Order.- Petitioners, Komarasami and Appan alias Chenniappa Gounder, have been convicted under section 285, Part I, Indian Penal Code, and sentenced to a fine of Rs. 500 each, in default to rigorous imprisonment for six weeks and out of the fine amounts, a sum of Rs. 700 has been ordered to be paid as compensation, to P.W. 1, Krishnaswami Goundar, the complainant in the case. The first petitioner is the father of the second petitioner. The charge made against the petitioners was that on 2nd August, 1964, at about noon, at Kolathu-palayam, they intending to cause or knowing it to be likely that they will thereby cause destruction of sugarcane crops of P.W. 1, Krishnaswami Goundar, committed mischief by setting fire to the dried sugarcane leaves, as a result of which the standing sugarcane crops of the said Krishnaswami Goundar were completely destroyed by fire, causing damage to the extent of Rs. 10,000 and that they thereby committed an offence punishable under section 435, Indian Penal Code. The learned Sub-Divisional Magistrate, Tiruppur, who tried the case, found that the offence committed by the petitioners was not mischief punishable under section 435, Indian Penal Code but negligent conduct with respect to fire, punishable under section 285, Part I, Indian Penal Code, and hence he convicted them under section 285, Indian Penal Code. The first point that arises for consideration in this revision case is whether on a charge under section 435, Indian Penal Code, the accused could be convicted under section 285, Part I, Indian Penal Code. It is clear from a comparison of the ingre-dients of the offence under section 435, Indian Penal Code, and that of the offence under section 285, Part I, Indian Penal Code, that the actus reus for the offence under section 285, Part I, Indian Penal Code, would be established in every case where the actus reus for the offence under section 435, Indian Penal Code, is made out. But the mens rea for the two offences are different. The mens rea for an offence under section 435, Indian Penal Cods is the doing of a wrongful act with the requisite intention or knowledge of the likelihood to cause wrongful loss or damage to any person by the wrongful act. But the mens rea for the two offences are different. The mens rea for an offence under section 435, Indian Penal Cods is the doing of a wrongful act with the requisite intention or knowledge of the likelihood to cause wrongful loss or damage to any person by the wrongful act. But the mens rea for the offence under the first part of section 285, Indian Penal Code, is rashness or negligence in doing the wrongful act. The Supreme Court in Willie (William) Sidney v. State of M.P.1 has considered the effect of the omission to frame a charge under section 302, Indian Penal Code, simpliciter, as regards the legality of the conviction of the appellant under that charge in that case, when he was charged only under section 302 read with section 34, Indian Penal Code, and held that as there was no prejudice by way of failure of justice, the omission to frame the specific charge was cured under section 537, Criminal Procedure Code. It was held in that decision that the trial would be illegal without the necessity of a positive finding of prejudice, (1) where there is no charge at all from start to finish; and (2) where the conviction is for a totally different offence from the one charged and not covered by sections 236 and 237 of the Criminal Procedure Code. In that decision it is pointed out that a man must know what offence he is being tried for and that he must be told in clear and unambiguous terms and that the essence of the matter is not a technical formula of words but the reality. Was he told ? Was it explained to him ? Did he understand? Was it done in a fair way? Thus, the question for consideration in this case is whether the case could be brought under section 237, Criminal Procedure Code. In other words, the question is whether the charges could have been alternatively framed under section 256, Criminal Procedure Code. It is true, there is no direct decision on the question whether a person charged under section 435, Indian Penal Code, could be convicted under section 285, Indian Penal Code. In other words, the question is whether the charges could have been alternatively framed under section 256, Criminal Procedure Code. It is true, there is no direct decision on the question whether a person charged under section 435, Indian Penal Code, could be convicted under section 285, Indian Penal Code. But in King Emperor v. Walker2, a Bench of the Bombay High Court held that as it was open to the prosecution to bring the accused to trial on alternative charges under section 304 and section 304-A, it would follow by virtue of section 237, Criminal Procedure Code, that although the charge under section 304-A is not formally made out, it is open to the Court to convict the accused under that section. The same view has been held in State v. Kulwant Singh3 , in which a Bench of the Allahabad High Court convicted an accused under section 304-A, Indian Penal Code, in a State appeal though the trial of the accused in that case was under section 304, Indian Penal Code. On a parity of reasoning the petitioners though charged under section 435, Indian Penal Code, could be convicted under section 285, Part I, Indian Penal Code, as the main difference is with regard to the mens rea which has to be determined on a consideration of all the facts and circumstances adduced in respect of either of the offences. In fact, it could not be disputed that even at the commencement of the trial, charges could have been framed against the petitioners alternatively under section 435, Indian Penal Code and section 285, Part I, Indian Penal Code, if prosecution was doubtful as to the mens rea of the accused. It follows that there could be a conviction under section 285, Part I, Indian Penal Code, though the petitioners were charged only under section 435, Indian Penal Code, having regard to the provisions contained in section 237, Criminal Procedure Code. It is true that, if prejudice is likely to be caused by such a conviction, there should be a retrial. But the learned Advocate for the petitioners did not urge that any prejudice would be caused to the petitioners by altering the conviction from section 435, Indian Penal Code, to section 285, Part I, Indian Penal Code, on the facts proved in the case. In fact he did not want retrial in this case. But the learned Advocate for the petitioners did not urge that any prejudice would be caused to the petitioners by altering the conviction from section 435, Indian Penal Code, to section 285, Part I, Indian Penal Code, on the facts proved in the case. In fact he did not want retrial in this case. The learned Advocate for the petitioners, however, argued that on the facts found in this case, the conviction of the first petitioner could not be sustained and in my opinion his contention is well founded. It is clear from the evidence of P.W. 2, Chinna Kudumban, the only eye witness in this case, that the second petitioner alone actually set fire to the sugarcane leaves, and his negligent act subsequently resulted in the sugarcane crop of the complainant being destroyed by fire. The first petitioner is no doubt the father of the second petitioner, but he was merely present like the two other accused who were acquitted by the trial Court. The first petitioner and the two others who were acquitted were charged for mischief by invoking section 34, Indian Penal Code. Even section 34, Indian Penal Code, cannot be invoked in a case falling under section 285, Part I, Indian Penal Code, as there can be no question of common intention in such a case, for the foregoing reasons, the conviction of the first petitioner cannot be sustained and hence his conviction under section 285, Part I, Indian Penal Code, and the sentence of fine of Rs. 500 imposed on him are set aside and he is acquitted. For the reasons already stated, there is no ground to interfere with the conviction of the second petitioner and the fine of Rs. 500 imposed on him. The criminal revision case is therefore dismissed so far as the second petitioner is concerned. The learned Sub-Divisional Magistrate who tried the case has ordered that a sum of Rs. 700 out of the fine amount to be paid over as compensation to P.W. 1, Krishna-swami Goundar. But I have set aside the conviction and sentence of fine imposed on the first petitioner. I, therefore, direct that the entire sum of Rs. 500 imposed as fine on the 2nd petitioner, if collected, be paid to P.W. 1, Krishnaswami Goundar. The fine amount if already paid, by the first petitioner, will be refunded to him. V.S. ----- Order accordingly.