Srinivasa Chari, J.
1. This second appeal in a criminal case was admitted alter notice to the Government Advocate. It was alleged that the accused who is the appellant before me took away one Khacher and Gouna from the house of one Rama when he was away and when his mother alone was present in the house. It is stated that when the mother protested against his taking away these things, he assured her that he would return the things the next day. It is also stated that the same accused took away a pair of bullocks from the house of one Mahboob in his absence. Later on, the accused is said to have disposed of these bullocks, the cart and Gouna to different persons, making it appear as though he was the owner of all these things. The accused was charged under Section 406, I.P.C. and the Magistrate on the evidence taken by him found him guilty and sentenced him to undergo one years rigorous imprisonment. On appeal the Sessions Judge of Adilabad came to, the conclusion that on the evidence the offence that the accused could be held guilty of was one under Section 380 and not Section 406, I.P.C. Therefore, he held him guilty under Section 380 and confirmed the same sentence of one year's rigorous imprisonment. It is against this judgment of the Sessions Judge that the appellant has come before the High Court in second appeal.
2. The learned Advocate for the appellant confined himself to two contentions. The first contention is that the judgment of the Sessions Judge cannot be regarded as a proper judgment because there is no discussion about the evidence in the case; he (the Sessions Judge) has merely stated that in so far as the statements of the witnesses go, he agrees with the learned Magistrate of the lower court. The second contention is that where the Sessions Judge chose to convict the accused of an offence different from which he was charged by the Magistrate, an opportunity should have been given to the accused to put forward his defence with regard to the new charge under which he was going to be convicted. I would prefer to take up the second contention first. The relevant provision in Criminal P.C. relating to altering or adding to any charge is Section 227 which says that any court may alter or add to any charge at any time before the judgment is pronounced and in cases of trials before the Sessions Court or the High Court, before the verdict of the jury is returned or the opinions of the assessors expressed. This would make it clear that there is power in the Court to add to, alter or vary an existing charge. The only duty in such cases is to read out the charge and explain it to the accused. Section 236 enacts that where it is doubtful what offence has been committed by the accused and where a series of acts have been committed by the accused, the accused may be charged with having committed all or any of such offences and he may even be charged in the alternative with having committed some one of the said offences. The illustration makes it clear that where an accused is charged with an offence which may amount to theft or receiving stolen property or criminal breach of trust or cheating, he may be charged with all the offences or any one of the offences. The illustration to Section 237 makes it further clear that where an accused is charged with one offence and it appears in evidence that he committed a different offence for which he might not have been charged, he may still be convicted of the offence which is proved by the evidence, although he was not actually charged with it. The illustration to this section makes it conclusive that even where a person has not been charged with an offence but the evidence shows that he has committed a particular offence, he can still be convicted under that offence.
Illustration: 'A' Is charged with theft. It appears that he committed the offence of criminal breach of trust or of having received stolen property. He may be convicted of criminal 4 breach of trust or of receiving stolen goods (as r the case may be) if he was not charged with that offence.
The next question is whether the facts are such that notice to the accused of the offence for which he is going to be convicted should be given although he was not charged with it. And if there has been no prejudice to the accused by the absence of a specific charge, then a conviction would be held goad. That such a procedure is allowed by law has been well established by the decision of the Privy Council in the case of - Begu v. Emperor A. I.R. 1925 P C 130 (A) wherein their Lordships observed as follows:
The illustration makes the meaning of these words quite plain. A man may be convicted of an offence, although there has been no charge in respect of it, if the evidence is such as to establish a charge that might not have been made.... They were not charged with that formerly but they were tried on evidence which brings the case under Section 237
It is only in cases where it can be shown that the accused has been prevented from giving or of his having failed to give evidence material to his defence by reason of the amendment of the charge, that the court should offer him a new trial on the amended charge, other wise not. This view of - mine is supported by the authoritative pronouncement of the Privy Council in the case of - Thakurshah v. Emperor A.I.R. 1943 P C 192 (B). The power to amend the charge is vested in the appellate court under the provisions of Section 423 of the Criminal Procedure Code. It is only where the court comes to a finding that by reason of the amendment in the charge the accused has been misled and that consequently it has resulted in a failure of justice, that the court would order a retrial and not otherwise.
It has to be observed in this case that the charge ageist the accused was one of criminal breach of trust and the appellate court convicted him for theft. I do not see how the accused has been prejudiced for having been charged for theft because so far as the facts are concerned, the evidence was the same and it could not be said that the accused would have put forward a different defence if he were told that he was charged for theft., At the most it could not only be said that having regard to the facts, the offence could come under Section 408 and Section 380, I.P.C. But that cannot be regarded as having prejudiced the accused or having resulted in miscarriage of justice. I, therefore, hold that inasmuch as there has been no prejudice to the accused and there has been no resultant miscarriage of justice the case need not be sent back for retrial.
3. Coming to the other argument of the learned Advocate that there has been no discussion of the evidence, I do find that the Sessions Judge has merely disposed of the evidence in two lines. No doubt the judgment ought to set out what the evidence is and not merely say that the Court agrees with the opinion of the lower Court. The Sessions Judge ought to have discussed the evidence stating as to why the evidence on record on the one side should be preferred to the evidence on the other. Section 424 of the Cr.P.C. makes it clear that what applies to a judgment of the original Court shall apply to that of an appellate court other than the High Court. The judgment, therefore, in addition to containing the points for determination should contain a resume of the evidence and the remarks of the Judge with regard to the statement of every witness. It must be said that in this case the Sessions Judge has ignored this. But I find from the judgment that in coming to a conclusion that the offence committed is one under Section 380 and not under Section 406 he has gone through the evidence. Although the judgment is not in strict conformity with Section 424 read with Section 387 the case does not warrant a remand for a judgment anew. I would remark that the Sessions Judge ought to be more careful in pronouncing his judgment and not do it haphazardly by merely stating that he is in agreement with tile trial Court. It may happen that in some cases the accused is prejudiced by his not having the advantage of the opinion of the appellate court.
4. A note of warning may be sent to the Sessions Judge stating that he should hereafter be careful in going through the evidence and expressing his opinion with regard to the evidence in the case as required by law.
5. This appeal is dismissed.