Judgment:
R.C. Lahoti, J.
1. The two accused/ appellants have been convicted Under Section 379 IPC and sentenced to one and a half years' rigorous imprisonment each. It is significant to notice that the accused/ appellants were charged with having committed ah offence Under Section 302 IPC only. The statement is significant because a major part of the arguments at the Bar was directed towards a legal controversy generated by the charge as framed.
2. The prosecution case is that Ramdas, the deceased, was engaged in cattle trade. On 29-1-85. he purchase two oxen from Raghuraj Singh (P.W. 5). Yet, another ox was sold by him to Ramdu (P.W. 10) but was returned to him as found unserviceable. With these three oxen Ramdas made a night-halt at the farm of the accused Guman. Thereafter, Ramdas disappeared and could not be found.
3. The prosecution case enters the second phase when on 10-3-85 Jeewan Kotwar (P.W.I) found a few human bones lying scattered near the field of Ramsewak Gupta. He promptly informed P.S. Indergarh by lodging information Ex.P/1. A few bones, pieces of clothes and pair of shoes were seized from the spot. The human bones were found by expert examiner to be of one human male. The cause of death of the deceased, whose bones were seized, and whether any injuries were caused to him, could not be found put. The pieces of burnt clothes and shoes found at the spot were identified by the family members and others to be belonging to Ramdas and thus factum of his death was confirmed. On 24-3-85, the two accused were arrested vide Ex.P/7. On the same day, the accused Matadin gave an information that an ox and an axe were respectively tied and lying concealed in his house. The memo, Ex.P/8, was drawn up in the presence of Munnalal (P.W. 6) and Pooran by I. B. Singh Bhadoriya, Sub-Inspector of Police (P.W. 17), Consequential recovery was effected on the same day vide memo Ex.P/12. Similarly, accused Cruman gave an information vide memo Ex. P/9 to I. B. Singh Bhadoria in the presence of Munnalal (P.W.6) and Pooran to the effect that two oxen were tied at his house and a lathi was also lying concealed at his house. Consequential recovery was effected on the same day vide memo Ex.P/13.
4. The recovered oxen were put up at a test identification parade conducted by M. S. Jadon, Tahsildar (P.W. 16) on 30-3-85. Ramdu (P.W.10) identified one ox saying that it was the same one which was taken by him from late Ramdas in the presence of Lalaram, but was returned by him to Ramdas. Lalaram also identified one ox making a statement to the same effect, Brijlal (P.W.8), Sarman (P.W.2) and Raghurajsingh (P.W.5) identified the two oxen saying that they had seen the two oxen with the deceased before the incident and they were the same which were sold by Raghuraj Singh (P.W.5) to the deceased Ramdas.
5. The evidence circumstantially connected the two accused with the death of the deceased Ramdas as they were found in unexplained possession of the property belonging to the deceased. They were challaned Under Section 302 I.P.C. The trial court also charged the two accused Under Section 302 I.P.C. However, on trial, the trial court found that recovery of the 3 oxen from the possession of the two accused and their identification as property belonging to the deceased was made out beyond reasonable doubt, but the trial court found it difficult to infer that the bones, cloth pieces and shoes were necessarily that of deceased Ramdas. Hence, the trial court acquitted the accused/appellants of the offence Under Section 302 I.P.C. but at the same time convicted them Under Section 379 I.P.C. presuming that they were the thieves. The accused/ appellants denied their guilt and pleaded simply that they were falsely implicated.
6. The learned Counsel for the appellants has challenged the factual finding of the trial court holding the two accused/appellants to be in possession of the 3 oxen. It was submitted that neither the recovery is proved nor the identification of the oxen as belonging to the deceased Ramdas can be held to be satisfactory. It is submitted that although the information leading to recovery is said to have been given by the two accused in the presence of two witnesses, namely, Munnalal (P.W.6) and Pooran, yet only Munnalal has been examined as P.W. 6, but not Pooran, the other witness and an adverse inference ought to be drawn against the prosecution. The submission cannot be accepted. There is no rule of law which requires that if an event is witnessed by two, both should be examined to prove the same. I. B. Singh Bhadoria, S.I., who interrogated the two accused, secured information leading to the discovery and ultimately made recoveries has deposed to these facts, He is fully supported by Munnalal (P.W.6). Nothing has been brought out in the cross-examination of the two witnesses which may discredit their testimony on this point. Pooran, if examined, would have repeated the story. A mere non-examination of the third witness, when two have been examined on the point and found trustworthy would not necessarily compel the Court to draw an adverse inference against the prosecution. In the opinion of this Court, it has been rightly held that the accused Matadin was in possession of one ox and accused Guman was in possession of the two oxen, as is the prosecution case.
