MOKTARALI Vs. EMPEROR

JUDGEMENT

(1.) These are two appeals by seven accused who were convicted under either Section 395, Indian Penal Code or Section 412 of that Code and sentenced to six years rigorous imprisonment each. The appellants Moktarali, Jogesh Chandra Chakladar and Momtazuddi Sikdar are represented before us, the remaining four presented their appeal from jail. We will deal with the cases of each of the appellants seriatim.

(2.) Jogesh Chandra Chakladar: The evidence against this accused was that he was identified by a certain lady of some eighty years of age as one of the dacoits and that a certain pitcher identified as being a part of the property stolen at the time of the dacoity was found in his possession. His explanation as regards the pitcher was that it was the property of his wife's step-brother Kali Prasanna Das. He was charged under Section 395, Indian Penal Code. The learned Sessions Judge obviously himself did not accept the evidence of identification given by the old lady and advised the jury accordingly. He then dealt with the question of the possession of the pitcher and told the jury that if they were not satisfied with the evidence of identification but were satisfied with the proof of the identity of the pitcher they might convict the accused under Section 412, Indian Penal Code, although he had not in fact been charged under that section. This direction is challenged on the strength of the decision in Istahar Khondkar V/s. Emperor ( 35) 62 Cal. 956. We note first that in fact what was done in that case was to alter the finding of conviction from one under Section 412 to one under Section 411, Indian Penal Code. Second that the decision seems to be based on a view that though an accused may be charged in the alternative under Section 236, judgment under Section 237 cannot be passed in the alternative, that is to say, the accused cannot be convicted of two or more offences in the alternative. Furthermore, in support of the reasoning therein the case in Begu V/s. Emperor , a decision of the Judicial Committee is questioned. In bur opinion there is no difficulty in, this matter as regards the question of conviction in the alternative. Such a conviction is provided for in Section 367, Criminal P.C. and in Section 72, Indian Penal Code where provision is made for punishment in such a case at the scale given by the lowest punishment provided for the various offences. We think that in view of the provisions of Section 236, Criminal P.C., if the view was taken that there might be doubt as to whether the evidence of actual identification at the time of the dacoity would be accepted, there could have been a charge framed against the appellant Jogesh both under Section 395, and also one under Section 412, and also there might have been a charge in the alternative under Section 395 or Section 412.

(3.) Section 236, Criminal P.C., permits such, framing of charges in cases where "it is doubtful which of several offences the facts which can be proved will constitute." A fact is proved when the Court after considering the matters before it either believes it to exist or considers its existence so probable that a prudent man ought in the circumstances of a particular case to act upon the supposition that it exists. At the time when the charges are made it cannot be known what view the Court will take of the evidence. In certain cases it may be doubtful as to what view will be taken by the Court of the evidence although it may be considered that a view will be taken which will amount to a view that some offence has been proved. Separate charges may be framed to meet all the various contingencies so envisaged. In other cases it may be doubtful, even if all the facts sought to be proved are in fact proved, whether they can fix the accused down to one specific offence (say under Section 395) rather than another (or under Section 412); for such cases a charge in the alternative may be framed. Section 286 provides both for the case where separate charges are required to meet contingencies as to what may eventually be taken as proved by the Court as also where a charge in the alternative is needed.