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Emperor Vs. Shaik Hasan Abdul Karim (No. 2) - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCases Nos. 31 and 34 and Fourth Criminal Sessions of 1943
Judge
Reported in(1944)46BOMLR566
AppellantEmperor
RespondentShaik Hasan Abdul Karim (No. 2)
Excerpt:
criminal procedure code (act v of 189s), section 297-judge-charge to jury-duty of judge to lay down law-reading of sections offended against whether obligatory-indian evidence act (i of 1872), section 105-exceptions to sections-judge's duty to call attention to exceptions-letters patent, clause 26-certificate-advocate general-high court's jurisdiction-review to be confined to points raised in certificate.;there is nothing in the code of criminal procedure, 1898, which requires that a judge in his charge to the jury should read out the sections of the indian penal code, 1860, which are applicable to the facts of the case, though this is usually done and is desirable. it is, however, desirable and necessary that the judge in charging the jury should explain the law on the subject in simple.....n.j. wadia, j.1. the two accused in this case, shaik hassan abdul karim and akbarkhan attamahomed, were tried by mr. justice blagden and a special jury for the murder of a police constable named nasiruddin on the night of december 25, 1942. the jury unanimously found both the accused guilty and the learned judge sentenced both of them to death. the matter has come up before us on a certificate given by the learned advocate general under clause 26 of the letters patent that there are certain misdirections or errors in the charge delivered by the learned judge to the jury which in his opinion should be further considered by this court. the following four points have been mentioned by the learned advocate general in his certificate :(1) that the learned judge did not point out to the jury.....
Judgment:

N.J. Wadia, J.

1. The two accused in this case, Shaik Hassan Abdul Karim and Akbarkhan Attamahomed, were tried by Mr. Justice Blagden and a special jury for the murder of a police constable named Nasiruddin on the night of December 25, 1942. The jury unanimously found both the accused guilty and the learned Judge sentenced both of them to death. The matter has come up before us on a certificate given by the learned Advocate General under Clause 26 of the Letters Patent that there are certain misdirections or errors in the charge delivered by the learned Judge to the jury which in his opinion should be further considered by this Court. The following four points have been mentioned by the learned Advocate General in his certificate :

(1) That the learned Judge did not point out to the jury with sufficient accuracy and detail the distinction between murder and culpable homicide not amounting to murder, did not read the relevant sections of the Penal Code, and in explaining the law did not use the words of the sections of the Penal Code.

(2) That the learned Judge at no time in his summing-up in regard to the charge of murder adverted to exception 4 in Section 300 of the Indian Penal Code, and that it was incumbent on the learned Judge to put before the jury a case for the accused arising on the evidence, even though such case was not raised or suggested by or on behalf of the accused, and that the learned Judge omitted to draw the attention of the jury to a matter, a consideration of which might lead them to a verdict of culpable homicide not amounting to murder instead of murder ; to wit : whether or not the culpable homicide was committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner,

(3) That having regard to the evidence on behalf of the prosecution there was no evidence of any agreement between the two accused to kill the deceased and that the learned Judge ought not in' giving the charge to the jury to have used the words ' obviously, gentlemen, is it not part and parcel of the same plan that of stopping the dead man's mouth by killing him and scaring the crowd away and preventing them from coming forward ; so that if there is legal trouble afterwards there will be as few witnesses for the prosecution as possible If the object is not to stop the dead man's mouth why have recourse to a deadly weapon, when a less dangerous thing has already achieved its object and won the fight of accused No. 1 For example, if a gang of people like those who murdered Julius Caesar all agreed to stab the same man and did stab him it does not matter in the least who actually struck the fatal blow,'

(4) That on the question of identification of accused No. 2 the learned Judge did not sufficiently place before the jury the facts in favour of the accused, viz. that the accused was arrested and identified eight months after the event and that the incident took place at a time when blackout restrictions were in force and that there were several discrepancies in the evidence of the witnesses in the statements made by them before the Coroner and before the Committing Magistrate and in the High Court.

2. Before proceeding to deal with the paints on which the certificate has been granted, it is necessary to set out the facts of the case and the evidence which was led by the prosecution. On the night of December 24, 1942, the deceased police constable Nasruddin Badruddin, No. 2744/F of the Mahim Police Station, was present at the Ma-him fair. One Haji Abdulla Kadir Siddik was distributing alms to some fakirs. One of the fakirs was dissatisfied with what was given to him and started abusing Haji Abdulla who had refused to give him anything more. The! two accused came along and accused No. 1 asked Haji Abdulla not to beat the fakirs. Haji Abdulla said that he had not beaten any one. Accused No. 1 thereupon took out two one-rupee notes and offered them to Haji Abdulla and asked him to distribute the money to the fakirs. A crowd had collected at the place at the time. Haji Abdulla said that if the accused wanted to distribute money he should do so himself. At this stage the deceased police constable, who was not in uniform, asked the members of the crowd, including Haji Abdulla and the accused to move on, and Haji Abdulla moved away. Accused No. 1, however, asked the constable who he was and gave him a push and told him to go away. Upon this the constable lifted up his shirt and showed accused No. 1 his policeman's belt which he was wearing below the shirt. Accused No. 1 thereupon gave the constable a push. The constable asked him to take care, whereupon accused No. 1 slapped him. The constable then caught accused No. 1 by the collar of his shirt. Accused No. 2, who was near accused No. 1, asked the constable to let accused No. 1 go. The constable refused to do so. Thereupon accused No. 2 gave a blow to the constable on the abdomen and accused No. 1 gave him a blow on the face. The constable then loosened the belt round his waist and either struck or tried to strike accused No. 1 with the leather end of the belt. Accused No. 1 caught hold of the belt with both hands. Accused No. 2 asked accused No. 1 to let go the belt, and he also asked the constable to let go the shirt of accused No. 1, but neither would release his hold. Accused No. 2 then shouted to accused No. 1 to stab the constable. The word used in the charge by the learned Judge is 'thrust in'. ' Accused No. 1 replied that he had no Gha or instrument to stab with. Accused No. 2 then butted at the constable with his head. The constable released his hold on accused No. 1's shirt and fell on the bench of a tea shop close by. Accused No. 1 then caught hold of the belt, and as the constable tried to get up, he started striking him with the buckle end of the belt. Accused No. 2 was at this time warning the people in the crowd not to interfere. The deceased fell back a little in his attempt to1 ward off the blows. Accused No. 2 then gave him a blow with his fist on the right side of his neck. Accused No. 1 continued to strike the constable with the belt with the result that the constable again fell down. He got up again. Accused No. 1 continued to give him more blows with the belt until the belt broke. The deceased fell down a third time, accused No. 1 continuing to strike him with the belt. At this stage accused No. 1 called out to accused No. 2 'Why are you looking at his face, stab him ' Accused No. 2 ran towards the shop and got a knife from a man who was there and returned. Accused No. 1 again called out to him ' Why are you looking at his face, stab him ' The deceased who had fallen down sat up again. Accused No. 1 struck him again with the belt and accused No. 2 stabbed him with the knife on his left buttock. After this accused No. 1 gave some more blows to the constable with the belt. At this stage two or three policemen who had been called by somebody in the crowd came up. They tried to catch the accused but both of them escaped. The injured constable was removed to the hospital at about 1-20 that night. He died within a few hours at about 5-40 a.m. The medical evidence shows that he had several abrasions on the left temple and cheek, near the right eye, a lacerated wound near the left eye, and a stab wound 1 1/2' long 1' broad and 5' deep on the left buttock which punctured the left internal illiac artery. According to the medical evidence the wound was such that if not treated it must cause death. Accused No. 1 was arrested three days later on December 28. The second accused was not arrested till nearly eight months later on August 12, 1943. After the arrest of each of the accused the police held an identification parade at which the witnesses who were subsequently examined at the trial identified both the accused.

3. The prosecution examined Haji Abdulla Siddik whose dispute with the fakirs was the starting point of the trouble, and four other witnesses, Mahomed Sujauddin, a hawker, Yasinkhan who claimed to be an estate broker, Noor Mahomed the keeper of a boarding house near the place where the offence occurred, and one Mastan Imamuddin a servant who worked at the Durgah near the place where the offence occurred. These four witnesses all claimed to have been present throughout the offence. Both the accused said that they knew nothing about the case and that they were innocent.

