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Criminal Appeal No. 208 of 1962, decided on 17th April 1963
‑Spelling out entirely new case wholly inconsistent with story related by main prosecution witness‑Not permissible.
, Ss. 236, 237, 238 & 423‑Interpretation‑Ss. 237 & 238, exceptions to general rule that accused cannot be convicted of offence of which he has not been charged‑Person can be convicted of offence disclosed by evidence
although he had not been charged of that offence‑S. 237 applies to wide range of offences, wholly unrelated to each other, while S. 238 attracted only in cases where minor offences of which accused is subsequently convicted are cognate to major offence of which accused was originally charged‑Ss. 237 & 238 subject, however, to overriding condition that accused must have had notice of charges he is called upon to meet.
, Ss. 423, 236, 237 & 2.18‑Appellate Court acting under S. 423 (b) has all powers exercisable by trial Court and by virtue of Ss. 236, 237 & 238 read with S. 423 can convict accused of offence of which he was not charged in trial Court‑Person charged and convicted of offence under S. 302, P. P. C.‑Conviction, on appeal, altered to one under S. 304‑A, P. P. C.‑Appellate Court competent not only to alter conviction of accused for offence not charged but may convict even for graver offence‑Penal Code (XLV of 1860), Ss. 302 & 304‑A [P L D 1959 Lah. 76) not approved.]
Ahmad Din v. The State P L D 1959 Lah. 760 not approved.
Swab Gul v. The State P L D 1959 Lah. 655 ;
Rmperor v. Ramaya Cannappa A I R 1915 Bona.297 ; King‑Emperor v. Charles John Walker A I R 1924 Bom. 450 ; Amir Bakhsh v. The State P L D 1960 Lah. 15 ; Begu and others v. King Emperor A I R 1925 P C 130 ; Vali Ahmmal and others A I R 1947 Mad. 114 ; Bhikha Gobar v. Emperor A I R 1943 Bom. 458 ; Emperor v. Ismail Khadirsab A I R 1928 Born. 130 ; Faizullah v. King Emperor A I R 1925 Sind 105 ; Mannar Krishnan Chetty and others A I R 1917 Mad. 687 and Ramaswami Nadar v. The State of Madras P L D 1958 S C (Ind.) 247 ref.
, Ss. 423 & 439 Powers conferred on appellate Court under S. 423‑‑Wide and ample as those conferred on High Court by S. 439 with exception, however, of power to enhance sentence‑High Court simultaneously Court of Appeal and revision‑Can exercise powers not only under S. 423 but also those under S. 439 and can enhance sentence passed by lower Court.
S. Masoom Shah and Abdul Latif Khan for Appellant.
Sher Bahadur Khan A. A.‑G: for Respondent.
Dates of hearing : 31st and 22nd March 1963.
‑Jehanzeb, aged 18 years, son of Murtaza Khan, resident of Mulyamo Killi, a hamlet of village Khanmai, was tried for the murder of his consanguine brother Ahmad Yar Khan, aged 27 years, also a resident of Mulyamo Killi, by Mr. Qaisar Khan, Sessions Judge of Peshawar, and sentenced to death. He appeals against his conviction and sentence, and the case is also before us for confirmation of the death sentence, under section 374, Cr. P. C. This judgment would dispose of the appeal and the reference.
2. The prosecution story as narrated at the trial may be briefly stated as follows :‑
On the 3rd of August 1961, at about 1 p.m., Ahmad Yar Khan, deceased along with his brother‑in‑law Jehanzeb (P. W. 4), who had come from his village Amba Dher in the tonga of Zari Gul (C. W. 1), was sitting on cot on the canal bank close to the hujra of the deceased. Zari Gul (C.W.1), the tonga driver, Ghani‑ur‑Rehman (P. W. 3) a tenant of the deceased, and Abdul Khaliq alias Mulla (P. W. 5) were also present on the canal bank, when the appellant came there from village Muhammad Nari, carrying a 32 bore automatic pistol in his hand, and sat with the deceased on the same cot. Wali Jan (P. W. 1) at the bidding of his master, the deceased, brought sharbat for the appellant. He then brought a few mangoes one of which was eaten by the appellant and another was taken by him in his hand. Wali Jan then at the direction of the deceased started towards the house of Taimus and Alamgir, relations of Ahmad Yar, to carry some churi which had been brought by Jehanzeb (P. W. 4), and had hardly gone 8‑10 paces when he heard a shot. He looked behind and saw the appellant running away from the spot, holding the tamancha in his hand. He and Aurangzeb P. W. gave a chase to the appellant but when the latter fired at them they discontinued the chase. The deceased on inquiry charged the appellant. The deceased was then placed in a tonga and carried to the hamlet of Ihsanullah alias Nari Khan, at a distance of 4/5 furlongs. From there he was taken in the car of the said Nari Khan to the Civil Hospital, Charsadda, where Doctor Ali Sher Khan (P. W. 2), recorded a brief dying declaration Exh. P. E., of the appellant at 3‑45 p.m. Later on Shaukat Ali H. C. (P. W. 6), after receiving telephonic information from the hospital went there and recorded another dying declaration Exh. P. F., of the deceased at 16‑20 hours."
