Janak Singh and Another vs Emperor

Varma, J.—The learned appellate Magistrate of Darbhanga maintained the conviction of the petitioners u/s 823 read with Section 114, Penal Code, and the sentence of a fine of Rupees 50 each, or, in default, one month''s rigorous imprisonment. The petitioners have also been convicted u/s 147, Penal Code, but no separate sentence has been passed by either of the Courts below. The two petitioners before me took their trial along with five others who were convicted under Sections 323 and 147, Penal Code, and sentenced to pay a fine of Rs. 50 u/s 323, no separate sentence being passed u/s 147.

In order to appreciate the points of law raised in this case, it is necessary to mention the various charges framed against the accused. There was a charge u/s 147, Penal Code, against all the seven accused, the common object of the unlawful assembly being an assaulting and snatching cash of Rs. 50 from the person of the complainant. There was a charge against Kari Tanti u/s 823, although from the language it would appear that the charge was sought to be u/s 325, Penal Code, because the charge runs as follows:

That you, on or about the same date and place voluntarily caused grievous hurt to the complainant, and thereby committed an offence punish, able u/s 828, Penal Code.

Evidently, there was some sort of misconception in the mind of the Magistrate, who framed the charge. Then there was a charge u/s 870, Penal Code, against Janaklal Singh, one of the petitioners before me. Before the appellate Court this charge failed. Being moved by all the accused, the appellate Magistrate changed the conviction of the present petitioners from one u/s 323 to one u/s 823 read with Section 114, Penal Code, but he maintained the sentence passed by the trial Court. The first point for consideration is whether the petitioners have been rightly convicted u/s 323 read with Section 114, when there was no charge under this section framed against them. It was held in Mayadhar Mahanty and Others Vs. Danardan Kund, that:

When the prosecution case is disbelieved in essential particulars, it is not safe to convict the accused on the residue of the evidence that may be acceptable. The accused should not be convicted by the appellate Court of a charge of which they had no notice and which they were not called upon to answer in the trial Court.

As against this Mr. Janak Kishore appearing on behalf of the complainant refers to Ulfat Khan v. Emperor AIR 1928 Pat. 359. The relevant portion of the placitum of that case runs as follows:

Where the accused were convicted of rioting, u/s 147, the common object of which, was stated to be to assault and in prosecution of which they did assault and evidence was directed towards actual assault committed by the accused but in appeal the accused were acquitted of rioting:

Held that though the accused were acquitted of rioting, they could be convicted in appeal u/s 828 though no charge was framed under that section as the accused would not be prejudiced.

There may be instances which would bet covered by Section 585, Criminal P.C., and, if no prejudice is caused, a conviction of that nature may be maintained. But in the pre sent case, when there was a charge u/s 823 against one of the accused, I cannot help holding that the present petitioners were prejudiced when the appellate Court convicted them u/s 323 read with Section 114, Penal Code.

Therefore, I am of opinion, that the conviction u/s 323 read with Section 114 against the present petitioners was not proper. There may be some further objection to a conviction u/s 114 under the circumstances of the case, because that section is applicable only when the Court could hold that, if these petitioners were absent, they could be guilty u/s 109, Penal Code. But that aspect of the case need not be gone into at this stage. I would, there, fore, set aside the conviction u/s 328 read with Section 114, Penal Code, and the sentence passed thereunder against each of the present petitioners.

The question that remains to be considered is whether there should be no sentence u/s 147 of which the petitioners have been convicted. In order to decide this, a further consideration of the facts of the case is necessary. The eye-witnesses are Sukhdeo Singh, (p. W. 2), Anand Singh, (P. W. 3) and Mauji Raut, (p. w. 4). The appellate Court accepts the statement that Sukhdeo Singh and Anand Singh are distantly related to one Munshi Singh "with whom the appellants Janak and Sarjug are on bad terms and that Mauji Raut is distantly related to the respondent" and the learned Magistrate holds: "But for this reason their evidence cannot be disbelieved." When no specific part was assigned to Sarjug Singh and when the story assigning to Janak Singh the original part of snatching away the sum of RS. 50 was disbelieved by the Court, a certain amount of doubt is raised about the complicity of the petitioners before me, especially when we find that all the eye-witnesses are connected with people inimically disposed towards them,

I would, therefore, give them the benefit of doubt and acquit them of the charge u/s 147 also. In the result the rule is made absolute, the convictions and sentences are set aside and the fines, if al. ready paid, must be refunded.