1. Four appellants before me have been convicted under Sections 458 and 323, Penal Code. Makhan, appellant has been awarded a sentence of five years' rigorous imprisonment under Section 458, Penal Code, while the other appellants have been sentenced to three years' rigorous imprisonment each. All the four appellants have been sentenced to one year's rigorous imprisonment under Section 323, Penal Code. The appellants were acquitted of the offence punishable under Section 395, Penal Code. The appellants were charged only under Section 395, Penal Code, and it will be necessary to quote the exact wording of the charge, which was as follows:
That you on or about the 26th day of December 1943, committed dacoity at the house of Nek Ram in village Shamla Nagla, and thereby committed an offence punishable under Section 395 of the Indian Penal Code, and within cognizance of Sessions Court, Etah, and I hereby direct that you be tried by the said Court on the said charge.
2. It would thus appear that the charge was framed in this case, as in several other cases, which have recently come to my notice, with, out any regard to the provisions of the Criminal Procedure Code. Section 222 (1), Criminal P.C. provides that
the charge shall contain such particulars as to the time and place, of the alleged offence, and the person if any against whom, or the thing if any, in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged.
In Section 223, Criminal P.C. it is provided that
when the nature of the case is such that the particulars mentioned in Sections 221 and 222 do not give the accused sufficient notice of the matter with which he is charged, the charge shall also contain such particulars of the manner in which the alleged offence was committed, as will be sufficient for that purpose.
Section 225, Criminal P.C. provides that
no error in stating either the offence or the particulars required to be stated in the charge, and or omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice.
I am quoting these sections in extenso because one of the points that I have to consider in this case is whether in view of the charge as framed in the case the convictions under Sections 458 and 323, Penal Code, were justified The questions put to the accused under Section 342, Criminal P.C. by the committing Magistrate were:
Q. On 25/26-12-1943 25/26-12-1943 did you commit dacoity at the house of Nek Ram in village Shamla Nagla?
Q. Why is this case then?' The learned Sessions Judge, when the case came before him, put the following questions to the three appellants other than Makkhan:
'Q. Your statement Ex. P/23 along with written statement Ex. P/29 is read over to you. Did you make these statements and are they correct?
Q. Why do the prosecution witnesses depose against you?
He put three more questions to Makkhan accused:
Q. Did you have any marpit with Nek Ram in the night between 25th and 26th December 1943?'
'Q. Did you or any one else in your presence remove the ornaments from the persons of Mt. Lachho and Mt. Katori and did you rob Nek Ram of money in his purse?
'Q. Do you want to say anything else?
3. It will be clear that none of the accused; were asked a single question relating to the charge of house-breaking of which they have been convicted. And none of the accused, other than Makhan, was asked about causing simple injury to Nek Ram. The case for the prosecution, as briefly stated, was that Pokhe had six sons, viz. Makkhan,. Nek Earn, Buddha, Kundan, Ram Sahai and Banke. They were all residents of village Shamla Nagla. Buddha, one of the sons of Pokhe, died about ten years ago leaving a widow Mt. Lachho and a daughter Mt. Katori. Mt. Lachho married Nek Ram in the Kara(c) form. Makkhan was married in Begampur and began to live there. Pokhe is said to have-contracted intimacy with the widow of one Ram Phal and began to live with her or had married her in the Karao form and was living with her and he thus came into possession of Ram Phal's holdings and decided to divide his own land between his sons. At the time of the division a dispute arose, as to whether the land should be divided into six shares or five shares. Nek Ram claimed that he was maintaining Mt. Katori, the daughter of Buddha, and the land should be divided into six shares, and it is alleged that it was agreed that the land should be divided into six shares and the sixth share should be redistributed among the five brothers equally when the liability of Nek Ram to maintain Mt. Katori ceased. Mt. Katori was married about two years before the incident and it is said that Makkhan accused started claiming redistribution of the one sixth share which Nek Ram held in excess. Nek Earn, however, resisted the claim on the ground that Mt. Katori's Gauna had not been performed and she was still, therefore, living with him and was being maintained by him.