3. Wali Jan (P. W. 1) at the bidding of the mother of the deceased went on bicycle, and lodged the F. I. R., Exh. P. A., at 17‑25 hours, at Police Station Khanmai with Abdul Sattar S. I. (P. W. 12). In the F. I. R. Wali Jan stated that he saw the appellant firing at the deceased. He, however, did not state in the F. I. R., that he and Jehanzeb (P. W. 4) had given a chase to the appellant and when they were fired at they gave up the chase.
4. After recording of the dying declaration the deceased was operated upon by Doctor Ali Sher Khan (P. W. 2), but the deceased succumbed to his injuries at 6‑15 p.m. The deceased when examined by the doctor was found to have the following injury on post‑mortem examination
"A firearm entrance wound on the right hip area, " x ", peritoneum deep.
On internal examination the abdominal walls, peritoneum, small intestines and bladder were found injured. Death was due to shock and bleeding on account of the injuries caused by a firearm."
5. The accused absconded after the occurrence, but sur rendered on the 13th of June 1962.
6. Wali Jan (P. W. 1), Ghani‑ur‑Rahman (P. W. 3), Jehanzeb (P. W. 4) and Abdul Khaliq (P. W. 5) were examined as eye witnesses in the case. Wali Jan at the trial in examination‑in chief reiterated the prosecution story as indicated above. On cross‑examination he stated "Shahin and Nari Khan were present in their village when the deceased in injured condition was taken there. The deceased did tell them in my presence that he was hit by mistake by the accused." To another question on cross‑examination he stated "if the mother of the deceased had not instructed me to report in the manner, in which I have done, then I would have reported that the deceased had been hit by mistake by the accused." It may be mentioned here that at the request of the Public Prosecutor the statement of this witness before the committing Court was transferred to the Sessions file under section 288, Cr. P. C. In that statement Wali Jan had substantially stated that he deposed at the trial in examination‑in -chief, barring the concession he had made in the cross‑examina tion as reproduced above. Ghani‑ur‑Rehman (P. W. 3) is a tenant of the deceased. At the trial he deposed that he was present on the canal bank with the deceased, Wali Jan, Zari Gul and Jehanzeb P. Ws., when in the meantime the appellant arrived and sat with the deceased, and was served with sharbat and churi.
The witness then went to fetch some mot from the nearby field. He heard a shot and on return found the deceased injured, but the accused was not present. Wali Jan P. W , Zari Gut C. W., Jehanzeb P. W., Roezamin C. W., Rehmanuddin C. W. and Amanullah C. W., were present and they told him that "the deceased was hit by mistake by Jehanzeb accused." The state ment of this witness before the committing Court, too, on the request of the P. P., was transferred to the Sessions file under section 288, Cr. P. C. In that statement the witness had stated that when he returned to the spot on hearing the shot, "the bystanders informed me that Ahmad Yar was shot by Jehanzeb accused effectively."
