Judgment :- 1. The petitioner was convicted by the Munsiff Magistrate of Kalpetta for the offence of theft of a standing tree and its branches from the Government land in R. S.249/2 in Purakkadi amsom. In appeal, on a reappraisal of the evidence, learned Sessions Judge of Kozhikode confirmed the conviction and sentence and he has now come up in revision. 2. It was contended that two witnesses cited by the prosecution as eye witnesses had turned hostile, that pw.1 is not an eye witness and there is, in fact, complete paucity of evidence to prove that the tree was cut by the accused. It is true that pw. 3 made a feeble attempt to help the accused. He is a kachitdar who was entrusted with the piece of timber after executing kachit Ext-P-3. Even though he started by saying that he did not see the cutting he later stated that he had told the police that he had seen the cutting & that is the truth, and it was only by a slip that he happened to say when first questioned that he did not see the cutting. In the cross-examination also by the defence counsel he stated that he saw the accused cutting a nhaval tree and another kuliramavu tree and that nobody else had cut any trees from the land which is in the possession of the accused. The courts below have chosen to believe this witness & I do not find any good grounds to differ from the concurrent findings of fact. 3. Learned advocate for the petitioner has contended that as the tree admittedly stood in the property in the possession of the accused, whether by trespass or not & the offence of theft being an offence against possession the petitioner cannot be found guilty of theft even if the prosecution story is believed. Two decisions have been cited. One is the decision in Shaikh Garib Haji v. Muchiram Shau (AIR. 1925 Cal. 1020) & another is the case in Bam Brich Lal v. Emperor (A. I. R.1935 Patna 472) following the earlier case. I am tempted to agree. Offence of theft being an offence against possession and the accused being unquestionably in possession of the property the conviction for theft must fail. 4. 1925 Cal. 1020) & another is the case in Bam Brich Lal v. Emperor (A. I. R.1935 Patna 472) following the earlier case. I am tempted to agree. Offence of theft being an offence against possession and the accused being unquestionably in possession of the property the conviction for theft must fail. 4. The next question is whether on the facts proved the accused could he found guilty and convicted of the offence under S.426 I. P. C. If the prosecution establishes certain acts constituting an offence and the trial court misapplies the law by charging and convicting an accused person for an offence other than that for which he could have been properly charged and if notwithstanding such error the accused has by his defence endeavoured to meet the accusation of the commission of these acts then the appellate court may alter the charge or finding and convict him of an offence which those acts properly constitute, provided the accused is not prejudiced by the alteration in the finding. Such an error is one of form rather than of substance and the alteration by an appellate court of the charge or finding would not necessitate a retrial expressly on a charge of that offence. This is justified by the provisions of S.423 read with S.237(1) Crl. P. C. In this case the question would be what is the offence that is committed by the accused cutting the tree from the property belonging to the Government which, no doubt, is in the possession of the accused. Even though it may not amount to theft it would certainly amount to mischief, because the act was done with intent to cause wrongful loss or damage to the Government. I am, there fore, of opinion that without risk, of any injustice, on the facts proved at the trial, the accused could well be convicted of the offence under S.426 I. P. C. and I record a conviction thereunder. 5. For the offence under S.379 I. P C. he hid been sentenced to rigorous imprisonment for three months and the accused had already been in jail for about 25 days before he was released on bail by this court. The conviction of the accused is altered to one under S.426 I. P. C., and the sentence is reduced to the period of imprisonment already undergone by him. The conviction of the accused is altered to one under S.426 I. P. C., and the sentence is reduced to the period of imprisonment already undergone by him. With this modification the revision petition is dismissed. Dismissed.