SHIB CHARAN Vs. EMPEROR

JUDGEMENT

(1.) This is an application in revision against an appellate order of the learned Sessions Judge of Mearut convicting the applicant under Section 411, I. I? C. The accused was charged in the trial Court with kidnapping a boy from the lawful guardianship of his father and with having stolen a hundred rupee note, under Secs.363 and 379, I. P.C. The trial Magistrate convicted the accused under both sections. In appeal the learned Sessions Judge set aside the conviction under Section 363 on the ground that it was at least doubtful whether the boy whom the accused had taken away, was under the age of fourteen years on the date of the alleged offence.

(2.) With reference to the conviction under Section 379 the Judge found that the evidence did not prove that the accused himself, committed the theft of the note. The facts alleged by the prosecution were that the boy himself stole the note from his father, at the instigation of the accused, and made it over to the accused. On these allegations I agree with the learned Sessions Judge that the accused should have been charged with abetment of the theft under Section 379/109 and with, dishonestly receiving stolen property under Section 411, I. P.C. The Judge found, that there was no evidence that the accused instigated the boy to commit the theft, excepting the evidence of the boy himself, and did not think it safe to rely on the boy's statement in the absence of any corroboration. He was however satisfied that the accused received the note from the boy knowing it to be stolen property. He accordingly altered the conviction under Section 379 to-one under Section 411, I. P.C. It has been argued on the merits that there is no evidence to prove the guilt of the accused under Section 411, I. P. C, apart from the boy's own statement which the learned Judge considered insufficient to prove the allegation that the accused instigated the boy to commit the theft, and therefore the boy's evidence should be held insufficient to prove that the delivered the stolen note to the accused. The boy's statement that he delivered the hundred rupees note to the accused does however receive some corroboration from the facts that the accused, when he was arrested with the boy, had a note of Us. 100/- inhis possession, and that he unsuccessfully tried to conceal the fact that he had the note in his possession. In these circumstances I think it was perfectly open to the Court to find that the boy's statement, about handing over the stolen note to the accused, was true. The accused must have known that this note was stolen property. I think there are no grounds whatever for setting aside the conviction under Section 411 upon the merits.

(3.) It has been further argued that the learned Sessions Judge had no jurisdiction to alter the conviction under Section 379 to one under Section 411, I. P.C. It is con-coded that under Section 235, Criminal P.C., the Magistrate was empowered to charge the accused with offences under Secs.363 and 379 and to try him at one trial on both charges, as the alleged offences were so connected together as to form the same transaction. It is argued however, that when the provisions of Section 235 are untilized, by way of an exception to the general rule laid down in Section 233, then no other section (such as Section 236) which imports an exception to that general rule can also be brought into use. In other words, the provisions of Secs.235 and 236 are said to be mutually exclusive. It is urged, therefore that as the provisions of Section 235 have been relied upon for the purpose of trying the two offences under Secs.363 and 379, no recourse can be had to the provisions of Section 236, and, therefore the provisions of Section 237 also cannot be utilized for the purpose of altering the conviction under Section 379, I. P C. to one under Section 411, I. P.C. I have been referred to the ruling in Janeshar Das V/s. Emperor in which it was held by a single Judge of this Court that the provisions of Secs.234,235 and 236 were mutually exclusive. The facts of that case were very different from the facts of the case before me, and the main reason for holding that the trial in that case was illegal was that the two persons, who were being jointly tried, had been charged with three offences and each offence was framed in the alternative either of criminal breach of trust or abetment thereof. The result was that the accused had to meet six distinct sets of circumstances, and this was contrary to the spirit of the provisions of Section 233. In the present case no questions -arise about undue multiplicity of charges, or about the joint trial of two or more offenders. The ruling therefore does not appear to be directly applicable to the present case although it does contain a remark that supports the applicant's contention.