RAMAN AMBALAM Vs. STATE

JUDGEMENT

(1.) THE petitioners were sentenced to various terms of imprisonment by the learned Second Assistant Sessions Judge of Mathurai which sentences were confirmed on appeal by the learned Sessions Judge of the same division and in revision the question has been raised regarding the correctness of the convictions and sentences.

(2.) THE charges framed against them were that petitioner 1 on or about 27 -1 -1949 at Siru -marudakanmoi of Ucharichanpatti village committed robbery of the property of one Sundara -rajan Ambalam along with the other two petitioners and that at the time of committing the said robbery, petitioner 1 used a deadly weapon to wit an aruval and voluntarily caused grievous hurt to the said Sundararajan Ambalam thereby committing an offence under Section 392 read with Section 397, Penal Code. As against the other two petitioners, the charge was that they were conjointly concerned with petitioner 1 in committing the robbery of the property of Sundararajan Ambalam and during the course of that concerted action, voluntarily caused hurt to Sundararajan Ambalam in committing the robbery and thereby committed an offence under Section 394, Penal Code. They were tried by the learned Assistant Sessions Judge with a jury as the offences were triable exclusively by jury. The unanimous verdict of the jury was that petitioner 1 was not guilty of an offence under Section 392, Penal Code read with Section 397, Penal Code, but that he was guilty of voluntarily causing grievous hurt with a dangerous weapon to the said Sundararajan, an offence under Section 326, Penal Code against petitioners 2 and 3, the unani -moug verdict of the jury was that they were not guilty of the offence under Section 394, Penal Code but were guilty of an offence under Section 379, Penal Code; theft of the articles belonging to the said Sundararajan Ambalam. The trial Court accepted this unanimous verdict and sentenced petitioner l to rigorous imprisonment for four years and petitioners 2 and 3 to rigorous imprisonment for one year. These convictions and sentences were confirmed by the learned Sessions' Judge of Mathurai and hence this revision.

(3.) AT the very outset it has to be mentioned that under Section 636, Criminal P. C. if an offence triable with the aid of assessors is tried by a jury the trial shall not on that ground only be invalid ; so that if there had been separate char, ges under SECTIONS 326 and 379, Penal Code the trial in the Sessions Court would have been with the aid of assessors but as it has happened the trialwas with the aid of jury then this section lays down that the trial shall not be invalid on that ground only. Such being the case, it la open to the jury to try a case which would ordinarily be triable with the aid of assessors and there is no illegality or irregularity committed by such a trial alone We have then to find out whether the jury were justified in returning a verdict on two sections of the Code of which the respective accused had not been charged. In other words, can there be a conviction for the offences mentioned above without there being a charge and can a conviction on such a verdict be justified on legal grounds? Among the fasciculous of sections dealing with the forma of charges and joinder of charges, we have s. 237 and 238, Criminal P. C., which deal with the state of circumstances when a person is charged with one offence, whether he can be convicted of another (Section 237) and when a minor offence which is included in the offence charged is proved whether it can be made the subject of a conviction. Section 237 lays down that in the case mentioned in the previous section (Section 236) where an accused is charg -ed with an 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. Section 238 (1) says that 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 ia proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he waa not charged with it. In the light of these statutory provisions, we have to find out whether the sections with which the petitioners were respectively charged constituted combinations of minor offences or whether they without such integration, were each by itself offences which cannot be analyaed into component minor misdemeanours. Taking first Section 397, Penal Code, it has to be observed that it is a mix -ture as it were of two different offences, viz. the offence of robbery and the offence of voluntarily causing grievous hurt with a dangerous weapon. An admixture of the various elements constituting each of theae offences would by such mixture make out Section 397 and so far as Section 394 is concerned, it is likewise a mixture of two different offences, viz, robbery and voluntarily causing hurt. Where -as Section 397 contemplates a combination of robbery and grievous hurt, Section 394 is an amalgam of robbery with simple hurt. It may be said that Section 397 is a more aggravated form of Section 394. If we analyse these sections into their component parts and if the provisions of Section 238 (1), CriminalP. C. are applied, then there ia no difficulty whatever that a Court or a jury is entitled when the charge is for the graver offence to find the delinquient guilty of one of the constituent parts of that offence. Therefore, apart from any deci -sions or other judicial authority, the statute itself makes the point clear and but for certain decisions of this Court, no doubt could have been entertained on this point. It is, therefore, neces -sary to refer to and consider the cases cited at the bar on this topic.