LexBIJJOY CHAID POTRA versus THE STATE
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1951 Sur11ipal Singh and Others v. The State. Faz/ Ali /. 1951 D•v:. 14. 202 SUPREME CQURT REPORTS [19521 though 25 persons were placed on trial on identical evidence, the State Government preferred an appeal only against 5 of them on the sole ground that the acquittal was against the weight of evidence on the record. In the result, we allow the viction and sentences of the them of all the charges. appeal, set aside the con- appellants and acquit Appeal allowed. Agent for the appellant: P. K. Chatterjee Agent for the respondent: I. N. Shroff for P. K. Bose. BIJJOY CHAID POTRA v. THE STATE [SAIYID FAZL Au and VrvIAN BosE JJ.] Criminal Procedure Code (Act V of 1898), ss. 237, 342-lndian Penal Code (XLV of 1860), ss. 307, 326-Charge undei· '· 307- Conviction under s. 326-Legalt"ty-Failure to examine accused fully -When vitiates trial-Necessity of prejudice to accused. The appellant who inflicted serious injuries on another was charged under s. 307 of the Indian Penal Code but the jury returned a verdict of guilty against him under s. 326 of the Penal Code, and the Sessions Judge, accepting the verdict, convicted hiin under s. 326. It was contended that the conviction was illegal inasmuch as the offence under s. 326 was not a minor offence with reference to the offence under s. 307. Held, that as ~ it was open to the Sessions Judge, on the facts of the case, to charge the appellant alternatively under ss. 307 and 326 of the Code the case was covered by s. 237 of the Criminal Procedure Code, and the co)lviction under s. 326 of the Penal Code was pro. per, even though there was no charge under the section. Begu v. King Emperor (52 I.A. 191) applied. In order that a conviction may be set aside for non-compliance with the provisions of s. 342 of the Criminal Procedure Code, it is not sufficient fur the accused merely to show that he was not fully examined as required by the section, but he must also show that such examination has materially ·prejudiced him. .. - -\ SUPREME COURT REPORTS 203 CRIMINAL APPELLATE JuRISDICTION: Criminal Appeal No. 30 of 1951. Appeal from the Judgment and Order of the High Court of Calcutta (HARRIES C. J. and LAHIRI J.) dated 15th June, 1950, in Criminal Appeal No. 71 of 1950 and Revision No. 295 of 1950. S. N. Mukherjee, for the appellant. B. Sen, for the respondent. 1951. December 14. The Judgment of the Court <las delivered by FAzL Au J.-This is an appeal against the judg- ment of the High Court at Calcutta upholding the order of the Sessions Judge of Midnapore convicting the appellant under section 326 of the Indian Penal Code and sentencing him to 3 ' years' rigorous imprisonment. The prosecution case against the appellant may be shortly stated as follows :-The appellant and the in- jured 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 dis- pute about a pathway adjoining their houses, which led to a tank, and they quarrelled about it on the 11th July, 1949. Two days later, on the 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 illiior,med, sUarted investiigation and subm.iitted a charge-sheet against the appellant who was finally committed to the Court of Sessions and tried by the Sessions Judge and a jury. He was charged under section 307 of the Indian Penal Code, but the jury re- . turned a verdict of guilty against him under section 326 of the 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- 7-3 s.c. India/71 '195) Bijjoy Chand Potra v. The State Faz/ Ali!. 1951 Biiioy Chand Potra Y. The State. Fazl Ali /. 204 SUPREME COURT REPORTS [1952] should not .he enhanced, but, at the final hearing, the rule was discharged, his appeal was dismissed, and his conviction and the original sentence were upheld. The first point urged on behalf of the appellant be- fore us is that, inasmuch as there was no charge under sect
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