S.K. Kader, J.
1. The appellant has been convicted by the Court of Session KozM-fcode, for an offence punishable tinder Section 802 of the Indian Penal Code and sentenced to imprisonment for life.
2. The incident was on the night of November, 23, 1975 sometime between 8 p.m. and 9 p.m., at a place, on the northern corner of the property of one Thomas, within the limits of Kuttiadi Police Station. Thomas, the deceased in this case, aged SQ, was a farmer residing with his wife Rosa (P. W. 3) and son Jose (P. W. 2) in Maruthonltara in Badagara Taluk. Pocken (P. W. 1), Luis (P. W. 4), Kuttappan alias Chacko (P. W. 5) and the appellant 'herein are said to he neighbours of the deceased residing in the same locality. Luis was running a provision shop at Mullankunnu Bazaar. On trie date of occurrence at a'bout 7.30 p.m., P. W. 4, P. W. 5, Thomas (the deceased,) and the appellant had been to a nearby arrack shop and all of them consumed arxack. All the four then together left the arrack; shop and were returning to their respective houses. On reaching near his 'house, P. W. 4 parted their company and went to his house. P. W. 5, the deceased and the appellant proceeded further till they reached near the house of the appellant, when the appellant took leave of P. W. 5 and the deceased and went to his house. Thereafter P. W. 5 alone was in the company of the deceased. After covering some distance and when they reached near a lane proceeding in the direction of the house of P. 'W. 5, P. W. 5 went to hig houae w%ile the deceased proceeded along the pathway northwards. P. 'W. 1 with a lighted country torch in his hand was going m search of Ms son who did no1 return from the place of his work even after 8 p.m. On 'blue way, foe saw the body of Thomas 'lying ma tfche foaiak .otf .& small carnal i(hodm teaowaa as Cfaeedi-thode) at about 9 p.m. on the same night After conveying AnferJnatiQffl of tMs to the paternal .uoacte of the deceased, iP. W. i went to Kutftiadi Police Station asm tfee same might ;amd laid tike fast imtfornuatdan statement (ffix. PD), before P. W. 12, ffead Constable, who registered a case on that basis. Hk next day, the Sub-Inspector of Police (P. W. IS) visited the place of occurrence, held inquest over the dead body, prepared inquest report (Ex. P14) and uestioned witnesses. P. W. 6, doctor, Tutor in Forensic Medicine Medical College, Calicut, held autopsy over the dead body and issued the post-mortem certificate (Ex. P4). The appellant was arrested by P. W. 14, Detective Inspector (C. B. I., C. I. D.) and on the basis of the information given by the appellant, P. W. 14 recovered M.O.I, purse with M.O. 7 (series) currency notes to the value of Rs. 1000/-wnder mahazar, Ex. P9, attested by P. W. 9 Raman Nair and P. W. 10, Village Assistant.
3. The plea of the appellant was one of complete denial.
4. The learned Sessions Judge relying on the recovery of M.O.I, and the currency notes convicted and sentenced the appellant as aforesaid.
5. The conviction and sentence passed against the appellant are strongly assailed by the counsel appearing for the appellant. It was contended that the evidence regarding the recovery of M..O-1. and M.O. 7 series is quite unsatisfactory and that there is no evidence to connect the appellant with the alleged commission of the offence of murder.
6. There are no eye-witnesses to the occurrence and the case entirely depends upon circumstantial evidence. The factum of the death of Thomas as a result of certain injuries sustained by him on the night of occurrence due to strangulation is not disputed. This fact has also been conclusively proved by the medical evidence in the case. P. W. 6, doctor, who held autopsy over the dead body is of the opinion that Thomas died due to asphyxia as a result of strangulation.
7. The following are the circumstances relied on by the prosecution to sustain the conviction and sentence passed against the appellant:
(1) The medical evidence showing that Thomas died of asphyxia due to strangulation. ;
(2) The appellant was financially in very strained circumstances.