4. The first point mentioned in the certificate of the learned Advocate General is that the learned Judge did not point out to the jury with sufficient accuracy and detail the distinction between murder and culpable homicide not amounting to murder, that he did not read out the relevant sections of the Indian Penal Code, and in explaining the law did not use the words of the sections. The evidence showed that the knife with which the offence was committed was a big one, and the evidence of one of the witnesses as well as the medical evidence showed that it had been driven five inches into the body of the deceased. The learned Judge did not read out to the, jury the sections of the Indian Penal Code which were applicable. He said in his charge that the counsel for the prosecution had read out to the jury the sections of the Indian Penal Code which he considered applicable. He observed that these sections had probably sounded unintelligible to the jury and about as interesting as a railway time table, and he then explained the law on the subject in plain language.

5. There is nothing in the Code of Criminal Procedure which requires that a Judge in his charge to the jury should read out the sections of the Indian Penal Code which are applicable, though this is usually done, and is in my opinion desirable. Section 297 of the Code of Criminal Procedure says that in cases tried by jury, when the case for the defence and the prosecutor's reply are concluded, the Court shall proceed to charge the jury, summing up the evidence for the prosecution and defence, and laying down the law by which the jury are to be guided. Merely reading to the jury the sections of the Code which are applicable may often not be very helpful to the jury, and might in some cases be somewhat confusing for them. This is especially the case in offences falling under Sections 299, 300 and 304 of the Indian Penal Code. It is always very difficult for laymen to understand the difference between culpable homicide and murder merely from a reading of Sections 299 and 300 of the Code, and it is therefore desirable and necessary that the Judge in charging the jury should explain the law on the subject in single non-technical language. In doing so it is not necessary that the Judge should refer to those parts of Section 300 which on the facts of the particular case are not applicable at all. To refer to such matters would needlessly confuse the jury. Mr. Justice Blagden in his charge pointed out that if a man unlawfully killed another either intending to kill him, or intending to cause an injury of which he would probably die, or of which he was likely to die, the crime he committed would be culpable homicide, and in either of the first two cases, that is, where he intended to kill or intended to cause an injury of which the man would probably die, it would be the aggravated form of culpable homicide which is called murder. He then referred to the point which is covered by the second explanation to Section 299 of the Indian Penal Code, and which arose on the facts of this case, that in estimating the likelihood or probability of death the jury must leave out of account anything which a doctors or any skilled person might do to save the victim, and the fact that prompt medical aid might have saved the man would not prevent the person who inflicted the injuries being held liable for murder where he otherwise would be. Having referred in his explanation of the offences of culpable homicide and murder to the intention to cause an injury of which the man was likely to die, or of which he would probably die, he then explained the difference between likelihood of death and probability of death by saying that likelihood of death simply meant that death would not be a surprising result, and that probability of death meant that survival of the injured man would be a surprising result, and that if the injury inflicted was such that it would surprise anybody if the man lived, then prima facie the offence would be murder and nothing else. He then referred to the fact that according to the medical evidence, which was unchallenged, the) injury was necessarily fatal and that the man did die of it. He referred to the fact that the injury was on a part of the body which was not vital, but he further pointed out that the nature of the injury, namely, that it was a wound five inches deep, had also to be considered. In doing so he used the following words ;

If, as the doctor tells you, this wound was five inches deep, it means that someone thrust some instrument into this unfortunate man up to nearly if not quite one-third of the way through his body. Is it not obvious that if you do that to somebody else, you will in all probability cause his death, no matter in what part of his anatomy you gave a fearful wound of that description Any man in his senses knows that if you stab a person to that depth, or anything approaching that depth, death is at least likely to ensue, even if it is not probable, and therefore the least offence here must be culpable homicide, apart from anything else. From the mere fact that the wound was so deep a jury would be entitled to draw the inference that the person who caused it meant to kill or that he thought that death would be the probable result, in which case he commits murder.

6. He also referred to the size of the knife which according to one of the witnesses was fifteen inches long.

7. The learned Judge pointed out in the passage which I have just quoted that if the injury was such that death was likely to ensue, the offence would at the least amount to culpable homicide, and in the earlier portion of his charge he had made it clear that if the jury came to the conclusion that the accused had inflicted the injury with the intention of killing or with the intention to cause an injury of which the man would probably die, the offence would be the aggravated form of culpable homicide which amounted to murder. The charge, in my opinion, sufficiently explained to the jury the difference between culpable homicide not amounting to murder and murder, and sufficiently brought to the notice of the jury the alternative verdict which they could bring, namely, culpable homicide not amounting to murder. There was, therefore, no misdirection in the learned Judge's charge to the jury on this point.

8. The next point referred to in the certificate of the learned Advocate General deals with the failure of the learned Judge to refer to exception 4 to Section 300 of the Indian Penal Code. That exception provides that culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner. The accused did not plead this exception or any other exception. Under Section 105 of the Indian Evidence Act, when a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception is upon him and the Court shall presume the absence of such circumstances. This section does not relieve a Judge, even in cases where the accused has not pleaded that his case comes within any particular exception, from pointing out to the jury such facts in the evidence as might justify the jury in taking the view-that the accused's case was covered by one or other exception. It is admitted that this exception was not pleaded by the accused in the statements made by them. It was not even referred to by the two counsel who appeared for the accused at the trial in their arguments, and! although these facts would not absolve a Judge from the duty of drawing the attention of the jury to circumstances in the evidence which might make the exception applicable to the facts of the particular case, they may legitimately be taken into consideration in dealing with the point now raised before us, that the learned Judge was wrong in not drawing the attention of the jury to exception 4. The learned Judge referred generally to the exceptions to Section 300 in the following words :

There are certain exceptions to the rule that killing a man intending to kill him or intending to cause some injury of which he will probably die is murder. But it is always for the defence to show that an exception to rule is applicable, and there is here no evidence whatever that any of those exceptions are applicable. I may as well explain to you why one which was read to you does not apply here.

He then referred to exception 1 to Section 300 dealing with grave and sudden provocation and said :

So the policeman was acting properly, and you can put out of your heads any idea of any exception being applicable here. None is.

9. In his opinion, therefore, there was nothing in the evidence which could make excepn. 4 applicable to the facts of the case, and there was admittedly no suggestion by the counsel who appeared for the two accused that that exception did apply. No questions were put to the prosecution witnesses in cross-examination to establish a case for the applicability of this exception. A, Judge is not bound in his charge to the jury to explain exceptions which in his opinion are not applicable and for which there is no foundation whatever laid in the cross-examination. It was no doubt open to the accused in this case to deny the offence completely, and they may have thought that to plead that their case came within any of the exceptions would be inconsistent with their main plea that they had nothing to do with the offence at all. That might be a sufficient reason for their not pleading the exceptions in the statements which they made at the trial. But that would not, in my opinion, be a sufficient reason for the accused's counsel not referring to the exceptions in their arguments at the conclusion of the trial, and if they did not do so, one may reasonably assume that they did not think that there was any justification at all for putting forward such an argument. I do not wish to be understood as suggesting that where counsel for the accused has, for whatever reason, refrained from putting forward the argument that the case of the accused falls within one of the exceptions, the Judge would be absolved from the necessity of drawing the attention of the jury to the applicability of the exception, if in his opinion there is anything in the evidence which might attract the application of the exception. In the case before us I fail to see how excepn. 4 could possibly have applied. To make that exception applicable the evidence must show that the death was caused, in a sudden fight in the heat of passion and upon a sudden quarrel. If the evidence of the witnesses is to be believed, all that the police constable had done was to ask the accused and the members of the crowd to move on, and when he was called upon to explain by what authority he had done so, he showed his police belt, thereby making it clear to the accused and to others that he was acting in the discharge of his duty as a policeman. The evidence of all the witnesses is clear to the effect that it was accused No. 1 who struck the first blow and that it was after this that the constable caught hold of the accused. It has been found that the death of the deceased was caused not by the blows given to him by accused No. 1 but by the wound inflicted on him by accused No. 2, and that wound was inaicted, not at the commencement of the fight, but at the end of it, after the constable had been knocked down three times, and after he had been deprived of the belt with which he had tried to strike accused No. 1, and when he was almost unconscious. Up to that time accused No. 2 had not been attacked by the constable at all. The quarrel which started the incident had been between accused No. 1 and the constable, not with accused No. 2. Accused No. 2's act in stabbing could not therefore be considered either sudden or unpremeditated. He stabbed because he was asked by accused No. 1 to do so. According to one witness it was after accused No. 1 had repeated the request three times that accused No. 2 brought a knife from a neighbouring shop and stabbed the deceased. The stabbing was, therefore, neither unpremeditated nor in the course1 of a sudden fight. It is necessary for the applicability of exception 4 that the act of culpable homicide should have been committed without the offender's having taken undue advantage or acted in a cruel or unusual manner, and it is clear on the evidence that this requirement of the exception cannot possibly be said to have been satisfied in the present case. As I have already pointed out, the deceased was stabbed after he had been knocked down three times, after he had been deprived of the only weapon with which he could have attacked the accused, namely, his belt, and after he had been reduced to a condition in which he could not possibly have caused any injury to either of the accused. It was when he had been reduced to this condition that accused No. 1 deliberately asked accused No. 2 to stab him, and accused No. 2 deliberately went and secured a knife from some one in the neighbourhood, knelt down by the side of the deceased who was lying on the ground, and stabbed him. It would be difficult to describe this action as not cruel or as not amounting to taking undue advantage of the deceased. There was, therefore, nothing whatever in the evidence which could attract the applicability of excepn. 4, and since neither the accused nor their counsel had contended that this exception applied, and since the learned Judge himself thought, and in my opinion rightly, that the exception did not apply, he was fully justified in not making any reference to the exception in his charge to the jury. There was, therefore, no misdirection on this point.