7. Jehanzeb (P. W. 4) may be termed as the star prosecution witness. The witness is closely related to the deceased, in that besides his sister being married to the deceased, the sister of the deceased is the wife of his brother and the mother of the deceased is the daughter of his aunt. The witness deposed that he had come to his village in the tonga of Zeri Gut (C. W. 1), and was sitting with the deceased on the canal bank along with Wali Jan, Ghani‑ur‑Rahman, and Zari Gut, when the accused came there from his village, carrying a pistol in his hand and sat with the deceased. The appellant was entertained with sharbut and fruit. The accused "then got up and went near the charpoy of the deceased. He stood behind the deceased who was sitting on a cot and started talking with him. The deceased had turned his face towards the accused while talking to him. Soon after, the accused fired a shot at the deceased and then started running away." The witness and Wali Jan (P. W. 1) gave the appellant a chase, but discontinued the chase when the latter fired a shot at them. The deceased was placed in a tonga and carried to the place of Ihsanullah alias Nari Khan. The mother of the deceased also accompanied the deceased in the tonga. From there the deceased was taken in the car to the Civil Hospital. On cross‑examination the witness stated that "the accused and the deceased were on visiting terms with one another. I did not notice any feelings of sorrow on the face of the accused when he came to the spot." To another question in cross‑examination he stated that "just after the occurrence I had no talk with the deceased as to why was he shot by the accused. Neither did I put him any questions nor did he himself tell me anything about the reason for his shooting." The witness further stated on cross‑examination that he had no talk with the deceased about the reason for his shooting in the tonga. The witness admitted on cross‑examination "the deceased did not tell us even uptil the hospital as to why was he shot by the deceased. (The word deceased' appears to be a typographical mistake for the word accused'). Even the mother of the deceased did not inquire from him as to why was he shot." The witness admitted that he was present when the dying declaration of the deceased was recorded by the doctor. The deceased had stated that "he had an altercation with the accused over shisham trees, but the matter had been settled." The witness also admitted that he was present when the second dying declaration of the deceased Exh. P. F. was recorded by the Head Constable.
8. Abdul Khaliq (P. W. 5) deposed that he was asleep when he was awakened by the children and informed that firing had taken place. He went to the spot and saw the deceased being placed in a tonga. On inquiry the deceased told him that "he was shot by his brother Jehanzeb." The witness accompanied the deceased in a tonga along with others to the place of Ihsanullah and from there accompanied the deceased to the. hospital. On cross‑examination the witness admitted that he was in the service of the deceased but had given up the service about twenty days earlier. He, however, admitted "the accused and the deceased had no enmity and used to meet one another often."
9. Shaukat Ali H. C. (P. W. 6) proved the dying declara tion Exh. P. E. He denied the suggestion that he had read the dying declaration Exh. P. F. and then recorded the dying declara tion Exh. P. F., Abdul Sattar, Sub‑Inspector (P. W. 12) proved the F. I. R. Exh. P. A., and the site plan Exb. P. B.
10. Zari Gut (C. W. 1) deposed that he had taken Jehanzeb (P. W. 4) in the tonga and was sitting with the deceased and Jehanzeb P. W. when the appellant came and sat with the deceased. Suddenly he heard the report of a shot. The deceased stated that "the accused hit him by mistake." Amanullah (C. W. 2) is a close relation of the parties, in that he stated that the deceased and the accused were his nephews. According to him he heard a shot and rushed to the spot, and found the deceased and the accused present. On inquiry the deceased stated "he was hit by the accused by mistake." Roezamin (C. W. 3), whose presence at the spot was mentioned in the F. I. R., deposed that the accused was sitting with the deceased handling his pistol "when suddenly it went off. Abmad Yar shouted that he was hit by mistake." Rehmanuddin (C. W. 4) deposed that he happened to pass by the spot, and found the deceased injured. Zari Gut, Roezamin, Wali Jan, Jehanzeb P. W. and others were present. On his inquiry the deceased told him that "he got injured from the hands of Jehanzeb accused. I did not get it clarified from him as to whether he was bit by mistake or not."
11. The accused at the trial when asked to explain his abscondence stated as follows :‑
I had run away out of fear. I had gone to the hospital with the deceased and when he charged me, I ran away out of fear.
When asked if he had anything more to say, he stated :‑
I was sitting with the deceased on a cot behind him and was handling the pistol which was in my hand when accident ally it went off hitting the deceased. I did not wish to abscond but when I was charged, I then disappeared.
12. Khan Abdul Latif Khan, the learned counsel for the appellant, strenuously argued that the prosecution had signally failed to make out a charge of wilful murder, and that it was a clear case of the deceased having got killed at the hands of the appellant when his pistol went off accidentally, as deposed to even by P. W. Wali Jan at the trial, and C. Ws. Zari Gul, Amanullah and Roezamin all of whom are completely dis interested witnesses. Khan Abdul latif Khan further argued that the prosecution story of wilful murder was wholly irreconcil able with the fact that there was complete accord and cordiality between the deceased and the appellant, and even on the day of occurrence the appellant was entertained with sharbat and fruit, and the prosecution story, as narrated by Jehanzeb (P. W. 4) that the accused had intentionally fired at the deceased, did not in the least ring to be true. It was also argued that there bad been considerable delay in lodging the report, and that the mother of the deceased decided to charge the appellant on account of the lurking suspicion that the deceased may have been inten tionally killed by the appellant since he was his step‑brother.
