SARDA PRASAD Vs. EMPEROR

JUDGEMENT

(1.) This is a criminal revision from an order of the Sessions Judge convicting the accused under Section 60(a), U.P. Excise Act. On the findings it appears that the house of the accused was searched by the Excise Inspector accompanied by wit- nesses, and a large number of articles were found consisting of (1) liquor contained in two bottles, and (b) a distilling apparatus, pitchers and other utensils containing fermented wash. The Magistrate framed two separate charges (1) under Section 60(a) for being in possession of illicit liquor and fermented wash, and (2) for being found in possession of implements for manufacture of illicit liquor. The learned Magistrate came to the conclusion that it was not proved that the liquor found in the two bottles was illicit liquor and therefore he thought that the accused could not be convicted of any offence under Section 60(a), Excise Act. He accordingly recorded a formal order of acquittal of the charge under that section. He however came to the conclusion that the articles found in the possession of the accused were implements for the manufacture of illicit liquor and accordingly convicted him under Section 60(f) and sentenced him to 6 months R.I. There was no appeal preferred by Government from the acquittal, but the accused appealed to the Sessions Judge from his conviction under Section 60(f). On the facts the leUParned Sessions Judge came to just the contrary conclusion. He found that there was no proof that the implements which were found in the house of the accused could not have been used for any purpose other than that of manufacturing illicit liquor, and therefore he held that no offence under Section 60 (f) was established. He accordingly set aside the conviction of the accused under that section. But he came to the conclusion that the liquor found in the two bottles was really illicit liquor because it was proved by the evidence of the Excise Inspector that the strength of the liquor in it was more than that allowed for liquor to be used for public consumption. The learned Judge accordingly convicted the accused under Section 60(a), Excise Act.

(2.) In revision it is contended on behalf of the accused that the learned Judge had no jurisdiction to convert the finding of acquittal under Section 60(a) into one of a conviction under that section. This point was raised before the Court below but was rejected on the strength of two rulings Emperor V/s. Sardar (1912) 34 All 115, and Dulli V/s. Emperor A.I.R. 1918 All. 65. Now in Emperor V/s. Sardar (1912) 34 All. 115 there had really been no order of acquittal by the Court below at all. The matter came up in appeal from a conviction under Section 147 read with Section 225, I.P.C. The accused had been charged under Section 353, I.P.C. also. A learned Judge of this Court in revision held that he was entitled to convict the accused under Section 353, I.P.C. instead of under Section 147 read with Section 225, I.P.C. as that was merely an alteration of the finding. The case of Dulli v. Emperor A.I.R. 1918 All. 65 does somewhat support the view of the Court below. In that case three thieves had attacked the deceased and caused him serious injuries which resulted ultimately in his death. They were somewhat wrongly charged under Section 397, I.P.C. and also under Section 302, I.P.C. The learned Sessions Judge acquitted the accused of the charge under Section 302 but convicted them of offences under Secs.325 and 382, I.P.C. In Dulli's appeal from the conviction, a Bench of this Court thought that they had power to alter the conviction and convict the appellant under Sec. 302, I.P.C., instead of under Section 325, I.P.C.

(3.) The position has been considered by their Lordships of the Privy Council recently in Kishun Singh V/s. Emperor A.I.R. 1928 P.C. 254. In that case the accused had been charged under Section 302, I.P.C. but the Sessions Judge came to the conclusion that the offence did not fall under that section and accordingly convicted him of the offence under Section 304, that is, culpable homicide not amounting to murder. There was no formal order acquitting the accused of the offence under Section 302 with which he had been charged. Their Lordships first considered the argument that there was no express finding of acquittal in respect of the charge of murder and came to the conclusion that the conviction of the accused under Section 304 instead of under Section 302 amounted to an acquittal in respect of the latter charge. Their Lordships approved of the ruling of this Court in Emperor V/s. Sheodarshan Singh A.I.R. 1922 all 487, that neither an appellate Court nor a revisional Court has power to reverse the finding of acquittal and convert it into one of conviction. Their Lordships also expressed their disapproval of the view that Section 439(4), Criminal P.C., refers only to a case where the trial has ended in a complete acquittal of the accused in respect of all charges of offences, and not a case where the accused has been acquitted of the charge of murder but convicted of the minor offence of culpable homicide not amounting to murder. Their Lordships accordingly set aside the order of the High Court which in the exercise of its revisional powers had convicted the accused under Section 302, I.P.C. instead of under Section 304, I.P.C. In that case no doubt the act was the same and the facts which have been found were identical, the only question being whether the offence came within any of the exceptions so as to reduce the offence to that under Section 304, I.P.C. Their Lordships emphasized that where the Court below has either acquitted an accused expressly or by necessary implication, then, unless there is an appeal from acquittal, the finding cannot be converted into one of conviction.