RAMCHANDRA BHAIRU SHINGATE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS is an appeal by an accused who has been convicted by the learned Sessions Judge, Satara, of an offence under Section 326 of the Indian Penal Code and sentenced to two years' rigorous imprisonment and a fine of Rs. 500.

(2.) THE facts of the prosecution case are that, at the material time viz. on December 17, 1968, one Balvant Shingate who was an agriculturist by profession was working as the Talathi of a village named Sartale about 6 or 7 miles away from another village named Marde in Satara District. The said Balvant was a close friend of one Sitaraui Shiugate, the brother of the accused, and the accused as well as his brother Sitaram had their lands in the village of Marde. It appears that Balvant had a brother named Waman with whom he had certain property disputes, and the said Waman was a friend of the accused. This is the background of the relations between the parties. On the morning of December 17, 1968 Sitaram had gone to Balvant's house as Balvant needed Sitaram's cart for the removal of groundnut creepers from one part of his field to another part of the same field, and Balvant and Sitaram, therefore, started to go to Sitaram's house. On the way, they were joined by one Shankar Patil who was formerly a revenue Patil. The three of them went together to Sitaram's house and had tea there, and Shankar and Balvant then left the house of Sitaram, Shankar being - ahead by 10 or 12 paces. Whilst they were walking in that order and were only about 50 paces from Sitaram's house, according to the prosecution, the accused Ramchandra came from the north side where his own field was situated, on to the road by which Balvant was proceeding. The prosecution case is that when he came in front of Balvant he took out a knife from the pocket of his pyjama trouser and gave a blow with that knife on the left side of Balvant's stomach, that Balvant then shouted, whereupon the accused gave another blow on the right side of Balvant's stomach, that oil hearing the shouts Sitaram rushed to the spot from his house and caught hold of his brother the accused and lifted him up and threw him on the ground, in which process Sitaram himself sustained a slight injury. The prosecution story is that the accused then tried to strike Sitaram on his back but the blow missed him and the blade of the knife came in contact with the ground and got bent. Sitaram then snatched the knife from the hand of the accused and gave it to his servant Maruti who had also come up by then, but the knife was ultimately taken possession of by the injured man Balvant who kept it in a cloth bag which he had with himself. Balvant was then put in a bullock cart and was given medical attention and fortunately recovered to tell the story in the trial Court. On these facts, the accused was charged with the offence of having attempted to commit the murder of the said Balvant under Section 307 of the Indian Penal Code, and having caused injuries to the said Balvant in that process. The Sessions Judge accepted the prosecution evidence and held that it was the accused who had inflicted the injuries in question on Balvant, but convicted him not of the offence under Section 307 of the Indian Penal Code with which he had been charged, but of the offence under Section 326 of the Penal Code and sentenced him as already stated above. It is from that order of conviction and sentence that the accused has preferred this appeal.

(3.) THE only other question that survives is whether the trial Court was right in convicting the accused of the offence under Section 326 of the Indian Penal Code, when the actual charge framed against him was one under Section 307 of the Indian Penal Code. The offence under Section 326 of the Indian Penal Code cannot be said to be a minor offence in relation to the offence under Section 307 of the Indian Penal Code, having regard to the fact that the punishment provided by Section 326 of the Penal Code is not less than that provided by Section 307, and having regard also to the fact that the ingredients of the two offences are different in some respects. The conviction of the accused under Section 326 of the Penal Code by the trial Court cannot, therefore, be justified under the provisions of Section 238 of the Code of Criminal Procedure nor, in my opinion, can that conviction be buttressed by Section 535(1) of that Code which provides that a finding' or sentence is not invalidated merely because no charge was framed, unless a failure of justice has been occasioned thereby. Section 535(1) cannot be invoked in cases in which, the ingredients of the offence charged and of the offence of which the accused has been found guilty are in any manner different, for the simple reason that failure of justice is bound to result in such cases, hi my opinion, Section 535(1) applies only to eases in. which either there is no charge at all and the offence is not of a serious nature, or in which the offence charged is of such a nature that there is no difference between the ingredients of that offence and the ingredients of the offence of which the accused has actually been convicted, or the offence charged comprises all the ingredients of the offence of which the accused has been found guilty and some more. I also do not accept the contention that the absence of a charge under Section 326 of the Indian Penal Code in the present case is a mere irregularity which can be cured under the provisions of Section 537(6) of the Code of Criminal. Procedure for, as a matter of plain language, Clause (b) of Section 537 docs not deal with cases in which there is a complete omission to frame a charge in respect of the particular offence of which the accused has been found guilty. I have, therefore, come to the conclusion that the conviction of the accused under Section 326 of the Indian Penal Code by the trial Court cannot be sustained and must be aside.