Brij Narain, J.C.
1. This is an application in revision against the order of the learned Sessions Judge, Agartala in Criminal appeal No. 20 of 1953 by which the Petitioner's conviction under Section 109, I.P.C. dated 17-8-1953 by Sri S. C. Kar, Magistrate first class was altered to one under Section 109/323, I.P.C. and the petitioner's conviction under Section 447, I.P.C. was set aside.
2. The facts of the case briefly stated are that the present petitioner abetted the commission of offence under Section 323, I.P.C. by Behari and Upendra at about 11 A.M. on 21-7-1952 in the Aus paddy field of Ravindra Kumar Das in village Dwarikapur P. S. Khowai and in consequence of this abetment Ravindra Kumar Das P. W. 1 received a number of serious injuries on his head and other ' parts of his body with a bamboo piece.
The present Petitioner, Behari and Upendra were further alleged to have trespassed in the paddy filed but the petitioner has now been acquitted of the charge under Section 447, I.P.C.
3. The prosecution examined in this case Ravindra Kumar Das P. W. 1 who actually received injuries, vide the injury report Ex. 2, which has been duly proved by Dr. Bhabesh Chandra Sen P. W. 7; Tarini Kumar Sil P. W. 2 Manindra Kumar Das P. W. 3, Mehendra Kumar Das P. W. 4 and Harendra Kumar Das P. W. 5 have also been examined by the prosecution as eye-witnesses to prove its allegations mentioned above. I have been taken through the evidence of these witnesses at the time of the hearing of arguments and I think their evidence goes to establish that the present petitioner abetted the commission of an offence under Section 323, I.P.C. and his associates actually caused injuries to the complainant as a consequence of this abetment.
It has been argued on behalf of the petitioner that the latter has enmity with Tarini Kumar Sil P. W. 2 and as Devendra Dutta who was alleged to be present on the spot has not been produced and as Manindra Kumar Das, Mahendra Kumar Das and Karendra Kumar were at a distance of about 30 cubits from the place of occurrence, their evidence should have been disbelieved. In my opinion, the prosecution witnesses could very easily have seen the petitioner instigating his associates to beat the complainant and as they further saw the complainant actually receiving serious injuries, I think these circumstances are not of any material importance in this case.
4. The petitioner and his associates examined Pulin Behari Chakravorty, Mohini Mohan Dhar, Banka Chandra Modak, Harendra Ch. Chandra vorty, Mukunda Lal De and Mrlnal Kanti Dhar Witnesses in defence but their statements in support of the plea of alibi was, I think, rightly, disbelieved by the courts below.
The F.I.R. Ex. 1 was lodged the same day without any loss of time and Sri Paresh Chandra Chakravorty investigating officer has duly proved it. All the facts relied on by the prosecution were mentioned in detail in this F.I.R. After taking into consideration the entire evidence on the record, I see no good ground for interfering with the order which has been passed by the learned Sessions Judge in this case.
5. The learned Advocate for the petitioner has urged that as charge sheet by the Police Ex. 3 was submitted against his client on 11-8-1952 under Sections 447/109, I.P.C. only and as the learned Magistrate framed charges against him under Sections 447 & 109, I.P.C. only, the learned Sessions Judge could not legally convict the petitioner under Section 323/109, I. P. O, when the petitioner was acquitted of the charge under Section 447, I.P.C.
The contention of the learned Counsel for the petitioner is that the case of the petitioner has been gravely prejudiced as the petitioner was never called upon to meet any charge under Section 323/109, I.P.C. and so the petitioner did not put any questions to the prosecution witnesses on the point as to whether Behari and Upendra Das heard what was said by the petitioner by way of instigation and whether they acted at this instigation and caused injuries to the complainant. If the two incidents (of abetting and causing hurt) synchronized by sheer accident the present petitioner could not be liable under Sections 323/109, I.P.C.
I think this argument has no force for it is clear that in the F.I.R. all the allegations had been clearly put forward regarding abetment by the petitioner and the learned Magistrate had framed the following charges:
Charge dated 2-12-52.
I, Shailesh Chandra Kar, Magistrate first class, charge you Upendra Chandra Das, Behari Lal Das, Ashutosh Bhattacharjee and Surendra Mohan Biswas as follows:
You trespassed on 21-7-52 A, D. at forenoon into the paddy land of the complainant situated at Mouza Dwarikapur with the object of doing mischief to the complainant disregarding his protest against that and thereby committed the offence of criminal trespass punishable under Section 447, I.P.C.
You Bihari Lal Das and Upendra Chandra Das struck the complainant on the head and other parts of his body with a 'Bhar bash' (a piece of bamboo used for carrying loads) at his paddy land and thereby committed the offence under Section 324, I.P.C.
You Ashutosh Bhattaoharjee and Surendra Mohan Biswas abetted the aforesaid accused Bihari Lal Das and Upendra Chandra Das to cause hurt to the complainant and thereby made them cause hurt to the complainant and thereby you committed the offence under Section 109, I.P.C.
The aforesaid offences being triable by this Court you shall be tried by this Court.
6. A perusal of these charges clearly shows that the petitioner was clearly called upon to meet the charge that he had abetted the commission of the offence of causing hurt and he thereby made Behari Das and Upendra to cause hurt to the complainant. This charge is unhappily worded but it gives the substance of the offence clearly and (he mere fact that the Arithmetical digits '323' were omitted will not be of any consequence.
In H. B. Spiers v. Johiuddin AIR 1932 Cal 461 (A), it was clearly laid down that
where the case which the accused is called on to meet is a case of negligently driving a private car and thereby colliding with a taxi' but the accused is charged and convicted under 8s. 16 and 17; though the sections mentioned in the charge do not apply to the facts of the case, still the mistake is too technical as the accused is not prejudiced thereby and the conviction is not bad.
7. In Yeshwant Tukaram v. Emperor AIR 1947 Bom 146 (SB) (B), the charge against the accused did not mention Section 302, I.P.C. but it was held that this defect was curable under Section 225, Cr. P. C. I think the mere fact that the learned Magistrate failed to mention the digits '323' will not vitiate the trial nor will it show that the case of the petitioner was prejudiced in any manner as all the important ingredients of the charge had been brought to his notice from the very beginning, i.e. from the time when the F.I.R. Ex, 1 was lodged in the thana and the petitioner was specifically put a question regarding the witness who had deposed about the alleged abetment during his examination in the trial court.
Under Section 423 (1) (b), Cr. P. C. the learned Sessions Judge could in an appeal form a conviction (1) reverse the finding and sentence and acquit or discharge the accused or order him to be retried by a court of competent jurisdiction subordinate to such appellate court or committed for trial or (2) alter the finding, maintaining the sentence, or with or without altering the finding reduce the sentence, or (3) with or without such reduction and with or without altering the finding alter the nature of the sentence but subject to the provisions of Section 106 Sub-section (3) not so as to enhance the same.
The learned Sessions Judge has in this case not altered the finding as the finding of the learned Magistrate also was that the present petitioner was guilty under Section 109/323, I.P.C. although the digits 323 were unfortunately omitted. As pointed out the learned Sessions Judge could alter the finding without enhancing the sentence if no prejudice was caused to the petitioner thereby. I have shown above that the case of the petitioner was not prejudiced in any way and so the ruling of Rattan Singh v. Emperor AIR 1934 Lah 833 (C), does not apply to this case.
8. I therefore, see no force in the present application in revision which is hereby rejected.