Raman Nayar, AG.C.J.
1. The three accused persons in this case -- we are here concerned only with the first two -- were tried by the Addl. First Class Magistrate, Nedumangad on charges under Sections 323, 324 and 326 read with Section 34 of the Indian Penal Code. The learned Magistrate convicted the 1st and 2nd accused under Sections 323, 324 and 320 of the Code (presumably read with Section 34, although that was not expressly stated) and sentenced each of them to suffer rigorous imprisonment for three months for the offence under Section 326, Indian Penal Code, awarding no separate sentences for the other offences. The 3rd accused he acquitted, and that acquittal is not questioned.
On appeal, the Sessions Judge, Trivandrum, while confirming the conviction and sentence of the 1st accused, altered the conviction of the 2nd accused to one under Section 324 of the Indian Penal Code and reduced his sentence to a fine of Rs. 75/- with a default sentence of two months rigorous imprisonment. The learned Judge was of the view that Section 34 of the Indian Penal Code was not attracted. Accused 1 and 2 have come up in revision while in calendar revision, notice was issued to them to show cause 'why the conviction should not be altered to become one under Section 307, Indian Penal Code and/or sentence enhanced'.
2. It is the admitted case that the accused, who are supporters of the Communist Party, were on bad terms with P. W. 1., the victim of the alleged assault, who is a supporter of the Congress Party. Feelings became particularly embittered during the general elections held in February, 1967 in which the accused's party emerged as victors. The evidence of P. Ws. 1 and 6 shows that on the evening of the 6th May, 1967, accused 1 and 2 went to P. W. 1's tea shop, picked up a quarrel with him, and then dragged him to the yard of the shop and beat him with cudgels. Among the persons who gathered at the spot on hearing P. W. 1's cries was the 3rd accused who was carrying a knife. The 1st accused snatched the knife from the 3rd accused and made three vain attempts to stab P. W. 1 with it, P. W. 1 cleverly avoiding the blow on each occasion. The 1st accused then dropped the knife and beat P. W. 1 with his hands. P. W. 1 ran westwards in order to escape but the 1st and 2nd accused pursued him, the 1st accused picking up the knife which he had earlier dropped. The 2nd accused caught hold of P. W. 1. and pushed him towards the 1st accused who, thereupon, stabbed P. W. 1 on the right side of the chest causing, as the medical evidence shows, an incised wound 1' X 1/2' penetrating the pleural cavity. (The medical evidence also shows that, in addition to this, P. W. 1 suffered seven contusions of various sizes all over his body). P. W. 1 fell down and the accused ran away.
3. The Courts below have accepted the evidence of P. Ws. 1 and 6 as true, and we see no ground whatsoever for interference in revision with their appreciation of the evidence. That P. Ws. 2, 3 and 5 who were also examined as eye-witnesses did not support the prosecution case in full, that P. W. 6 was not a witness named in the first information, that the doctor, P. W. 7, who treated P. W. 1 (and, surprisingly, gave evidence not with reference to the contemporaneous record he must have made in the accident register or in the wound certificate issued by him but with reference to the record made in the discharge certificate, Ext. P-5, issued a week later) deposed to the effect that the stab injury suffered by P. W. 1 was on the left side of the chest whereas actually it was on the right side, are hardly grounds that persuade us to disbelieve P. Ws. 1 and 6 when the Courts below have believed them. Nor do we think that the 1st accused's plea and evidence of an alibi, or the 2nd accused's case that P. W. 1 suffered the injuries by afall on some pieces of sawn timber in the course of a scuffle, merit serious notice.
4. The doctor, P. W. 7, gave evidence to the effect that the penetrating incised wound in P. W. 1's chest was a grievous injury. Neither side asked him why. Nor did the Court and this is only illustrative of the very perfunctory and haphazard way in which the examination of this witness was conducted. But when P. W. 7 who is an export witness, said that the injury was grievous he must have had Section 320 of the Indian Penal Code in mind, and his evidence on the point is not to he rejected merely because he did not specify under which particular clause of this section the injury fell. The learned Sessions Judge was of the view that the injury must have endangered life, and having regard to the fact that it was a stab injury penetrating the pleural cavity we are not disposed to disagree. In any ease there is no substance in the contention raised on behalf of the accused that there is no evidence to show that the injury was a grievous injury and that therefore the 1st accused who caused it was guilty only of an offence under Section 324 of the Indian Penal Code.
5. In convicting the 2nd accused under Section 324 of the Indian Penal Code, the Court below regarded the weapon used, namely, a cudgel about the thickness of a man's wrist, as a weapon, which used as a weapon of offence, was likely to cause death. Here also we are not prepared to say that it was wrong. And that being so, the 2nd accused was lightly convicted under Section 324 of the Indian Penal Code.
