1. This revision is directed against the conviction of the petitioners under s. 379, Penal Code, by the lower appellate Court and the sentence of fine of Rs. 30 each imposed upon them. The petitioners had been put on trial for for an offence under S. 379, Penal Code. The learned trial Court, however, disbelieved that part of the prosecution case which would make the offence one under the section, but believed the allegations which made out an offence under s. 426, Penal Code and convicted them under that section and sentenced them as above.
2. The learned lower appellate Court, however, altered the finding of the trial Court and substituted for it a finding of guilty under S. 379, Penal Code. Hence, this revision.
3. It has been contended that the learned trial Court having acquitted the petitioners of the offence under S. 379, Penal Code, the learned lower appellate Court had no jurisdiction to convict them under that section. With this submission it is contended that the conviction of the petitioners is bad and must be set aside.
4. In order to judge the merit of this contention, it is necessary to bear in mind the allegations on which the accused were prosecuted and how much of them were found to be true by the trial Court or by the lower appellate Court. The facts leading to the prosecution were that petitioner 1 Panu Naik was a raiyat in respect of plot No. 1044 with an area of s. 8 of an acre in mouza Jaipur. One Ghanei Mallik was a sikmi tenant under him, and had his residential house on the land comprising plot No. 1014. Ghanei died about 12 years back, and the complainant Chintai alias Chintamani Mallik claims to be his adopted son. Chintai was in occupation of the house but refused to serve his landlord Panu. On account of this Panu, his sons Baikuntha and Ram Krishna and their servant Nari Jena dismantled the house on the land and removed all the building materials and other moveable properties of the complainant to Panu's house. Besides, an earthen not and a drum were taken by the servant Nari Jena to his own house. On these facts the accused persons were tried for an offence under S. 379, Penal Code, but were convicted under S. 426, Penal Code. Nari Jena, who made a confessional statement implicating himself and other accused persons in the lower Court did not come up in appeal nor has he come up in revision. The defence is that the whole case has been falsely engineered by the zamindar's Tahasildar Abhoy Charan Das.
5. In appeal before the Court of appeal it was contended that the trial having been for the offence under s. 379, Penal Code, the conviction under S. 426, Penal Code, was illegal, and was not warranted by the provisions of Sections 237 and 238 of the Cr PC, as they did not apply to the facts of the case, the offence of mischief neither being cognate nor minor to the offence of theft. The learned lower appellate Court, however, pronounced that he would not consider this contention as he was of opinion that the petitioners should be convicted under S. 379, Penal Code.
6. The learned lower appellate Court's finding of facts is open to serious objections as he did not legitimately come to the finding after due consideration of evidence. In considering the defence case he observes:
“When the defence alleged that the house did not exist for 10 years, the onus lay heavily on them to prove this assertion and that onus has not been discharged.”
7. Thia is no doubt a wrong approach. Notwithstanding the defence plea, the onus was on the prosecution to establish that a house belonging to the complainant and in his occupation did exist at the time of the occurrence. The appellate Court has misdirected-itself in failing to appreciate what the prosecution had to establish in this case. With regard to the prosecution evidence, he comes to the conclusion in the following passage:
“There is evidence on record that all these 3 accused persons took part in the theft and they were implicated by their co-accused Nari Jena. The evidence proves the charge of theft and I, therefore, alter the finding and conviction to charges of theft under S. 379, Penal Code as against all the accused persons including the present appellants and maintain the sentence of fine against all of them.”.
8. The trial Court summarised its finding in the following words:
“I have weighed the evidence on the record very carefully and have considered the broad circumstances and probabilities of the case. I am convinced that the accused persons did pull down the house of P.W 1 when he was in lawful possession of it, and carry away the house building materials and other articles. In their act of highhandedness the accused persons appear to have been actuated by the motive of mischief only. Hence, I find the accused persons guilty under S. 426, Penal Code, and convict them thereunder.”
