The Sessions Judge had the power to alter the conviction from Section 332 to Section 353 IPC as the charge framed against the accused included both offences.

Headnote:
CRIMINAL LAW - ASSAULT - SECTION 332 AND 353 IPC - CONVICTION UNDER SECTION 353 IPC - LEGALITY - POWER OF APPELLATE COURT TO ALTER CONVICTION FROM ONE MAJOR OFFENCE TO A MINOR OFFENCE - SECTION 4 OF THE PROBATION OF OFFENDERS ACT 1958 - BENEFIT OF PROBATION.
Fact of the Case:

The petitioner was convicted under Section 332 IPC by the trial court for assaulting the complainant, a fellow employee. On appeal, the Sessions Judge acquitted the petitioner of the offence under Section 332 IPC but convicted him under Section 353 IPC for obstructing the complainant from going to his office.
Finding of the Court:

The High Court held that the Sessions Judge had the power to alter the conviction from Section 332 to Section 353 IPC as the charge framed against the accused included both offences. The court also held that the petitioner was entitled to the benefit of probation under Section 4 of the Probation of Offenders Act 1958.
Issues: 1. Whether the Sessions Judge had the power to alter the conviction from Section 332 to Section 353 IPC? 2. Whether the petitioner was entitled to the benefit of probation under Section 4 of the Probation of Offenders Act 1958?
Ratio Decidendi: 1. The court held that the Sessions Judge had the power to alter the conviction from Section 332 to Section 353 IPC as the charge framed against the accused included both offences. The court relied on the fact that there is no difficulty for the trial Court and for the Appellate Court to convict or alter the conviction of the accused in appeal from one major offence to a minor offence. 2. The court held that the petitioner was entitled to the benefit of probation under Section 4 of the Probation of Offenders Act 1958 as he had no previous convictions and the incident took place 11 years ago. The court also considered the fact that the petitioner was the only bread-earner of his family.
Final Decision: The High Court partly allowed the revision petition and maintained the conviction of the petitioner under Section 353 IPC. However, the court directed that the petitioner be released on probation on furnishing a personal bond and surety.

JUDGMENT

1. - This revision is directed against the judgment dated 31st October 1956 of the learned Addl. Sessions Judge No. 5, Jaipur City. The learned Sessions Judge under the aforesaid judgment was dealing with an appeal filed by the accused petitioner before him against the judgment dated 7th December, 1984 of the learned Judicial Magistrate No. 14, Jaipur City, Jaipur convicting the accused-petitioner under Section 332 IPC and sentencing him to undergo 5 months rigorous imprisonment. The learned Sessions Judge allowed the appeal in part and while acquitting the petitioner of the offence under Section 332 IPC., for which he was convicted by the Trial Court, convicted the accused petitioner under Section 353 IPC and sentenced him to pay a fine of Rs. 500/- and in default of payment of fine it was ordered that the accused shall suffer two months rigorous imprisonment.

2. Mahendra Kumar Gatg P. W. 3 was posted as Assistant Engineer in Workshop Jaipur with the Rajasthan State Electricity Board (for short 'RSEB The accused-petitioner was also working under him in the workshop as Helper. It was the duty of Mahendra Kumar Garg to mark the petitioner present or absent in the Attendance Register. It was alleged that a few days before J 8th November, 1978 Shri Mahendra Kumar Garg had marked the petitioner absent in the Attendance Register and, therefore, on 18th of Nov., 1978 at about 8.30 a. m. when Shri Mahendra Kumar Garg was going from his house to his office on Moped No. RSG 30Q7, the accused-petitioner stopped him on the way and told Shri Garg as to how he could dare marking him absent in the Attendance Register. The accused petitioner also told to Shri Garg that Shri Garg cannot go to the office after marking him (petitioner) absent, The accused-petitioner was also accompanied by two persons and all of them gave beating to Shri Garg who received an injury on his left temporal region, and large number of passengers by were attracted and the accused-petitioner and others made their escape in a tempo. Shri Garg then made a report to the Ex. E. N. The injury of Shri Garg was examined and vide Ex P. 3 it was found that he complained of pain on right temporal region and face right side, outside to eye but no mark of injury was seen.

3. A charge-sheet was filed against the petitioner under Section 302 and 353 IPC but a charge only under Section 332 was framed against the accused-petitioner on 13th of June, 1979. Petitioner pleaded not guilty to the charge and claimed to be tried. On behalf of the prosecution 10 witnesses, including Shri Garg P W. 2 were examined, and, thereafter the accused-petitioner was examined under Section 313 Cr. P. C. and he stands on a plea of denial. The accused-petitioner examined D. W. 1 Sharfuddin who is the real brother of the accused petitioner and who prepared section-windows. He was examined in support of the defence plea that some amount was outstanding for the section-windows made by Sharfuddin and Shri Garg was not paying the same. The learned Addl. Sessions Judge did not accept this plea and therefore, the petitioner was convicted and sentenced and his appeal was partly accepted and he was convicted under section 353 IPC.

4. The first contention of the learned counsel for the petitioner is that Shri Garg was not discharging his duties and, therefore, while allowing the appeal under Section 332 IPC the learned Appellate Court could not have convicted and sentenced the accused petitioner under Section 353 IPC. In support of his aforesaid contention the learned counsel for the petitioner has placed reliance on the case of Kishan Singh v. Emperor (1928 P.C. 254 ). In that case court has said that if an accused is charged under Section 302 (PC but is convicted under Section 304 and no appeal having been filed by the Government against the acquittal under Section 302 IPC, the High Court cannot convict the accused under Section 302 IPC in revision as it amounts to acquittal of the accused. A look at the a

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