10. The third ground mentioned in the certificate of the learned Advocate General deals, as far as I can understand para. 6 of the certificate, with two different points. The passages from the charge which are quoted in para. 6 of the certificate occur in two different paragaphs of the charge. 'The first part of the quotation referring to the plan of the accused of stopping the dead man's mouth by killing him, occurs in the paragraph at page 58 dealing with the intention of the accused. The second part of the quotation, dealing with the reference to the murder of Julius Caesar, occurs in a different paragraph altogether dealing with the question of abetment. From the way in which the observations are quoted in para. 6 of the learned Advocate General's certificate it would appear as if the whole passage occurred in the same paragraph and dealt with the same subject. It is contended that there was no evidence of any agreement between the two accused to kill the deceased and that the learned Judge was therefore wrong in saying to the jury that there was a plan on the part of the accused to stop the dead man's mouth by killing him and by scaring away the crowd and thereby preventing any of them from coming forward. But for the purposes of the argument advanced by the learned Judge in this portion of the charge, it was not necessary that there should have been a previous agreement between the two accused to kill the deceased. It was possible to argue that after the accused had caused serious injuries to the deceased they may have thought it desirable to prevent him from giving evidence against them by killing him. In view of the fact that the stab which was the cause of the constable's death was inflicted on a part of the body which is ordinarily not a vital part, I would myself hesitate to say that there was a definite intention on the part of the two accused to kill the deceased. But even without such intention their act would clearly amount to murder if it fell within the second and third clauses of Section 300, namely, if it was done with the intention of causing such bodily injury as the offender knew to be likely to cause the death of the person to whom the harm was caused, or, if it was done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted was sufficient in the ordinary course of nature to cause death. If the learned Judge thought that the evidence was sufficient to justify the inference that the accused intended to kill the deceased, I see nothing wrong in his putting that possibility before the jury. Although the point has been, mentioned in the certificate of the learned Advocate General, it has not been pressed before us in the arguments of the learned counsel who has appeared for accused No. 1. The point pressed by him refers to the second part of the passage quoted from the charge, namely, the reference to the example of the murder of Julius Caesar. It has been argued that by making this reference the learned Judge suggested to the jury that there was a conspiracy between the two accused to murder the constable, and that this was not the kind of abetment which was alleged in the prosecution evidence. But the learned Judge in the portion of his charge dealing with abetment has made this point perfectly clear. In explaining what abetment is he says :

Any one who guiltily incites another or assists another to commit a criminal offence is said to ' abet it. There must be a sharing of the guilty knowledge or the guilty intention and there must be assistance or incitement. In this case you have plain and uneontradicted, and indeed unchallenged, evidence from eye-witnesses that accused No. 1 asked accused No. 2 to stab the dead man. If in pursuance of that request accused No. 2 obligingly did stab the dead man then accused No. 1 abetted him in doing it, and as has been pointed out to you (the relevant section has been read out to you by learned counsel for the Crown in his summing-up) it makes no difference if the crime committed was more serious than the crime actually incited, provided it was one which was likely to occur in pursuance of the incitement.

11. He then goes on to point out to the jury that if a person abets another in a crime and is present when that crime is committed, there is no legal difference between their respective positions ; and it is in this connection that he refers to the murder of Julius Caesar and points out that Brutus and Cassius were equally murderers. I see no misdirection or error of law in this part of the charge. The facts, and the law bearing on them, have both been correctly put to the jury.

12. This brings me to the last point dealt with in the certificate of the learned Advocate General, that the learned Judge did not sufficiently place before the jury the facts in favour of accused No. 2 with regard to his identification, namely, that he was arrested and identified eight months after the event, that the offence took place at a time when blackout restrictions were in force, and that there were several discrepancies in the evidence of the witnesses in the statements made by them before the Coroner and before the Committing Magistrate and in the High Court. The learned Judge did not fail to deal with this question. Dealing with the identification of the accused he said:

Gentlemen, every one of the witnesses pick out the accused at the identification parades. Gentlemen, you heard that one of the panch witnesses at one parade has left Bombay and the other one has left this planet. It was not suggested to Inspector Khan that he had conducted these parades unfairly. It was not suggested to him or any one of the identifying witnesses that any one had tipped them the wiser as to who they were to identify. It is certainly remarkable that the witnesses have been able to pick out accused No. 2 after a lapse of eight months, when admittedly he had no large moustaches, as he had before. It would have been easy, and prudent to reduce them. Well, gentlemen, I ask you to remember that, although there were many people there that night, a man beating another insensible with a policeman's belt is not a very usual sight to see : and I hope that to: see another man deliberately borrow a knife and thrust the knife into the victim is very unusual. If one was an eye-witness to that sort of thing it might well make an indelible impression on one's mind, an impression which would survive even after the destruction of mighty moustaches or after a considerable lapse of time.

13. He then referred to the fact that the witnesses who identified the accused were of a very mixed character, a hawker, a shopkeeper, an estate broker and an attendant at the Durgah, and that they all recognised the two men at the identification parades. He also referred to the attitude taken up by accused No. 2 through his counsel and pointed out that although every sort of insinuation was made against Inspector Khan, when the Inspector was actually in the witness-box no suggestion was made to him that the police had done anything improper in connection with the identification parades. Two points were stressed in the argument before us in this connection. It was said that the learned Judge had made no reference to the fact that neither of the two panch witnesses who were parties to the panchnamai about the identification of accused No. 2 had been examined.1 But the Police Inspector gave an explanation why they were not examined. He pointed out, before his cross-examination commenced, that one of the panchas had died and the other had left Bombay and could not be served with a summons. Not a single question was put to the Inspector in his cross-examination to suggest that the police had not made proper attempts to ascertain the whereabouts of the panch or to get the summons served on him. In these circumstances I see no reason why the learned Judge should have made a special reference to the failure of the police to examine the panchas in connection with the identification of accused No. 2.

14. It was also argued that the learned Judge had not referred to the discrepancies in the evidence. The only discrepancy in the evidence of identification to which our attention has been drawn is in the evidence of the witness Mastan Imamuddin. This witness was asked whether he was asked at the identification parade to identify the man who had stabbed, and he replied that he had been asked and that he identified Hassan, that is, accused No. 1. In the very next sentence, however, he said that later on he was called to the police office to identify Akbar, accused No. 2 ; he was asked to identify the assailant and that he identified accused No. 2 although he had removed the long moustaches which he previously had. In his evidence before the committing Magistrate this witness made no reference to accused No. 2 at all. After referring to the fact that accused No. 1 twice knocked the constable down and struck him with the belt he said that accused No. 1 then shouted to accused No. 2 to stab the constable, that at this stage the witness went to call the police, and that when he returned he saw the constable lying on the ground bleeding. According to this statement the witness could not have seen the actual stabbing of the deceased by accused No. 2. This was undoubtedly a serious discrepancy and it would have been better if the learned Judge had drawn the attention of the jury to it, but I am not prepared to say that his failure to do so is such a serious defect in the charge as could be said to amount to a misdirection. It may be mentioned in this connection that the learned Judge has referred to this witness in language which could have left the jury in no doubt that in view of the learned Judge the witness was not a very reliable one. The learned Judge refers to this witness as the illiterate contortionist who was absent without leave from his post at the Durgah. He observes that one could not help smiling at his gestures. He mentions that there was a rather serious discrepancy in his evidence, although it is not the discrepancy which is now under discussion. He points out that although at one time he said that he could not see the knife, he had at the trial said that the knife was fifteen inches long, and he suggests to the jury that his earlier statement was more likely to be accurate. He points out that his story of the knife being fifteen inches long might be considered by the jury as a wild exaggeration, though he himself does not say so. Apart from the evidence of this witness there were other witnesses who had identified accused No. 2 both at the identification parade and at the trial, and there was nothing in the cross-examination of these witnesses or of the Police Inspector to suggest that their identification was open to suspicion. I do not think that there is any misdirection in the charge on this point either.

