A person can be convicted of an offense under Section 326 of the Indian Penal Code even if no charge was framed under that section if the facts of the case could have supported a charge under both Sections 307 and 326.

P.K.Sarin, J.

1. This criminal revision-application is directed against the judgment and order dated 19.4.1988 passed VIth Additional District and Sessions Judge, Bhojpur at Ara, dismissing the Criminal Appeal No. III of 1984 and affirming the judgment and order of conviction and sentence passed by IIIrd Assistant Sessions Judge, Ara in Sessions Trial No. 1 of 1981. The petitioner was convicted for the offences punishable under Sec. 326 and 379 of the Indian Penal Code (hereinafter referred to as the Code) and was sentenced to five years and three months rigorous imprisonment respectively for the said offences by the Trial Court.

2. The petitioner, along with two other co-accused, was tried. The petitioner was tried for the offences punishable under Secs. 307, 379 and 148 of the Code. The other two co-accused were found guilty under Sec. 379 of the Code. The other two co-accused were released after admonition under Sec. 360(3) of the Code of Criminal Procedure. The charge under Sec. 307 of the Code was fund not proved against the petitioner, instead he was held guilty for the offence punishable under Sec. 326 and 379 of the Code.

3. The prosecution case, in brief, was that on 14.4.198Q, at about 4.00 P.M. the informant, Ramadhar Singh (P.W. 5) was in the process of taking the Arhar crop which he had collected in his Khalihan and at that time the petitioner along with co-accused and two unknown persons came there and took away the Arhar crop forcibly. It was alleged that when informant protested, the petitioner at the exhortion of other co-accused Raja Ram Singh gave a pharsa blow to the informant which caused serious injuries to the informant. On alarm, having been raised, witnesses came there. The informant was taken to the hospital. On his Fardbeyan the first information report was recorded. After investigation police submitted charge sheet.

4. The prosecution examined nine witnesses in the case: out of which one was tendered and one was declared hostile. The learned Trial Court on appreciation of the prosecution evidence including the medical evidence came to the conclusion that the petitioner had caused grievous injury to the informant by pharsa although injury was not caused with the intention of causing murder. The Trial Court also held the petitioner guilty of commission of theft of the Arhar crop along with the other two co-accused. Accordingly, the Trial Court convicted the petitioner under Sec. 326 of the Code instead of Sec. 307 of the Code and also under Sec. 379 of the Code. The petitioners Cr. Appeal No. 1ll of 1984 against the judgment and order of the Trial Court has been dismissed by the Appellate Court. The Appellate Court on reappraisal of evidence concurred with the findings of facts recorded by the Trial Court. Thus, there is concurrent findings of fact by the two Courts below.

5. The learned Counsel for the petitioner has contended that the petitioner could not have been convicted under Sec. 326 of the Code as no charge under Sec. 326 of the Code was framed against the petitioner. The learned Counsel has contended that Sec. 326 of the Code cannot be said to be a minor offence vis-a-vis Sec. 307. Therefore, framing of charge under Sec. 326 of the Code was necessary before the petitioner could be convicted under that section. In support of his contention the learned Counsel for the petitioner has placed reliance on a decision of Rajasthan High Court in the case of Parma V/s. State -- wherein while considering the scope of Sec. 238 of the Code of Criminal Procedure (1898) it has been held that offence under Sec. 326 of the Code is not minor in relation to offence under Sec. 307 of the Code. It has been observed that in order that the conditions prescribed under Sec. 238 may be fulfilled it is necessary that under Clauses (1) and (2) of the section the offence for which the accused is sought to be convicted must be minor in relation to the offence with which he is charged which may be called major off