13. Mr. Sher Bahadur Khan, the learned Additional Advocate‑General, on the other hand, finding himself on the horns of dilemma; conceded and we think rightly, that in view of the complete cordiality which prevailed between the deceased and the accused, he could not support the prosecution evidence that without any rhyme or reason the accused fired at the deceased and tried to argue that it appears that while the deceased and the accused were talking something happened at the spur of the moment which provoked the appellant who shot the deceased and, therefore, the appellant was guilty of 302, P. P. C. In the alternative, it was argued that the accused on his own showing was guilty of an offence under section 304‑A, P. P. C.
14. On a careful review of the evidence and giving the arguments addressed at the Bar my careful consideration, 1 have formed the opinion that the prosecution has miserably failed to make out a case of wilful murder. My appraisement of the incident is that the deceased was hit at the hands of the accused when the pistol which be was handling went off accidentally, and the mother of the deceased either not being fully satisfied that the deceased was kill, d accidentally or perhaps having lost her son out of vengeance tried to make out a case of wilful murder. There is no manner of doubt that there was no ill‑feeling between the parties, though in the dying declarations Exh. P. E. and Exh. P. F. the deceased tried to suggest that he had some quarrel with the accused. In Exh. P. E. the deceased had stated that he bad some quarrel with the accused. In Exh. P. F., he bad stated that the accused wanted some building timber from him, but he refused, and the accused nursed this grudge.
15. Assuming, without holding, that the deceased had refused to give some timber to the accused, we are not inclined to believe that the refusal should have at all offended the appel lant, much less that it should have impelled him to commit a wilful murder. Again, if at all the appellant nursed any grudge against the deceased and wanted to kill him, he would not have done so in the presence of so many persons, and in the manner as deposed to by Jehanzeb (P. W. 4) that the appellant had been sitting from half an hour to three‑fourth hour and entertained to sharbar and mangoes and then while getting up, without any rhyme or reason he fired at the deceased.
16. As regards the argument that something happened at the spur of the moment which provoked the appellant and he then killed the deceased, and as such is guilty of offence under section 302, P. P. C., we are unable to accept this argument, in that it is not permissible to spell out entirely a new case wholly A inconsistent with the story related to by the star prosecution witness, namely, Jehanzeb (P. W. 4) and also irreconcilable with the statements of C. Ws. 1 to 3.
17. There has been a considerable delay in lodging the report. The occurrence, as already stated, took place at about 1 p.m. and allowing an hour to Wali Jan to return from the hamlet of Ihsanullah alias Nari Khan to the spot and making a further allowance of three‑fourth hour for the journey from the spot to Police Station, Khanmai, which is at a distance of 4/5 miles, there is a delay of more than two hours, and it appears that at the insistence of the mother of the deceased, the deceased was persuaded to charge the appellant in the dying declarations Exh. P. E. and Exh. P. F. and then Wali Jan was directed by the mother of the deceased to lodge the F. I. R.
18. As a result of the above discussion, we hold that the conviction of the appellant under section 302, P. P. C., cannot be sustained. This brings us to the question as to whether on the facts and circumstances of the instant case, in particular on the plea of the appellant himself, that while handling the pistol it accidentally went off, can he be convicted of an offence under section 204‑A, P. P. C.
19. The learned A. A.‑G., as an alternative argument, invited us to alter the conviction of the appellant to section 304‑A in case we were not disposed to affirm the conviction of the appellant. He argued that under section 236 of the Criminal Procedure Code the appellant could have been charged in the alternative for having committed an offence under section 304‑A, and this Court under the provisions of section 237, Cr. P. C., can convict the appellant "of the offence which he is shown to have committed, although he was not charged with it", namely, under section 304‑A. Reliance was sought on a decision of S. A. Mahmood, J., in Swab Gul v. The State (P L D 1959 Lah. 655).
20. Khan Abdul Latif Khan, on the other hand, argued (1) that the offence under section 304‑A, P. P. C., was wholly different from one under section 302, P. P. C. and the provisions of section 237, Cr. P. C., could not be invoked for altering the conviction of the appellant from 302 to 304‑A, P. P. C., in particular when the offence under section 304‑A was not cognate to the offence under section 302. He also expressed some doubts if we, as an appellate Court, could alter the conviction of the appellant from 302 to 304‑A when the appellant had not been charged before the trial Court of the latter offence. In support of the first contention reliance was sought on the Single Bench decision of Sajjad Ahmad Jan, J., in Ahmad Din v. The State (P L D 1959 Lab. 760). In that case precisely the same question came up for decision. Sajjad Ahmad Jan, J., delivering the judgment at page 762, after stating the ingredients of offences under sections 302 and 304, P. P. C. and section 304‑A, observed :‑
The quintessence of the offence (section 304‑A) is rashness or negligence, where neither intention nor knowledge is neces sary. As such, there seems nothing in common between the offence under sections 302 or 304 and 304‑A as far as their respective ingredients go, beyond the result of causing death. It is clear, therefore, that subsection (1) of section 238 does not apply, as section 304‑A is not a combination of some of the particulars of section 302 to constitute a minor offence.
