P L D 1963 (W (PLP)

A reading of the decision in this case makes it plain that the attention of his Lordship was not drawn to the provisions of sections 236 and 237, which were not only material to the point under discussion but, in my view, speaking with respect, section 237 and not 238 was applicable to the case.

21. In Swab Gul v. State, Mahmood, J., on the other hand, while dealing with the very same point, altered the conviction of the appellant from 302 to 304‑A, P. P. C. The material discussion is to be found in para. 8 of the judgment at page 660, wherein he observed as under:‑ Pulling the trigger of a revolver without taking the precau tion of seeing that it was empty was gross and culpable negli gence especially when it was pointing in the direction of an open door, where the deceased stood. Culpable negligence is the omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. It is a gross and culpable negligence to fail to exercise that reasonable and proper care and caution which a person should have taken to guard against injury to the persons present nearby. It is the failure of the care and precaution which the petitioner should have adopted in the circumstances of the case which makes him guilty under section 304‑A, P. P. C. He is convicted under section 304‑A, P. P. C., and is, in view of all the circumstances of the case, sentenced to one year's rigorous imprisonment. It is important to observe here that in this case the counsel for the accused did not raise the contention that in case where the appellant had been convicted for offence under section 302, his conviction could not be altered to section 304‑A, and it appears that his Lordship took it for granted that in such a situation the conviction could be altered from 302 to 304‑A, provided an offence under the latter section was held to be proved, and after discussing the material evidence, held that a charge under section 304‑A had been clearly made out against the appellant.

22. Since the learned A. A.‑G., raised the point in regard to alteration of the conviction of the appellant from 302 to 304 at the fag‑end of the arguments, and since the points were not made quite clear the case was adjourned for the following day, to enable the learned counsel for the appellant and the learned A. A.‑G., to make some further research on the points raised. We heard some further arguments, but it appears that on account of the short time at their disposal none of them was able to cite authorities having direct bearing on the point. Since I had some doubts about the correct legal position, I decided to pursue the research on the points raised and have succeeded on laying hand on a few authorities, including the high authority of Privy Council, which, in my view, provides a complete answer to the question which has been troubling me.

23. Since the question raised involves the interpretation of sections 236, 237, 238 and 423, Cr. P. C., it will be convenient here to reproduce the said sections. Section 236 provides that "if a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once ; or he may be charged in the alternative with having committed some one of the said offences." Section 237 is in the following terms:‑ "If, in the case mentioned in section 236, the accused is charged with offence, and it appears in evidence that he com mitted 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." Section 238 runs thus:‑ "(1) 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. (2‑A) When a person is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged. (3) Nothing in this section shall be deemed to authorize a conviction of any offence referred to in section 198 or section 199 when no complaint has boon trade as required by that section." The material provisions of section 423 are subsections (a) and (b), which are in the following terms:‑ (a) in an appeal from an order of acquittal reverse such order and direct that further inquiry be made, or that the accused be re‑tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law ; (b) in an appeal from a conviction, (1) reverse the finding and sentence, and acquit or discharge the accused, or order him to be re‑tried by a Court of competent jurisdiction sub ordinate 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 section 106, subsection (3), not so as to enhance the same ;". It will be plain from a reading of sections 236 and 237 and the illustrations (which have not been reproduced) to the said sections, that a man may be convicted of an offence, although there has been no charge in respect of it if the evidence is of such a nature as to establish a charge that might have been made. In other words section 237 enables the Court to convict a person of an offence which is disclosed in the evidence and for which he might have been charged under the provisions of section 236, although he was not charged with it. The reason of the rule is that the facts relied upon by the prosecution at the beginning of the trial, of which he has notice, are sufficient notice of all offences. which such facts will constitute.

