MEHER SHEIKH Vs. EMPEROR

JUDGEMENT

(1.) The three appellants in this case have been convicted under Secs.448 and 323, I.P.C., and sentenced to undergo rigorous imprisonment for one year under each section, running consecutively in the case of each of the appellants.

(2.) The prosecution case is that on the night of 29 June last year there was a dacoity in the house of one Gobinda Mondal of Godda. Five of the dacoits went into the house and they were all recognized. Gobinda and his wife Pabitra were assaulted. The woman was pressed to state where her things were and one of the dacoits tried to snatch away an ornament from her waist, but this was not successful. Ultimately the dacoits ran away. The defence was that there was no such occurrence and the accused were being prosecuted on account of ill-feeling. The three appellants and two others were put upon their trial on a charge under Section 395, I. P.C. The learned Sessions Judge in his charge to the jury made certain references to Secs.448 and 323, I. P.C. The jury by a majority of four to 1 returned a verdict of guilty as against the three appellants under Ss., 448 and 323 and accordingly they were convicted and sentenced as stated above.

(3.) It is contended for the appellants that in the circumstances of this case, when they were charged under Section 395, and not under Secs.448 and 323, I. P. C, their conviction under the latter sections is bad in law. The learned Deputy Legal Remembrancer concedes that the offences under Secs.448 and 323 can not be said to be minor offences necessarily involved in the charge under Section 395, and that there- fore Section 238, Criminal P. C, would not apply. But he has strongly contended that Section 237 of that Code applies, and that so the appellants were rightly convicted under Secs.448 and 323, though they were not specifically so charged. Now Section 237, Criminal P. C, only applies to a case to which Section 236 can apply. The latter section, as also Secs.234, 235 and 239, are exceptions to the general rule that there must be separate charges for distinct offences. Secs.237 and 238 provide for conviction without charge in certain cases. Section 235 provides that where different facts of the same transaction constitute different offences, the accused may be charged with and tried at one trial for every such offence. Section 238 deals with a case where the same transaction involves a major and a minor offence, and it provides that where the accused was charged with the former only, he may be convicted of the latter. Section 236 on the other hand deals with a transaction which raises a doubt as to the offence that has been committed. There must not be any doubt as to "the single act or series of acts" which constitute that transaction, that is to say, there must not be any doubt as to the facts. The doubt must be as to the inferences to be deduced from those facts, thus making it: doubtful which of several offences the facts which can be proved will constitute.