N Criminal Appeal No 30 of 1951
Appeal from the Judgment and Order of the High Court of Calcutta HARRIES CJ and LAHIRI J dated 15th June 1950 in Criminal Appeal No 71 of 1950 and Revision No 295 of 1950
SN Mukherjee for the appellant
B Sen for the respondent
December 14
The Judgment of the Court was deliv ered by FAZL ALI J
This is an appeal against the judgment of the High Court at Calcutta upholding the order of the Ses sions Judge of Midnapore convicting the appellant under section 326 of the Indian Penal Code and sentencing him to 3 years  rigorous imprisonment
The prosecution case against the appellant may be short ly stated as follows The appellant and the injured person Kurnad Patra are first cousins and they live in a village called Andaria their houses being only 3 or 4 cubits apart from each other
They had a dispute about a pathway adjoin ing their houses which led to a tank and they quarrelled about it on the 11th July 1949
Two days later on the lath July when Kumad Patra was washing his hands at the brink of the village tank the appellant came from behind and inflicted on him 17 injuries
with the result that two of his fingers had to be amputated and a piece of bone had to be extracted from his left thumb
The police being informed started investigation and submitted a charge sheet against the appellant who was finally committed to the Court of Sessions and tried by the Sessions Judge and a jury
He was charged under section 307 of the Indian Penal Code but the jury returned a verdict of guilty against him under section 326 of the Penal Code and the learned Sessions Judge accepting the verdict convicted him under that section as aforesaid
When the matter came up in appeal to the High Court a rule was issued on the appellant calling upon him to show cause why his sentence 204 should not be enhanced but at the final hearing the rule was discharged his appeal was dismissed and his conviction and the original sentence were upheld
The first point urged on behalf of the appellant before us is that inasmuch as there was no charge under section 326 of the Penal Code and the offence under that section was not a minor offence with reference to an offence under section 307 of the Code he could not have been convicted under the former section
This argument however overlooks the provisions of section 237 of the Criminal Procedure Code
That section after referring to section 236 which provides that alternative charges may be drawn up against an accused person where it is doubtful which of several of fences the facts which can be proved will constitute states as follows  If   the accused is charged with one offence and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of that section he may be convicted of the offence which he is shown to have committed although he was not charged with it
 There can be no doubt that on the facts of this case it was open to the Sessions Judge to charge the appellant alternatively under sections 307 and 326 of the Penal Code
The case therefore clearly falls under section 237 of the Criminal Procedure Code and the appellant s conviction under section 326 of the Penal Code was proper even in the absence of a charge
In Begu vs The King Emperor 1 the Privy Council had to deal with a case where certain persons were charged under section 302 of the Penal Code but were convicted under section 201 for causing the disappearance of evidence
Their Lordships upheld the conviction and while referring to section 237 of the Criminal Procedure Code they ob served A man may be convicted of an offence although there has been no charge in respect of it if the evidence is such as to establish a charge that might have 1 1925 52 IA 191 205 been made 
Their Lordships entertain no doubt that the procedure was a proper procedure and one warranted by the Code of Criminal Procedure
 The second point urged on behalf of the appellant is that the High Court having issued a rule for the enhancement of the sentence he should have been allowed to argue the merits of the case which he was not allowed to do
The learned counsel for the appellant was not however able to show that even if it was open to him to argue on the merits of the case the decision would have been otherwise
Only three contentions were put forward by him these being  1 that several material witnesses were not examined 2 that the appellant s case was not placed before the jury in a fair manner and 3 that there was no proper examination of the appel lant under section 342 of the Criminal Procedure Code
We have examined these contentions and find that they are entirely without merit
In urging his first contention the learned counsel stated that though it was admitted that several persons have got houses to the east north and north west of the tank where the occurrence is alleged to have taken place they have not been examined by the prose cution
He further argued that one Sarat Chandra Ghose who was present at the house of the accused when it was searched has also not been examined
These arguments however have very little force since there is no evidence to show that those persons had seen the occurrence an d they also do not take note of the fact that such evidence as has been adduced by the prosecution if believed was suffi cient to support the conviction of the appellant
