1. ' The three applicants alongwith one Abdul Majeed were tried and convicted for an offence under section 325/34, P. P. C. And sentenced each to one year R. I. By the Vth Extra Joint Civil Judge and F.
2. C. M.,Hyderabad. The Court of appeal acquitted Abdul Majeed, but maintained the conviction and sentence of Alimuddin; the conviction of Muhammad Hanif and Ali Muhammad was altered to one under section 323, P. P. C., and they were sentenced to three months' R. I. Each. This Revision Application was admitted for regular hearing but as the medical evidence in the case disclosed loss of eye-sight of the complainant Syed Yousuf, my learned brother Abdul Hayee Kureshi, J.. Had issued a notice to show cause why the sentence should not be enhanced which prima facie, appeared to be lenient. This judgment shall now dispose of both the revision and the notice for enhancement.
3. ' The incident that gave rise to this prosecution took place on 30-11-68 at about 5-20 p.m. Near Siro Ghat in Hyderabad and the first entry about it was made in the Roznamcha maintained at the City P. S. Wherein it was described as a non-cognizable offence under section 323/504, P. P. C. The complainant Syed Yousuf had alleged that a quarrel between Abdul Aleem and others on the one side and the sons of one Usman on the other side, was going on when he reached the place and stood over there. On seeing him the accused who were shown as three only, abused him and gave him kicks and fists blows when Sharifuddin, Abdul Hameed and one Baboo came up and rescued him. It may be mentioned that the name of Abdul Majeed was not given as accused in this report.
4. After about months i,e, on 16-1-69 the medical certificate dated 14-1-69 of complainant Yousuf son of Yaqoob Hussain was received at the abovesaid police station, on the basis of which an F. I. R.
5. Was recorded in the 154, Cr. P. C. Book. This was for an offence under section 325/34, P. P. C., and even there the names of three persons, Abdul Alim, Ali Muhammad and Hanif only were shown as accused. According to the learned counsel for the applicants the fourth person Abdul Majeed was shown as accused for the first time in the final challan put up in the Court but for doing so, no apparent reason was available in the record. It may be convenient at this stage to describe the nature of the injuries received by the complainant Yousuf which are described by the medical officer Dr. Shaikh Muhammad Iqbal as under "(1) An incised wound 1 Cm x 4 mm x 3 mm on the middle of right eye-brow.
(2) A contused wound 4 mms x 2 aims x 2 mms on the inner aspect of right eye-brow.
(3) A contused wound 5 mms x 4 mms x 3 mms on the right lower eye-lid.
(4) On the injury on eye-ball eye ball was bulged out. The conjunctive was chemised. The interior chamber hyphaemia, posterior chamber hyphaemia."
6. ' The injured had been medically examined on 30-11-68 and in the opinion of the doctor the injury No, 4 was of grievous in nature. All the injuries had been, in his opinion, caused by some hard blunt substance. Tile medical officer produced the certificate of the patient which shows that the injured was discharged from the hospital on 31-12.68. Still for some reason the certificate was not sent to the police station till 14-1-69. The F. I. R. Was recorded again two days thereafter. It is pointed out that the applicants alongwith the acquitted accused Abdul Majeed were first convicted for an offence under section 324, P. P. C. But the said conviction was set-aside and retrial had been ordered, which again resulted in the abovesaid conviction. The appellate Court acquitted co- accused Abdul Majeed and his name did not appear in the F. I. R. And also that he raised a plea of alibi which he proved by examining a witness in defence. A particular feature of this case was that the prosecution had failed to examine witnesses that were named in the F. I. R. Except one Baboo, and had examined witnesses who were not named in the F. I. R. But the appellate Court while assessing the evidence placed reliance on the evidence of the complainant and Baboo alone and discarded those, whose names did not appear in the F. I. R. The Additional Sessions Judge, however, was of the opinion, which opinion was shared by the prosecutor appearing in the appeal, that there was no evidence on record from which it could be inferred that applicants Ali Muhammad and Haneef shared the common intention of causing any grievous hurt to the complainant. That part was attributed to applicant Alimuddin. The conclusion therefore was that these two applicants could be held liable only for their individual act and that was only giving of fists and kicks blows, which would amount to causing a simple hurt punishable under section 323, P. P. C.
7. ' The learned counsel for the applicants has in the first place attacked this finding, of the appellate Court and has contended that this finding amounted to an acquittal for the offence under section 325, P. P. C. On the basis of a clear finding that section 34, P. P. C. Was not applicable to the facts relating to the two applicants. The two applicants could be convicted for an offence under section 323, P. P. C. Only, if there had been a charge of this offence framed against them and they were tried for the same. As the applicants were not so charged and tried, the learned counsel contended, the appellate Court had no power to record a conviction under that section against the two applicants. In these circumstances there could also be no question of altering the conviction to one under section 323, P. P. C. As the appellate Court has done.
8. ' The learned Assistant A.-G. Has taken me through the record which shows that the charge framed as against all the applicants, including the acquitted accused Abdul Majeed was under section 325/34, P. P. C. And section 323, P. P. C. Was not mentioned at all. He also therefore conceded to the contention of the learned counsel for the applicant, that in view of a clear finding of the appellate Court that, there was no evidence of a common intention in this case, the finding against the two applicants amounted to an acquittal with regard to the offence with which they were charged.
9. Having thus acquitted them of the offence for which they were tried, the question that arose was whether the appellate Court could convict them for an offence with which they were not charged and for which they were not tried at all ? This question would involve a consideration of a further question whether the trial Court itself could have convicted the two applicants for an offence under section 323, P. P. C. Although it had charged them with an offence under section 325/34, P. P. C. The learned Assistant A..G. Very candidly replied the two questions in favour of the applicants.