(3) He was one of the two persons who was last seen with the deceased.
(4) The recovery of M.O.I, and M.O. 7 series on the mformation furnished by the
(5) M.O.I, was identified by P. W. 2 as the purse belonging to Thomas.
8. We have already discussed the medical evidence and found that the death of Thomas was due to asphyxia as a result of strangulation, possibly by throttling. There is no relible evidence that the appellant was at the material time in need of money or was financially in very strained circumstances. The next circumstance pressed against the appellant is that he was one of the two persons last seen in the company of the deceased. This is not at all sufficient to connect the appellant with the commission of the crime. There is no evidence that deceased Thomas was last seen alive in the company of the appellant at the scene of offence or near about the scene of offence. On the other hand, the positive evidence is that it was in the company of P. W. 5 that Thomas was seen last alive. The remaining item of evidence is an important piece of circumstantial evidence in the case, and that is the recovery of M.O.I, and M.O. 7 series on the information furnished by the appellant. P. W. 14, Detective Inspector of Police, has sworn to the circumstances under which the appellant was arrested and also to the information furnished by the appellant which led to the recovery of M.O. 1 and M.O. 7 series under mahazar Ex. P9. The evidence given by P. Ws. 9 and 10, the attestors in the mahazar, and the recovery of the articles corroborate the evidence of P. W. 14.
9. P. Ws. 2 and 3 have deposed that on the date of occurrence, while the deseas-ed left his house two hours prior to the occurrence, he was having M.O.I, purse containing currency notes with him and that he had kept it in his trouser pocket. Both P. Ws. 2 and 3 have identified the purse M.O. 1 as belonging to deceased Thomas. But there is no evidence that the appellant was aware or had knowledge that the deceased was a person who used to carry money with him whenever he goes out or that the deceased was in possession of a substantial amount on the night of the occurrence. There is also no evidence that this purse M.O. 1 was with the deceased either at the time while he was in the arrack shop or while he was returning home in the company of P. W. 4, P. W. 5 and the appellant.
The fact that M.O. 1 and M.O. 7 series were found in. the thatched roof of the house of the appellant and the same were recovered under a mahazar by P. W. 14 is (proved by the evidence of P. W. 14 and others. It has come out in evidence that the house in question belongs to the father of the appellant and the appellant is only one of the residents in the house along with his parents. The statement said to have been given by the appellant is Ex. P16 and the admissible portion of the statement is only to the effect that he will point out the purse and the money. This can only show that the appellant had knowledge of the place where these articles were kept. No doubt, M.O.I has been identified by the son of the deceased as the purse belonging to his father, but a portion of that purse had been charred or burnt, P. Ws. 2 and 3 stated that there was no such burning on the purse when Thomas was possessing it. There is also no explanation as .to how a portion of M.O.I, was burnt. In this regard it is significant to note that although P. W. 2, the son of the deceased was questioned at the time of inquest, he had no case then that Thomas was in the habit of carrying money kept in a purse and that on the date of occurrence when he left, he was having that purse with him. According to him, he came near the dead body on the same night on receiving information. He had no case at that time that the money-purse which the father had carried with him when he left the house was missing. These are circumstances which may throw some doubt on the evidence of P. W. 2 regarding the identification of M.O.I. Even if it is assumed that M.O.I, belonged to the deceased, the recovery of M.O.I. by itself from a house where the appellant was only one of the residents is not sufficient to connect him with the commission of murder. There is no other reliable item of evidence from which we can reasonably and safely conclude that the appellant was responsible for the murder of Thomas or that he came into possession of M.O.I, and M.O. 7 series after committing murder.
The prosecution has no case that the appellant was absconding. The subsequent conduct of the appellant is not inconsistent with his innocence. Admittedly, he was one of the two persons questioned at the time of inquest.