15. These are the only points referred to in the certificate of the learned Advocate General and since, in my opinion, there was no misdirection on any of these points, the petition of the accused must fail. But the learned counsel for accused No. 1 has raised one other point. He contends that there is a misdirection in the learned Judge's charge to the jury as regards the applicability of exception 1 of Section 300 to the facts of this case. That exception provides that culpable homicide is not murder if the offender whilst deprived of the power of self-control by grave and sudden provocation causes the death of the person who gave the provocation. We are told that this exception was pleaded on behalf of the accused by the learned counsel who appeared for him at the trial.. The learned Judge says in his charge that this exception was read to the jury by the counsel for the accused and he has dealt with it in his charge in the following words :

I may as well explain to you why one (exception) which was read to you does not apply here. If a person is deprived of his powers of self control by grave and sudden provocation, in certain circumstances he can kill a man and only commit the offence of culpable homicide ; but you know that neither of the two persons who could say that they were deprived of their power of self control has said so in this case. They say that they know nothing about this case. There are other reasons why the explanation does not apply ; one is that such provocation as was given was given by a policeman-a public servant-who was perfectly entitled to do so lawfully asking some people to move on, He may not have done it very tactfully, but even a policeman is not bound-on pain of death-to be tactful. Our only rights in the highway are to come and go, and we may stop in the way for the purpose incidental to coming and going. But we have no right to hold public meetings or anything on the highway, and if you do that a policeman, or for the matter of that any one, has a right to ask you to move on and not to block up the highway. So the policeman was acting properly, and you can put out of your heads any idea of any exception being applicable here. None is.

It is contended for the accused that the learned Judge's charge on this point practically amounted to a direction to the jury that exception 1 did not apply, and that the question whether there was grave and sudden provocation was a question of fact which should have been left for the determination of the jury.

16. Before I proceed to deal with this contention, it is necessary to deal with a very important point of law which is raised by it. The point with regard to exception 1 is not mentioned in the certificate of the learned Advocate General, and the question we have to consider is whether in dealing with a case coming before us under Clause 26 of the Letters Patent we are entitled to go into questions which are not covered by the certificate of the Advocate General. Clause 25 of the Letters Patent provides that there shall be no appeal to the High Court from any sentence or order passed or made in any criminal trial before the Court of the original criminal jurisdiction which may be constituted by one or more Judges of the High Court. But it shall be at the discretion of any such Court to reserve any point or points of law for the opinion of the High Court. Clause 26 of the Letters Patent runs as follows :

And we do further ordain that on such point or points of law being so reserved as aforesaid, or on its being certified by the said Advocate General that, in his judgment, there is an error in the decision of a point or points of law decided by the Court of original criminal jurisdiction, or that a point or points of law which has or have been decided by the said Court should be further considered, the said High Court shall have full power and authority to review the case, or such part of it as may be necessary, and finally determine such point or points of law, and thereupon to alter the sentence passed by the Court of original criminal jurisdiction, and to pass such judgment and sentence as to the said High Court shall seem right.

The words : 'the said High Court shall have full power and authority to review the case, or such part of it as may be necessary, and finally determine such point or points of law, and thereupon to alter the sentence' seem to me to indicate clearly that the jurisdiction of the High Court under Clause 26 is restricted to the point or points of law certified by the Advocate General as involving an error, and that if the High Court comes to the conclusion that there has been no error with regard to the point or points of law mentioned in the certificate of the Advocate General, the High Court would have no power to go into any other question, or to review the case generally, even to the extent of altering the sentence. To take a different view would nullify the provision in Clause 25 that there shall be no appeal to the High Court from any sentence or order passed or made in any criminal trial before the High Court. It is no doubt true, and it has been held in many cases, that if the High Court comes to the conclusion that there has been an error on any of the points of law mentioned in the certificate of the Advocate General, the High Court is entitled to consider the whole case, and thereupon to alter the conviction or the sentence or both. There is no direct decision of our own High Court on this point. In Emperor v. Narayan Raghunath Patki I.L.R. (1907) 32 Bom. 111 : 9 Bom. L.R. 789 a matter which came up before the High Court under a certificate granted by the Advocate General under Clause 26 of the Letters Patent was considered by a full bench of five Judges. The question referred to in the certificate of the Advocate General was as regards the admission of the record of a certain statement which had been made by a friend of the accused to a police officer. At the trial the person who was alleged to have made the statement denied it, and the presiding Judge admitted the statement in evidence both to discredit the person who had made it, and also as evidence against the accused as containing a statement made to the police corroborating confessions made by the accused. These confessions had also been admitted in evidence against the accused. It was held by all the Judges that the statement had been wrongly admitted by the trial Judge, and that its admission amounted to an error on a point of law. The Court then proceeded to consider whether there was sufficient evidence apart from this statement to support the conviction of the accused, and a question arose whether under Clause 26 of the Letters Patent the High Court had power to review the case only qua the wrongly admitted evidence, or whether it had power to review all the rest of the case. The counsel for the accused had asked the Court to consider whether the accused's confession which had been admitted at the trial had been induced by a threat or promise or inducement and was therefore inadmissible under Section 24 of the Indian Evidence Act. Three of the learned Judges took the view that the High 'Court acting under Clause 26 could review the whole case and could go into the question whether the confession, which had been admitted by the trial Court, was admissible or not. Two of the Judges, Davar and Beaman JJ., were of the opinion that under Clause 26 the Court was at liberty to review the case or part of the case for the purpose of determining the point or points of law which are either reserved for its opinion or certified by the Advocate General to be wrongly decided, but that it was not open to the Court in review to go behind the record of the case and enter into an elaborate investigation as to whether each particular piece of evidence recorded by the Judge was or! was not rightly admitted. Beaman J. held that if the party did not object and did not ask for a certificate in respect of evidence which is challenged for the first time after the trial at the hearing before the Court of Reference, the objection comes too late. This decision, however, does not deal with the question in the form in which it arises before us. In Patki's case the High Court came to the conclusion that there was an error on the point of law with regard to which the certificate of the Advocate General had been given, viz. the improper admission of the statement. Having come to that conclusion it was the duty of the High Court to see whether, excluding that evidence, the conviction could be supported on the rest of the evidence. The point with which we have to deal, whether, when this Court has come to the conclusion that there has been no error on any point of law with regard to any of the matters referred to in the certificate of the Advocate General, the Court can nevertheless reopen the whole case and deal with points which were not raised before the Advocate General or are not covered by his certificate, did not arise at all in Patki's case. This question has, however, been dealt with in two judgments of the Calcutta High Court and in one judgment of the Madras High Court.

17. In The King-Emperor v. Upendra Nath Das (1914) C.W.N. 653 a case coming up before the High Court under Clause 26 of the Letters Patent of that Court was dealt with by a full bench of five Judges. It was held that where there is no misdirection or other error as certified by the Advocate General under Clause 26, his certificate is misconceived, and the High Court has no power to interfere, and that it is not within its power to reopen the case and express any opinion on the merits. Jenkins C.J. in dealing with the point said (p. 666) :

The result then is that the certificate granted is misconceived : In part it is opposed to the learned Judge's conclusive statement of what occurred and in no respect can I find that it discloses an error in the decision of a point of law decided by the Judge at the trial.

' In this view of the case it is not within my power to re-open the case and I regard myself as not entitled to express any opinion as to its merits. In fact, I am not in a position to deal with the merits; for they have not been discussed before us, nor have those conditions been established on which alone they could be considered by us.

' Our powers are circumscribed, for we can only act in conformity with Clause 26 of the Letters Patent. If there was no misdirection or other error as certified, the certificate was misconceived, and we have no power to interfere.

