The doubt about the offence must arise at the time of the charge and be resolved at the end of the trial. The answers of the accused under S.342 Crl. P.C. cannot be the sole basis for conviction.

1. This appeal is by the State and is directed against the acquittal of the sole accused in C.C.1530 of 1957 of the Ernakulam Second Class Magistrate's Court.

2. The accused was charged with offence under S.457 and 379 I. P. C. in that during the night of 28-9-1957 he broke into the house of PW.1 with intent to commit theft by breaking a bar of the window and cut and removed gold chains worn by the three children of PW.1 who were sleeping in a room in the house and thus committed theft. There were no eye-witnesses examined as to actual commission of the offence, the evidence let in was practically about the sale by the accused of the alleged stolen articles, There was the evidence of PW. 6 that the accused had borrowed his scissors apparently to show that the chains were cut out while the children were asleep. But two of the chains were in tact and there was snapping if at all is only one, PW.1's evidence revealed that he had large dealings in hay do with the accused and his father and there was amount outstanding due on that account to the accused and his father at the time of the alleged occurrence and PW.1 had indeed paid a sum of Rs. 450 to the accused's father after the case towards purchases made before the incident, The accused examined under S.342 Crl. P.C. stated that when he went to PW.1 to collect the moneys due PW.1 had no cash and so gave the chains to him on the understanding that the chains may be pawned and he may take Rs. 100 out of the money raised and return the balance and because he was in urgent need of money he sold them but he did not steal the chains. The learned Magistrate did not accept the evidence of the breaking of the bar and held that whatever may be the truth of the version of the accused as to entrustment of the chains, it was difficult to find conclusively that the accused committed theft. He therefore gave the accused the benefit of the doubt and in the result found him not guilty and so acquitted him under S.251-A (ii) Crl. P.C. The learned Magistrate however returned to PW.1 the chains which had been recovered from the vendee of the accused "since even accepting the defence version they are in effect the subject-matter of an act possibly that amounts to criminal breach of trust and hence stolen property as defined in S.410 I. P. C."

3. Learned Government Pleader appearing for the State did not seek to canvass the acquittal of the accused by the court below in respect of the offences charged. But he contended that the case was one in which the accused should have been convicted on his own admission of the offence under S.403 dishonest misappropriation of S.406 criminal breach of trust and he relied upon S.237 of the Criminal Procedure Code.

4. It is no doubt true that under S.237 Crl. P. C. 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 he may be convicted of the offence which he is shown to have committed, although he was not charged therewith. But the section is controlled by the previous of S.236 and it is clear from S.236 that the act or series of acts alleged against the accused must be such as to make it doubtful as to the exact nature of the offence that may be made out on proof of such act or series of acts. There is some controversy in the books as to whether the doubt must be about the inference from the facts (i. e. the Law applicable to the facts proved) e.g. as to which of several offences has been committed on the facts which can be proved or about the facts themselves. In any event the section contemplates uncertainty at the commencement of the trial to be resolved at the end of the trial, that is, the doubt must arise at the time of the charge. As observed in Istahar Khondkar v. Emperor, A. I. R.1936 Cal. 796:

"The doubt contemplated by S.23 and 237 must arise at the time of the charge. In order to decide whether such a doubt exists as will attract the provisions of S.23