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1955 Supreme(Raj) 247
Rajasthan High Court, Jaipur Bench
Bhandari, J.
Parma - Appellant
Versus
State - Respondents
S.B. Criminal Appeal No.32 of 1953
Decided On : September 02, 1955
H.S. Sahai, for Appellant; R.A.Gupta, for State
Headnote:(a) Penal Code, sec. 320—Grievous hurt—Cut by sword at vital part (shoulder) cutting through acromion process 1/6" x 1/3"—Hurt held grievous. (Para 7)(b) Criminal P.C., sec. 231—Minor offence—What constitutes—offence under sec. 326 I.P.C. not minor under sec. 307.(c) Criminal P.C., sec. 238-Minor Offence—Tests—Severity of punishment.(d) Criminal P.C., sec. 238(2)—Interpretation—Offence under sec.326 I.P.C.,not minor under sec. 307.(e) Criminal P. C., secs. 236 and 237—Sections to be read together—Effect—Accused may be convicted of offence though not charged.
Sec. 238 of the Criminal Procedure Code lays down the limit under which a person who has been charged with a particular offence, can be convicted of any other offence. It is an exception to the general rule that a person cannot be convicted of an offence with which he is not charged. In order that the conditions prescribed under sec. 238 of the Criminal Procedure Code 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 the major offence. The first requisite that an offence may be minor in relation to the offence charged is that the punishment provided for committing minor offence must be in all cases less than that provided by law for committing the major offence. The expression minor offences is not defined anywhere, but taking the common sense view of the matter, this condition is but evident. This is further implied in the very definition of the word offence under see. 4(c) of the Criminal Procedure Code. The offence means any act or omission made punishable by any law for the time being in force. This shows that the element of punishment is essentially associated with the offence. In order therefore that an offence may be minor offence, it is necessary that it must be punishable with minor punishment. (Para 8)
Severity of punishment is the first test in judging whether the offence is a minor offence in relation to the major offence though this is not the only test and other conditions laid down in sec. 238 sub-sec.(l) and (2) must be fulfilled. Under sub-sec.(l) all the particulars which complete a minor offence must be present in major offence. They may be in aggravated form. There might be many other particulars which might be present in the major offence and which are not present in the minor offence. It is not necessary to prove the offence charged in the indictment to the whole extent provided the facts proved, constitute a complete offence. Similarly, it is not necessary to prove the offence charged in the same aggravated form provided what is proved constitutes a complete offence. (Para 9)
Judged from this test, the offence under sec 326 is not a minor offence in respect of an offence under sec. 307. Under sec. 326, it is necessary that "there must be voluntarily causing grievous hurt by means of any instrument for shooting, stabbing or any instrument which, used as a weapon of offence, is likely to cause death...........". The ingredient of causing hurt is absent in first para of sec 307 I.P.C. Even under the second paragraph the distinction between the simple and grievous hurt is not drawn and the kind of instrument that may cause hurt is non considered relevant. The additional fact that causing of grievous hurt is to be proved under sec. 326 takes it out from being a minor offence under sec. 307. (Para 10)
Clause 2 of sec. 238 clearly points out that the additional facts must be such as reduced the offence charged to a minor offence. The interpretation of this clause is that there are all the particulars present in the case which make it a major offence. But certain additional facts are brought before the court either by the prosecution or by the defence to reduce the offence to a minor offence. There may be various circumstances which, when proved, may make an offence less serious even though all the elements constituting that offence as major offence are present. For instance general exceptions or exceptions to a particular section may make an offence less serious or minor even though all the particulars of the major offence may be present. Judging from this point of view, an offence under sec. 326 of the Indian Penal Code does not necessarily become a minor offence with respect to an offence under sec. 307 of the Indian Penal Code. (Paras 11 and 12)
Secs. 236 and 237 are to be read together. Under sec, 236, if an act committed by the accused is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences. In this case P. appellant struck R. with a sword blow. The prosecution had evidence with them that the blow was aimed at the neck, and further, the blow was of such a serious nature that it was likely to cause death. Under the circumstances the appellant could have been charged at the stage from the framing of the charge both under sec. 326 and 307 of the Indian Penal Code. But the charge under sec. 326 was not framed. Sec.237 of the Criminal Procedure Code lays down that in such circumstances, even if the accused is charged with one offence and it appears in evidence that he has committed a different offence for which he might have been charged under sec. 236, he may be convicted of the offence which he is shown to have committed, although he was not charged with it. (Para 13)
2. The facts giving rise to this appeal are very simple. In the village Maunch, there is a house of Muril Mahajan with a shop underneath it and in front of the shop there is a Chabootra. On the 25th of October, 1952,at about 8 P.M.several persons were sitting on that chabootra and were settling the rate of chillies which Fakira P.W. 4 had come to purchase from Karauli. Ratanlal, P. W. 1, was also sitting on the chabootra and on his back the appellant was standing. It is alleged by the prosecution that the appellant aimed a blow of the sword, which he carried wrapped in a dhoti, on the neck of Ratanlal, but the blow struck Ratanlal on his right shoulder. This blow of the sword caused two injuries detailed below—
(1) One incised wound 4" X 1/2"X 1-1/2" on the top of the right shoulder.
