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PETITIONER: BIJJOY CHAND POTRA

       Vs.

RESPONDENT: THE STATE

DATE OF JUDGMENT: 14/12/1951

BENCH: FAZAL ALI, SAIYID BENCH: FAZAL ALI, SAIYID BOSE, VIVIAN

CITATION:  1952 AIR  105            1952 SCR  202

ACT:     Criminal   Procedure   Code  (Act  V   of   1898),   ss. 237,342--Indian   Penal  Code  (XLV  of  1860),   ss.   307, 326--Charge   under   s.   307-Conviction   under   s.   326 --Legality--Failure to examine accused fully --When vitiates trial--Necessity of prejudice to accused.

HEADNOTE:     The appellant who inflicted serious injuries on  another was  charged under s. 307 of the Indian Penal Code  but  the jury  returned a verdict of guilty against him under s.  326 of  the  Penal Code, and the Sessions Judge,  accepting  the verdict, convicted him under s. 326.  It was contended  that the conviction was illegal inasmuch as the offence under  s. 326  was not a minor offence with reference to  the  offence under  s.  307.  Held, that as it was open to  the  Sessions Judge,  on  the facts of the case, to charge  the  appellant alternatively under ss. 307 and 326 of the Code the case was covered  by s. 237 of the Criminal Procedure Code,  and  the conviction  under s. 328 of the Penal Code was proper,  even though  there was no charge under the section. Begu v.  King Emperor (52 I.A. 191) applied.     In  order  that a conviction may be set aside  for  non- compliance  with  the provisions of s. 342 of  the  Criminal Procedure Code, it is not sufficient for the accused  merely to  show that he was not fully examined as required  by  the section,  but  he must also show that such  examination  has materially prejudiced him. 203

JUDGMENT:     CRIMINAL  APPELLATE  JURISDICTION:  Criminal Appeal  No. 30  of 1951. Appeal from the Judgment and Order of the  High Court  of Calcutta (HARRIES C.J. and LAHIRI J.)  dated  15th June,  1950, in Criminal Appeal No. 71 of 1950 and  Revision No. 295 of 1950.  S.N. Mukherjee, for the appellant.  B. Sen, for the respondent.     1951. December 14.  The Judgment of the Court was deliv- ered by

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   FAZL  ALI J.--This is an appeal against the judgment  of the  High Court at Calcutta upholding the order of the  Ses- sions  Judge  of Midnapore convicting  the  appellant  under section 326 of the Indian Penal Code and  sentencing him  to 3  years’  rigorous imprisonment.     The prosecution case against the appellant may be short- ly stated as follows:--The appellant and the injured person, Kurnad Patra, are first cousins, and they live in a  village called Andaria, their houses being only 3 or 4 cubits  apart from each other.  They had a dispute about a pathway adjoin- ing  their houses, which led to a tank, and they  quarrelled about  it  on the 11th July, 1949.  Two days later,  on  the lath  July,  when Kumad Patra was washing his hands  at  the brink  of the village tank, the appellant came  from  behind and  inflicted on him 17 injuries. with the result that  two of  his fingers had to be amputated and a piece of bone  had to  be  extracted  from his left thumb.   The  police  being informed, started investigation and submitted a charge-sheet against the appellant who was finally committed to the Court of Sessions and tried by the Sessions Judge and a jury.   He was charged under section 307 of the Indian Penal Code,  but the  jury  returned a verdict of guilty  against  him  under section  326  of the Penal Code, and  the  learned  Sessions Judge accepting the verdict convicted him under that section as aforesaid.  When the matter came up in appeal to the High Court,  a rule was issued on the appellant calling upon  him to show cause why his sentence 204 should not be enhanced, but, at the final hearing, the  rule was discharged, his appeal was dismissed, and his conviction and the original sentence were upheld.     The first point urged on behalf of the appellant  before us  is that, inasmuch as there was no charge  under  section 326 of the Penal Code and the offence under that section was not  a  minor  offence with reference to  an  offence  under section  307 of the Code, he could not have  been  convicted under  the former section.  This argument however  overlooks the  provisions  of section 237 of  the  Criminal  Procedure Code.   That section, after referring to section  236  which provides that alternative charges may be drawn up against an accused  person  where it is doubtful which of  several  of- fences the facts which can be proved will constitute, states as follows :--     "If  .........  the accused is charged with one offence, and  it  appears in evidence that he committed  a  different offence  for  which  he might have been  charged  under  the provisions  of  that  section, he may be  convicted  of  the offence which he is shown to have committed, although he was not charged with it."     There can be no doubt that on the facts of this case, it was  open  to  the Sessions Judge to  charge  the  appellant alternatively under sections 307 and 326 of the Penal  Code. The  case therefore clearly falls under section 237  of  the Criminal Procedure Code and the appellant’s conviction under section 326 of the Penal Code was proper even in the absence of a charge.     In Begu v. The King Emperor (1) the Privy Council had to deal  with a case where certain persons were  charged  under section  302  of the Penal Code, but  were  convicted  under section  201  for  causing the  disappearance  of  evidence. Their  Lordships upheld the conviction, and while  referring to  section  237 of the Criminal Procedure  Code,  they  ob- served:--     "A  man may be convicted of an offence,  although  there has been no charge in respect of it, if the evidence is such