7. Lalaram (P.W.4) is the person in whose presence transaction as to one ox between the deceased Ramdas and Ramdu (P.W. 10) took place. Ramdu (P.W.10) had purchased an ox for Rs. 900/- from the deceased Ramdas on the condition that if found unserviceable the cattle would be returned. Ultimately, the ox was returned to Ramdas. The two had an adequate opportunity of developing an impression about the features of the ox, so is the case with the set of witnesses relating to the other two oxen. Raghurajsingh (P.W.5) sold the two oxen to the deceased Ramdas a month and a half or two before the time of the incident. The only criticism labelled against the testimony of Raghurajsingh (P.W.5) is that a major part of the consideration was left to be received later and hence the transaction does not seem to be natural. The submission cannot be accepted because as is. well known and as is the law, the consideration may be past, present or future and may be so in part. It all depends on how the parties to the transaction may chose to deal with. Brijlal (P.W.8) was related to the deceased and shortly before the incident the deceased had stayed for about 3 days with the witness and at that time be was accompanied by the oxen. Suratsingh (P.W.9) is the father of Raghurajsingh (P.W.5). Brijlal and Raghurajsingh identified the two oxen.
8. All these witnesses identified the oxen in the Court. Each of the witnesses is corroborated by the identification made at the parade. Nothing appears on record to infer as to why any of these witnesses would tell a lie and why if at all the identification made by each or any of them may be disbelieved. It is fully made out from the testimony of these witnesses that the deceased was in possession of the three oxen shortly before the incident which were ultimately recovered from the possession of the accused/appellants.
9. The question which still remains to be examined is whether the accused/appellants have been rightly held to be guilty of an offence punishable Under Section 379 I.P.C. To be theft, moveable property has to be taken out of the possession of any person without his consent. A Division Bench of this Court in Balla v. State 0065/1958 : AIR1958MP192 held that (para 9):
A dead body is not a person. Removal of ornaments from a dead body is not taking ornament out of the possession of a person.
Because, there was material available on record of that case to infer that ornaments were removed from a dead body, the offence was held to be punishable Under Section 404 I.P.C. In the present case, it is not known whether the oxen were removed from the possession of Ramdas during his lifetime. May be that they were removed after his death, the benefit of any missing link in the chain constituting a criminal case has to go to the accused. It would be difficult to hold the two accused guilty of theft or even receivers of stolen property by resort to Section 114, Illutration (a) of the Evidence Act. In the opinion of this Court more appropriate penal section to be applied to the facts found proved would be Section 403; I.P.C.
10. Before the conviction of the accused/ appellants under Section 379 I .P.C. may be altered to one Under Section 403 I.P.C., there is yet another attack made by the learned Counsel for the appellants which will have to be shielded against. The learned Counsellor the appellants submits that neither the trial Court could have recorded the conviction Under Section 379 I.P.C., nor can this Court convict the accused Under Section 403 I.P.C. because there is no charge framed against the accused/appellants under these sections, while they stand exonerated of the only charge framed against them i.e. Under Section 302 I.P.C. The probles put forth is whether conviction of the accused for an offence of which there is no charge can be validly and legally sustained
11. Leading authority of the Apex Court in Willie Slaney v. State of Madhya Pradesh : 1956CriLJ291 provides a complete answer to the problem. Their Lordships of the Supreme Court examined the scheme of the erstwhile Code of Criminal Procedure specially the nature of various provisions relating to charge and those dealing with errors, omissions or irregularity in the charge. The relevant observations of their Lordships in so far as material to the present case may be extracted below:
The Code is a code of procedure and, like all procedural laws, is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. The object of the Code is to ensure that an accused person gets a full and fair trial along certain well-established and well-understood lines that accord with our notions of natural justice.
If he does, if he is tried by a competent court, if he is told and clearly understands the nature of the offence for which he is being tried, if the case against him is fully and fairly explained to him and he is afforded a full and fair opportunity of defending himself, then, provided there is 'substantial' compliance with the outward forms of the law, mere mistakes in procedure, mere inconsequential' errors and omissions in the trial are regarded as venial by the Code and the trial is not vitiated unless the accused can show substantial prejudice. That, broadly speaking, is the basic principle on which the Code is based.
'But there is, in our opinion, equally no doubt that the Code expressly deals with this and expressly provides that no error, omission or irregularity in the charge, or even total absence of a charge, shall vitiate a trial unless prejudice to the accused is shown. This is repeatedly reiterated in a number of sections.
The whole question, therefore, is whether the 'charge'' must be formally reduced to writing and expressed as a ritualistic formula in order to save the trial from the fundamental defect of an incurable illegality or whether the information that is the substance of the matter can be conveyed in other ways. The . question is whether we are to grasp at the substance or play hide and seek among the shadows of procedure.
