# Sur11ipal Singh and Others v. The State

- **Citation:** [1952] 1 S.C.R. 202
- **Court:** Supreme Court of India
- **Decided:** 1950-06-15
- **Case number:** Criminal Appeal No. 30 of 1951
- **Bench:** SAIYID FAZL Au, VrvIAN BosE
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sur11ipal-singh-and-others-v-the-state-236
- **Pages:** 6

## Headnote

Criminal Procedure Code (Act V of 1898), ss. 237, 342-lndian
Penal Code (XLV of 1860), ss. 307, 326-Charge undei· '· 307Conviction under s. 326-Legalt"ty-Failure to examine accused fully
-When vitiates trial-Necessity of prejudice to accused.
The appellant who inflicted serious injuries on another was
charged under s. 307 of the Indian Penal
Code
but
the jury
returned a verdict of guilty against him under s. 326 of the Penal
Code, and the Sessions Judge, accepting
the
verdict,
convicted
hiin under s. 326.
It was contended that the conviction
was
illegal inasmuch as the offence under s. 326 was not a minor
offence with reference to the offence under s. 307. Held, that as
~
it was open to the Sessions Judge, on the facts of the case, to
charge the appellant alternatively under ss. 307 and 326 of the
Code the case was covered by s. 237 of the Criminal Procedure
Code, and the co)lviction under s. 326 of the Penal Code was pro.
per, even though there was no charge under the section.
Begu v. King Emperor (52 I.A. 191) applied.
In order that a conviction may be set aside for non-compliance
with the provisions of s. 342 of the Criminal Procedure Code, it
is not sufficient fur the accused merely to show that he was
not
fully examined as required by the section, but he must also show
that such examination has materially ·prejudiced him.
..
-
-\
SUPREME COURT REPORTS
203
CRIMINAL
APPELLATE
JuRISDICTION:
Criminal
Appeal No. 30 of 1951. Appeal from the Judgment and
Order of the High Court of Calcutta (HARRIES C. J. and
LAHIRI J.) dated 15th June, 1950, in Criminal Appeal
No. 71 of 1950 and Revision No. 295 of 1950.
S. N. Mukherjee, for the appellant.
B. Sen, for the respondent.
1951. December 14. The Judgment of the Court
<las delivered by
FAzL Au J.-This is an appeal against the judgment of the High Court at Calcutta upholding the
order of the Sessions
Judge of Midnapore convicting
the appellant under section 326 of the Indian
Penal
Code
and sentencing
him to
3 ' years' rigorous
imprisonment.
The prosecution case against the appellant may be
shortly stated as follows :-The appellant and the injured person, Kumad Patra, are first cousins, and they
·live in a village called Andaria, their houses being only
3 or 4 cubits apart from each other.
They had a dispute about a pathway adjoining their
houses, which
led to a tank, and they quarrelled about it on the 11th
July, 1949. Two days later, on the 13th July, when
Kumad Patra was washing his hands at the brink of
the village tank, the appellant came from
behind
and
inflicted on him 17 injuries, with the result that two
of his fingers had to be amputated and a piece of bone
had to be extracted from his left thumb.
The policebeing illiior,med, sUarted investiigation and subm.iitted
a
charge-sheet against the appellant who was
finally
committed to the Court of Sessions and tried by the
Sessions Judge and a jury.
He was charged
under
section 307 of the Indian Penal Code, but the jury re-
. turned a verdict of guilty against him under section 326
of the Penal Code, and the learned Sessions
Judge
accepting the verdict convicted him under that section·
as aforesaid. When the matter came up in appeal to•
· the High Court, a rule was issued on the appellant
calling upon him to show cause
why
his
sentence7-3 s.c. India/71
'195)
Bijjoy Chand
Potra
v.
The State
Faz/ Ali!.
1951
Biiioy Chand
Potra
Y.
The State.
Fazl Ali /.
204
SUPREME COURT REPORTS
[1952]
should not .he enhanced, but, at the final hearing, the
rule was discharged, his appeal was dismissed, and his
conviction and the original sentence were upheld.
The first point urged on behalf of the appellant before us is that, inasmuch as there was no charge under
section
326 of the Penal Code and the offence under
that section was not a minor offence with reference to
an offence under section 307 of the Code, he could not
have been convicted under the former section. This
argument however overlooks the provisions of
section
237 of the Criminal Procedur

