JUDGMENT
1. These two Revision Applications were filed by accused No. 1 and accused No. 2, respectively, in Criminal Case No. 228/93/B on the file of Judicial Magistrate, First Class, Mapusa. Since these two Revision Applications arise out of a common judgment of the Court below, they were heard together and are being disposed of by this common order.
2. According to the prosecution, the petitioners and 4 others were charge-sheeted by the police under Sections 143, 147, 148, 448, 427 r/w Section 149 of Indian Penal Code. The prosecution case is that on 24-6-1993 at about 12.40 hours at Satorxete, Aldona, the accused formed an unlawful assembly and criminally trespassed in the compound of one K. V. Philip and damaged his motor-cycle causing mischief to the tune of Rs. 2,000/- and also the window panes to the tune of Rs. 72/-.
3. P.W. 1 and P.W. 3 are father and son who were in the house at the relevant time and were the eye-witnesses. Relying on the evidence of these witnesses, the learned Magistrate acquitted the other accused Nos. 3 to 6 and convicted the petitioners, namely, accused No. 1 and accused No. 2 under Sections 448 and 427 r/w Section 149 of Indian Penal Code and sentenced each of the petitioners to undergo 6 months rigorous imprisonment and to pay a fine of Rs. 1,000/-; in default, to undergo another 2 months of simple imprisonment.
4. Against the judgment of the Magistrate, the petitioners filed Criminal Appeals Nos. 24 of 1994 and 25 of 1994 on the file of District and Sessions Judge, Panaji. On a reappreciation of evidence, the learned Sessions Judge, by judgment dated 17-11-1994 modified the judgment passed by the learned Magistrate. The learned Judge convicted the petitioners under Section 447 and 427 r/w S. 34, I.P.C. and accordingly reduced the sentence to 3 months rigorous imprisonment and a fine of Rs. 700/-; in default, to undergo one and half months simple imprisonment under all counts.
5. The petitioners filed this Revision Application to challenge this Order of the Sessions Court.
6. Mr. Padiyar, who is appointed as an Advocate for the petitioners under Legal Aid Scheme, argued that the learned Judge has committed a legal error in converting the offence under Section 448 I.P.C. into an offence under Section 447 I.P.C. which was not originally framed against the petitioners. He also submitted that the petitioners were not charged under Section 34 I.P.C. and incorporation of the new charge and punishment based on such new charge is therefore illegal. To fortify his argument, he relied on the judgments of the Supreme Court in Suraj Pal v. State of Uttar Pradesh and State of West Bengal v. Laisal Haque and another And Mohd. Abu Bakar Siddique Molla v. Laisal Haque and others .
7. I have gone through the judgments in the light of the arguments advanced by the learned counsel for the petitioners. It is true that those judgments reiterated the cardinal legal position that an accused in a criminal case cannot be convicted on a charge which has not been framed against him. Section 218 of the Criminal Procedure Code clearly laid down this policy which says that for every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately. There is no quarrel about the proposition argued by the counsel for the petitioners in this case. But, in this case what the learned Sessions Judge did was that a charge under Section 448 has been converted into Section 447 in the light of the facts proved in the case. It is needless to say that Section 448 takes in all the legal ingredients of Section 447. Therefore, Sections 448 and 447 cannot be said to be distinct and separate offences; one is an aggravated form of the other. In fact, normally offence under Section 448 cannot be committed without the trespass into the property in which the house in question is situated. Therefore, when an offence which is inherently connected and integrated with an offence is proved, it is up to the Court to convert the offence according to the facts disclosed in such cases. So also, the learned counsel for the petitioner has criticized the act of the learned Sessions Judge that Section 149 which was originally charged has been converted into Section 34. If one reads Sections 149 and 34, they will go to show that these two Sections are also related and overlap each other. When an offence is committed with a common object by more than 5 persons, it will amount to an offence under Section 149, whereas if an offence is committed with a common object by persons less than 5, the offence will come under Section 34. Therefore, I do not find any legal error committed by the Sessions Court in finding the petitioners guilty and also in the sentence awarded against them. In these circumstances, no interference is called for in these cases.
8. In the circumstances, both the above Revision Applications are dismissed. There will be no order as to costs.
9. Petition dismissed.