The provisions of the section 386 Crpc empowers the Appellate Court that after perusing the record and hearing the parties, if it appears that there are sufficient grounds to interfere with the judgement of conviction,or order him retried by court of competent jurisdiction subordinate to such Appellate Court or committed for trial.

On facts of the case the conversion was sustainable. Before the trial court the appellants along with other s took his trial u/s 396 IPC,i n the alternative u/s 302 IPC. According to the prosecution, there was actual no commission of dacoity thought there was an attempt for it. The High court considering the facts.

And the evidence proving that it was the appellant who caused the death'of the deceased has altered the conviction.

Added to that, the High Court had mentioned that there was a specific allegation in the charge that the appellant had murdered the deceased . The appellant can't be said to have been prejudiced by the alteration of the conviction in view of the specific alternative charge. The argument advanced by the counsel that there was an acquittal of the appellant u/s 302, IPC, has no merit.

Ramdeo Rai Yadav vs State of Bihar,( 1990, 2 SCC675