24. Sections 237 and 238 are the exceptions to the general rule that an accused person cannot be convicted of an offence of which he has not been charged and of which he has no notice. These two sections, however, enable the Court to convict a person of offence which is disclosed in the evidence. Sections 237 and 238 are not (sic) mutually exclusive and are intended to apply to quite separate and distinct situations. While section 237 applies to a wide range of offences, which maybe wholly un related to each other and may have no common ingredients what soever. Section 238, on the other hand, applies to a narrow range of cases, namely, two, as specified in sub‑clauses (1) and (2), where under conviction of minor offence included in the offence charged in either of the two cases. The first is where the offence charged consists of several particulars, a combination of some only of which constitutes a complete minor offence and such combina tion is proved but the remaining particulars are not proved. The second is where facts are proved which reduce the offence charged to a minor offence. Illustration (a) to the section is an example of the first class of cases and Illustration (b) of the second. The principle on which the section proceeds is that where an offence consists of several particulars, a combination of some only of which constitutes a complete minor offence, the graver charge gives notice to the accused of all the circumstances going to constitute the minor offence of which he may he convicted. The latter is arrived at by mere subtraction from the former. In other words, section 238 is attracted only in cases where the minor offence of which the accused is subsequently convicted must be cognate to the major offence of which he is originally charged. The words "minor offences" are not defined anywhere in the Code, and should be taken in their ordinary sense within the dictionary meaning of the words "minor offence", as compared to the major offence. So far I have been discussing the case untrammelled by any authorities. I now proceed to examine a few of the authorities.

25. The first authority which in my view is on all fours with the facts of the present case is the decision in Emperor v. Ramaya Chennappa (A I R 1915 Bom. 297). In that case one Chennappa died shortly after cating food prepared by his wife. The wife was charged with the murder of her husband, and her mother was charged with abetting the murder. The case was tried by a Jury, and in the course of his charge to the Jury, the Judge pointed out that although there was no separate charge under section 304‑A of the Indian Penal Code, it was open to the Jury to find a verdict of `guilty' of an offence under section 304‑A and an acquittal under the charge of murder. The Jury came to the conclusion by a majority of three to two that the women were not guilty of an offence whatever. The Judge found himself unable to accept this verdict and referred the case to the High Court. Heaten, J., delivering the judgment for the Court, while repelling the argument that section 307 of the Criminal Procedure Code did not permit the conviction of the appellant under section 304‑A of the Indian Penal Code, because of the fact that there was no charge under that section at the trial, and that the terms of sections 236 and 237 of the Criminal Procedure Code, could not be pressed into service, at page 298, observed "Whatever may be said about section 238 of the Code, I do not feel any doubt that under sections 236 and 237 we are empowered to record such a conviction. It was beyond question a doubtful matter in this case from the very beginning whether the facts, which the prosecution would be able to prove, would establish more than the administering of the poison in the way I have mentioned ..It would, there fore, it seems to me, quite clearly have been open to the prosecu tion to bring these persons to trial on charges both of murder and under section 304‑A of the Indian Penal Code. If that were so, it follows from the provisions of section 237 of the Criminal Procedure Code that although the charge under section 304‑A of the Indian Penal Code was not formally made it was open to the Court to convict under that section." Accepting the reference the wife was convicted under section 304‑A, while her mother was convicted under section 304‑A/109. It is important to observe here that subsection (3) to section 307, Cr. P. C., empowered the High Court to which the case is submitted, to "exercise any of the powers which it may exercise on an appeal, " In other words in cases which are submitted to the High Court under section 307, subsection (3), the High Court has all the powers which the appellate Court can exercise under section 423, sub‑clauses (a) and (b). It is, therefore, manifestly clear that their Lordships while acting under section 307, Cr. P. C., virtually exercised the powers of the appellate Court under section 423 and convicted the principal accused, namely, the wife of the deceased, under section 304‑A, and the mother‑in‑law of the deceased, under section 304‑A/109, though they had not been charged for that offence.

26. In King Emperor v. Charles John Walker (A I R 1924 Bom. 450), precisely the very same question came up for decision. Macleod, C. J., deliver ing the judgment for the Court, following the decision in lamperor v. Ramaya Chennappa, summed up the discussion at page 451, as under:‑ ..it followed from the provisions of section 237, Criminal Procedure Code, that, although the charge under section 304‑A was not formally made, it was open to the Court to convict under that section. Here, in this case, as I have pointed out, assuming that the accused intended to pull the trigger, the shot was either aimed or unaimed and the offence would come under section 304 if it was aimed, and under section 304‑A if it was unaimed. Therefore, it would be competent to this Court, if it agreed with the Sessions Judge, to convict the accused under section 304‑A.

