A person cannot be convicted of an offence without a charge, unless it is a case falling under sections 237 or 238 of the Criminal Procedure Code.

JUDGMENT - G.N. VAIDYA, J.:---The appellant, Harishchandra Gopal Hadkar, was tried before the Presidency Magistrate, 10th Court, Andheri, Bombay, under section 379 of the Indian Penal Code. The charge runs as follows :

"That you between 6.00 p.m. to 9.00 p.m. on 20-11-1969 at Andheri in Greater Bombay, did commit theft of Motor Car No. MRX 6917 belonging to Shrinarayan Sukhanand Jain and thereby committed an offence punishable under section 379 of the Indian Penal Code and within my cognizance." The accused pleaded not guilty to the charge.

2. The prosecution examined four witnesses, none of whome had seen the theft of the car being committed by the accused. P.W. 1, Shrinarayan Sukhanand Jain stated that on November 30, 1969, he had taken his car to the compound of Sangam theatre where he had gone for picture and that after the picture was over, when he came out he found his car missing. He went to Andheri Police Station the same night and gave his complaint. On December 3, 1969, he was informed by the Andheri Police Station that the car was traced out and it was shown to him at Kurla. All four wheels, stepney and many other parts of the car were missing. More than 14 months later, on March 25, 1971 he was again called by the police and he was shown some parts of the car, which he identified. He, however, stated in the cross-examination at the trial that all the parts were not recovered.

3. P.W. 2, Ashokkumar Ramchand, was the panch who made a panchnama on April 3, 1971, and stated that in his presence the accused stated that he would point out the person to whom he gave one radio and took the police and the panchas to Moral where one Nazir was pointed out and Nazir produced the radio at the instance of the accused and the panchnama was made in this behalf. But even the radio was not produced at the trial for the identification by Nazir. Nazir was also not examined. In the cross-examination, Ashokkumar said that the radio was a one band radio and it was not true that the property was at the Police Station.

4. P.W. 3, Mohmmad Yasin, stated that he knew the accused as a taxi-driver from whom he purchased the 2 tyres, horn, wheel cape, 2 shock absorbers and one fan about 5/6 months previous to his giving evidence on June 13, 1972, without taking any writing. He said that the police had brought the accused to his place on March 19, 1971 and he produced the articles before the police. While he was in the witness-box, it seems, that he was shown the car to which the articles were fitted and he said that except the wheel caps other articles were the same. But in the cross-examination he admitted that he could not say whether the tyres were remoulded though, when he had taken, the tyres were remoulded. He admitted further that he could not say whether the tyres were the same. He had not even seen the fan in the car. He admitted that he had paid Rs. 70/- to the accused for the articles and denied the suggestion on behalf of the accused that the accused had never sold the articles to him.

5. P.W. 4, Jafar Sharif Abdul Razak, was another taxi-driver who said that the accused sold him two tyres, bumper, carburator, engine fan, gear-liver and matings for Rs. 350/- two months prior to his giving evidence in the Court. The police had brought the accused to his place on March 22, 1971. He too was shown the car, but he said that he could only identify on carburator and one jack. In the cross-examination he stated that he had purchased the articles two months before the police went to his place and these articles were not fitted in his car.

6. In his statement under section 342 of the Code of Criminal Procedure, the accused denied having taken the police to the places of Nazir, Yasin or Razak, or to have sold any articles to them and denied having committed any theft thereof.

7. The learned Presidency Magistrate having rightly come to the conclusion in view of the evidence, that the charge against the accused was not established, surprisingly c

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