S.K Ghose, J.:— The three appellants in this case have been convicted under Ss. 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 29th 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 S. 395, I.P.C The learned Sessions Judge in his charge to the jury made certain references to Ss. 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. It is contended for the appellants that in the circumstances of this case, when they were charged under S. 395, and not under Ss. 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 Ss. 448 and 323 can not be said to be minor offences necessarily involved in the charge under S. 395, and that therefore Section 238 of the Cr PC, would not apply. But he has strongly contended that S. 237 of that Code applies, and that so the appellants were rightly convicted under Ss. 448 and 323, though they were not specifically so charged. Now Section 237 of the Cr PC, only applies to a case to which S. 236 can apply. The latter section, as also Ss. 234, 235 and 239, are exceptions to the general rule that there must be separate charges for distinct offences. Ss. 237 and 238 provide for conviction without charge in certain cases. S. 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. S. 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. S. 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 cart be proved will constitute.”
3. In the case of Ganesh Krishna v. Emperor . [1911] 5 S.L.R 16, it was stated:
“The doubt referred to in S. 235 is generally described as a doubt of law. This phrase is not strictly accurate, for it is a doubt as to subsidiary facts which would determine what law was applicable.”
4. In that case it was pointed out that the expression “facts” used in the wide sense of Section 3 of the Evidence Act, would include the intention or knowledge and the result, which would constitute the elements of a specific offence. Thus when the doubt is as to one of several offences the accused may be charged with one of such offences. This is before evidence is gone into. But when evidence is gone into, and the doubt disappears, and it is found that the accused committed a different, offence with which he might have been charged under S. 236, then S. 237 comes into play. Thus S. 237 does not apply where the facts themselves are in doubt, or where on the facts alleged the offence is not in doubt; Akram Ali v. Emperor . [1914] 15 Cr. L.J 41, Kali Charan Mukherjee v. Emperor* . [1914] 41 Cal. 537, Bhowanath Singh v. Emperor . [1918] 19 Cr. L.J 202, Mt. Sheoratni… v. Emperor…Opposite Party. . [1920] 21 Cr. L.J 44, the last two being cases of the Patna High Court. It may be that, even after evidence the inference will be that the accused has committed one offence or another. For instance the Court may presume that a man, who is in possession of stolen goods soon after the theft and does not account for his possession, is either the thief or has received the goods knowing them to be stolen. In such a case the doubt may be taken up to the judgment stage and the Court shall pass judgment in the alternative under Section 367 of the Cr PC. But this is of no avail where the facts themselves are in doubt. Mr. Khundkar has relied on the decision of the Judicial Committee in the case of Begu v. Emperor . A.I.R 1925 P.C 130. That case shows that S. 237 must be read with S. 236, and indeed no authority is required for that proposition, though it has been stated repeatedly.
5. The true test is whether the facts are such as to give the accused notice of the offence for which he is going to be convicted though he was not charged with it, so that he is not prejudiced by the mere absence of a specific charge. On this principle was decided cases like: Genu Majhi v. Emperor . [1914] 15 Cr. L.J 704, Hajari Sonar v. Emperor . [1922] 71 I.C 247., Harun Bashid v. Emperor . A.I.R 1926 Cal. 581, Dibakar Das v. Saktidhar Kabiraj* . A.I.R 1927 Cal. 520, Isu Sheikh Alias Yusuf… v. The King-Emperor…. . A.I.R 1927 Cal. 200 and Gnanendra Chandra Ghatak v. Emperor . A.I.R 1929 Cal. 807, and the aforesaid two cases of the Patna High Court. Begu's case, cannot be read as encouraging any rule to the contrary. On the other hand a case of no prejudice is met by the provision in Section 537 of the Cr PC. I do not think it necessary to examine certain other cases to which I have been referred, as most of them are not in point. Moreover in the present case the facts create no difficulty.
