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(40) We have next to consider whether the accused must be acquitted of all the charges. The learned Public Prosecutor submits that since the Special Judge had failed to record a finding of 'not guilty' under Section 161 I. P. C., the accused cannot be deemed to have been acquitted. But Mr. Ramarao counters this by saying that where there is no conviction or acquittal on any particular charge, the omission to do so must be deemed to be an implied acquittal. In support of this, he cited a judgment of Chandra Reddy, J. (as he then was) in Krishnamurthy v. State, AIR 1957 Andh Pra 874. Therein it was held that Section 238 (1) Cr. P. C. casts an obligation on the Magistrate to record an order of acquittal when there is no finding of guilt, and that it being a mandatory provision, the non-compliance with it must be deemed to have the result, as that specified in the section. The principle that emerges, it was pointed out, is that when there is no specific finding that the accused is guilty under any of the charges framed against him, it amounts to an acquittal of the offence involved in that charge and that, therefore, an appellate Court cannot convict him of the same offence unless there is an appeal against that acquittal.

(41) Support was derived by the learned Judge for this principle from the judgment of their Lordships of the Privy Council in Kishan Singh v. Emperor, AIR 1928 PC 254, where a person charged with an offence under Section 302 I. P. C. but was convicted by the trial Court under Section 304 I. P. C. and the Judge had failed to record an acquittal under Section 302 I. P. C. Their Lordships held that that would amount to an implied acquittal under Section 302, I. P. C. When, therefore, the only offence with which the accused has been charged is murder, and the act of the accused which has been established against him was held to amount to an offence under Section 304 I. P. C. an offence of murder could not be made out for the same act. In other words, the act of killing a person cannot both be murder and culpable homicide not amounting to murder. These two offences with respect to a singly act are mutually exclusive which must be done or the other, and in this particular case since it has been held to be culpable homicide not amounting to murder, their Lordships had no hesitation in holding that there was an implied acquittal under Section 302, I. P. C. The facts of that case show that the Sessions Judge had convicted the accused under part I of Section 304 I. P. C. though he was charged under Section 302 I. P. C. In revision by the local Government, the High Court having considered the evidence came to the conclusion that there was miscarriage of justice in the trial Court, and accepting the application directed that the conviction of the accused should be altered to one under Section 302 I. P. C. and sentenced him to death. The Privy Council held that the conviction of the accused under Section 302 by the High Court was tantamount to altering a finding of acquittal into one of conviction, and was therefore without jurisdiction, being prohibited by Section 439 Cr. P. C. For the purposes of that case, it appears to have been assumed that there was an implied acquittal, and it was sought to be contended that only when there is a complete acquittal, and not an implied acquittal, that there is a prohibition under S. 539 (4) Cr. P. C. That argument was repelled by this Court in Krishnamurthy's case AIR 1957 Andh Pra 874. In that case, charges under Sections 420, 120-B read with 420 and 420 read with 511 I. P. C. were framed against the accused. The trial Court convicted the accused only under S. 120-B read with S. 420 and did not record a finding either under Section 420 or Section 420 read with S. 511 I. P. C. The learned Sessions Judge on appeal acquitted the accused under Section 120-B read with S. 420 and S. 420 read with S. 511 I. P. C. In revision, it was held by the High Court that the Magistrate is deemed to have acquitted the accused under Section 420 and S. 420 read with S. 511 I. P. C. as that is what is implied in convicting the accused only of the offence viz., under Section 120-B read with S. 420 I. P. C. (42) The learned Public Prosecutor, Mr. Chinnappa Reddy, contends that under Section 258 (1) Cr. P. C. the Magistrate or Sessions Judge is bound to record finding of 'not guilty', or 'guilty' and if he does not record either of these findings, it cannot be said that he is deemed to have recorded a finding of 'not guilty'. The finding of one must exclude the other. But where facts do not exist from which such an implied acquittal can be presumed, the court would not be justified in treating the omission to record a finding on a charge as being tantamount to an acquittal. This contention appears to us to have some force. Suppose in a case where an accused has been charged with several offences, the court has found him guilty of an offence and passed a sentence specifically saying that it is not necessary to give a finding on other offences, though this may amount to non-compliance with the mandatory provisions, nontheless, it cannot be said that the omission to give a finding is tantamount to recording a finding of 'not guilty'. In this case, the Special Judge did consider the offence under Section 161 I. P. C., but since he was convicting the accused of a more serious offence under Section 5 (2) of the Act, he may not have recorded a finding under S. 161 I. P. C. At any rate, the observation of the Special Judge in paragraph 21 of his judgment, which we have extracted above, would show that he was considering the offence under Section 161 I. P. C., though he did not record a finding and was content with convicting the accused only under S. 5 (2) of the Act. The said observation negatives the presumption of any implied acquittal of that offence.