## Text

1951
Sur11ipal Singh
and Others
v.
The State.
Faz/ Ali /.
1951
D•v:. 14.
202
SUPREME CQURT REPORTS
[19521
though 25 persons
were placed on trial on identical
evidence, the State Government
preferred an
appeal
only against 5 of them on the sole ground that
the
acquittal was against the weight of evidence on the
record.
In the result, we allow the
viction and sentences of the
them of all the charges.
appeal, set aside the conappellants
and
acquit
Appeal allowed.
Agent for the appellant: P. K. Chatterjee
Agent for
the respondent: I. N. Shroff for P. K.
Bose.
BIJJOY
CHAID POTRA
v.
THE STATE
[SAIYID FAZL Au and VrvIAN BosE JJ.]
Criminal Procedure Code (Act V of 1898), ss. 237, 342-lndian
Penal Code (XLV of 1860), ss. 307, 326-Charge undei· '· 307Conviction under s. 326-Legalt"ty-Failure to examine accused fully
-When vitiates trial-Necessity of prejudice to accused.
The appellant who inflicted serious injuries on another was
charged under s. 307 of the Indian Penal
Code
but
the jury
returned a verdict of guilty against him under s. 326 of the Penal
Code, and the Sessions Judge, accepting
the
verdict,
convicted
hiin under s. 326.
It was contended that the conviction
was
illegal inasmuch as the offence under s. 326 was not a minor
offence with reference to the offence under s. 307. Held, that as
~
it was open to the Sessions Judge, on the facts of the case, to
charge the appellant alternatively under ss. 307 and 326 of the
Code the case was covered by s. 237 of the Criminal Procedure
Code, and the co)lviction under s. 326 of the Penal Code was pro.
per, even though there was no charge under the section.
Begu v. King Emperor (52 I.A. 191) applied.
In order that a conviction may be set aside for non-compliance
with the provisions of s. 342 of the Criminal Procedure Code, it
is not sufficient fur the accused merely to show that he was
not
fully examined as required by the section, but he must also show
that such examination has materially ·prejudiced him.
..
-
-\
SUPREME COURT REPORTS
203
CRIMINAL
APPELLATE
JuRISDICTION:
Criminal
Appeal No. 30 of 1951. Appeal from the Judgment and
Order of the High Court of Calcutta (HARRIES C. J. and
LAHIRI J.) dated 15th June, 1950, in Criminal Appeal
No. 71 of 1950 and Revision No. 295 of 1950.
S. N. Mukherjee, for the appellant.
B. Sen, for the respondent.
1951. December 14. The Judgment of the Court
<las delivered by
FAzL Au J.-This is an appeal against the judgment of the High Court at Calcutta upholding the
order of the Sessions
Judge of Midnapore convicting
the appellant under section 326 of the Indian
Penal
Code
and sentencing
him to
3 ' years' rigorous
imprisonment.
The prosecution case against the appellant may be
shortly stated as follows :-The appellant and the injured person, Kumad Patra, are first cousins, and they
·live in a village called Andaria, their houses being only
3 or 4 cubits apart from each other.
They had a dispute about a pathway adjoining their
houses, which
led to a tank, and they quarrelled about it on the 11th
July, 1949. Two days later, on the 13th July, when
Kumad Patra was washing his hands at the brink of
the village tank, the appellant came from
behind
and
inflicted on him 17 injuries, with the result that two
of his fingers had to be amputated and a piece of bone
had to be extracted from his left thumb.
The policebeing illiior,med, sUarted investiigation and subm.iitted
a
charge-sheet against the appellant who was
finally
committed to the Court of Sessions and tried by the
Sessions Judge and a jury.
He was charged
under
section 307 of the Indian Penal Code, but the jury re-
. turned a verdict of guilty against him under section 326
of the Penal Code, and the learned Sessions
Judge
accepting the verdict convicted him under that section·
as aforesaid. When the matter came up in appeal to•
· the High Court, a rule was issued on the appellant
calling upon him to show cause
why
his
sentence7-3 s.c. India/71
'195)
Bijjoy Chand
Potra
v.
The State
Faz/ Ali!.
1951
Biiioy Chand
Potra
Y.
The State.
Fazl Ali /.
204
SUPREME COURT REPORTS
[1952]
should not .he enhanced, but, at the final hearing, the
rule was discharged, his appeal was dismissed, and his
conviction and the original sentence were upheld.
The first point urged on behalf of the appellant before us is that, inasmuch as there was no charge under
section
326 of the Penal Code and the offence under
that section was not a minor offence with reference to
an offence under section 307 of the Code, he could not
have been convicted under the former section. This
argument however overlooks the provisions of
section
237 of the Criminal Procedure Code.
That
section,
after referring to section 236 which provides that alternative charges may be drawn up against an accwed
person where it is doubtful which of several offences
the facts -which can be proved will constitute,
states
JIS follows :-
"If ...... 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."
There can be no doubt that on the facts of this case,
it was open to the Sessions Judge to charge the appellant alternatively under sections 3W and 326
of
the
Penal Code. The case
therefore
clearly
falls
under
section 237 of the Criminal Procedure Code, and the
appellant's conviction under section 326
of the Penal
Code was proper even in the absence of a charge.
In Begu v. The King Emperor(1 ) the Privy Council
had to deal with a case where certain persons were
charged under section 302 of the Penal Code, but were
convicted under section 201 for causing the disappear-
.ance of evidence.
Their Lordships upheld
the conviction, and while referring
to
section 237
of the
Criminal Procedure Code, they observed : -
