BIJOY OKAND PATRA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) 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 S. 326, Penal Code, and sentencing him to 3 years' rigorous imprisonment.

(2.) 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 lead to a tank, and they quarrelled about it on 11-7-1949. Two days later, on 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 police being informed, started investigation and submitted a charge sheet against the appellant who was finally committed to the Court of Session and tried by the Sessions Judge and a jury. He was charged under S. 307, Penal Code, but the jury returned a verdict of guilty against him under S. 326, 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 sentence should not be enhanced, but, at the final hearing, the rule was discharged, his appeal was dismissed, and his conviction and the original sentence were upheld.

(3.) The first point urged on behalf of the appellant before us is that, inasmuch as there was no charge under S. 326, Penal Code, and the offence under that section was not a minor offence with reference to an offence under S. 307 of the Code, he could not have been convicted under the former section. This argument however overlooks the provisions of S. 237, Criminal P. C. That section, after referring to S. 236, which provides that alternative charges may be drawn up against an accused person where it is doubtful which of several offences the facts which can be proved will constitute, states as follows: