A person charged with an offense under Section 307 IPC can be convicted under Section 326 IPC if the evidence shows that he committed the latter offense, even if he was not charged with it.

1. The appellant Moirangthem Chaoba Singh, aged about 19 years and Moirangthem Gojendra Singh, aged about 17 years have been convicted, the former under S.326/34 I.P.C. and sentenced to 1½ years' R.I and the latter under Section 326 I.P.C. and sentenced to 2 years' R.I.

2. The evident facts are that Ningthoujam Budhi Singh (P.W. 2) lodged information with the O/C. Moirang Police Station on 2-9-1973 stating that his brother Ningthoujam Lakpa Singh was lying unconscious and likely to die as the two appellants attempted to murder him with a dagger (Louri Thangchou) that morning at 7-00 a.m., being so informed by Khoiron Amusana Singh (P.W. 5). Moirang Police Station registered the case in F.I.R. 113(8) 73 u/s. 307/34 I.P.C. and P.W. 7 Maibam Biramangol Singh took up investigation, reached the place of occurrence at 10-40 a.m. Prior to this, A.S.I. Babudhon Singh, who registered the case had already submitted injury form to the Medical Officer, in-charge of Moirang Primary Health Centre, where the injured Lakpa Singh had been admitted for treatment. Biremangol Singh, arriving at the place of occurrence found blood stain, one spade near the blood stain and a paddy field to the north east of the blood stain at a distance of about 40 feet. He collected some blood stained earth and grass; examined some persons, but could not arrest the accused appellants as they absented from their home. But he arrested them later when they surrendered on 4-10-1973. The injured Lakpa Singh being unable to speak could be examined only on 24-9-1973. The charge sheet was submitted on 23-10-1973.

3. At the Session, both were charged under Section 307/34 I.P.C. and the appellant Gojendra Singh was separately charged under S.307 I.P.C., to which both pleaded not guilty. At the trial, prosecution examined 9, while the defence examined two witnesses.

4. The injured Lakpa Singh, examining himself as P.W. 6, deposed that on that morning at about 6-00 or 7-00 a.m., he proceeded towards Khongjaingamba Ching for tethering two cows on the said hill and while he was doing so on its slope, the two appellants and their father Ibomacha Singh, who were working in their paddy field towards the north at a distance of about 130', shouted to him not to tether the cattle there. Lakpa Singh told them that he would keep the cattle tethered there within the forest land and would keep watch upon them and immediately, the two appellants. Gojendra Singh with a Thangjou in hand, rushed towards him and while Chaoba Singh caught-hold of him, Gojendra Singh assaulted him on the left side of his head with the said Thangjou and receiving the blow he immediately ran for a distance around the hill slope and then fell down on the ground. While so running he received another blow on his back and could not say by whom; and he lost his senses which he regained only in the General Hospital at Lamphelpat. In cross-examination, he admitted that the paddy field was in the possession of the accused and that there was also an ingkhol to the west of the said Lou, which was also in the cultivating possession of the accused-appellants and that the distance between the eastern end of the paddy field and that of the ingkhol would be about 130'. He also admitted that he fell down at a place inside the ingkhol, which would be about 40' away from its eastern end. When he arrived at the place for tethering he found the accused Gojendra Singh about to plough the ingkhol portion with a buffalo and the accused Chaoba Singh was working with a spade in the ingkhol towards the west of the accused Gojendra Singh. He said that the place of tethering was within the forest area, but denied that no cattle was allowed to graze there.

5. The defence version as appearing from the trend of cross-examination, the two defence witnesses and the statement of the accused-persons under Section 313 Cr. P.C. is that Chaoba Singh and Gojendra Singh were working in their field when they saw 6 heads of cattle belonging to Lakpa