At page 763, his Lordship summed up the discussion in para. 8, as under :‑
"As stated above, I do not see anything common between section 302 and section 304‑A, their particulars and ingredients being altogether different. The conviction, therefore, under section 304‑A, in this case, in the absence of a charge for that offence, is illegal."
A reading of the decision in this case makes it plain that the attention of his Lordship was not drawn to the provisions of sections 236 and 237, which were not only material to the point under discussion but, in my view, speaking with respect, section 237 and not 238 was applicable to the case.
21. In Swab Gul v. State, Mahmood, J., on the other hand, while dealing with the very same point, altered the conviction of the appellant from 302 to 304‑A, P. P. C. The material discussion is to be found in para. 8 of the judgment at page 660, wherein he observed as under:‑
Pulling the trigger of a revolver without taking the precau tion of seeing that it was empty was gross and culpable negli gence especially when it was pointing in the direction of an open door, where the deceased stood. Culpable negligence is the omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. It is a gross and culpable negligence to fail to exercise that reasonable and proper care and caution which a person should have taken to guard against injury to the persons present nearby. It is the failure of the care and precaution which the petitioner should have adopted in the circumstances of the case which makes him guilty under section 304‑A, P. P. C. He is convicted under section 304‑A, P. P. C., and is, in view of all the circumstances of the case, sentenced to one year's rigorous imprisonment.
It is important to observe here that in this case the counsel for the accused did not raise the contention that in case where the appellant had been convicted for offence under section 302, his conviction could not be altered to section 304‑A, and it appears that his Lordship took it for granted that in such a situation the conviction could be altered from 302 to 304‑A, provided an offence under the latter section was held to be proved, and after discussing the material evidence, held that a charge under section 304‑A had been clearly made out against the appellant.
22. Since the learned A. A.‑G., raised the point in regard to alteration of the conviction of the appellant from 302 to 304 at the fag‑end of the arguments, and since the points were not made quite clear the case was adjourned for the following day, to enable the learned counsel for the appellant and the learned A. A.‑G., to make some further research on the points raised. We heard some further arguments, but it appears that on account of the short time at their disposal none of them was able to cite authorities having direct bearing on the point. Since I had some doubts about the correct legal position, I decided to pursue the research on the points raised and have succeeded on laying hand on a few authorities, including the high authority of Privy Council, which, in my view, provides a complete answer to the question which has been troubling me.
23. Since the question raised involves the interpretation of sections 236, 237, 238 and 423, Cr. P. C., it will be convenient here to reproduce the said sections. Section 236 provides that
"if a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once ; or he may be charged in the alternative with having committed some one of the said offences."
Section 237 is in the following terms:‑
"If, in the case mentioned in section 236, the accused is charged with offence, and it appears in evidence that he com mitted 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."
Section 238 runs thus:‑
"(1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it.
(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it.
(2‑A) When a person is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged.
(3) Nothing in this section shall be deemed to authorize a conviction of any offence referred to in section 198 or section 199 when no complaint has boon trade as required by that section."
The material provisions of section 423 are subsections (a) and (b), which are in the following terms:‑
(a) in an appeal from an order of acquittal reverse such order and direct that further inquiry be made, or that the accused be re‑tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law ;
(b) in an appeal from a conviction, (1) reverse the finding and sentence, and acquit or discharge the accused, or order him to be re‑tried by a Court of competent jurisdiction sub ordinate to such appellate Court or committed for trial, or (2) alter the finding, maintaining the sentence, or with or without altering the finding, reduce the sentence, or
(3) with or without such reduction and with or without altering the finding, alter the nature of the sentence, but, subject to the provisions of section 106, subsection (3), not so as to enhance the same ;".
It will be plain from a reading of sections 236 and 237 and the illustrations (which have not been reproduced) to the said sections, that a man may be convicted of an offence, although there has been no charge in respect of it if the evidence is of such a nature as to establish a charge that might have been made. In other words section 237 enables the Court to convict a person of an offence which is disclosed in the evidence and for which he might have been charged under the provisions of section 236, although he was not charged with it. The reason of the rule is that the facts relied upon by the prosecution at the beginning of the trial, of which he has notice, are sufficient notice of all offences. which such facts will constitute.