9. It appears quite plain from the above summary that he did not find it as a fact that the accused persons after demolishing the house and removing the moveables in the house belonging to the complainant removed them to the house of Panu Naik, petitioner. His finding is to the effect that the household articles inside the house and the building materials were thrown away with the intention of causing mischief to the complainant, the whole object of the landlord Panu Naik and his men being to dispossess the complainant who was claiming to remain on the land as a sikmi tenant against the consent of his landlord. In short, according to the trial Court any act that should have established dishonest intention, that is, intention of causing either wrongful loss or wrongful gain was not proved by the prosecution. I have set out above the conclusion of the learned lower appellate Court. He has not, in altering the finding of the Court below, recorded any finding on the evidence of the prosecution that any act of theft with the intention of causing wrongful loss or wrongful gain was in fact committed. However, assuming that he has done so, the question to be determined is whether in law he can do so. It is clear, on the face of the record that the lower appellate Court gave the accused no notice of his intention to alter the finding of acquittal of the offence of theft into one of conviction of the same offence, and thus prejudiced their defence. The usual method of getting an order of acquittal set aside is by preferring an appeal under Section 417 of the Cr PC. It has been contended, however, by Mr. Sen appearing for the opposite party that a Court of appeal, in exercise of his powers under Section 423 of the Cr PC, can alter a finding of acquittal into one of conviction. Section 423, sub-s. (1), para. 1 provides for appeals both against an order of conviction as well as against an order of acquittal, and in cls. (a), (b), (c) and (d) incorporates what the appellate Court can do in the appropriate cases. Accordingly, in cl. (a) it defines the powers of the appellate Court in an appeal from an order of acquittal, (b) in an appeal from an order of conviction, (c) in an appeal from any other order and (d) empowers the Court to make any amendment or any consequential or incidental order that may be just and proper. Naturally enough, the powers of the appellate Court in an appeal from an order of acquittal and those in an appeal from a conviction should be kept distinct and separate as they are mutually exclusive. It has been settled beyond controversy that an order of acquittal for the purposes of an appeal need not necessarily be acquittal of all charges for which the accused is tried in one trial but an order of partial acquittal as well.
10. Very strong reliance has been placed by Mr. Sen on a Full Bench decision of the Allahabad High Court in A.I.R 1944 ALL. 137.1 In this case all the Hon'ble Judges that constituted the Bench were not unanimous, Mulla and Hamilton JJ. dissented from the majority view which, no doubt, supports Mr. Sen's contention. I venture, however, to agree with great respect with the dissentient view of their Lordships, Mulla and Hamilton JJ. and will give my reasons herein below. The basis of the decision of the majority, as well as, of all other decisions of other Courts in which the same view has been taken is mainly that the words “alter the finding maintaining the sentence” cannot be cons-trued narrowly so as to mean the finding of conviction and not of acquittal. As against the contention based upon the principle of autre fois acquit it has been said that an appeal is a continuation of the same trial, and alteration of a finding of acquittal into one of conviction, in an appeal from conviction, does not violate the principles laid down in Section 403 of the Cr PC. I would, however, venture to think that the words “alter the finding” should not be dissociated from the context in which they appear. With reference to the finding, the appellate Court is given two sorts of powers, that is of reversal, and of alteration. It would be unnatural to say that the words “the finding” occurring after the word ‘reverse’ have a meaning different from the words “the finding” occurring after the word ‘alter’; The very conception of ‘a finding’ within the meaning of cl. (b) sub-s. (1) of S. 423 is one of conviction. The clause opens with the words “in an appeal from a conviction.” These words preclude any idea of an order of acquittal. Immediately after the said opening words appear
“(1) reverse the finding and sentence and acquit or discharge the accused or order him to be retried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial.”
11. The words “the finding and sentence” in this part of the clause can have no reference to any other finding than one of conviction. This conclusion reached not only because of the natural meaning to be attached to the words used but also because of the word ‘conviction’ immediately preceding the words ‘reverse the finding.’ The article ‘the’ before the word ‘finding’ has its Significance in importing the definite meaning of finding of conviction to it. In this setting occur the words that follow, namely, ‘alter the finding.’ The words ‘the finding’ cannot, with due regard to the rules of grammar, and the rules of analysis and synthesis of sentences can mean any finding other than ‘the finding’ in the earlier part of the sentence. Besides, that ‘the finding’ in the words ‘alter the finding’ would mean a finding of conviction also follows from the words that follow them, namely, “maintaining the sentence.” All the words put together are ‘alter the finding maintaining the sentence.’ The finding here cannot mean a finding to which no sentence is attached. It is clear that the finding and the sentence must go hand in hand, and the appellate Court is given the power to alter the finding, but to maintain the sentence or reduce the same. “Alter the finding of acquittal” maintaining the sentence would be completely meaningless. The, word ‘alter’ cannot include reverse. It will simply mean changing the form of the finding from one, to another. In case the word ‘finding’ is construed as a finding of acquittal, the word ‘alter’ would necessarily mean to reverse the finding of acquittal and substitute a finding of conviction. If the Legislature so intended it could have expressly said so.