' If the merits of the case or the sentence are to be further considered, then that must be not by this Court, but some other authority vested with the requisite power.

18. The same question again came up for consideration before a full bench of five Judges of the Calcutta High Court in The King-Emperor v. Barendra Kumar Ghose 28 C.W.N. 170. The accused in that case was convicted under Section 302 of the Indian Penal Code. The Advocate General granted a certificate under Clause 26 of the Letters Patent, and the point referred to in the certificate was that the trial Judge had misdirected the jury on a point of law, and had also misdirected them in so far as he omitted to draw the attention of the jury to the defence of the accused beyond making a mere reference to the statement made by him. It was held by the full bench that there was no misdirection or non-direction amounting to misdirection. It was further held that according to the accepted interpretation of Clause 26 of the Letters Patent the 'Court may consider the question of alteration of sentence by the trial Court only when the point of law reserved by the trial Court under Clause 25 of the Letters Patent, or certified by the Advocate General under Clause 26, has been decided in favour of the accused. Mookerji J., in dealing with this question, said (p. 209) :

In my opinion, there is no escape from the conclusion that as neither of the two points of law specifically certified by the Advocate General caw be answered in favour of the accused, his application for review must be dismissed so far as the exercise of the powers conferred on this Court by Clause 26 of the Letters Patent is concerned.

19. The same point was considered by a full bench of five Judges of the Madras High Court in Muthukumaraswami Pilled v. King-Emperor I.L.R. (1912) Mad. 397 and it was unanimously held that it was not open to the accused's pleader to argue any question of law which was not raised in the certificate given by the Advocate General under Clause 26, and the contention that as soon as a certificate is granted by the Advocate General in regard to any point of law the whole case is opened up for consideration by the High Court under Clause 26 of the Letters Patent, was definitely overruled.

20. I am of opinion with respect that the view taken by the Calcutta High Court in The King-Emperor v. Upendra Nath Das and The King-Emperor v. Barendra Kumar Ghose and by the Madras High Court in Muthukumaraswami Pillai v. King-Emperor is correct, and that, once we come to the conclusion that there has been no error on any point of law referred to in the certificate of the Advocate General, it is not open to us to consider any other question not covered by the certificate of the Advocate General.

21. On this view of the case it is not open to us to consider the point raised by Mr. Ghaswalla for accused No. 1, that there was an error on a point of law in the charge of the learned Judge with regard to the applicability of exception 1 of Section 300 to the facts of this case. Even, however, if we were at liberty to deal with this question, I am not prepared to say that there is any error of law in the learned Judge's charge on this point. Exception 1 to Section 300 was relied on by the counsel for the accused at the trial, although it had not been pleaded by either of the accused in their statements. The learned Judge has referred to this exception in his charge and has put it to the jury that no case of grave and sudden provocation, such as would reduce the offence from murder to culpable homicide not amounting to murder, had been made out on the evidence. That view appears to me to be fully justified. The evidence of all the witnesses showed clearly that it was accused No. 1 who struck the first blow. All that the constable did was to ask the accused, as well as Haji Abdulla and the other persons in the crowd, to move on. It is in evidence that when accused No. 1 resented this interference and asked the constable who he was and gave him a push and told him to go away, the constable raised his shirt and showed the policeman's belt which he was wearing under his shirt. He also warned accused No. 1 not to push him again. Thereupon accused No. 1 slapped the constable, and it was after this that the constable caught hold of accused No. 1 by the collar of his shirt. This is the story given by Mahomed Sujauddin and by Yasinkhan. The evidence therefore shows that the accused must have known before the fight began that the deceased was a police constable. Haji Abdulla has stated that as soon as the deceased raised his shirt and showed his belt he recognised it as a policeman's belt. The mere request or order to the accused to move on cannot possibly be regarded as such provocation as could in any way justify the act of the accused in attacking the constable. The constable was acting in the exercise of his duty in asking the accused and others to move on. Even if it could be argued that the action of the constable in asking accused No. 1 to move on, or in seizing him by the collar of his shirt after accused No. 1 had struck him, may to some extent have provoked accused No. 1, the provocation certainly could not be regarded as grave. In order that exception 1 should apply it must be shown that the provocation was so grave and sudden as to deprive the accused of the power of self-control. But an even more important consideration is that the stabbing which was the cause of the constable's death was done not by accused No. 1 but accused No. 2, and there is nothing whatever in the evidence to show that the slightest provocation had been given by the constable to accused No. 2. The altercation which occurred was between accused No. 1 and the constable. It was accused No. 1 who resented the constable's interference, not accused No. 2. It was not accused No. 2 who was seized by the constable or struck by him. It was after the constable had been knocked down three times that accused No. 2, at the request of accused No. 1, deliberately went and obtained a knife from some one in the neighbourhood and came back and stabbed the constable, who at the time was lying on the ground. His act was not done suddenly on the impulse of the moment and was absolutely unprovoked. The learned Judge was therefore perfectly justified in pointing out to the jury that even this exception which had been put forward by the counsel for the accused did not apply. The learned Judge has undoubtedly expressed his own opinion on this point in an unduly emphatic manner. But I am not prepared to say that the language used by him can be regarded as amounting to a direction to the jury that exception I did not apply. The utmost that can be said is that it was a very emphatic expression of the learned Judge's own opinion that the exception did not apply. It does not amount to a misdirection.

22. In my opinion, therefore, it has not been shown that there has been any error on any point of law in the charge delivered by the learned Judge to the jury. On this view of the case it would not be open to us to alter the sentences passed by the learned Judge. We, therefore, make no order in the matter.

Sen, J.

23. I agree that none of the four points covered by the Advocate General's certificate satisfactorily establishes that the learned Judge's charge to the jury is vitiated by any such misdirection or non-direction as calls for our interference. At the outset, I may say that I am in agreement with the view taken by my learned brother regarding our powers under Clause 26. Mr. Ghaswala has strenuously urged that the High Court has power to review the case not only as, to the points covered by the certificate, but to review the whole case, a point which was urged in Emperor v. Narayan Raghunath Patki I.L.R. (1907) 32 Bom. 111. The headnote of that case on this point says :

Held, by Russell, Ag, C.J., Chandavarkar and Batty, JJ. (Davar and Beaman, JJ., dissenting) that the Court has power to review the whole case.

24. We would have been concluded if; the headnote had been correct, but I find it is not. Chandavarkar J. thought that the contention that the High Court was precluded by the terms of Clause 26 from considering the admissibility of the confession of the accused, a matter which was not covered by the certificate, was ' based on an obvious fallacy.' He held that the trying Judge had decided the question as a question of fact, holding in effect that the evidence did not appear to him to justify the exclusion of the confessions upon any of the grounds specified in Section 24 of the Indian Evidence Act, and he remarked (p. 126):

It is upon that narrower ground that the point now under discussion must and can be disposed of and it is not necessary to decide the broader question raised-whether we have jurisdiction under Clause 26 of the Letter Patent to decide any other point of law than that contained in the Advocate General's certificate. I say it is not necessary and I decline to consider it because there is no point of law as such about the admissibility of the confession before us.

Batty J. did not think it necessary to discuss the question of the powers and duties of the Court acting under Clause 26 of the Letters Patent. Davar J. and Beaman J. both held that the Court had not the power to go into any question not mentioned in the certificate. That case can be further distinguished from the present one on the ground that there the High Court upheld the objection raised in the certificate that a document containing a statement of a friend of the accused, which was used as evidence against the accused, had been wrongly admitted. Having done that, the High Court had necessarily to see the effect of the confession. Such is not the case here, and, therefore, that case does not appear to be an authority in support of the contentions urged by Mr. Ghaswala. Both the Madras and the Calcutta High Courts in the cases cited by my learned brother, viz. Muthukumaraswami Pillai v. King-Emperor I.L.R. (1912) Mad. 397. The King-Emperor v. Upendra Nath Das 19 C.W.N. 653 and The King-Emperor v. Barmdra Kumar Ghose 28 C.W.N. 170 have definitely taken the view that the High, Court's power of review is strictly limited to the points covered by the certificate. That appears to me to be also the natural interpretation of Clause 26.

25. In Emperor v. Narayan Raghunath Patki Davar J. held (p. 132) that the words 'review the case' in Clause 26 must be read with the words that follow, viz. ' or such part of it as may be necessary and finally determine such point or points of law.'