24. Sections 237 and 238 are the exceptions to the general rule that an accused person cannot be convicted of an offence of which he has not been charged and of which he has no notice. These two sections, however, enable the Court to convict a person of offence which is disclosed in the evidence. Sections 237 and 238 are not (sic) mutually exclusive and are intended to apply to quite separate and distinct situations. While section 237 applies to a wide range of offences, which maybe wholly un related to each other and may have no common ingredients what soever. Section 238, on the other hand, applies to a narrow range of cases, namely, two, as specified in sub‑clauses (1) and (2), where under conviction of minor offence included in the offence charged in either of the two cases. The first is where the offence charged consists of several particulars, a combination of some only of which constitutes a complete minor offence and such combina tion is proved but the remaining particulars are not proved. The second is where facts are proved which reduce the offence charged to a minor offence. Illustration (a) to the section is an example of the first class of cases and Illustration (b) of the second. The principle on which the section proceeds is that where an offence consists of several particulars, a combination of some only of which constitutes a complete minor offence, the graver charge gives notice to the accused of all the circumstances going to constitute the minor offence of which he may he convicted. The latter is arrived at by mere subtraction from the former. In other words, section 238 is attracted only in cases where the minor offence of which the accused is subsequently convicted must be cognate to the major offence of which he is originally charged. The words "minor offences" are not defined anywhere in the Code, and should be taken in their ordinary sense within the dictionary meaning of the words "minor offence", as compared to the major offence. So far I have been discussing the case untrammelled by any authorities. I now proceed to examine a few of the authorities.
25. The first authority which in my view is on all fours with the facts of the present case is the decision in Emperor v. Ramaya Chennappa (A I R 1915 Bom. 297). In that case one Chennappa died shortly after cating food prepared by his wife. The wife was charged with the murder of her husband, and her mother was charged with abetting the murder. The case was tried by a Jury, and in the course of his charge to the Jury, the Judge pointed out that although there was no separate charge under section 304‑A of the Indian Penal Code, it was open to the Jury to find a verdict of guilty' of an offence under section 304‑A and an acquittal under the charge of murder. The Jury came to the conclusion by a majority of three to two that the women were not guilty of an offence whatever. The Judge found himself unable to accept this verdict and referred the case to the High Court. Heaten, J., delivering the judgment for the Court, while repelling the argument that section 307 of the Criminal Procedure Code did not permit the conviction of the appellant under section 304‑A of the Indian Penal Code, because of the fact that there was no charge under that section at the trial, and that the terms of sections 236 and 237 of the Criminal Procedure Code, could not be pressed into service, at page 298, observed
"Whatever may be said about section 238 of the Code, I do not feel any doubt that under sections 236 and 237 we are empowered to record such a conviction. It was beyond question a doubtful matter in this case from the very beginning whether the facts, which the prosecution would be able to prove, would establish more than the administering of the poison in the way I have mentioned ..It would, there fore, it seems to me, quite clearly have been open to the prosecu tion to bring these persons to trial on charges both of murder and under section 304‑A of the Indian Penal Code. If that were so, it follows from the provisions of section 237 of the Criminal Procedure Code that although the charge under section 304‑A of the Indian Penal Code was not formally made it was open to the Court to convict under that section."
Accepting the reference the wife was convicted under section 304‑A, while her mother was convicted under section 304‑A/109. It is important to observe here that subsection (3) to section 307, Cr. P. C., empowered the High Court to which the case is submitted, to "exercise any of the powers which it may exercise on an appeal,
" In other words in cases which are submitted to the High Court under section 307, subsection (3), the High Court has all the powers which the appellate Court can exercise under section 423, sub‑clauses (a) and (b). It is, therefore, manifestly clear that their Lordships while acting under section 307, Cr. P. C., virtually exercised the powers of the appellate Court under section 423 and convicted the principal accused, namely, the wife of the deceased, under section 304‑A, and the mother‑in‑law of the deceased, under section 304‑A/109, though they had not been charged for that offence.