The Ses sions Judge in his charge to the jury referred specifically to the very argument urged before us and he told the jurors that if they thought it fit it was open to them to draw an inference against the prosecution
There can be no doubt that the jurors were 27 206 properly directed on the point and they evidently thought that the evidence before them was sufficient for convicting the appellant
The second contention urged on behalf of the appellant relates to his defence which briefly stated was that Kumad Patra the injured man entered his house during his temporary absence went to the bedroom of his wife who was a young lady and committed indecent assault on her and was assaulted in these circumstances
This story was not sup ported by any evidence but was merely suggested in cross examination and the Sessions Judge while referring to it in his charge to the jury observed  If I were left alone I would not have believed the defence version
But you are not bound to accept my opin ion nor you should be influenced by it It is for you to decide whether you will accept the defence suggestion in favour of which there is no such positive evidence
 The Sessions Judge undoubtedly expressed himself some what strongly with regard to the defence suggestion but he coupled his observations which we think he was entitled to make with an adequate warning to the jurors that they were not bound to accept his opinion and should not be influenced by it
The defence version was rejected by the jury and there can be no doubt that on the materials on the record it would have been rejected by any court of fact
The last contention put forward by the learned counsel for the appellant was that he was not examined as required by law under section 342 of the Criminal Procedure Code
It appears that three questions ware put to the appellant by the Sessions Judge after the conclusion of the prosecution evidence
In the first question the Sessions Judge asked the appellant what his defence was as to the evidence ad duced against him in the second question the Judge re ferred to the dispute about the pathway and asked the appel lant whether he had inflicted injuries on Kumad Patra and in the third question the appellant was asked
207 whether he would adduce any evidence
The facts of the case being free from any complications and the points in issue being simple we find it difficult to hold that the examina tion of the appellant in this particular case was not ade quate
To sustain such an argument as has been put forward it is not sufficient for the accused merely to show that he has not been fully examined as required by section 342 of the Criminal Procedure Code but he must also show that such examination has materially prejudiced him
In the present case it appears that the point urged here was not raised in the grounds of appeal to the High Court nor does it find a place in the grounds of appeal or in the statement of case filed in this court
It has nowhere been stated that the accused was in any way prejudiced and there are no materi als before us to hold that he was or might have been preju diced
We have read the Sessions Judge s charge to the jury which is a very fair and full charge and nothing has been shown to us to justify the conclusion that the verdict of the jury should not have been accepted
The appeal accordingly fails and is dismissed
Appeal dismissed


Summary:
The appellant was charged under Section 302 IPC for committing the murder of the deceased
At the trial prose cution produced PW3 wife of the deceased and PWs10 11 and 12 all eye witnesses
Except for PW3 all other eye witnesses were declared hostile
Thus the prosecution depended on the sole testimony of PW3 PW3 deposed that she saw the appellant hitting her husband with a stick
But admittedly she did not disclose the name of the appellant to anybody including the Police
The doctor who came to the house of the deceased little later examined and treated the deceased and removed him to the hospital deposed that he was told by the mother of the deceased that the family did not suspect anybody
Another witness who was passing by the scene of occurrence also testified that nobody informed him about the appellant or any other person who injured the deceased
The Additional Sessions Judge acquitted the appellant
But on appeal the High Court set aside the acquittal order and convicted and sentenced the appellant to impris onment for life
Hence the appeal by the accused
Allowing the appeal this Court HELD The conduct of the deceased s wife was highly unnatural
A wife who has seen an assailant giving fatal blows with a stick to her husband would name the assailant to all present and to the police at an earliest opportunity
There is nothing in the evidence to justify this highly unnatural and improbable conduct of the deceased s wife
Even her statement recorded by police head constable is entirely different than what she stated at the trial
The prosecution has thus not 401 been able to prove its case against the appellant beyond reasonable doubt
404F G Therefore the appellant is given benefit of doubt the judgment of the High Court is set aside and the appellant is acquitted of the charge under section 302 IPC
404H