6. The first information in this case made out a clear case of dacoity or attempted dacoity. It is alleged that two persons held Pabitra and enquired if she had any ornament with her. The culprits are discribed as “thieves” and “dacoits.” No other motive was suggested. The informant definitely stated that all these men had come to commit dacoity in his cousin's house. In the course of his evidence Govinda, P.W 2, made statements to the same effect. He stated that two of the accused had seized and dragged his wife, that Jharu Das tried much to take away the bicha from her person, but that he could not succeed. P.W 3, Pabitra, also deposed to the same effect. She said that Meher asked her where her things were and told her to keep quiet. Jharu Das tried to snatch away her bicha, but that he could not take it.
7. In his charge to the jury the learned Judge, while stating the case for the prosecution, also mentioned that Pabitra was asked to state where her things were and Jharu tried to snatch the bicha from her waist. On these alleged facts there was no doubt as to the nature of the offence committed; it was dacoity and that was also stated in the first information. The learned Judge, after referring to the evidence, proceeded as follows:
“Sections 379, 330, 390, 391, 392, 393 and 395 I.P.C explained. There was no actual theft in this case. Theft is robbery if there is an element of violence in it. It is dacoity if there be five or more persons and if there is element of violence. If you believe that there was hurt, that five or more persons were concerned in the act, and that their object was to cause wrongful loss to Gobinda and wrongful gain to themselves by taking away articles from the house of Gobinda, then the accused who was concerned committed an offence under S. 395, though no things were actually stolen. If you consider that the number was less than rive, then the offence would come under S. 393.”
8. So he clearly told the jury that, although there was no actual theft, still S. 395, I.P.C, would apply; if the number was less than five, then S. 393, would apply. Then, as to whether the prosecution case of attempted theft was true or not, the learned Judge proceeded to comment on the evidence regarding the attempt to snatoh the bicha and the enquiry as to where things were kept. After that the learned Judge stated as follows:
“If the object was theft, and if hurt was caused in the act, then you should bring in a verdict under S. 393, I.P.C, or S. 395 according to the number of persons who were involved in it.
If the object was not theft then you are to consider whether Ss. 448 and 323, I.P.C, are applicable. Ss. 441, 442, 448 and 323 explained. You are to consider whether the culprits who entered the house at that hour of night went there with the object of committing an offence. If they did so then they committed an offence under S. 448. If they or such of them as caused hurt did so without any provocation, then they committed an offence under S. 323. You have heard the evidence. You are to consider whether there is any provocation or not. You are to consider Ss. 448 and 323 only if you find that Ss. 395 or 393, is not applicable.”
9. Here the learned Judge raised a doubt as to a question of fact, viz. whether the culprits really asked where the valuables were kept and tried to seize the bicha. If the jury did not believe that then be suggested some other offence. As I said above, on the facts alleged, it was dacoity and nothing else. What the learned Judge said here was not the prosecution case; there were no charges under Ss. 323 and 448, I.P.C and the accused had no notice of any such case. In these circumstances Section 237 of the Cr PC, has no application. There was clearly a misdirection. If it was intended that, failing S. 393, the accused might be convicted under Ss. 448 and 323, I.P.C, then charges should have been framed under the latter section. But, in any case, if a material part of the prosecution story should be disbelieved, it was for the serious consideration of the jury whether that story should be believed at all, and the jury should have been warned to that effect. There was further misdirection in that the learned Judge did not put to the jury the case of each accused with, reference to the offences under Ss. 446 and 323, I.P.C, separately. The appeal must therefore be allowed and the conviction of the appellants set aside. The case must be retried according to law on suitable charges being framed.
Lort-Williams, J.:— I agree. S. 237, applies only to cases which fall within the provision of S. 236. S. 236, applies only to cases where, on the facts, proof of which is in the possession of the prosecution, it is clear beyond doubt, if the evidence be believed, that one or more of several offences, but doubtful in law which of them, has been committed. When the facts themselves are in doubt the sections do not apply.
B.V/R.K
10. Appeal allowed.
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