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as to establish a charge that might have (1) (1925) 52 I.A. 191, 205 been  made  ......  Their Lordships entertain no doubt  that the  procedure was a proper procedure and one  warranted  by the Code of Criminal Procedure."     The  second  point urged on behalf of the  appellant  is that the High Court having issued a rule for the enhancement of  the sentence, he should have been allowed to  argue  the merits  of  the  case which he was not allowed  to  do.  The learned counsel for the appellant was not, however, able  to show that even if it was open to him to argue on the  merits of  the case the decision would have  been otherwise.   Only three contentions were put forward by him, these being :--     (1) that several material  witnesses  were not examined;     (2.) that the appellant’s case was not placed before the jury in a fair manner; and     (3)  that there was no proper examination of the  appel- lant under  section 342 of the Criminal Procedure Code.     We  have examined these contentions and find  that  they are entirely without merit.  In urging his first contention, the learned counsel stated that though it was admitted  that several  persons  have  got houses to the  east,  north  and north-west  of the tank where the occurrence is  alleged  to have taken place, they have not been examined by the  prose- cution.  He further argued that one Sarat Chandra Ghose, who was  present  at  the  house of  the  accused  when  it  was searched,  has  also  not been  examined.   These  arguments however  have very little force, since there is no  evidence to  show  that those persons had seen the occurrence,  an  d they also do not take note of the fact that such evidence as has been adduced by the prosecution, if believed, was suffi- cient  to support the conviction of the appellant. The  Ses- sions Judge in his charge to the jury referred  specifically to  the  very  argument urged before us, and  he  told  ’the jurors  that if they thought it fit it was open to  them  to draw  an inference against the prosecution. There can be  no doubt that the jurors were 27 206 properly  directed on the point and they  evidently  thought that the evidence before them was sufficient for  convicting the appellant.     The  second contention urged on behalf of the  appellant relates  to  his defence, which, briefly  stated,  was  that Kumad  Patra, the injured man, entered his house during  his temporary absence, went to the bedroom of his wife, who  was a young lady, and committed indecent assault on her and  was assaulted  in these circumstances. This story was  not  sup- ported  by any evidence but was merely suggested  in  cross- examination, and the Sessions Judge while referring to it in his charge to the jury, observed:--     ’’If  I were left alone, I would not have  believed  the defence  version.  But you are not bound to accept my  opin- ion,  nor you should be influenced by it  It is for  you  to decide  whether  you will accept the defence  suggestion  in favour of which there is no such positive evidence."     The  Sessions Judge undoubtedly expressed himself  some- what strongly with regard to the defence suggestion, but  he coupled his observations, which we think he was entitled  to make, with an adequate warning to the jurors that they  were not bound to accept his opinion and should not be influenced by  it.  The defence version was rejected by the  jury,  and there can be no doubt that on the materials on the record it would have been rejected by any court of fact.

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   The  last contention put forward by the learned  counsel for  the appellant was that he was not examined as  required by law under section 342 of the Criminal Procedure Code.  It appears  that three questions ware put to the  appellant  by the  Sessions Judge after the conclusion of the  prosecution evidence.   In the first question, the Sessions Judge  asked the  appellant what his defence was as to the  evidence  ad- duced,  against him; in the second question, the  Judge  re- ferred to the dispute about the pathway and asked the appel- lant  whether he had inflicted injuries on Kumad Patra;  and in the third question, the appellant was asked. 207 whether he would adduce any evidence. The facts of the  case being  free from any complications and the points  in  issue being simple, we find it difficult to hold that the examina- tion  of the appellant in this particular case was not  ade- quate. To sustain such an argument as has been put  forward, it is not sufficient for the accused merely to show that  he has  not been fully examined as required by section  342  of the Criminal Procedure Code, but he must also show that such examination  has materially prejudiced him.  In the  present case, it appears that the point urged here was not raised in the grounds of appeal to the High Court, nor does it find  a place  in the grounds of appeal or in the statement of  case filed  in this court.  It has nowhere been stated  that  the accused was in any way prejudiced, and there are no  materi- als before us to hold that he was or might have been  preju- diced.   We  have read the Sessions Judge’s  charge  to  the jury, which is a very fair and full charge, and nothing  has been shown to us to justify the conclusion that the  verdict of the jury should not have been accepted. The appeal accordingly fails and is dismissed.                                 Appeal dismissed. Agent for the appellant: P.K. Chatterji.  Agent for the respondent: I. N. Shroff for P.K. Bose. 208