27. In Amir Bakhsh v. State (P L D 1960 Lah. 15), Changez, J., disagreeing with the views of Sajjad Ahmad Jan, J., in P L D 1959 Lah. 760, held that "in view of the provisions of sections 236 and 237, Cr. P. C., it is permissible to alter a conviction from section 302 or 304 of the Penal Code to one under section 304‑A of the sane Code.

28. In Bagu and others v. King Emperor (A I R 1925 P C 130), five accused were committed for trial at the Sessions Court on a charge of murder under section 302 of the Indian Penal Code. Bakhu and Walia were found guilty of murder and sentenced to death. With regard to the other three, the learned Sessions Judge was of the opinion that the evidence did not sufficiently or definitely prove that they were present at and had taken part in the murder, but, on the other hand, he convicted each of them of having removed the body, and sentenced them each to seven years' R. I. On appeal to the High Court the convictions and sentences of the appellants were affirmed. On appeal to the Privy Council a point was raised that in the circumstances of the case the conviction of the appellant under section 201 was bad in law. Viscount Haldane, J., delivering the judgment for the Board, after repro ducing the provisions of sections 236 and 237, at page 131, observed "The illustration makes the meaning of these words quite plain. A man may be convicted of an offence, although there has been no charge in respect of it, if the evidence is such as to establish a charge that might have been made. That is what happened here. The three men who were sentenced to rigorous imprisonment, were convicted of making away with the evidence of the crime by assisting in taking away the body. They were not charged with that formally, but they were tried on evidence which brings the case under section

237. Their Lordships entertain no doubt that the procedure was a proper procedure and one warranted by the Code of Criminal Procedure." It is important to observe here that the charges under section 302 and that under section 201 have absolutely nothing in common and the ingredients of the charges are wholly dissimilar, but on the evidence adduced in the case, when the appellant was convicted for offence under section 302, on appeal to the Board, their Lord ships of Privy Council had no difficulty in holding that the procedure was proper and one warranted by the Code of Criminal Procedure.

29. In Valli Ahmad and others (A I R 1947 Mad. 114), following the decision in A I R 1925 P C 130, Horwill, J., delivering the judgment for the Court, held that an accused charged under section 302 can be convicted of an offence under section 411, Penal Code, even though not charged under it. In Bhikha Gobar v. Emperor (A I R 1943 Bom. 458), the appellant was convicted of an offence under section 302, but on appeal Beaumont, C. J., delivering the judgment at page 461, observed :‑ "The accused might have been charged under section 411, Penal Code, under section 236 read with section 239(e), Criminal Procedure Code and section 237 of the Criminal P. C., provides that if the evidence shows that he was guilty of the offence cinder section 411, Penal Code, with which he might have been charged it is open to the Court to convict him of that offence. In my opinion, therefore, we arc entitled to convict the accused on the evidence on record of an offence under section 411, Penal Code. The learned Sessions Judge might himself have recorded such conviction. Therefore we set aside the conviction of murder under section 302, Penal Code, and convict accused under section 411, Penal Code, and sentence him to three years' rigorous imprisonment."

30. Emperor v. Ismail Khadirsab (A I R 1928 Bom. 130), the accused was charged with having murdered his wife, but he was acquitted by the Sessions Judge, who agreed with the unanimous opinion of the four assessors. The local Government preferred appeal against the acquittal which ended in the conviction of the accused for offence under section

193. One of the point formulated for decision by the Bench was to the following effect :‑ Whether clause (a), subsection (1) section 423, Criminal P. C., merely authorizes an appellate Court to find the accused guilty of the offence, with which he was charged and for which he was tried, but of which he was acquitted, or whether it empowers an appellate Court to convict an accused of some other offences. Fawcett, J., delivering the judgment for the Court, at page 132, observed :‑ "Under clause (b), subsection (1) the appellate Court can points, contended that an appellate Court cannot alter the con viction from one under clause (c) to one under clause (f ). Sadasiva Aiyar. J., repelling the contention, observed that :‑ "Section 423 (b) (2), Cr. P. C. . . . ., unqualifiedly gives the power to the appellate Court `to alter the finding' on appeal, and I am not disposed to qualify the powers so given by the Legislature, unless, of course, prejudice was likely to have been caused to the accused and injustice might have resulted by his not having had the opportunity to meet the altered charge." I would wind up the examination of authorities by quoting certain passages from the decision of the Supreme Court of India in Ramaswarny Nader v. The State of Madras (P L D 1958 S C (Ind.) 247), in which the Supreme Court had to consider the provisions of sections 236, 237, 238 and