6. Having regard to all the circumstances we do not think that we would have had much difficulty in coming to the conclusion that in stabbing P. W. 1 in the chest with a pointed knife with such force as to penetrate into the pleural cavity, the 1st accused must have been actuated by the intention to cause bodily injury sufficient in the ordinary course of nature to cause death, if not the intention to cause death. In other words, that his offence really falls under Section 307 of the Indian Penal Code. And it would appear that the learned Sessions Judge has acquitted the 2nd accused of the charge of sharing a common intention with the 1st accused on no better ground than that the evidence did not disclose that the 3rd accused shared any such common intention. But for reasons which we shall presently state, we do not think it necessary to decide whether the 1st accused should actually have been convicted under Section 307 of the Indian Penal Code or whether the 2nd accused also participated in the act done by the 1st accused and was therefore guilty of the offence committed by the latter by reason of Section 34 of the Indian Penal Code.
7. We are now exercising the powers conferred by Section 439 of the Criminal Procedure Code. These powers include all the powers of a Court of appeal with this important limitation imposed by Sub-section (4) of the Section, namely, that we cannot convert a finding of acquittal into one of conviction. We have also the additional power of enhancing the sentence. We cannot convert the acquittal of the 2nd accused by the learned Sessions Judge, of the charge under Section 326 of the Indian Penal Code, into one of conviction thereunder.
True, there is not even an implied acquittal of either the 1st or the 2nd accused of an offence under Section 307 of the Indian Penal Code -- there is no charge under that Section; nor was the magistrate who tried the accused competent to try an offence thereunder. But, unless there is conferment of such a power, a Court of appeal or revision cannot do what the trial Court itself could not have done; its duty is to do what the trial Court ought to have done and that is the limit of its power. This is recognised by Sub-section (3) of Section 439 of the Criminal Procedure Code which, while placing a limitation on the power of enhancement of the sentence conferred by Sub-section (1), at the same time, by necessary implication, and as an exception to the general rule, empowers the High Court to pass such sentence in a case tried by a second or third class magistrate as could have been imposed for the offence by a magistrate of the first class that is because the second or third class magistrate could have acted under Section 349 of the Criminal Procedure Code in which case the accused could have been awarded a sentence which a first class magistrate was competent to award for the offence. But all this presupposes that the Court which actually tried the second accused was competent to try the offence of which he is to be convicted, and there is nothing in Section 439 of the Criminal Procedure Code which authorises the High Court to convict the accused of an offence which the Court which tried him was not competent to try. True, the power under Section 439 includes the power under Section 423 of altering the finding, which power, as pointed out by the Supreme Court in G. D. Sharrna v. State of U. P., AIR 1960 SC 400, includes the power under Section 237 of convicting an accused person charged with one offence of another offenece in a case falling under Section 236. But apart from the question of prejudice which must necessarily arise when the ingredients of the two offences are different, and, particularly, when the conviction is of an offence graver than the offence charged any alteration of the finding under Section 423 cannot involve an acquittal or conviction of an offence which the Court that tried the accused was not competent to try.
8. As we have already pointed out the Court that tried the accused was not competent to try an offence under Section 307 of the Indian Penal Code. That being so two courses are open to us. One is to set asidethe conviction of the accused of the lesser offences of which they have been convicted and direct their commitment for the graver offences they appear to have committed. The second is to enhance their sentences within the permissible limits so as to be more in accord with their deserts. Having regard to all the circumstances we do not think it worthwhile to pursue the former course.
9. So far as the 2nd accused is concerned we do not think that the sentence awarded to him by the learned Sessions Judge is so lenient as to call for interference in revision -- his complicity in the stabbing done by the 1st accused has not been found. But so far as the 1st accused is concerned, we consider that the sentence of three months' rigorous imprisonment awarded to him is a miscarriage of justice even regarding his offence as only one under Section 326 of the Indian Penal Code which section provides for a sentence of imprisonment for life or imprisonment of either description for a term which may extend to 10 years. It was just good fortune that the injury he inflicted on P. W. 1 did not prove fatal, and we think a sentence of four years' rigorous imprisonment would have been appropriate. But the maximum sentence which the Court that tried the 1st accused could have awarded for the offence is rigorous imprisonment for two years and we cannot award more than that.
10. In the result while confirming the conviction recorded against both the 1st and 2nd accused and the sentence awarded to the latter we enhance the sentence awarded to the former to one of rigorous imprisonment for two years.