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1992 Supreme(Ori) 59
High Court Of Orissa
B. N. Dash
HEMANTA KUMAR PRADHAN - Appellant
Versus
STATE OF ORISSA - Respondent
Cri. Revision 550 Of 1988
Decided On : 06/17/1992
B.DAS, B.K.MISHRA, N.P.K.PATNAIK, S.B.PATNAIK
Headnote:(i) Criminal Procedure Code, 1973 - Section 222 - Indian Penal Code, 1860- Section 394 - Petitioner dealt axe blows on the person of complainant and removed forcibly Rs. 740/-from his possession - Petitioner tried for offence under was however convicted U/S 326, I.P.C. - Whether conviction U/S 326, I.P.C. was justified although charge u/s 394, I.P.C. had been framed against petitioner? Yes.
Held: The principle is that the graver charge gives notice to the accused of all the circumstances going to constitute the minor one of which he may be convicted. But when the circumstances constituting the major offence do not necessarily and according to the definition of the offence imputed by that charge constitute the minor offence also, the principle no longer applies because notice of the former does not involve notice of all that constitute the latter. The major and the minor offences must be cognate offence which have the main ingredients in common and a man charged with one offence cannot be convicted of an offence of an entirely different type merely because the facts proved constituted a minor offence as he had no notice of the offence of which he was going to be convicted. Applying these principles, it is to be found out whether conviction of the petitioner under section 326, I.P.C. was justified although charge under section 394, I.P.C. had been framed against him. An accused can be convicted under section 394, I.P.C., if it would be found that he committed or attempted to commit robbery and in committing or attempting to commit robbery he voluntarily caused hurt to the victim. 'Hurt' has been defined in section 319, I.P.C. "Grievous hurt" in section 320, I.P.C. On a reading of both the sections there can be no manner of doubt that 'hurt' includes "grievous hurt". If a person by voluntarily causing hurt in committing or in attempting to commit robbery can be convicted under section 394, I.P.C., it becomes incomprehensible that he will escape from the mischief of that section if he commits robbery and voluntarily causes grievous hurt to the victim while committing or attempting to commit robbery. So it has to be held that the offence of grievous hurt under section 326, I.P.C. is included in section 394, I.P.C. I, therefore, hold that by application of section 222(1) of the Code the petitioner was justifiably convicted of the offence under section 326, I.P.C., even though he had been charged under section 394, I.P.C. (para 6)
(ii) Probation of Offenders Act - Indian Penal Code, 1860 - Section 326 - Benefit of probation cannot be extended legally to petitioner convicted under - Sentence of 2 years imprisonment and a fine of Rs. 500 imposed by trial court does not call for interference. (Para 9)
Result: Petition dismissed.
B. N. DASH, J.
( 1 ) THIS revision is directed against the judgment of the learned Sessions Judge, Phulbani whereby he has uphold the judgment and order of the learned Chief Judicial Magistrate, Phulbani convicting the petitioner under section 326, I. P. C. and sentencing him to undergo rigorous imprisonment for two years and to pay fine of Rs. 500/- in default to undergo rigorous imprisonment for a further period of three months.
( 2 ) THE prosecution case, briefly stated, is that on 9-8-1985 at about 11 a. m. while the injured Dirju Digal (P. W. 4) was returning to his village Dadigonda from village Karadi, the petitioner stopped him on the way and dealt axe blows causing incised injuries on his right arm and chest and, thereafter, forcibly removed away from the possession Rs. 790/ -. After receiving the injuries, P. W. 4 could manage to go to his village with difficult where he disclosed the incident to his son Jibardhan (P. W. 5), his wife (P. W. 7) and one Lankeshwar Digal (P. W. 10), who took them to Phulbani Sadar Police Station, where P. W. 5 lodged the F. I. R. , Ext. 3. In course of investigation the injured was examined by Dr. Arjuna Panda of Sadar Headquarters Hospital, Phulbani (P. W. 9) who submitted his report, Ext. 4, indicating that out of three injuries sustained by the injured one was grievous in nature and the other two were simple. After completion of investigation, charge sheet under section 394, I. P. C. was submitted against the petitioner and charge was accordingly framed thereunder.
( 3 ) THE defence of the petitioner was one of complete denial and according to him the case had been falsely foisted out of previous enmity.
( 4 ) AT the trial, 12 witnesses were examined and relying on the evidence of the injured (P. W. 4) which was indirectly corroborated by P. Ws. 5, 7 and 10 and also the Medical evidence of P. W. 9, the learned Chief Judicial Magistrate convicted and sentenced the petitioner as stated above and the appeal against such conviction and sentenced failed.
( 5 ) SHRI N. P. Patnaik, the learned counsel for the petitioner first took me through the evidence of P. Ws. 4, 5, 7 and 10 at some length in his bid to satisfy me as to how the evidence of the injured (P. W. 4) is not believable. After going through the evidence of the said witnesses, I am unable to persuade myself that the evidence of P. W. 4 is unworthy of credit. On the otherhand, I find that although he had no axe to grind against the petitioner he had clearly implicated him in the commission of the offence and his evidence has been duly corroborated by P. Ws. 5, 7 and 10. The F. I. R. , Ext. 3, which has been lodged about 4 hours after the alleged occurrence and also the medical evidence lend indirect corroboration to the evidence of P. W. 4. Under these circumstances, the submission of Shri Patnaik for the petitioner that the evidence of P. W. 4 is not believed cannot be accepted.
( 6 ) THE substantial contentions of Shri Patnaik for the petitioner are two fold:- His first contention is that the petitioner having not been charged under section 326, I. P. C. could not be convicted thereunder. His second contention is that on the basis of the medical report it cannot be said that the petitioner caused grievous hurt to P. W. 4. Let us examine the soundness of these contentions. The first contention ignores the provision contained in section 222 (1) of the Code of Criminal Procedure, 1973 (for short, the Code) which is as under: 222 (1) Where a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it. The above provision applies to cases where the charge is of an offence consisting of several particulars, some of which when combined and proved form a complete minor offence, when that is the ca
