Judgment

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 S. 326, Penal Code, and sentencing him to 3 years rigorous imprisonment.

2. The prosecution case against the appellant may be shortly stated as follows: - The appellant and the injured person, Kumad 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 lead to a tank, and they quarrelled about it on 11-7-1949. Two days later, on 13th 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 Session and tried by the Sessions Judge and a jury. He was charged under S. 307, Penal Code, but the jury returned a verdict of guilty against him under S. 326, 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 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.

3. The first point urged on behalf of the appellant before us is that, inasmuch as there was no charge under S. 326, Penal Code, and the offence under that section was not a minor offence with reference to an offence under S. 307 of the Code, he could not have been convicted under the former section. This argument however overlooks the provisions of S. 237, Criminal P. C. That section, after referring to S. 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 Ss. 307 and 326, Penal Code. The case therefore clearly falls under S. 237, Criminal P. C., and the appellant s conviction under S. 326, Penal Code, was proper even in the absence of a charge.

4. In Begu v. Emperor, 52 Ind, App. 191, the Privy Council had to deal with a case where certain persons were charged under S. 302, Penal Code, but were convicted under S. 201 for causing the disappearance of evidence. Their Lordships upheld the conviction, and while referring to S. 237, Criminal P. C., 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 been made....... Their Lordships entertain no doubt that the procedure was a proper procedure and one warranted by the Code of Criminal Procedure."

5. 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 3 intentions were put forward by him, these being: (1) that several material witnesses were not examined; (