JANAK SINGH Vs. EMPEROR

JUDGEMENT

(1.) The learned appellate Magistrate of Darbhanga maintained the conviction of the petitioners under Section 823 read with Section 114, Indian Penal Code, and the sentence of a fine of Rupees 50 each, or, in default, one month's rigorous imprisonment. The petitioners have also been convicted under Section 147, Penal Code, but no separate sentence has been passed by either of the Courts below. The two petitioners before me took their trial along with five others who were convicted under Secs.323 and 147, Indian Penal Code, and sentenced to pay a fine of Rs. 50 under Section 323, no separate sentence being passed under Section 147.

(2.) In order to appreciate the points of law raised in this case, it is necessary to mention the various charges framed against the accused. There was a charge under Section 147, Indian Penal Code, against all the seven accused, the common object of the unlawful assembly being an assaulting and snatching cash of Rs. 50 from the person of the complainant. There was a charge against Kari Tanti under Section 823, although from the language it would appear that the charge was sought to be under Section 325, Indian Penal Code, because the charge runs as follows: That you, on or about the same date and place voluntarily caused grievous hurt to the complainant, and thereby committed an offence punish, able under Section 828, Indian Penal Code.

(3.) Evidently, there was some sort of misconception in the mind of the Magistrate, who framed the charge. Then there was a charge under Section 870, Indian Penal Code, against Janaklal Singh, one of the petitioners before me. Before the appellate Court this charge failed. Being moved by all the accused, the appellate Magistrate changed the conviction of the present petitioners from one under Section 323 to one under Section 823 read with Section 114, Indian Penal Code, but he maintained the sentence passed by the trial Court. The first point for consideration is whether the petitioners have been rightly convicted under Section 323 read with Section 114, when there was no charge under this section framed against them. It was held in Mayadhar Mahanty V/s. Danardan Kund A.I.R. 1921 Pat. 496 that: When the prosecution case is disbelieved in essential particulars, it is not safe to convict the accused on the residue of the evidence that may be acceptable. The accused should not be convicted by the appellate Court of a charge of which they had no notice and which they were not called upon to answer in the trial Court.