(2) Cutting of the acromion process of the right scapula, the bone being cut through 1/6"X 1/3."
2. The blow of the sword which struck Rattanlal on his shoulder had penetrated several layers of the dhoti Ex. P-4 which he had on his shoulder and had also cut through the shirt Ex.3. It is further alleged by the prosecution that after inflicting the blow Parma said that he had cut Ratanlal and all those who are his kith and kin should run away. There after he ran away with his naked sword in his hand leaving behind the sheath, Ex. 2, of the sword. A report of this incident was lodged at the Police Station, Karauli, at about 8 A.M. on the 26th of October, 1952. Parma appellant is also said to have produced the sword, Ex.1, before the Sub-Inspector Incharge of Police Station, Karauli, at about 10.15 A.M.
3. The appellant was arrested and was challaned before the Sub-Divisional Magistrate Karauli and the Sub-Divisional Magistrate, Karauli, committed the appellant to the court of Additional Sessions Judge, Gangapur, to stand his trial for the offence under sec. 307 of the Indian Penal Code.
4. The appellant in his defence pleaded that he was not guilty and that on the date of occurrence 30 or 40 persons were on the chabootra of Murli Mahajan and several of them were conspiring to murder his father Mukanda. Ratanlal had also a sword covered in his dhoti, but the appellant saw the sword and wanted to snatch away the sword from Ratanlal. At this Ram Ratan, one of the persons sitting there, who is P. W. 2 in this case, gave a lathi blow. Thereupon, the appellant ran away. The learned Additional Sessions Judge disbelieved the defence and held the appellant guilty of having committed the offence under sec. 326 of the Indian Penal Code.
5. The prosecution has examined several eye witnesses of which the learned Additional Sessions Judge has believed Fakira P. W. 4, Gende P.W.5, Ram Ratan P. W., 2, Kalua P. W. 3 and the complainant Ratanlal, Ratan Lal P. W. 1, Ram Ratan P. W. 2 and Kalua P.W. 3 have stated that the blow was aimed at the neck of Ratanlal, but it eventually struck the shoulder. The learned Additional Sessions Judge disbelieved this part of the case, that the blow was aimed at the neck, as none of the witnesses Ratanlal, P. W. 1, Ram Ratan P. W. 2 and Kalua P. W. 3, were facing the appellant and they could not have seen the appellant striking the blow. The learned Judge places great confidence in the statement of Fakira.P.W. 4, who is a Mahajan of Karauli and who had come to purchase chilles from the residents of Maunch. Genda P. W. 5 who was also present was also relied upon by the learned Additional Sessions Judge. Taking the evidence of these two witnesses as independent evidence and after carefully scrutinizing the evidence of Ratan Lal P. W. l,Ram Ratan P. W. 2, Kalua P. W. 3, Fakira P. W. 4, and also of the defence witnesses D. W. 4 Lohrey a