12. The argument, that has found favour with the school of thought that is of opinion that the Court of appeal has the power to reverse a finding of acquittal and substitute in its place a finding of conviction, mainly, is that there is nothing in the section which would import any alterations in the meaning of the words ‘alter the finding’. But this argument cannot be sustained in all cases and in all circumstances. In 23 Cal. 9752 Banerji, J. had to concede that interpretation of the words ‘alter the finding maintaining the sentence’ is not free from limitation but is subject to some restrictions in particular cases. I would quote the passage:
“Section 423, cl. (b) has no such restriction imposed upon it. There is, under that clause, only one restriction to the power of the appellate Court on an appeal from a conviction, and that is that it cannot enhance the sentence. It is possible to imagine cases in which this restriction may stand in the way of the appellate Court's altering the finding. Thus, if an accused person is charged with having murdered A and also with having caused grievous hurt to him, and is acquitted of the former offence but convicted of the latter and sentenced to seven years' rigorous imprisonment by the first Court, the Appellate Court cannot, on the appeal of the accused, alter the finding into one of guilty of murder, because as it cannot enhance the sentence, the result will be that a person convicted of murder, for which the only punishment is either death or transportation for life, will be punished merely with imprisonment for seven years—a sentence which is not in accordance with law. That, however, is not the case here, and so we need not consider it further. But in a case like this, in which no such difficulty arises, I think the Appellate Court, can in an appeal from a conviction, alter the finding of the lower Court and find the appellant guilty of any offence of which he may have been acquitted by that Court.”
13. From this it is clear that the power of the Appellate Court to reverse a finding of acquittal is not exercisable in all cases but in some only. Similar is the observation of O'Kinealy, J. in the same case at page 978 of the report where he says:
“The power of the Court to alter the finding, therefore, is not limited in the manner claimed by the appellants. There are no doubt some cases to which this procedure would not be appropriate. That depends upon different considerations.”
14. If this be so, I should with the greatest deference to the learned Judges say that the construction accepted by them is an artificial one. It is assumed, as if the Legislature gave a wider power to the Appellate Court in some cases, and much lesser power in certain other cases. The words occurring in a statute ought not to be so interpreted as to have both wider and narrower meaning in some or other of the case to which it applies. The words have the same meaning uniformly whenever the statute applies, if it applies at all.
15. In 22 Cal. 3773 it has been observed:
“When an act or a series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, an appeal from a conviction for any one of such offences must lay the whole case open to the interference of the Appellate Court notwithstanding any order of acquittal by the first Court in regard to any of the other offences, the interference of the Appellate Court in such a case is directed primarily not against the acquittal but against the conviction which is called in question by the accused, though if the interference is to be rational and complete, the Appellate Court must deal with the whole case.”
16. With these observations, with the greatest respect, I entirely agree. It is only in cases contemplated in these observations that seemingly an order of acquittal of an offence against one section is changed into an order of conviction of an offence against another section. Here in fact, the finding remains the same but the punishable section is different.
17. No case of the Patna High Court having a contrary view has been invited to my attention. Besides, the reasons given by me, I would adopt those given by Mulla and Hamilton JJ. in the Allahabad Full Bench case.
18. In my view, therefore, as a conviction under S. 379, cannot be substituted for a conviction under S. 426, on the same facts, in view of the provisions of Sections 237 and 238 of the Cr PC. I hold that the learned lower Appellate Court had no power to convict the petitioner under S. 379, Penal Code. In the particular circumstances of this case already set out above I do not think it worth while to send the case back to the Appellate Court to consider whether a conviction under, S. 426, Penal Code, as recorded by the trial Court should be maintained. In the result, the conviction and sentence passed against the petitioners are set aside and they are acquitted of all the charges framed against them. Their petition is allowed and the rule is made absolute.
K.S
19. Accused acquitted.