Prinsep and Hill, JJ.
1. The appellant was sued by Sajeewan Ojha in the Munsif's Court at Buxar for possession of a strip of land. The suit was what is known as a boundary suit, as their holdings adjoined and the appellant Lala Ojha is said to have encroached on the lands of Sajeewan. At the trial of that suit, Sajeewan produced a copy of a plaint of a suit instituted four years previously in 1892 by Lala Ojha regarding the same land so as to show that he did not then claim the land in suit. Lala Ojha's pleader disputed the correctness of this copy and asked the Munsif to send for the original and he produced another copy of the plaint given to him with his brief by Lala Ojha, purporting to show that in the former suit his client claimed these very lands as indicated by the boundary stated in the words: We Khoridan darakhtan muddai. The plaint was accordingly sent for, and it was found that these words had been interpolated. The Munsif accordingly directed Lala Ojha to be prosecuted. He has now been convicted by the Sessions Judge, in concurrence with the Assessors, of an offence under Section 196 of the Indian Penal Code, and an attempt to commit an offence under Section 471.
2. In appeal the learned Counsel relies principally on objections to the conviction of the appellant of these particular offences. There can be no doubt that the original plaint did not contain these words, and that these words were subsequently inserted. It is further clear that the introduction of these words was made recently, and certainly not during the trial of that suit, for we find in the decree of that suit a similar interpolation, and, lastly, that in his application for execution of his decree Lala Ojha did not enter these particular words. The certified copy of the plaint produced by Sajeewan Ojha, which does not contain these words, was made on the 30th January 1897, and we have the evidence of the copyist as to the correctness of that copy, as the original document was then before him. The other copy, which was produced by the appellant, was made in April. It seems, therefore, clear that the alteration of the plaint was made some time between these two dates. On these facts, it is for us to consider whether the appellant has been properly convicted. The alteration undoubtedly was for his benefit, and there can be no doubt that it was either made by him or that he caused it to be made for the purpose of the second suit. He has been convicted, first under Section 196 of the Indian Penal Code of corruptly attempting to use as true and genuine evidence which he knew to be false or fabricated, and he has also been convicted under Sections 511 and 471 of attempting to use fraudulently as genuine a document which he knew or had reason to believe to be a forged document. It was contended by learned Counsel on his behalf that he did not so use the plaint, inasmuch as he did not himself cause the plaint to be produced in the Munsif's Court, nor did he instruct his pleader to ask to have it sent for, the petition to that effect having been made by the pleader and not by the appellant. It seems to us, however, that having, as we find he did, given his pleader a copy of a false document, that is to say, a copy of the plaint after it had been falsified by the interpolation already mentioned, for the purpose of using it in the trial of his suit he intentionally and fraudulently made use of the fabricated plaint by misrepresenting or causing to be misrepresented in the copy that the plaint as presented by him and used in the trial of that suit, was as set out in that copy. It seems to us immaterial for the purposes of the present trial whether the appellant himself asked the Court to send for the plaint and to use it for the purposes of the suit then under trial, or whether he used it fraudulently by means of a copy given to his pleader with a brief and produced under his instructions in the course of the trial. The object was clearly by means of this copy fraudulently to use as genuine with its interpolations, knowing that in that state it was a forged document. Mr. Boy contends that if the appellant has not been properly Convicted of 'attempts,' the findings cannot be altered, because they would be for a graver offence for which his client has not been tried, and that the appellant is entitled to a new trial.
3. There is no doubt some authority for this. In the matter of Dwarka Manjhee (1880) 6 C.L.R., 427 appellant had been convicted under Section 143 of being a member of an unlawful assembly, and was on appeal to the Sessions Judge convicted of rioting, an offence of a graver character with which he bad not been charged at the trial. The learned Judges of the High Court on revision held that this was ultra vires since the accused should have an opportunity of defending himself on a charge of the offence of rioting before he could be properly convicted of that offence. That was a case under the Code of 1871, in which the powers of this Court as a Court of Revision were differently expressed. As a matter of principle we agree with this view. Section 423 of the Code of 1898 declares that 'on an appeal from conviction the Court of Appeal may (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, &c;, &c;,' and the Code of 1882 was similar in this respect. It would obviously be improper and unfair to an accused that on his appeal he should be convicted of a more serious offence to which he had never pleaded on the trial, and there are many instances on which the injustice of such a course would be so patent that we need not mention them. This would particularly be so if the offence which the Appellate Court might consider to be established was not cognate to the offence of which be had been tried and convicted, and it would also be so, if there were circumstances of aggravation of an offence to which the accused had not pleaded. But there are exceptions to this rule. Some of these are referred to in Sections 236, 237 and 238 of the Code of Criminal Procedure, so that a person who has been charged only with theft may be convicted of receiving stolen property or criminal breach of trust or cheating though he may not have been charged with any of these offences; and if charged with any offence he may be convicted of an attempt to commit that offence though he may not have been charged with an attempt. So also if an accused has been charged with an offence in an aggravated form he may be convicted of a minor offence which is included in the more serious offence, though he may not have been charged with such offence. As another instance may be mentioned a case in which the prosecution has established certain acts constituting an offence, and the Court has misapplied the law to those acts by charging and convicting him for an offence other than that for which he should have been properly charged on proof of commission of those acts. Here, if notwithstanding this error the accused has by his defence endeavoured to meet the accusation of the commission of those acts, understanding the charge to mean an offence arising out and made up of those acts, his conviction for the offence which those acts properly constitute may be maintained, if the accused has not been prejudiced by the alteration of the finding. It seems to us that such an error is one of form rather than of substance, and the alteration by an Appellate Court of the charge or finding to the more serious offence would not necessitate a retrial expressly on a charge of that offence. And it is so in the present case. Here the acts found by the Magistrate, for which he was committed for trial by the Sessions Court, for which he was tried by that Court, and defended himself, and which have been raised for our consideration on this appeal, are all one and the same, and on this point as the Court of Appeal we do not differ from the lower Court that the accused has committed them. The only difference is that as a Court of Appeal we think that these acts constitute the substantive offence rather than an attempt of which he has formally been charged and convicted. Consequently, so far as the actual trial, the accused has not been prejudiced. He has known the acts of the commission of which he was accused, and he has endeavoured to show that they were not committed by him, and that he was in no way responsible for them, if they were committed, but he has failed. Under such circumstances no possible good could arise from a retrial. On the other hand, a retrial would be attended with much inconvenience and waste of time, and would not be necessary in the interests of a proper administration of justice. This point does not seem to have ever before been raised and fully considered in any reported case, though there are some cases which are relevant. We may refer to In the matter of the petition of the Government Pleader (1874) 7 Mad. H.C. 339, where the Madras High Court held that a conviction of a particular offence under the local salt law might have been altered by the Appellate Court to a conviction under another section of that law. So in Queen v. Tarinee Churn Chuttopadhya (1867) 3 W.R. Cr., 3, where the appellants had been wrongly convicted as abettors instead of as principals this High Court would not interfere.
4. In Beg. v. Raghoji bin Kanoji (1867) 3 Bom. H.C. 42, the accused was wrongly convicted of cheating by personation, whereas he should have been convicted of furnishing false information, and the Bombay High Court refused to interfere because the accused had not been prejudiced.
5. The appeal is dismissed.