Mayadhar Mahanty and Others vs Danardan Kund

Jwala Prasad, J.—It is not necessary to give in full detail the fasts of the case. They have been fully stated by the Trial Court, Suffice it to say that the complainant''s case was that on account of some incident that happened on the morning of the day of occurrence, the two accused waylaid him while he was returning with some bundle of utensils on his head. The accused Mayadhar came up to him and addressed him saying why he had insulted Sriram, a relation of his, that morning. The complainant denied the charge, when Mayadhar caught hold of his chaddar at his neck and pulled him to the path. He bent down and the load of utensils on his head fell down on the path. The two accused then carried away one utensil each out of those that were in the bundle.

The Magistrate charged the accused with an offense of theft of the utensils u/s 379 of the Indian Penal Code and he ultimately convicted them of it.

On appeal, the learned Sessions Judge disbelieved the complainant''s story as to the theft of utensils, holding that it was highly improbable and that it was not proved by the best evidence available, inasmuch as none of the neighbours were sailed to testify to the occurrence and the two witnesses examined, were not named in the first information. Accordingly, he acquitted the accused of the charge of theft, of which they were convicted by the Magistrate. He has very rightly observed that his finding that the prosecution story as to theft is not reliable "certainly throws a considerable doubt upon the entire case." Notwithstanding that, he converted the conviction for theft u/s 379, Indian Penal Code, into one of assault u/s 352, Indian Penal Code. In this, the learned Judge has contravened the following principles: (1) that when the prosecution case is disbelieved in essential particulars, it is not safe to convict the accused on the residue of the evidence that may be acceptable; (2) that the accused should not be convicted by the Appellate Court of a charge of which they had no notice and which they were not called upon to answer in the Trial Court.

The aforesaid principles have been enunciated more than once by almost all the Courts of India. It is needless to quote all the authorities. The oases of Raghu Singh v. Emperor 66 Ind. Cas. 592 : 1 P.L.T. 221 : 21 Cr. L.J. 496; Phatali Singh v. Emperor 47 Ind. Cas. 73 : 5 P.L.W. 157 : (1918) Pat. 288 : 19 Cr. L.J. 877; Mahomed Hossain v. Emperor 22 Ind. Cas. 763 : 41 C. 743 : 15 Cr. L.J. 190 : 18 C.W.N. 1247 are, in my opinion, sufficient authorities for the aforesaid principles.

Coming to the merits of the case, the learned Sessions Judge was entirely wrong in convicting the accused of assault. Neither the informant, nor the two witnesses, Chintamani and Dass, upon whose testimony the learned Sessions Judge has based the conviction, disclose anything like what may be called an assault on the complainant. The statement of facts referred to in the earlier part of the judgment will show that the complainant was simply caught hold of by the accused and the bundle of utensils fell down. There is nothing to show that it was intended to cause any assault and the object was clearly to commit theft; and if the story as to theft is disbelieved, there is nothing left in the case for the prosecution, upon which the accused could be convicted.

The result is that the application is allowed, the Rule is made absolute, the conviction of and sentence passed upon the accused are set aside and the fine, if paid, must be refunded.

Ross, J.

I agree.