Under Clause 26 it seems to me that we are at liberty to review the case or part of the case for the purpose of determining the point or points of law that are either reserved for our opinion or are certified by the Advocate General to be wrongly decided.' Similarly Beaman J. said (p. 145):

' If the party did not object, did not ask for a certificate in respect to evidence which is thus challenged for the first time after the trial, at the hearing before the Court of reference, the objection comes too late.

A similar view will also appear in The King-Emperor v. Barendra Kumar Ghose 28 C.W.N. 170. It seems to me that Clause 26 must be read in conjunction with Clause 25, the first part of which states that there shall be no appeal to the High Court from any sentence or order passed or made in any criminal trial before the Courts of original criminal jurisdiction. The second part of Clause 25 enables the trying Judge to reserve any point or points of law for the opinion of the High Court. Such points have to be dealt with under Clause 26 in the same manner as points covered by the Advocate General's certificate. It could hardly have been contemplated that when a point is reserved, the High Court would have the power to deal with any other matter ; otherwise there would be little significance in the expression ' reserved.' Prima facie, it seems to me that the same consideration must apply to points mentioned in the Advocate General's certificate. The expression ' review the case' must be read, in my judgment, in conjunction with the words ' and finally determine such point or points of law and thereupon to alter,' etc. The power and authority to review are obviously intended to be the necessary preliminary in order that the High Court may be able finally to determine the point or points of law mentioned, and on determination of such point or points (' thereupon ') the High Court would be in a position to alter the sentence and pass such judgment and sentence as to the High Court may seem right. Clause 26, therefore, is intended to give a limited power of interference to the High Court, and being in derogation of the express prohibition that there shall be no appeal must be strictly construed. In Ramnujam v. King-Emperor I.L.R. (1934) 58 Mad. 523 some inadmissible evidence had been admitted, but their Lordships did not interfere with the decision of the trial Judge on that ground, holding that there had been no decision on the point which could be regarded as a decision on a point of law within the meaning of Clause 26. But it seems obvious that they would have been entitled to interfere if they could ' review the case ' in the sense urged by Mr. Ghaswala. Our conclusion with regard to our powers under Clause 26 would, therefore, shut out from our consideration any contentions urged on points outside the Advocate General's certificate. The important point with respect to which such contentions had been urged is that part of the learned Judge's summing-up which relates to the applicability of exception 1 to Section 300. I also agree with my learned brother that even if we had the power to entertain the said contentions, we should find little substance therein. It is to be remembered that the stabbing was done by accused No. 2 and the question of grave and sudden provocation would have to be raised in relation to him and not to accused No. 1. It seems impossible to say that there is any evidence, or even possibility, of any such provocation having been given to accused No. 2. Even as to accused No. 1, the evidence which may be regarded as suggesting provocation to him is very inadequate, there being the clearest evidence that it was he and not the deceased who first took and almost throughout maintained the aggressive.

26. I shall now take up the four points mentioned in the Advocate General's certificate in order. As to the first point mentioned in para. 5(a) of the certificate, in my opinion, the learned Judge explained the law applicable to the facts of this case with sufficient precision and lucidity. He first stated the broad and essential ingredients of the offences of culpable homicide and murder and also stated the important point that in estimating the likelihood or the probability of death the jury must leave out of account anything which a doctor or other skilled person might do to save the victim. Then he explained what he meant by the expression ' likelihood of death' or ' probability of death ' and said :

If the injury meant is such that it would surprise you (the jury) if the man lived, then, prima jade, that is murder and nothing else.

In all this he followed the analysis of the two sections made in Reg. v. Govinda I.L.R. (1876) 1 Bom. 342. The simple and direct language in which he couched the effect of the two definitions rightly left out matters which were irrelevant and which would only have confused the jury if stated in detail. All that Section 297 of the Criminal Procedure Code says on this point is that the Court shall, besides summing-up the evidence, lay down the law by which the jury are to be guided. In The King-Emperor v. Upendra Nath Das 19 C.W.N. 653 it was pointed out that the duty of a Judge is to lay down the law only in so far as it has a bearing on the evidence adduced in the particular case, to simplify the issues fairly and properly before the Court, to direct the minds of the jurors to those issues alone and not to perplex their minds with considerations which are outside the legitimate scope of the inquiry. It was similarly held in Adam Ali Taluqdar v. The King-Emperor 31 C.W.N. 314. that it is not for the Judge to explain to the jury questions of law which do not arise on the facts or pleadings of the parties.

27. In applying the law to the facts, however, the learned Judge suggested that the offenders must have intended to kill their victim in order to leave ' as few witnesses for the prosecution as possible.' This was his own view, and at the beginning of the summing-up he had strongly cautioned the jury not to regard any of his conclusions on facts as binding on them. The learned Judge perhaps did not sufficiently stress the fact, though he mentioned it, that the seat of the Injury was not a vital part of the body As the victim was already lying helpless, his death would certainly have been rendered more certain by stabbing him in one of the vital parts of the body ; and the argument for the accused would be, and it has been urged before us, that the intention of the offenders could not have been the causing of the victim's death, because the part selected for the injury was the victim's hip. But whatever the object with which the wound was inflicted, there can be no doubt, in view of the clear medical evidence, which was not challenged, that the bodily injury intended to be inflicted was ' sufficient in the ordinary course of nature to cause death.' This was a conclusion which it was impossible for any jury to escape on the evidence in this case. That being so, though the learned Judge did not make any specific reference to Clause (3) in Section 300, one cannot say that his suggestion as to the accused's intention has caused them wrongly to hold that this was a case of murder and thus occasioned a failure of justice. The principle of Section 537 of the Criminal Procedure Code, though it does not apply in terms to the cases dealt with under cl, 26, would apply to such a case, as pointed out in Emperor v. Puttm Hassan I.L.R. (1935) 60 Bom. 599 . It seems, therefore, that there is no case for interference under the first point mentioned in the certificate.

28. As to the second point, exception 4 to Section 300 was not relied on by either of the accused before the learned Judge, and rightly so, particularly in view of the last part of this exception, which clearly would not apply to the facts of this case, as pointed out in the judgment of my learned brother. Besides, there was no sudden fight or quarrel with accused No. 2 who had scarcely intervened in the altercation between accused No. 1 and the deceased and who had to be told thrice by accused No. 1 after the deceased had fallen down, to stab the deceased, according to the evidence in this case, before he deliberately proceeded to stab the deceased with the knifel which he had procured for the purpose. As held in Ramanujam v. King-Emperor I.L.R. (1934) 58 Mad. 523 unless the point of law has been raised in such a way that it can be said to have been presented to the Judge's mind for decision, it cannot be held that there has been a decision on a point of law within the meaning of Clause 26. There does not, therefore, appear to be any substance also in the point mentioned at para. 5(b) of the certificate.

29. The third point is stated at para 6 of the certificate and concerns the question of abetment. It seems to me that the learned Judge has explained the law bearing on the facts of this case as to abetment in clear and succinct language and that there could be little difficulty for the jury in dealing with the question of accused No. 1's abetment. The example of Julius Caesar's murder, being a case of conspiracy and not incitement, was certainly not a case, strictly in point, but that illustration could not, in my opinion, have misled the jury when the law applicable had been properly and clearly explained to them.

30. The fourth point is to be found at para. 7 of the certificate and that deals with question of the identification of accused No. 2. It is true that the learned Judge omitted to point out that witness Mastan first stated that he identified accused No. 1, and not accused No. 2, when asked to identify the man who had stabbed the deceased, and that before the committing Magistrate he did not say that accused No. 2 had stabbed the deceased. But the learned Judge rightly treated this witness, whom he described as an illiterate contortionist, as of the least importance of all the eyewitnesses. The more important witnesses were Mahomed Sujauddinkhan, whose deposition was quoted by the Judge at great length, Yasinkhan Haji Husseinkhan and Noormahomed Husseinkhan, all of whom gave clear and unambiguous evidence as to who had stabbed the deceased and who had abetted the offence. There was, therefore, every probability that even if the jury had been told about the discrepancies in Mastan's evidence, they would have held accused No. 2 as the man who had stabbed the deceased. I agree, therefore, that it would be proper for us to take no action on this point also.

31. In the result, I agree that no order should be made in the matter.

Rajadhyaksha, J.

32. I am in entire agreement with the very full judgment delivered by my learned brother, Mr. Justice Wadia, and I shall state very briefly my reasons for so doing.