4. It is said that in Asarh prior to the occurrence which is said to have taken place on the night between 25th and 26th December 1943, Makkhan wanted to take forcible possession of Buddha's share of land and he was resisted by Nek Ram and there was a lathi fight. Five or six days prior to the occurrence it is said that there was again a dispute about the crushing of the sugarcane crop growing on Buddha's share of the land and Nek Ram was threatened by Makkhan. As a result of these disputes, it is alleged, by the prosecution, that in the night between 25th and 26th December 1943 a party of 15 or 16 persons, headed by Makkhan, came to village Shamla Nagla, went to the house of Nek Ram and pretended that they were a police party and had come to search the house. Pokhe lives in the house of Ram Phal deceased, which is nearby, while four of his sons live in various rooms inside the Gher, the main exit of which is open and has no door leaves. Nek Ram opened the door of his room and came out and was beaten. Mt. Lachho and Pokhe intervened and they too are said to have received one injury each. The dacoits are then said to have forcibly removed the ornaments from the person of Mt. Lachho and Mt. Katori. The learned Sessions Judge has disbelieved the story of the dacoity. He, however, has believed that the appellants came to the house with the object of assaulting or attacking Nek Ram and convicted them under Sections 458 and 323, Penal Code; in the manner stated above. So far as Makkhan, appellant, is concerned it is admitted by him that there was a fight between him and Nek Ram. According to Makkhan by reason of the dispute between the two brothers there was a Panchayat on 25th in the evening and after the Panchayat the two brothers quarrelled and had a lathi fight which was exaggerated by Nek Ram into a dacoity. According to Makkhan he was all alone and had no other companions. Sohan Pal also belongs to Begumpur where Makkhan is living and is a Lodh. He admitted that he was present at the time of the Panchayat and had come to the Panchayat with Makkhan, but he denied that he had taken any part in the fight.
5. According to him his daughter was betrothed to Behari's son at the instance of Pokhe, but he had broken off the engagement; Pokhe had taken it ill as Behari was a relation of his, and that was the reason why he had been falsely implicated. Accused 3 Ram Charan is also a Lodh, but is a resident of a different village Nagla Maddha; according to him he was falsely implicated by reason of certain enmities which he mentioned in the written statement that he filed in the Court of the trial Magistrate on 27th April 1944. Dora accused, who is an Ahir and is a resident of village Kungarpur also filed a written statement in the Court of the Committing Magistrate and according to that written statement the boundary of his field adjoins that of Behari, a relation of Ram Sahai, and he had quarrels with them in this connexion. He also mentioned other causes of enmity with various people, by reason of which, it was said, that he had been falsely implicated.
6. The report of the incident was made at 5-30 A.M. at police station Tewari, circle No. 1 which is at a distance of five miles from Nagla Shamla by means of a letter in Hindi sent by Nek Ram through Ramehsri Chaukidar of the village. The names of these four accused were mentioned in the first information report. Learned Counsel for the appellants has argued that his clients were charged only with the offence of dacoity, and house-breaking is not one of the necessary ingredients of that offence, which includes robbery and extortion or attempt to commit robbery or extortion by five or more persons. His second submission is that on the findings, recorded by the learned Sessions Judge, no offence of house-breaking was established against the appellants. Japte, a prosecution witness, stated in his deposition that the fight took place in the lane, outside the house of Nek Ram, but according to the learned Counsel, even if the fight had taken place inside the outer sehan there could be no case of house-breaking, as it is admitted that the entrance to the sehan was open and there were no door leaves. A person is said to commit house-breaking under Section 445, Penal Code, who commits house trespass and if he' effects his entrance, into the house or any part of it, in any of the six ways mentioned in that section. The six ways in the section are: If he enters or quits through a passage made by himself or by any abettor of the house trespass, in order to the committing of the house trespass. There is no suggestion here that the accused made any passage through which they entered. If the case of the prosecution be true they walked into the sehan through an opening which was already there and which remains open all the time. Secondly, if he enters or quits through any passage not intended by any person, other than himself or an abettor of the offence, for human entrance or through any passage, to which he has obtained access, by scaling or climbing over any wall or building. Thirdly, if he enters or quits through any passage which he has opened in order to the committing of the house trespass. Fourthly if he enters or quits by opening any lock in order to the committing of the house trespass, or in order to the quitting of the house after a house-trespass. Fifthly, if he effects his entrance or departure by using criminal force or committing an assault, or by threatening any person with assault. Sixthly if he enters or quits by any passage which he knows to have been fastened against such entrance or departure, and to have been unfastened by himself or by an abettor of the house-trespass. Learned Government Advocate at one time suggested that the case may come under the fifth head, but then it was pointed out to him that there was no threat used at the time of entering the sehan and it is not alleged by the prosecution that the accused even entered the room when the door was opened by Nek Earn, he had to concede that the offence of house-breaking as defined under Section 445 was not complete.
7. It was then suggested by the learned Government Advocate that if the accused could not be convicted under Section 456 for house breaking they could at least be convicted under Section 448 for house-trespass. Learned Counsel appearing for the appellants, however, raised two objections. According to him the accused having been charged in the manner indicated above they could not be convicted either under Sections 458 or 448, Penal Code, the ingredients of which offences were not the same as the ingredients of an offence under Section 395. His other contention was that merely entering an open sehan like the one in question in this case was not entering a house. In support of his proposition he cited three cases before me. One is a Single Judge decision of this Court reported in Munshi v. Emperor : AIR1928All607 and two decisions of the Lahore High Court, reported in Sunder v. Emperor ('19) 6 A.I.R. 1919 Lah. 333 and Mulohand v. Emperor ('25) 12 A.I.R. 1925 hah. 279.The word 'house trespass' is defined in Section 442, Penal Code, as 'criminal trespass by entering into or remaining in any building, tent, or vessel, used as a human dwelling.' What is a building must always be a question of degree and circumstances, and it is therefore impossible to lay down a general definition. In Moir v. William (1892) 1 Q.B. 264 Esher, M.E. said 'ordinary and usual meaning of a building is a block of brick or stonework covered by a roof.' If an open piece of land is surrounded by a wall it would probably be impossible to call it a building. In Indian houses generally there is a courtyard which is not covered. It may be a matter of some difficulty in such cases to say that when a man commits criminal trespass and enters the courtyard of the house, he is not guilty of 'house trespass.' Moreover there may be eases where a man may be living in a house the roof of which has fallen down, but he has put up some sort of a shelter inside within the boundaries. In such cases too it may be difficult to say that the man has not been guilty of 'house trespass' simply because the roof of the house has fallen down. As I have already said, it would depend on the facts of each case whether the trespass has been committed of a building used for human dwelling so as to come within the definition of the word 'house trespass.' In the case before me, however, this was an outer sehan of the type mentioned in the case in : AIR1928All607 . In that case thorny bushes were placed round to fence the land off from the rest of the open space. In this case it is not clear how the land was demarcated from other land, but there may have been some sort of a kacha boundary wall which had no doors or door leaves and to reach the rooms one had to pass through this outer sehan. 'House trespass' is only an aggravated form of 'criminal trespass' inasmuch as the Legislature considered it proper to impose more severe penalty for 'house trespass' than for ordinary 'criminal trespass.' House-breaking is a more aggravated form of 'criminal trespass' and the punishment under it is severer still. In a case like the present, I do not consider that the accused could be convicted for 'house trespass' as they never entered any building in the sense in which the term is ordinarily used.
8. Coming now to the question whether a person who has been charged in the manner set out above can be convicted of an offence under Sections 458 and 323, Penal Code. The relevant sections relied upon on behalf of the prosecution are Sections 286, 237, 238 and 537, Criminal P.C. Before I come to the rulings, I want briefly to set out what I understand from these sections. Sections 236 and 237 must be read together and when there is no difficulty about the facts and it is alleged that the accused has done a single act or series of acts but they are of such a nature that it is doubtful which of several offences the accused has committed on those facts, and he is charged with having committed one of such offences, he may be convicted of a different offence. He may be convicted of the offence which he is shown to have committed although he was not charged with it. In such cases as I have already indicated the difficulty is about the application of the law. The facts have to be set out in the charge with sufficient particularity so that the accused may know what act or acts he is said to have done, and the question only remains one of law, as to what offence the act or acts constitute.
9. Under Section 238 when an accused is charged with a major offence he can be convicted of a minor offence. It is not defined anywhere as to what is a major offence and what is a minor offence. I suppose the gravity of the offence must depend upon the severity of the punishment that can be inflicted, but the major and the minor offences must be cognate offences which have the main ingredients in common, and a man charged with one offence which is entirely of a different type from the offence which he is proved to have committed, cannot in the absence of a proper charge be convicted of that offence, merely on the ground that the facts proved constitute a minor offence. For example, a man charged with an offence of murder cannot, I presume, be convicted for forgery, or misappropriation of funds, or such offences which do not constitute offences against person. The reason appears to be obvious, because the accused had no opportunity in such a case to make defence, which may have been open to him, if he had been charged with the offence for which he is to be convicted.
10. To illustrate this point with reference to the case before me, if the accused had been charged for 'house trespass' or house-breaking, he might have explained that he also had a room to himself in this gher along with his brothers, and that occasionally he used to come and stay in this room. It must be remembered that the accused's defence was that after the panchait there was an altercation and there was a fight. If he had been charged with committing 'house trespass' he may have said that the gher belonged as much to him as to his brothers and he was also in possession of his one-fifth or one-sixth share, and could therefore enter the gher as a matter of right and no question of ' criminal trespass ' could arise. To my mind therefore where an accused has been charged in the manner in which he has been charged in this case, where the facts are not set out in sufficient detail in the charge, it is impossible to convict an accused, by applying Section 238, Criminal P.C. unless the offence under which he is convicted is a necessary ingredient of the offence with which he has been charged. To the facts of this case Sections 236 and 237 do not apply at all. It is not a case where on the facts alleged there could be any doubt as to the nature of the offence,
11. As regards Section 537, Criminal P.C. that no finding, sentence or order shall be reversed on account of any error, omission or irregularity in the charge unless such error, omission or irregularity has in fact occasioned a failure of justice. The question whether such error, or omission has or has not ended in a failure of justice is again a question of fact and it will depend on the facts of each case. As I have stated above in a case where the charge is framed in detail, i.e., the accused is specifically alleged to have committed the various acts which constitute the offence, and it is found that there was an error or omission or irregularity in the charge, it may be possible to say on behalf of the prosecution that the attention of the accused was specifically drawn to the acts alleged to have been done by him, and there is therefore no prejudice to the accused; but where the facts are not put to the accused in detail, and the charge is framed in the manner in which it was framed in this case and the accused is only alleged to have committed dacoity, it is impossible to hold that it has not occasioned a failure of justice, as it is not known what explanation the accused may have given if the facts were properly put to him. I am therefore of the opinion that Section 537 is only applicable to a case where the attention of the accused is specifically drawn in the charge to the acts which he is alleged to have committed and he is specifically questioned about those acts. Their Lord-ships of the Privy Council in a case reported in Dwarkanath Varma v. Emperor laid great stress on enabling the accused to explain any circumstances appearing in the evidence against him by putting questions to him under Section 342, Criminal P.C. Their Lordships pointed out that it was not sufficient to put to the accused a general question whether there was anything else which he desired to say about the charges or the evidence but the attention of the accused should be drawn to the point which the Court considers to be a vital point against him and ask for his explanation.
12. The whole object of framing a charge is to enable the defence to concentrate its attention on the case that he has to meet, and if the charge is framed in such a vague manner that the necessary ingredients of the offence with which the accused is convicted is not brought out 'in the charge then to my mind the charge is defective. Further the whole object of enacting Section 342, Criminal P.C. was that the attention of the accused should be drawn to the specific points in the charge and in the evidence on which the prosecution claims that the case is made out against the accused, so that he may be able to give such explanation as he desires to give. In view of the vague and general nature of the charge and still more vague nature of the questions put to him I do not consider that the accused had in this case any opportunity to meet the charge of which he has been convicted. A number of cases were cited before me. It is not necessary for me to deal with them all in detail. In Queen-Empress v. Khoda Uma ('93) 17 Bom. 369 the accused was charged with the offence of committing dacoity and was convicted of theft. From the report it is clear that the charge included ingredients which could, enable the Court to commit the accused of the minor offence of theft, dacoity and theft both being cognate offences against property, and the conviction for theft was thus justified by reason of Section 238, Criminal Procedure Code.
13. In the next case in order of date, Mahomed Hossain v. Emperor ('14) 1 A.I.R. 1914 Cal. 663 Holmwood and Sherfuddin JJ. refused to convict the accused of 'house-breaking' when in the charge it was mentioned that he committed 'house-breaking' with the object of committing theft, and the object was really different. That decision depends upon its very special facts. From the judgment it appears that no criminal object was proved. In In re Muthiyalu ('14) 1 A.I.R. 1914 Mad. 425 the charge was under Section 397 and it was held that the accused could be convicted under Section 326, Penal Code. From the report it is clear that the accused were charged with robbery, and with voluntarily causing grievous hurt, and even if robbery was not proved, then it was clear that they could be convicted of voluntarily, causing grievous hurt. In Hanuman v. Emperor ('22) 9 A.I.R. 1922 All. 143 the charge was under Section 147, in which it was mentioned that the accused had committed a riot with the object of assaulting Dao, and had caused bodily injury to Dao. It was not proved that there were more than five persons who had the common criminal intent and the accused were, therefore, convicted under Section 323. That case too would clearly come under Section 238, Criminal P.C. In Raghunath Kandu v. Emperor : AIR1926All227 Mears C. J. held that a person charged under Section 34, Police Act, could not be convicted under Section 290, Penal Code, as he had no opportunity to meet the charge. The next case in order of date is a judgment of Lord Williams and S.K. Ghose JJ. reported in Mehar Sheik v. Emperor : AIR1931Cal414 and if I may say so with great respect I entirely agree with the decision in that case. The charge in that case was under Section 395, Penal Code, and their Lordships held that the conviction under Sections 448 and 323, Penal Code, was bad as the accused had no notice of the offence of which he was convicted, and he must, therefore, be held to have been prejudiced.
14. On a careful consideration of these cases I have come to the conclusion that if from the charge and from the questions put to the accused under Section 342, Criminal P.C. it be clear that the accused had no notice of the offence of which he was going to be convicted and he was not asked to explain the points on which his conviction was based, the conviction must be held to be bad and must be set aside. I have already suggested in the earlier part of the judgment that if the accused had been charged with the offence of 'house-breaking' or 'house-trespass' he might have reasonably been able to plead that he was in possession of his share in the house and therefore no question of 'trespass' could at all arise as he merely entered the outer sehan, which must be deemed to be the joint property of all the five brothers including the accused and the father.
15. As regards his conviction under Section 323, Penal Code, the accused Makkhan, as I have already said, admitted that there was a fight between him and his brother after the panchayat. The fight having been admitted between Makkhan accused and his brother, Nekram, the complainant, I was doubtful whether Makkhan could or could not be convicted under Section 323, Penal Code, even though he was not charged under that section. But it having been held by the Court below that the complainant has highly exaggerated the incident and has tried to implicate Makkhan along with other accused in a serious charge of dacoity, I do not consider that the Court would be justified in trying to piece together such materials as there may be out of the mass of falsehood spoken by the witnesses for the prosecution and base its conviction under Section 323, Penal Code, on such salvaged pieces. I, therefore, allow this appeal, set aside the convictions and the sentences and direct that the accused need not surrender to their bail.