26. In King Emperor v. Charles John Walker (A I R 1924 Bom. 450), precisely the very same question came up for decision. Macleod, C. J., deliver ing the judgment for the Court, following the decision in lamperor v. Ramaya Chennappa, summed up the discussion at page 451, as under:‑
..it followed from the provisions of section 237, Criminal Procedure Code, that, although the charge under section 304‑A was not formally made, it was open to the Court to convict under that section. Here, in this case, as I have pointed out, assuming that the accused intended to pull the trigger, the shot was either aimed or unaimed and the offence would come under section 304 if it was aimed, and under section 304‑A if it was unaimed. Therefore, it would be competent to this Court, if it agreed with the Sessions Judge, to convict the accused under section 304‑A.
27. In Amir Bakhsh v. State (P L D 1960 Lah. 15), Changez, J., disagreeing with the views of Sajjad Ahmad Jan, J., in P L D 1959 Lah. 760, held that "in view of the provisions of sections 236 and 237, Cr. P. C., it is permissible to alter a conviction from section 302 or 304 of the Penal Code to one under section 304‑A of the sane Code.
28. In Bagu and others v. King Emperor (A I R 1925 P C 130), five accused were committed for trial at the Sessions Court on a charge of murder under section 302 of the Indian Penal Code. Bakhu and Walia were found guilty of murder and sentenced to death. With regard to the other three, the learned Sessions Judge was of the opinion that the evidence did not sufficiently or definitely prove that they were present at and had taken part in the murder, but, on the other hand, he convicted each of them of having removed the body, and sentenced them each to seven years' R. I. On appeal to the High Court the convictions and sentences of the appellants were affirmed. On appeal to the Privy Council a point was raised that in the circumstances of the case the conviction of the appellant under section 201 was bad in law. Viscount Haldane, J., delivering the judgment for the Board, after repro ducing the provisions of sections 236 and 237, at page 131, observed
"The illustration makes the meaning of these words quite plain. A man may be convicted of an offence, although there has been no charge in respect of it, if the evidence is such as to establish a charge that might have been made. That is what happened here. The three men who were sentenced to rigorous imprisonment, were convicted of making away with the evidence of the crime by assisting in taking away the body. They were not charged with that formally, but they were tried on evidence which brings the case under section 237.
Their Lordships entertain no doubt that the procedure was a proper procedure and one warranted by the Code of Criminal Procedure."
It is important to observe here that the charges under section 302 and that under section 201 have absolutely nothing in common and the ingredients of the charges are wholly dissimilar, but on the evidence adduced in the case, when the appellant was convicted for offence under section 302, on appeal to the Board, their Lord ships of Privy Council had no difficulty in holding that the procedure was proper and one warranted by the Code of Criminal Procedure.
29. In Valli Ahmad and others (A I R 1947 Mad. 114), following the decision in A I R 1925 P C 130, Horwill, J., delivering the judgment for the Court, held that an accused charged under section 302 can be convicted of an offence under section 411, Penal Code, even though not charged under it. In Bhikha Gobar v. Emperor (A I R 1943 Bom. 458), the appellant was convicted of an offence under section 302, but on appeal Beaumont, C. J., delivering the judgment at page 461, observed :‑
"The accused might have been charged under section 411, Penal Code, under section 236 read with section 239(e), Criminal Procedure Code and section 237 of the Criminal P. C., provides that if the evidence shows that he was guilty of the offence cinder section 411, Penal Code, with which he might have been charged it is open to the Court to convict him of that offence. In my opinion, therefore, we arc entitled to convict the accused on the evidence on record of an offence under section 411, Penal Code. The learned Sessions Judge might himself have recorded such conviction. Therefore we set aside the conviction of murder under section 302, Penal Code, and convict accused under section 411, Penal Code, and sentence him to three years' rigorous imprisonment."
30. Emperor v. Ismail Khadirsab (A I R 1928 Bom. 130), the accused was charged with having murdered his wife, but he was acquitted by the Sessions Judge, who agreed with the unanimous opinion of the four assessors. The local Government preferred appeal against the acquittal which ended in the conviction of the accused for offence under section 193. One of the point formulated for decision by the Bench was to the following effect :‑
Whether clause (a), subsection (1) section 423, Criminal P. C., merely authorizes an appellate Court to find the accused guilty of the offence, with which he was charged and for which he was tried, but of which he was acquitted, or whether it empowers an appellate Court to convict an accused of some other offences.
Fawcett, J., delivering the judgment for the Court, at page 132, observed :‑
"Under clause (b), subsection (1) the appellate Court can points, contended that an appellate Court cannot alter the con viction from one under clause (c) to one under clause (f ). Sadasiva Aiyar. J., repelling the contention, observed that :‑
"Section 423 (b) (2), Cr. P. C. . . . ., unqualifiedly gives the power to the appellate Court to alter the finding' on appeal, and I am not disposed to qualify the powers so given by the Legislature, unless, of course, prejudice was likely to have been caused to the accused and injustice might have resulted by his not having had the opportunity to meet the altered charge."
