Bijjoy Chand Potra Vs. The State
 INSC 57 (14 December 1951)
FAZAL ALI, SAIYID BOSE, VIVIAN
CITATION: 1952 AIR 105 1952 SCR 202
Criminal Procedure Code (Act V of 1898), ss. 237,342--Indian
Penal Code (XLV of 1860), ss. 307, 326--Charge under s. 307-Conviction under s.
326 --Legality--Failure to examine accused fully --When vitiates
trial--Necessity of prejudice to accused.
The appellant who inflicted serious injuries
on another was charged under s. 307 of the Indian Penal Code but the jury
returned a verdict of guilty against him under s. 326 of the Penal Code, and
the Sessions Judge, accepting the verdict, convicted him under s. 326. It was
contended that the conviction was illegal inasmuch as the offence under s.
326 was not a minor offence with reference to
the offence under s. 307. Held, that as it was open to the Sessions Judge, on
the facts of the case, to charge the appellant alternatively under ss. 307 and
326 of the Code the case was covered by s. 237 of the Criminal Procedure Code,
and the conviction under s. 328 of the Penal Code was proper, even though there
was no charge under the section. Begu v. King Emperor (52 I.A. 191) applied.
In order that a conviction may be set aside
for noncompliance with the provisions of s. 342 of the Criminal Procedure Code,
it is not sufficient for the accused merely to show that he was not fully
examined as required by the section, but he must also show that such
examination has materially prejudiced him.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 30 of 1951. Appeal from the Judgment and Order of the High Court of
Calcutta (HARRIES C.J. and LAHIRI J.) dated 15th June, 1950, in Criminal Appeal
No. 71 of 1950 and Revision No. 295 of 1950.
S.N. Mukherjee, for the appellant.
B. Sen, for the respondent.
1951. December 14. The Judgment of the Court
was delivered by FAZL ALI J.--This is an appeal against the judgment of the
High Court at Calcutta upholding the order of the Sessions 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 shortly 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 adjoining 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 offences 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
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 v. 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 observed:-"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 I.A. 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 appellant 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 prosecution.
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
sufficient to support the conviction of the appellant. The Sessions 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 supported 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 opinion, 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 somewhat 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 adduced, against him; in
the second question, the Judge referred to the dispute about the pathway and
asked the appellant 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 examination of the
appellant in this particular case was not adequate. 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 materials before us to hold that he was or might have been prejudiced. 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
Agent for the appellant: P.K. Chatterji.
Agent for the respondent: I. N. Shroff for