33. The first point, which has been referred to in the certificate of the learned Advocate General, is that the learned Judge did not point out to the jury with sufficient accuracy and detail the distinction between murder and culpable homicide not amounting to murder, that he did not read the relevant sections of the Indian Penal Code, and that in explaining the law, did not use the words of the sections of the Indian Penal Code. It is undoubtedly true that the learned Judge has not specifically referred to the sections of the Indian Penal Code or in explaining the law used the precise language of those sections. In my opinion, it would have been desirable to refer to the sections and to explain the difference between culpable homicide and murder by reference to the exact language of the sections. What the learned Judge has done is to explain the difference by using non-technical language, and in this he seems to have followed the advice of the Calcutta High Court in the case of Jaspath Singh v. Queen-Empress I.L.R. (1886) Cal. 164 where it has been observed as follows (p. 168):-.Judges should not leave the Code to the jury in this kind of way for them to read and interpret it for themselves, but as I said before they must explain the law to the jury and tell them, not under what section they are to convict the accused, but in some kind of popular, language which they can understand of what offence they are to convict him, whether it be homicide or grievous hurt, or any other.

34. I am not prepared to say that the jury have not been properly directed as required by Section 297 of the Criminal Procedure Code, with regard to the law so far as it was applicable to the facts of this case. Section 298 of the Criminal Procedure Code does not require that the sections should be quoted. All that is necessary is that the Judge should lay down the law by which the jury are to be guided. The sections relating to the law of culpable homicide and murder refer to (1) the intention on the part of the offender to cause death, or (2) the intention to cause bodily injury or (3) the knowledge that the offender would by doing the particular act cause death. The last consideration, viz. as regards the existence of the knowledge of the likelihood of causing death as distinguished from the intention of causing death or bodily injury did not arise in this case as accused No. 2 did undoubtedly intend to cause death or at least bodily injury. The omission of the learned Judge, therefore, to refer to this particular ingredient, viz. the guilty knowledge as constituting an ingredient in the offence of culpable homicide or murder could not be said to be in any way a misdirection on the part of the learned Judge. Similarly, the question whether the offence would be one of murder by reason of causing bodily injury which the offender knew was likely to cause the death of the particular person to whom the harm is caused, though it would not have that effect in respect of other persons, also, did not arise in this case for consideration. Thus from the circumstances of the case, the consideration of Clause 3 of Section 299 and Clauses 2 and 4 of Section 300 as analysed by Melvill J. in Reg. v. Govinda I.L.R. (1876) 1 Bom. 342 was automatically excluded. The only question then was whether accused No. 2 intended to cause death, in which case the offence would be one of murder or if the intention of the accused was to cause only bodily injury, whether the intended bodily, injury was likely to cause death in which case the offence would be one of culpable homicide or whether the intended bodily injury was sufficient, in the ordinary course of nature, to cause death in which case the offence would be one of murder. The distinction between the two latter cases depends, as was pointed out in Reg, v. Govinda, on the probability or otherwise of death ensuing. This is precisely what the learned Judge pointed out to the jury when he observed as follows :

As a rule, if a man unlawfully kills another either intending to kill him or intending to cause an injury of which he will probably die, or of which he is likely to die, the crime he commits is ' culpable homicide' and in either of the two former cases-intending to kill or intending to cause an injury of which the man will probably die-it is an aggravated form of culpable homicide which is called ' murder'. In estimating the likelihood or the probability of death you must leave out of account anything which a doctor or other skilled person might do to save the victim. The fact that prompt medical aid may have saved the man will not prevent the person who inflicted the injuries being liable for murder where he otherwise would be. Gentlemen, ' likelihood of death' simply means that death would not be a surprising result, ' Probability of death' means that survival would be a surprising result. If the injury meant is such that it would surprise you if the man lived, then, prima facie, that is murder and nothing else.

35. In my opinion, in these observations, there was no misdirection whatsoever in laying down the general principles of law so far as they were necessary for the determination of this case. In applying them to the facts of this particular case, the learned Judge did express his own view that the intention of the accused must have been to cause the death of the victim. In this connection, he pointed out two circumstances, viz. (i) that the thrust of the knife went as deep as five inches in the buttocks of the victim and (ii) the probable intention of the accused to silence the victim for ever so that there may be no evidence for the prosecution in respect of offence in future. Speaking for myself, I would have hesitated to come to the conclusion that there was any intention on the part of accused No. 2 to cause! death. The learned Judge did point out that the blow was given on a non-vital part of the body. But if the intention of the accused was to cause the death of the deceased, it would not have been very difficult for the assailant to give a blow on the more vital parts of the body such as chest, abdomen or neck. It is also doubtful whether the assailant could be fastened with the intention of causing the death of the deceased, merely in order to see that he was not there to give evidence later on if legal trouble arose-as there were numerous witnesses who could give evidence as to what took place. In any case, if the learned Judge thought that from the circumstances of the case, the intention to cause death could be inferred, he was entitled to express his own view and to leave it to the jury to accept it or not. It was obvious in this case that accused No. 2 did intend to cause bodily injury, and the jury had to consider whether the bodily injury intended to be inflicted on the deceased was only likely to cause death or was sufficient in the ordinary course of nature to cause death. The learned Judge did direct them On this point when he observed :

Any man in his senses knows that if you stab a person to that depth, or anything approaching that depth, death is at least likely to ensue, even if it is not probable, and therefore the least offence here must be culpable homicide, apart from anything else.

He had also pointed out that if the intention of the assailant was to cause an injury of which the victim would probably die, then the offence would be an aggravated form of culpable homicide not amounting to murder. In my judgment, therefore, all the necessary provisions which would have enabled the jury to come to the conclusion) as to whether the offence fell under the category of culpable homicide not amounting to murder or under the category of murder were brought by the learned Judge to the notice of the jury, and thus there was no misdirection on that point.

36. The next point referred to in the certificate of the learned Advocate General is that the learned Judge in his summing-up did not refer to exception 4 to Section 300 of the Indian Penal Code, and that it was incumbent upon him to put the case before the jury arising out of the evidence even though such a case was not raised or suggested on behalf of the accused. This exception says that

Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner.

Although under Section 105 of the Indian Evidence Act, the burden of proving that his case came under one of the exceptions is upon the accused, this exception was never pleaded by him in his statement before the Court. It is no doubt true that the defence of accused No. 2 was that he was 'not there at all. And having taken this defence he could not very well say that he was entitled to the benefit of exception 4. But it was for the learned counsel on behalf of the accused to press that point in the course of argument if the counsel thought that the circumstances of the case attracted the applicability of that exception. It is true that even if an exception is not pleaded, it is necessary for the Court to consider whether the case of the accused falls within any of the exceptions, and if so, to bring the fact to the notice of the jury. But during the course of the evidence, apparently no attempt was made to bring such evidence on record as would bring the case of the accused within the scope of exception 4, and in the course of argument, it was not even referred to or read. The learned Judge, in my opinion, therefore, was not bound to explain the exception to the jury which in his judgment or even according to the contentions put forward on behalf of the accused had no application to the facts of the case. The learned Judge did express his opinion that the case of the accused did not fall under any of the exceptions, including presumably exception 4, and in my view the learned Judge was correct. Even assuming that there was a sudden quarrel and that the accused acted in the heat of passion and without premeditation, it seems to me that it is difficult to hold that the accused did not act in a cruel or unusual manner or that he did not take undue advantage of the victim. The evidence on record is clear that before the stab blow, as a result of which the deceased died, was given by accused No. 2, the deceased had already been beaten mercilessly with the belt and was lying helpless on the ground. If under those circumstances accused No. 1, at the instance of accused No. 1, gave that severe stab blow, even on a non-vital part of the deceased's body, it is difficult to escape from the conclusion that the accused did act in a cruel manner and did take undue advantage of the victim. That being so, exception 4 did not clearly apply, and in my judgment, the learned Judge was not wrong in telling the jury that no exception applied.