'It is clear to us that the object of the charge is not to introduce a provision that goes to the root of jurisdiction as, for example, the requirement of previous sanction under Section 197, but to enable the accused to have a clear idea of what he is being tried for and of the essential facts that he has to meet.
But there are other ways of conveying this information.
'Therefore, when there is a charge and there is either error or omission in it or both, and whatever its nature, it is not to be regarded as material unless two conditions are fulfilled both of which are matters of fact : (1) the accused has 'in fact' been misled by it 'and' (2) it has occasioned a failure of justice. That, in our opinion, is reasonably plain language.'
'That is conclusive to show that no error or omission in the charge, and not even a total absence of a charge, cuts at the root of the trial.'
'It follows that errors in the charge, and even a total absence of a charge, are not placed in the non-curable class.'
'Sections 535 and 537 cover every case in which there is a departure from the rules set out in that Chapter.
Such departures range from errors, omissions and irregularities in charges that are framed, down to charges that might have been framed and were not and include a total omission to frame a charge at all at any stage of the trial. In all these cases the only question is about prejudice. We say this because the Code repeatedly says so in express and emphatic terms and because that is the foundation on which rules of procedure are based.
We say it because that accords with logic and principle and reason and because it touches the deep verities on which the structure of justice is erected and maintained.'
'We are unable to find any magic or charm in the ritual of a charge. It is the substance of these provisions that count and not their outward form. To hold otherwise is only to provide avenues of escape for the guilty and afford no protection to the innocent.
' 'Put at its highest, all that the appellant can urge is that a charge in the alternative ought to have been framed, which in itself imports that it could have been so framed. As was said by the Privy Council in - 'Begu v. Emperor AIR 1925 PC 130 at p. 131 : 1925-26 Cri LJ 1059 at p. 1060 (L) and also by this Court in - : 1952CriLJ863 (I) -
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.... They were not charged with that formally, but they were tried on evidence which brings the case under Section 237.'The vafiation between murder and concealing the evidence after the crime is no more than the variation between killing a man jointly with another, sharing his intention, or allowing the other to do the actual killing with the same common intention.
12. Their Lordships of the Supreme Court hi Wallie Slaney (1956 Cri LJ 291) (supra) were referring to the provisions contained in Sections 535, 232 and 537 (b) of the Old Code which have now been consolidated into one section i.e. Section 464 of 1973 Code. This provision reiterates that finding and sentence by a Court of competent jurisdiction shall not be invalidated merely on the ground that no charge was framed unless the higher Court be of an opinion that such failure has, in fact, occasioned failure of justice.
13. The whole problem has to be looked at from the angle of prejudice to the accused, with which angle the record of the case has been carefully examined by this Court. The challan with its enclosed papers, with the filing of which the case began and the copies whereof were delivered to the accused/ appellants, clearly gave an indication to them that the case against them mainly rested on the evidence of recovery of oxen from their possession. The prosecution examined the witnesses on the point of information given by the accused leading to the recovery from their respective possession and the witnesses as to identification of oxen. All the witnesses were cross-examined on behalf of the accused/ appellants who were represented from the very beginning by counsel of their choice. The questions on incriminating evidence and the incriminating circumstances flowing therefrom were put to the accused in their statements under Section 313 Cr. P.C. They were asked to enter into defence, afforded an opportunity of producing evidence in defence which, of course, they did not, in their discretion.
14. The conviction having been recorded after finding of guilt, the judgment was temporarily stayed for giving the accused an opportunity of hearing on the question of sentence. They did not raise any objection that sentences could not be passed because there had been a prejudice to them for want of formal charge. The appeal memo filed before this Court also does not make a grievance as to any prejudice that might have been caused to the accused. The only objection raised is a general one that the accused could not have been convicted under Section 379 I.P.C. because there was no charge and the same was not warranted in the facts and circumstances of the case. Even at the hearing, no prejudice has been pointed out. The incriminating facts having been found from the evidence adduced in the case, the only question that remains before the Court is one of applying the relevant section of the penal law to the facts found. The trial Court found them attracting the applicability of Section 379 I.P.C. while this Court finds that Section 403 I.P.C. would be more appropriate and apposite. No fault can be found with this process and such a conviction would neither be illegal nor unwarranted.
15. The appeal is partly allowed. The conviction of the two accused/ appellants under Section 379 I.P.C. is set aside as also the sentences of one and a half years' rigorous imprisonment. Instead, they are held guilty under Section 403 I.P.C. and sentenced to undergo simple imprisonment for 3 months each. The accused/ appellants are on bail. They shall surrender to undergo the sentence as passed above, subject to adjustment Under Section 428 of the Cr. P.C.