MYTHEEN KUNJU Vs. STATE

JUDGEMENT

(1.) BOTH of these appeal arise out of the decision in sessions Case No. 45 of 1952 on the file of the Sessions Court at Trivandrum. The 1st accused in the case is the appellant in Criminal Appeal No. 48 of 1953. The 2nd accused is the respondent in Criminal Appeal 78 of 1953.

(2.) THE charge against both the accused in Sessions Case no. 45 of 1952 was for offences punishable under Ss. 459, 380 and 463 of the travancore Penal Code (corresponding to Ss. 454, 380 and 461 of the Indian penal Code ). THE prosecution case is that on the night of 24. 9. 1123 these accusee forcibly broke open the outer door of the piece-goods shop of PW. 1 at pazhavangady within the limits of the Trivandrum City and entered the shop and broke open a box and committed theft of currency notes and silver and nickel coins, totaling in value to Rs. 4863. A gold ring with the letter 'k' inscribed on it and another silver zone kept in the box have also been stolen by these accused. On the next morning when PW. 1 came to the shop as usual, he noticed that the locks of his shop had been broken and that a burglary had been committed. On the basis of the information given by him the Police came to the spot and prepared the Mahazar Ext. B describing the condition of the shop at that time and registered a case and proceeded with the investigation. Such investigation led to the arrest of the 1st accused on 11. 11. 1123 from his residence at pettah, Trivandrum, and on the information obtained from him a search was conducted at his residence and some of the stolen articles were recovered from that place as described in the Mahazar, Ext. J. prepared at the spot. This mahazar is signed by PW. 18, the investigating Officer, and also by the 1st accused and by other independent witnesses. THE articles thus recovered from the residence of the 1st accused have been identified and marked as Material objects Nos. 4 to 11. M. O. No. 7 consists of hundred-rupees currency notes, 11 in number. M. O. 4 is the gold ring with the letter 'k' inscribed on it. This ring has been identified by PW. 1 as the ring which he had kept in the box in his shop at Pazhavangady. THE other material objects recovered as per Ext. J mahazar are not of much significance in this case. According to the prosecution the 1st accused had admitted that with the money obtained on theft from the shop of PW. 1 a restaurant was being run by both the accused jointly. On the strength of that information the police conducted a search of the restaurant stated to have been conducted by 2nd accused in the vicinity of the cinema theatre at Pettah, and recovered a series of articles which have been marked as m. O. Nos. 7 to 67 in the case. This recovery was made on 11. 11. 1123 and the mahazar prepared in connection with the same is Ext. C. After completing the investigation, both the accused were charged with having committed the offences already referred to. At the close of the trial the learned Sessions Judge agreeing with the unanimous verdict of the assessors found that so far as the 1st accused is concerned the prosecution has succeeded in establishing the offences charged against him. By this time the Indian Penal Code was made applicable to this State also and accordingly the 1st accused was found guilty of the offences punishable under Ss. 454, 380 and 461 of that Code. Since the 1st accused has had to his credit previous convictions for similar offences, additional charge under S. 75 of the Indian Penal Code was also framed against him and such previous convictions were duly proved. Thus the trial against him ended in his being convicted under Ss. 454, 380 and 461 of the Indian Penal code read with S. 75 of the same Code and sentenced to undergo rigorous imprisonment for a period of 5 years and to pay a fine of Rs. 200/- and in default of payment of fine, to undergo rigorous imprisonment for a further period of 2 months. THE Sessions Judge found that the prosecution has not succeeded in proving the charge against the second accused who was accordingly acquitted. It is against such acquittal that the State has preferred Criminal appeal No. 78 of 1953. THE 1st accused has preferred Criminal Appeal No. 48 of 1953 against the conviction and sentence passed against him.

(3.) THE next question taken up by the learned Public prosecutor is that even if there is no evidence to prove the complicity of the 2nd accused in the actual commission of the offence of theft, the evidence already on record is sufficient to sustain a conviction being entered against him under S. 411 of the Indian Penal Code for having dishonestly received and retained stolen articles with the knowledge that they were stolen property. As already stated, no charge was framed against this accused under S. 411. It is a fundamental rule of the Criminal Law as administered in this country that there should be a separate charge against the accused for every distinct offence alleged against him so that he may have notice of the charge which he has to meet and that the accused can be convicted only of the specific offences for which he has been charged. But this principle is subject to certain well recognised exceptions. THEse exceptions are provided for in Ss. 237 and 238 of the code of Criminal Procedure. THE three exceptions provided for in S. 238 are the following: " (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. (2a) 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. " THE present case does not come under any of these exceptions. On the other hand it is sought to be brought under the exception provided for in S. 237 which runs as follows: "if, in the case mentioned in S. 236, the accused is charged with one offence, add 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. " It is obvious from the Section itself that it is not meant to be of general application so as to justify a conviction of the accused for an offence totally unconnected with and different from the offence for which he has been charged and tried. This section is controlled by S. 236 so that it can be invoked only in respect of cases coming under S. 236. S. 236 states: "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 of the said offences". It is significant to note that the single act or series of acts alleged against the accused must be such as to make it doubtful as to the exact nature of the offences that may be made out on proof of those acts. In such a situation the conviction of the accused for an offence different from the offence with which he is charged will be justified under S. 237, provided the offence for which he was convicted is one which could have been charged against him under S. 236 and that the evidence on record has conclusively made out such offence. Even though there has been no specific charge for that particular offence it is of the utmost importance that all the necessary and relevant facts must have been averred and proved against the accused. This principle has been emphasised in Meher Sheik v. Emperor (32 Criminal Law journal 1931, P. 892 ). In that case it was ruled that: "s. 237, Criminal Procedure Code, applies only to cases which fall within the provision of S. 236 and S. 236 applies only to cases where, on the facts, proof of which is in the possession of the prosecution, it is clear beyond doubt, if the evidence be believed, that one or more of several offences, but doubtful in law which of them has been committed. When the facts themselves are in doubt the section does not apply". It was further laid down that: "the true test in such cases is whether the facts are such as to give the accused notice of the offence for which he is going to be convicted though he was not charged with it, so that he is not prejudiced by the mere absence of a specific charge". In Makkhan v. Emperor (AIR 1945 Allahabad 81) also the scope of the application of Ss. 236 and 237 of the Code of Criminal Procedure had come up for consideration and it was held that the facts are to be set out in the charge so that the accused may know what act or acts he is said to have done and the question only remains one of law as to what offence the act or acts constitute.