10. According to him, on facts the applicants were being tried for the injury that is alleged to have been caused by the applicant Alimuddin and which was of a grievous nature. For this they were accused only on account of the extension of the common intention by application of section 34, P.
11. P. C. And not otherwise. They were thus not tried for the injuries that they were alleged to have caused by giving fists and kicks blows. On a general principle of law, therefore, they could not be convicted for the offence of giving any minor injuries, for an accused person should be first charged and tried for every distinct offence that he is alleged to have committed. Now the powers exerciseable by an appellate Court in hearing an appeal are described in section 423, Cr. P. C., and the relevant part of that action for the purpose of the question stated above is sub-clause (b) of clause (1) which reads as under :- "(b) in an appeal from a conviction, (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, or with or without altering the finding, reduce the sentence, or, (3) with or without such reduction and with or without altering the finding, alter the nature of the sentence, but, subject to the provisions of the section 106, subsection (3), not so as to enhance the same."
12. ' And according to the learned Assistant A -G. While construing the powers of altering a finding in exercise of the powers quoted above, the provision relating to the powers of the trial Court itself becomes at once a relevant consideration; for the appellate Court would alter the finding only in a case where the trial Court itself would have done the same. He, therefore, referred to sections 237 and 238 (1) and (2) of the Cr. P. Code, which read as under :- "237.-(1) If in the case mentioned in section 236, the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of that section, he may be convicted of the offence which he is shown to have committed, although he was not charged with it."
13. "238.-(l) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it.
(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it."
14. ' The learned Assistant A.-G. In the wake of the above provisions of law conceded to the position that upon facts of the present case the two offences I e. Of causing grievous hurt and that of simple hurt were distinct offences. The grievous hurt was on the allegation of giving a blow with a hard blunt substance on the eye of the complainant while the simple Burt was on account of the allegation of giving fists and kicks to him. This, therefore, is not a case of a major and minor office as the applicants were definitely not charged with what specifically they were alleged to have done. The offence under section 325 read with section 34, P. P. C. Could not be substituted by an offence under section 323, P. P. C. The applicants were meeting with the case of prosecution based on the allegation of common intention. That case could not be substituted by the appellate Court by convicting for an offence not involving the ingredients of common intention. He has referred me to the case of Arbellow and others v. The State (1) where it was observed :- "The powers of the appellate Court in an appeal against a conviction are given under section 423 (b)(2). It is not denied that the appellate Court could alter the finding but such alteration has to be within the frame-work of the powers given under Criminal Procedure Code. Section 423 (b)(2) is the only section which empowers an appellate Court to alter the finding and convict an accused for an offence other than the offence charged, but only when the facts are proved which reduce the offence charged to a minor offence."
15. ' In support he has also referred me to the case of Sultan Ahmed v. The State (2) where it has been observed :- "The principle embodied in section 238 (2), Cr. P. C. That a person may be convicted of a minor offence where he is charged with a major offence and facts are proved which reduce the major offence to a minor offence, applies when the graver charge gives to the accused notice of all the circumstances going to constitute the minor offence, but when this is not so and the circumstances embodying the major charge do not necessarily, and according to the definition of the offence, constitute the minor offence also, the principle no longer applies. Notice of the graver charge does not in such cases necessarily involve notice of all that constitutes the latter offence."
16. In the light of the above discussion, it becomes clear that since the two applicants were charged and tried for an offence, the facts of which did {{FOOT NOTE}}
(I) PLD 1962 Kar. 858 (2) PLD 1960 SC 173 {{FOOT NOTE}} not include the offence for which they were convicted by the Court of appeal, the said conviction is liable to be set-aside. Moreover, the material evidence does not show the existence of any such injuries on the complainant. They are, therefore, acquitted, and the notice for enhancement, which was given to these two applicants alone is also discharged.
17. ' Dealing with the case of applicant Alimuddin, the learned counsel has referred me to the evidence of the complainant and pointed out that the enmity between the two was admitted. There had been prior criminal and civil cases also. In his own words the complainant said: "Myself and the accused are at daggers drawn since many years." The stick with which the applicant is alleged to have caused the grievous hurt was produced by the complainant himself before the police on 17-1- 69 i,e, after a lapse of about a month and a half. The complainant hall attempted to involve as many persons as possible, including Abdul Majeed whose alibi was proved and he was acquitted.
18. The discrepancies in the F. I. R. And his subsequent statements are of a serious nature, as even the injury to his eye is not mentioned in the first entry of his complaint. The allegation of applicant bringing the seroon of the cot and giving the blow on his eye is completely missing in that. The eye-witnesses of the incident mentioned in the F. I. R. Have not been examined. In his submission all these factors have not been given due consideration by the Courts below and the evidence has not been properly appreciated. The learned Assistant A.G. Also conceded that in view of these glaring facts, it was not safe to place reliance on the evidence of the complainant. There is no independent corroboration of his statement. The complainant is admittedly an ex-police officer and had been serving at Hyderabad also. The relationship between him and the applicants has been far from cordial, and he has obviously shown a tendency of exaggerating facts in his evidence. In view of this situation his evidence required a more detailed scrutiny and also independent corroboration before reliance could be placed upon the same. The Courts below have not examined the reliability of this witness, whose evidence is not free from doubt.
19. ' As no implicit reliance can be placed on the evidence of the prosecution, the conviction of this applicant Alimuddin is also set aside.
20. ' In the result, this application is allowed and the conviction of all the applicants is set aside.