37. The third point included in the certificate of the learned Advocate General is that, having regard to the evidence given on behalf of the prosecution, there was no evidence of agreement between the two accused of killing the deceased, and the learned Judge ought not, in giving the charge to the jury, to have uttered the words which have been quoted in the certificate. The evidence on record did not make out a case of abetment by conspiracy, and the1 illustration given by the learned Judge of the murder of Julius Caesar was really an instance of abetment by conspiracy. The whole of the prosecution evidence shows that the abetment by accused No. 1 consisted of the actual instigation by him that accused No. 2 should stab the deceased. This instigation was given by him to accused No. 2 no less than three times, and the learned Judge did correctly draw the attention of the jury to the law on this point when he observed as follows :

Now, Gentlemen, so much for 'murder'. What is abetment? That is a very simple thing. Anyone who guiltily incites another or assists another to commit a criminal offence is said to ' abet' it. There must be a sharing of the guilty knowledge or the guilty intention and there must be assistance or incitement. In this case you have plain and un-contradicted and indeed unchallenged, evidence from eye-witnesses that accused No. 1 asked accused No. 2 to stab the dead man. If in pursuance of that request accused No. 2 obligingly did stab the dead man then accused No. 1 abetted him in doing it.

In my opinion this was a correct statement of the law with regard to the charge of abetment, and the learned Judge's reference to abetment by conspiracy by giving the illustration of Julius Caesar's murder can at the most be regarded as superfluous.

38. The last point included in the certificate of the learned Advocate General is that on the question of the identification of accused No. 2, the learned Judge did not place sufficiently before the jury certain facts in favour of the accused, viz. that the accused was arrested and identified eight months after the incident which took place when the black-out restrictions were in force, that there were several discrepancies in a certain witness's statements made by him before the committing Magistrate and in the High Court. With regard to the first point included in this part of the certificate of the learned Advocate General, it must be said that the learned Judge did draw the attention of the jury to the fact that the identification of accused No. 2 took place eight months after the incident. He also referred to certain changes in the appearance of the accused which made the identification, somewhat difficult. It is urged that the fact that the incident took place at a time when black-out restrictions were in force has not been mentioned by the learned Judge in his charge to the jury. But it does not appear that at any time in the course of the cross-examination of any of the witnesses this particular point, that identification was not possible owing to bad visibility at the time of the offence was brought on record by being put to the various witnesses who were examined for the prosecution. That being so, it was not possible for the learned Judge to place that aspect of the case before the jury. It is true that the discrepancy in the evidence of Mastan with respect to the identification of accused No. 2 was not brought to the notice of the jury, and it would undoubtedly have been very desirable and indeed necessary if the learned Judge had referred to it. At the trial this witness stated that he identified accused No. 1 as the assailant and did not refer to accused No. 2 as the assailant when his evidence was recorded before the committing Magistrate. The learned Judge did express his opinion that he himself was not inclined to attach much weight to the evidence of this witness. But even if the evidence of this witness was discarded, there was the evidence of at least three other witnesses, viz. Yasinkhan, Mahomed Sujjauddin Khan and Noor Mahomed with respect to the identification of accused No. 2. It was never suggested, as the learned Judge has pointed out, that there was any unfairness in the holding of the identification parade, and in my opinion, the omission of the learned Judge1 to point out this particular discrepancy to the jury has not in fact caused any prejudice to the accused as there was ample evidence on which the jury could come to the conclusion that accused No. 2 was the person who had assaulted the deceased. In my opinion, therefore, there is no misdirection in respect of this part of the learned Judge's charge to the jury.

39. Lastly, it was argued by Mr. Ghaswalla for the accused that the learned Judge was wrong in telling the jury that although exception (1) was pleaded, it did not apply and that the jury could put out of their minds any idea that any exception applied. This point is not included in the certificate of the Advocate General, and the question, therefore, arises whether it is open to us to consider a point of law not included in the certificate. There have been several decisions of the Calcutta High Court, The King-Emperor v. Upendra Nath Das 19 C.W.N. 653. The King-Emperor v. Barendra Kumar Ghose 28 C.W.N. 160 and Adam Ali Taluqdar v. The King-Emperor 31 C.W.N. 314 and of the Madras High Court in Muthukumaraswami Pillai v. King-Emperor I.L.R. (1912) Mad. 397 which have been referred to in the judgment of my learned brother where it has been held that it is not open to the Court hearing a petition under Clause 26 of the Letters Patent to go beyond the points mentioned in the certificate of the Advocate General. If I may say so with respect, I am in agreement with the view expressed therein. Clauses 25 and 26 of the Letters Patent have to be read together, and it seems to me that a point of law reserved by the learned Judge for the opinion of the High Court, under Clause 25 and the certificate given by the Advocate General under Clause 26 of the Letters Patent have been placed on the same footing, and if it is not open to the High Court under Clause 25 to go into a point not reserved by the learned Judge, it would appear that it is not possible for the High Court to enter into the consideration of any other point of law not referred to in the certificate of the Advocate General. The point did somewhat indirectly arise for decision in a full bench case of this Court in Emperor v. Narayan Raghunath Patki I.L.R. (1907) 32 Bom. 111 . In that case, a certificate was given with respect to the point of law arising out of inadmissibility of certain evidence. The Court unanimously agreed that there had been an error of law. Thereafter while reviewing the case it had to consider the question as regards the admissibility of a confession. The question was whether that was a point which could be gone into on a review or whether the Court was confined in its review to consider only the effect on the ultimate result of the decision in respect of the points referred in the certificate of the Advocate General. Two Judges of this Court Beaman and Davar JJ. held that this Court could not go beyond the points raised in the certificate of the learned Advocate General. Mr. Justice Batty expressed no opinion, but Russell C.J. and Chandavarkar J. held that it was open to the Court to consider other points in reviewing a case. That case can, however, be distinguished on the ground that there all the Judges agreed that there was misdirection with respect to the points referred to in the certificate of the learned Advocate General, and having come to that conclusion, they had to consider whether the other evidence so recorded was sufficient to uphold the conviction ; and while doing so, Russell and Chandavarkar JJ. held that other points could be considered. That case, however, is different from the one with which we are dealing. Here, we have come to the conclusion that there is in fact no misdirection in respect of any point referred to in the certificate of the Advocate General and therefore no question for review arises, and it is not open to us to consider any point apart from those raised in the Advocate General's certificate. But even if it were open to us to consider the contention raised by Mr. Ghaswalla, speaking for myself, I should have come to the conclusion that there was no misdirection even with respect to the view expressed by the learned Judge that exception (1) did not apply. Exception (1) is in the following terms :

Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation, or causes the death of any other person by mistake or accident.

Then there is an explanation that the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. The whole evidence on record shows that when the deceased policeman found that a crowd had gathered, he asked them to move along, and thereupon accused No. 1 asked him who he was. When the policeman showed his belt, accused No. 1 pushed him. When the policeman objected to his being pushed and held the collar of accused No. 1, accused No. 1 slapped him. Then the policeman caught the accused by his shirt and then accused No. 1 gave a fist blow on his cheek. Then the policeman removed his belt and began to give a blow therewith to accused No. 1. Thereupon there was a tussle in which accused No. 1 got hold of the belt and began beating the policeman with it until the deceased fell down helpless. It was after this that accused No. 1 no less than three times called upon accused No. 2 to get hold of a knife and stab the deceased. As a result of this instigation, accused No. 2 obtained a knife from somewhere and stabbed the deceased on the buttock. This being the story which has been substantiated by direct evidence on record, it is difficult to say that accused No. 1 received any provocation from the policeman. If there was any provocation at all, then the question whether the provocation was grave and sudden was a question of fact which the jury had to determine as they had to determine any other question of fact. In this instance, however, it was very difficult to say that the policeman gave any kind of provocation to accused No. 1. But in any case, even if accused No. 1 had some kind of provocation, the question which had to be determined was whether accused No. 2, who gave the fatal blow received any provocation at all from the deceased. The evidence on this point seems to be perfectly clear that accused No. 2 received no provocation whatsoever from the deceased policeman and that after the policeman lay helpless on the ground he was stabbed at the instigation of accused No. 1. Accused No. 2, therefore, certainly did not receive any kind of provocation, much less grave or sudden provocation, from the deceased so as to bring his case within exception 1 to Section 300. In my opinion, therefore, the learned Judge was right in holding that exception 1 did not apply. It is undoubtedly true that he expressed his view with some emphasis, but the learned Judge himself had pointed out that even if his comments were emphatic, they were only comments and no more; and that the jury were not bound by them.

40. I, therefore, agree with the order proposed by my learned brother.

41. E.B. Ghasvala. I appeal to your Lordships to reduce the sentence passed on my client, now that your Lordships have gone through the whole evidence.

42. In the view we take of our powers under Clause 26, since there is no misdirection or other error on the points covered by the Advocate General's certificate, the case is not open, to us and we have no power to interfere with the sentence.


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