KHALLE Vs. HARNARAIN

JUDGEMENT

(1.) HAR Narayan lodged a complaint before the Sub -Divisional Magistrate, Moongawali under Section 379 Indian Penal Code, that 3000 bricks were stolen from his klin during his absence when be had been away to see his ailing mother, who enventually died. He later on discovered that two cartloads of bricks were taken away by the accused Khalle. The trial Court held that the facts were proved, but instead of convicting the accused under Section 379 I.P.C. for theft, the trial Court held him guilty under Section 403 for the offence of criminal misappropriation and fined him Rs. 20. The accused being unable to file an appeal because of the bar of Section 413 Cr. P.C. filed a revision before she Sessions Judge of Guna, who has made this reference for setting aside the conviction and sentence on the ground that since the accused was not charged under Section 403, he cannot be convicted under it.

(2.) IN expressing this view the learned Sessions Judge has followed the decisions given in Criminal Revisions No. 52 of 1951 and 70 of 1953 of the Madhya Bharat High Court. In these cases it has been held that where a man is charged under a particular offence, he cannot be convicted for having committed another offence. With great respect I am of the opinion that these unreported decisions of the Madhya Bharat High Court require reconsideration, because according to Section 237 of the Criminal Procedure Code, such a conviction is perfectly valid. Section 237 says that if the accused is charged with one offence, and it appears from the evidence that he has committed a different offence for which he might have been charged, the accused may be convicted of the offence of which he is shown to have committed although he was not charged with it.

(3.) I am further fortified in my opinion by a decision, of their Lordships of the Privy Council reported in : A.I.R. 1925 P.C. 130 Begu and other v. King Emperor. In this case their Lordships of the Privy Council observed that where the accused were charged under Section 302 I.P.C. and on evidence they were found to be guilty of an offence under Section 201. (causing the evidence of crime to disappear) and so were convicted under the latter section, the conviction was proper.