423. In that case the High Court on appeal from acquittal confirmed the order of the trial Court acquitting the accused of an offence under section 420, Penal Code, and at the same time convicted him of an offence under section 403 of which the accused did not stand charged in the trial Court. On an appeal by the special leave it was argued before the Supreme Court that though the powers contained in sections 236, 237 and 238 of the Criminal Procedure Code may be exercised by a trial Court or even by a Court of Appeal exercising its powers under clause (b) of section 423(1), Criminal Procedure Code, the High Court could not exercise those powers acting under clause (a) of that section. Sinha, J., repelling the argument, held that.‑

"There is no warrant either in principle or on authority for the proposition that section 423(1) (a) does not authorise a High Court to find the accused person guilty of any offence other than that with which he has been charged nor is there any sufficient ground for holding that the powers contained in sections 236, 237 and 238, Criminal Procedure Code, could not be exercised by the High Court hearing an appeal under section 423 (1) (a), Criminal Procedure Code. Under both the clauses (a) and (b) of section 423 (1), the specific power to reverse the order appealed from, is there, but because there has been a conviction by the trial Court or the Court immediately below the High Court, the latter Court is authorised specifically to alter the finding or the nature of the sentence in clause (b). In clause (a), after the High Court has decided to reverse the orders of acquittal, it has been given the power to find the accused guilty, besides other powers enumerated therein. It is open to the High Court to convict the accused of any offence disclosed in the evidence other than that with which he had been charged." The above authority is a direct authority for the proposition that an appellate Court, acting under section 423 (b) leas all the powers which can be exercised by the trial Court, and that acting under n sections 236 237, 238, read with section 423, the accused may be convicted of an offence of which he was not charged in the trial Court.

33. On review of the authorities cited above, it follows that the powers conferred on the appellate Court are as ample as the High Court could have on revision under section 439 with the exception of the power to enhance the sentence. Where the appellate Court is the High Court itself, it has not only the powers under section 423 but also those under section

439. As an appel late Court, it can, under section 423, alter the conviction to one for an offence of which the accused was acquitted by the lower Court, E but it has no such power in revision. As a revision Court it can enhance the sentence passed by the lower Court though as an appellate Court it has no such power. Thus by combination of sections 423 and 439, the High Court in appeal, can convict the accused of an offence of which he had been acquitted, and also in appropriate cases convict him of a graver offence than the one for which he was charged. Sections 237 and 238 are, however, subject to one overriding condition and it is that the accused must have notice of the charges he is called upon to meet and in case he has such notice his conviction for offence or offences for which he had not been charged but for which he could have been charged cannot be held to be bad.

34. It remains to decide whether the appellants had any notice of the charge under section 304‑A, and whether on the evidence on the record, he can be convicted of that offence. This question does not present any difficulty for the short and good reason that the appellant had a very clear notice of the charge he had to meet, so much so that he in his defence took the plea that while "handling the loaded automatic pistol it went of accidentally and hit the appellant." I have, therefore, not the least doubt that on the very plea of the appellant he has impliedly pleaded guilty to the offence under section 304‑A, in that a person carrying a loaded automatic pistol is expected to handle it with extreme caution, but if, on the contrary, he instead of keeping it in the holster carries it in the hand even when sitting in the company of many persons and then starts playing with it (the loaded pistol) and in doing so pulls the trigger in utter disregard to the safety of human being, clearly acts in a rash and negligent manner within the meaning of section 304‑A and therefore, qualifies himself for conviction for that offence.

35. As a result of the foregoing discussion I alter the conviction of the appellant from 302 to 304A, P. P. C. As regards the sentence, regard being had to the fact that the appellant had been in custody during the enquiry and trial and also suffered the torture of suspense in respect of the death penalty, I think a sentence of one year's rigorous imprisonment and a fine of Rs. 500 or in default one month's further R. I., would meet the ends of justice. The sentence of imprisonment is to be reckoned from the date of his conviction by the trial Court that is 20th November 1962.

36. The sentence of death is not confirmed. MUHAMMAD DAUD KHAN, J.--‑I agree. K. B. A./A. H. Appeal partly accepted.