On a careful and anxious consideration of the items of evidence relied on by the prosecution bearing in mind the well settled principles relating to the appreciation of circumstantial evidence and the presumption available Under Section 114 of the Evidence Act, we feel it is unsafe to convict the appellant for the offence of murder merely on the basis of the recovery of M.O.I, purse containing currency notes.
9A. The learned Public Prosecutor relying on Sections 221 and 222 of the Code of Criminal Procedure, 1973 pressed for a conviction of the appellant for an offence punishable Under Section 411 of the Indian Penal Code on the ground that there is acceptable evidence that M.O.I, and M.O. 7 series were recovered from a place pointed out by the appellant. We may say at once that neither Section 221 or Section 222 applies to the facts of the case.
10. The prosecution had no case at the commencement of the trial that the appellant had committed robbery or theft or any other cognate offence. The charge against the appellant is specific and categoric and he has been charged only for an offence punishable Under Section 302 I.P.C. There are no facts or particulars alleged in the charge showing or indicating that the appellant had committed any offence other than murder. Sub-section (2) of Section 221 is controlled by Sub-section (1) as is clear from the opening words 'If in such a case' in Sub-section (2). While Sub-section (1) of Section 221 corresponds with Section 236; Sub-section (2) corresponds with Section 237 of the Code of Criminal Procedure, 1898. The general rule is that an accused person cannot be convicted of an offence in the absence of a specific charge in that respect; but Sec-Itions 221 and 222 of the Code are the two exceptions to the said rule. The omission to frame a separate and specific charge in cases not covered by the above sections will be an incurable irregularity. jThe framing of a charge is a vital and important part of the trial. The omission to frame a charge is a serious defect which should be vigilantly guarded against, as in some cases it may be so serious that by itself it would vitiate a trial and render it illegal, prejudice to the accused being taken for granted. It is clear from Section 221 that the said section applies only to a case where a single act or series of acts alleged against an accused is of such a nature that it is doubtful which of the several offences, the facts which can be proved will constitute. This doubt or uncertainty, no doubt, arises at the commencement of the trial when the charge has been framed against the appellant. And this doubt can be resolved at the end of the trial. The learned State Prosecutor relied on Sub-section (2) of Section 222 of the new Code. That also, according to us, has no application to the present case. This section corresponds to Section 238 of the old Code. Belying on this Sub-section, it is argued that the facts proved in the case constitute a minor offence. The minor offence contemplated under Sub-section (2) of this section must be a cognate offence in relation to the main offence. In a case where the minor offence disclosed in the evidence is one, the ingredients of which are entirely different from the main offence with which the accused was charged, he connot be convicted in the absence of a specific charge for the minor offence proved by invoking the aid of Sub-section (2) of Section 222 of the Code. The major and minor offences must have the main ingredients in common. An accused charged with one offence which is entirely of a different type from the offence which i proved to have been 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. Where two offences involve different elements and different questions of facts, one offence cannot be said to be minor to the other. It is with reference to the main or major offence referred to in Section 222 of the new Code that an offence has to be treated as minor within the meaning of Sub-section (2) of that section. We are fortified in our views in this regard by decisions of various High Courts. (See Raghunath Singh v. State : AIR1950All471 ; Kanhaiyalal v. Feliram: AIR 1952 Madh B 15 : 1952 Cri LJ 169; Makkhan v. Emperor, AIH 1945 All 81 : 46 Cri LJ 750; and Bheemappa v. State of Mysore 1971 Cri LJ 125 (Mys)). This apart, the recovery of M.O. l and M.O. 7 series has been treated and used by the prosecution only as a piece of evidence in support of the murder charge. In the absence of the charge for robbery or theft, the appellant cannot be convicted Under Section 411 I.P.C. and in the circumstances of the case, it cannot be said that he has not been prejudiced. The necessary ingredients of the said offence also have not been proved beyond reasonable doubt.
For the reasons stated above, this appeal has to be allowed and we hereby do so. The conviction and sentence passed against the appellant are set aside and he is acquitted. He will be set at liberty forthwith, if not required in connection with any other offence.