I would wind up the examination of authorities by quoting certain passages from the decision of the Supreme Court of India in Ramaswarny Nader v. The State of Madras (P L D 1958 S C (Ind.) 247), in which the Supreme Court had to consider the provisions of sections 236, 237, 238 and 423. In that case the High Court on appeal from acquittal confirmed the order of the trial Court acquitting the accused of an offence under section 420, Penal Code, and at the same time convicted him of an offence under section 403 of which the accused did not stand charged in the trial Court. On an appeal by the special leave it was argued before the Supreme Court that though the powers contained in sections 236, 237 and 238 of the Criminal Procedure Code may be exercised by a trial Court or even by a Court of Appeal exercising its powers under clause (b) of section 423(1), Criminal Procedure Code, the High Court could not exercise those powers acting under clause (a) of that section. Sinha, J., repelling the argument, held that.‑---
"There is no warrant either in principle or on authority for the proposition that section 423(1) (a) does not authorise a High Court to find the accused person guilty of any offence other than that with which he has been charged nor is there any sufficient ground for holding that the powers contained in sections 236, 237 and 238, Criminal Procedure Code, could not be exercised by the High Court hearing an appeal under section 423 (1) (a), Criminal Procedure Code.
Under both the clauses (a) and (b) of section 423 (1), the specific power to reverse the order appealed from, is there, but because there has been a conviction by the trial Court or the Court immediately below the High Court, the latter Court is authorised specifically to alter the finding or the nature of the sentence in clause (b). In clause (a), after the High Court has decided to reverse the orders of acquittal, it has been given the power to find the accused guilty, besides other powers enumerated therein. It is open to the High Court to convict the accused of any offence disclosed in the evidence other than that with which he had been charged."
The above authority is a direct authority for the proposition that an appellate Court, acting under section 423 (b) leas all the powers which can be exercised by the trial Court, and that acting under n sections 236 237, 238, read with section 423, the accused may be convicted of an offence of which he was not charged in the trial Court.
33. On review of the authorities cited above, it follows that the powers conferred on the appellate Court are as ample as the High Court could have on revision under section 439 with the exception of the power to enhance the sentence. Where the appellate Court is the High Court itself, it has not only the powers under section 423 but also those under section 439. As an appel late Court, it can, under section 423, alter the conviction to one for an offence of which the accused was acquitted by the lower Court, E but it has no such power in revision. As a revision Court it can enhance the sentence passed by the lower Court though as an appellate Court it has no such power. Thus by combination of sections 423 and 439, the High Court in appeal, can convict the accused of an offence of which he had been acquitted, and also in appropriate cases convict him of a graver offence than the one for which he was charged. Sections 237 and 238 are, however, subject to one overriding condition and it is that the accused must have notice of the charges he is called upon to meet and in case he has such notice his conviction for offence or offences for which he had not been charged but for which he could have been charged cannot be held to be bad.
34. It remains to decide whether the appellants had any notice of the charge under section 304‑A, and whether on the evidence on the record, he can be convicted of that offence. This question does not present any difficulty for the short and good reason that the appellant had a very clear notice of the charge he had to meet, so much so that he in his defence took the plea that while "handling the loaded automatic pistol it went of accidentally and hit the appellant." I have, therefore, not the least doubt that on the very plea of the appellant he has impliedly pleaded guilty to the offence under section 304‑A, in that a person carrying a loaded automatic pistol is expected to handle it with extreme caution, but if, on the contrary, he instead of keeping it in the holster carries it in the hand even when sitting in the company of many persons and then starts playing with it (the loaded pistol) and in doing so pulls the trigger in utter disregard to the safety of human being, clearly acts in a rash and negligent manner within the meaning of section 304‑A and therefore, qualifies himself for conviction for that offence.
35. As a result of the foregoing discussion I alter the conviction of the appellant from 302 to 304A, P. P. C. As regards the sentence, regard being had to the fact that the appellant had been in custody during the enquiry and trial and also suffered the torture of suspense in respect of the death penalty, I think a sentence of one year's rigorous imprisonment and a fine of Rs. 500 or in default one month's further R. I., would meet the ends of justice. The sentence of imprisonment is to be reckoned from the date of his conviction by the trial Court that is 20th November 1962.
36. The sentence of death is not confirmed.
--‑I agree.
K. B. A./A. H. Appeal partly accepted.
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