with having committed an offence under S. 37 9 I.P.C., has been convicted of an offence under S. 381 read with S. 109, I.P.C., 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 under S. 381 read with S. 109, I.P.C., when he was not changed with having committed that offence.

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 that the conviction is unsustainable on facts.

In the next place, he should not have been convicted of an offence under S. 381 read with S. 109 since he was not charged with having committed that offence. I dealt with this point at some length in the case of Sheo Ratni v. Emperor (1919) 21 Cri. L.J. 44; 54 I.C. 252. I pointed out in that case that.

"Sec. 237 of the Criminal Procedure Code is limited by the express provision of that section only to the case mentioned in S. 236 that is to say, to a case where it is doubtful which of several offences the facts which can he proved will constitute. In such a case S. 237, Cr. P.C., authorises the Court to convict a person for an offence with which he has not been charged but for which he might have been charged under the provisions of Sec. 236, Cr. P.C. I pointed out that Sec. 236 which must control S. 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 only, it cannot, in my view, 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.