Under S. 237 of the Criminal P. C., a person may be convicted of an offence although there may be no charge in respect of it if the evidence is such as to establish a charge that might have been made.

The husband of a woman who was the complainant in a case under S. 498 of the Penal Code against the respondent and another person filed this appeal with the special leave of the Court under S. 417 (3) of the Criminal P. C. against the acquittal of the respondent therein. The prosecution case in short was that P. W. 4 Manjurani was the wife of the complainant and while they were living together, the respondent and the co-accused in the case enticed her away from his house on July 17, 1964. Prior to this incident, the accused in the case is alleged to have been trying to misbehave with the complainant's wife and on one occasion there was an attempt by the present respondent to injure the complainant with a knife on his protest against their conduct. It was further alleged in the petition that the girl was being detained by the two accused in the case after the enticement. The petition of complaint was filed on July 28, 1964.

2. The defence was a plea of not guilty and it was stated that the girl Manjurani might have left her husband's protection of her own accord and that the accused themselves had nothing to do therewith and that they had not been detaining her as alleged.

3. The learned Magistrate found that the evidence on the point of the offence under S. 498 of the Penal Code with which the two accused persons were charged was not acceptable for reasons given by him and on this finding followed the order of acquittal the propriety whereof is challenged in this appeal.

4. Mr. Mukherji appearing for the appellant contends that there is sufficient evidence in support of the charge under S. 498 of the Penal Code in the testimony of the complainant, P.W. 1, and of his two witnesses, P. Ws. 2 and 3. P. W. 1 is not a witness to the incident involving the taking or enticement of the girl from her husband's custody. P. Ws. 2 and 3 claim to be eye-witness to the actual taking. The learned Magistrate has observed that, on the evidence, it appears that shortly after the incident the complainant heard about it from P. Ws 2 and 3 and if that evidence were really true, there is no explanation as to the non-mention of P. Ws. 2 and 3 amongst the witnesses who are named in the petition of complaint. In the petition of complaint, we get specific mention of the name of five witnesses, but strangely enough the names of P. Ws. 2 and 3, who are the most important witnesses to prove the charge alleged, are not to be found therein. If for this reason the learned Magistrate found himself unable to accept their testimony, I can find no fault with his finding in that regard. Admittedly, apart from the evidence of P. Ws. 2 and 3, there is no other evidence in the case on the point of enticement or taking which is the most important ingredient of an offence under S. 498 of the Penal Code.

5. The next contention of Mr. Mukherji is that, even, if the evidence were found insufficient for the purpose of establishing a charge under S. 498 of the Penal Code, there is ample evidence in the case in, support of a charge under S. 497 of the Penal Code and that, on the evidence on record, the learned Magistrate need have felt no difficulty in convicting the accused under that section. In support of this argument, Mr. Mukherji refers to the provisions of Ss. 236 and 287 of the Criminal P. C. and also to a Privy Council decision in Begu v. King Emperor, 30 Cal W N 581 : (AIR 1925 PC 130) and the Supreme Court decision in G. D. Sharma and N. Tyagi v. State of Uttar Pradesh, 1960 Cri L J 541 : (AIR 1960 SC 400).

6. Under S. 236 of the Code, in case of a doubt as which of several offences a single act or a series of acts attributed to an accused may constitute, he may be charged with having committed all or any of the offences or he may be charged in the alternative with having committed some one of the said offences, and under S. 237 of the Code, if in the case mentioned in S. 236 the accused is charged with one offence but it appears from evidence that he comm