ABU UMAR Vs. STATE OF GUJARAT
LAWS(GJH)-1966-8-14
HIGH COURT OF GUJARAT
Decided on August 25,1966

ABU UMAR Appellant
VERSUS
STATE Respondents

JUDGEMENT

N.G.SHELAT - (1.) Mr. Desai contended that on the evidence as it stands it is difficult to hold the offence under sec. 368 or an offence under sec. 368 read with sec. 511 established beyond any reasonable doubt. It was besides Pointed out that the charge against appellants Nos. 2 and 3 (accused Nos. 2 and 3) was only in respect of an attempt to commit an offence punishable under sec. 368 of the Indian Penal Code and the learned judge was therefore in error to convict them for the main offence punishable under sec. 368 of the Indian Penal Code. Such an order of conviction is illegal and on that ground it is liable to be set aside. I would take up the latter point first.
(2.) While setting out the facts I have already referred to the charge levelled against accused Nos. 2 and 3 by the learned Sessions Judge. It has been clearly stated that they had attempted to conceal wrongfully the girl Manek knowing that she was kidnapped and in such attempt removed her from the house of accused No. 1. The offence with which they have been charged is also stated to be one under sec. 368 read with sec. 511 of the Indian Penal Code. If we turn to the entire discussion of the evidence in relation to accused Nos. 2 and 3 it appears that the learned Sessions Judge has dealt with it accordingly. The observations in para 14 of his judgment show that both accused Nos. 2 and 3 attempted to wrongfully conceal Manek knowing that she was kidnapped and in such attempt they started with Manek from the house of accused No. 1 after her bow was covered by means of a Pachhedi. His findings on points No. 3 and 4 were thus in the affirmative and they amounted to an attempt of concealing liable to be punished under sec. 368 read with sec. 511. Mr. Desai urged that in those circumstances and having regard to the specific charge to that effect accused NoN. 2 and 3 can only be convicted for the offense under sec. 368 read with sec. 511 of the Indian Penal Code and in no case can they be convicted for the major or main offence punishable under sec. 368 in respect of which no charge was levelled against them In support thereof he relied upon a case of Queen Empress v. Durgya Bin Ramappa 1 Bom. L.R. 513.
(3.) Now apart from authority it is in the first place obvious that a charge under sec. 368 can be called a main or major charge in respect of an offence and when it is sought to be read with sec. 511 of the Indian Penal Code which relates to an attempt in respect of any particular offence it can be easily characterised as a minor offence. In the present case it is clear that the accused Nos. 2 and 3 were charged for an offence under sec. 368 read with sec. 511 and not the main offence under sec 368 of the Indian Penal Code. That has been so both by reason of the description of the offence as also by mentioning the sections of the Indian Penal Code. Now if we turn to sec. 238 of the Criminal Procedure Code clause (2) thereof provides as under :- 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. Then clause 2(a) runs thus :- When a person is charged with an offence he may be convicted of an attempt to commit such offence a though the attempt is not separately charged. These two clauses of sec. 238 thus make it clear that if the charge is in respect of an offence against the accused he can be convicted for a minor offence if that is established and secondly an attempt of any such offence would fall in the category of a minor offence so that he can be convicted for the same even if not so charged. An attempt of an offence is obviously covered in the main offence and therefore if the accused Nos. 2 and 3 were charged for the main offence under sec. 368 of the Indian Penal Code there would be no difficulty in convicting for an attempt of that offence. But the question is whether converse thereof can bs sustained in law viz. whether if the charge is for an attempt of that offence he can be convicted for the main offence with which he is not charged. We find no provision any where in the Criminal Procedure Code which says that where the person is charged with a minor offence or is charged with an attempt to commit any offence he can be convicted for a major offence or the main offence though he is not separately charged. The learned Sessions Judge was thus clearly in error in convicting the appellants Nos. 2 and 3 for the main offence under sec. 368 when there was merely a charge for an attempt of their having committed the offence under sec. 368 of the Indian Penal Code.;


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