"A man may be convicted of an offence, although
there has been no charge in respect of it, if the evid-
.ence is such as to establish a
charge that might
have
(1) (1925) 52 I.A. 191.
•
,.
S.C.R.
SUPREME COURT REPORTS
205
been made.. . . . . . Their Lordships entertain no
doubt
that the procedure was a proper procedure and one
warranted by the Code of Criminal Procedure."
The second point urged· on behalf of the appellant
is that the High Court having issued a rule for the
enhancement of the sentence, he should have been
allowed to argue the merits of the case which he was
not allowed to do. The learned counsel for the appellant was not, however, able to show that even 1£ it was
open to him to argue on the merits of the case the
decision would
have
been
otherwise.
Only
three
contentions were put forward by him, these being :-
( 1) that several
material
witnesses
examined;
(2) that the appellant's case was
n@t
fore the jury in a fair manner; and
were not
: .. i
placed be-
(3) that there was no proper examination of the
appellant under section 342
of
the
Criminal
Procedure Code.
We have examined these contentions and find that
they are entirely without merit.
In urging his first
contention, the learned counsel stated that though it
was ~dmitted that several persons have got houses
to
the east, north and north-west of the tank where the
occurrence is alleged to have takien place,
they have
not been examined by the prosecution.
He
further
argued that one Sarat Chandra Ghose, who was present
at the house of the accused when it was searched, has
also not been examined.
These
arguments
however
have very little force,
since there is
no evidence to
show that those persons had seen the occurrence, and
they also do not take note of the fact that such evidence
as has been adduced by the prosecution, if believed,
was sufficient to support the conviction of the appellant.
The Sessions Judge in his charge to the jury referred
specifically to the very argument urged before us, and
he told the jurors that if they thought it 6.t
it was
open to them to draw an inference
~•gainst the prosecution.
There can be no doubt that the jurors were
27
1951
Bijioy Chand
Potra
v.
The State.
Ftt:el Ali /.
1951
Bijjoy Chand
Potra
v.
The State.
Faz/ Ali].
206
SUPREME COURT REPORTS
f 1952]
properly directed on
the point
and
they
evidently
thought that the evidence before them was sufficient
for convicting the appellant.
The second contention urged on behalf of the appellant relates to his defence, which, briefly stated, was
that Kumad Patra, the injured man, entered his house
during his temporary absence, went to the bedroom of
his wife, who
was a young lady, and committed
indecent assault on her and was
assauited
in these
circumstances.
This story was not supported by any
evidence but was merely suggested
in cross-examination, and the Sessions Judge while referring to it in
his charge to the jury, observed :-
"If I were left alone, I would not have believed
the defence version.
But you are not bound to accept
my opinion, nor ·you should be influenced by it.
It is
for you to decide whether you will accept the defence
suggestion in favour of which there is no such positive
evidence."
The Sessions Judge undoubtedly expressed
hims~lf
somewhat strongly with regard to the defence suggestion, but he coupled his observations, which we think
he was entitled to make, with an adequate warning to
the jurors that they were not bound to
accept his
opinion and should not be influenced by
i r.
The
defence version was rejected by the jury, and there
can be no doubt that on the materials on the record it
would have been rejected by any court of fact.
The last contention put forward by the learned coun,
sel for the appellant was that he was not examined
as required by law under section 342 of the Criminal
Procedure Code. It appears that three questions were
put to the appellant by the Sessions
Judge after the
conclusion of the prosecution evidence.
In the
first
question, the Sessions Judge asked the appellant what
his defence
was as to the evidence adduced against
him; in the second question, the Judge referred to the
dispute about the pathway and asked the
appellant
whether he had inflicted injuries
on
Kumad Patra ;
and in the third question, the appellant
was asked
-
....
\
S.C.R.
SUPREME COURT REPORTS
2Cfl
whether he would adduce any evidence. The facts of
the case being free from any complications and the
points in issue being simple, we find it difficult to hold
that the examination of the appellant in this particular
case was not adequate. To sustain such an argument
as has been put forward, it is not sufficient for the
accused merely to show that he has not been fully
examined as required by section 342 of
the
Criminal
Procedure Code, but he must also show that such
examination has materially
prejudiced him.
In the
present case, it appears that the point urged here was
not raised in the grounds of appeal to the High Court,
nor does it find a place in the grounds of appeal or in
the statement of case filed in this court.
It has nowhere been stated that the accused was _in
any way
prejudiced, and there are no materials
before us
to
hold that he was or might have been prejudiced. We
have read the Sessions Judge's
charge to
the
jury,
which is a very fair and full charge, and nothing has
been shown to us to justify the
conclusion
that
the
verdict of the jury should not have been accepted.
The appeal accordingly fails and is dismissed.
Appeal dismissed.
Agent for the appellant : P. K. Chatterji.
Agent for the respondent : /. N. Shroff for P. K.
Bose.
1951
Bijjoy C!iand
Potra
T.
The State.
Faz! Ali /.