Leonard Stone, Kt., C.J.
1. This appeal comes before us under and by virtue of Section 411A of the Criminal Procedure Code. This is a new section introduced in the year 1943 and gives any person convicted at a criminal trial held at the Sessions of a High Court in exercise of its original criminal jurisdiction, the right to appeal to an appellate Court in the circumstances and upon the grounds set out in the section. Formerly there was no such right.
2. On October J7, 1944, at about 10-30 p.m. in the evening one Kakhma Bala was fatally stabbed in the Parel Road of this City, and arising from such occurrence the two appellants having been duly arraigned and claiming to be tried were tried before Mr. Justice Macklin and a special jury at the First Criminal Sessions of 1946. In the result the jury by a majority of 6 to 3 returned a verdict of guilty against each of the accused and the learned Judge sentenced them to death.
3. Three principal points were taken by Mr. Ghasvala on behalf of the appellants before this Court; first, that there are errors of law in the learned Judge's summing-up to the jury; secondly, that there was non-direction on important points amounting to misdirection; and, thirdly, that the jury have not returned a verdict which is a verdict at all. We have carefully considered the learned Judge's summing-up and are of the opinion that there is no substance in the first and the second contentions, but Mr. Ghasvala's challenge to the verdicts involves a challenge to the form which the charge against the appellants took, .as well as to the verdict given by the jury upon that charge. Mr. Purshottam Tricumdas, who appears for the Crown, admits, and in our opinion rightly admits, that the charge is defective. It is in these terms:-
I. J. M. Barot, Presidency Magistrate, 5th Court, Dadar, Bombay, hereby charge you accused No. 1 Yeshvant Tukaram Salunke and you accused No. 2 Vishnoo Krishna Ghadi as follows:-
That you along with one Mahadeo now absconding on or about the 17th day of October 1944 at Bombay, did Commit murder by intentionally causing the death of one Rakhma Bala and sided and abetted one another in the commission of the said offence which offence was committed in consequence of such abetment and you thereby committed an offence punishable under Section 302 read with Section 109 of the Indian Penal Code and within the cognisance of the High Court.
And I hereby direct that you be committed to the ensuing Sessions of the High Court to be tried on the said charges.
Dated this the 8th day of January 1946.
4. As it originally stood, the offence of abetment was framed under Section 114, but at some stage that section was struck out and Section 109 substituted for it. The first question we have to consider is what this charge means. Does it charge each of the appellants-accused with one offence or with two offences? Three suggestions have been, made about it. Firstly, that it is a charge of murder under Section 302, Indian Penal Code, and also a charge of aiding and abetting one another in the commission of murder under the conjoint effect of Sections 109 and 302 of the said Code. That is to say, it charges the appellants with two separate and distinct offences. Head as such it is admittedly defective because by Sub-section 221(4) of the Criminal Procedure Code, 'the law and section of the la-w against which the offence is said to have been committed shall be mentioned in the charge', and so far as the charge of murder is concerned, no mention of Section 302 is made. That, however, is a defect which is capable of cure under Section 225 of the Criminal. Procedure Code: 'Unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justices' Secondly, that A charges the accused with, the offence of abetment of murder only, and that the first part of the charge Is to be regarded as preamable only, and, thirdly, that it is a sort of composite V murder and abetment of murder. There is of course no such single offence known to the Indian Penal Code. In our opinion the first of these alternatives is the correct construction, i-e. it charges each of the appellants offences, with murder and also with abetment of murder. It is no doubt that under Section 109 of the Indian Penal Code the punishment for abetment is the same as the substantive offence, which in the case of murder is death or transportation for life, however the charge of abetment of murder must be a separate and distinct charge.
5. How this form of charge came into being we have been unable to discover, but it appears to be the common form in this city, though not in the Sessions Courts of the mofussil. During the course of the argument before us the case of Government of Bombay v. Fernandez : AIR1945Bom277 was referred to, and as the facts were very similar to those in the case before us, we sent for the record. The charge was in similar terms, and the learned trial Judge took a single verdict in the ease of such of the accused upon it. Nevertheless as appears from the report of the case it is clear that the full bench, before whom the case went in appeal, considered that the charge charged the accused with two offences, since at p, 364 Mr. Justice Divatia said:
The charge against the accused was that on August 26,1948, they committed the murder of one Mahadeo Khotu and aided and abetted each other in the commission of the said offence.
6. However, in. that case the verdicts against each of the accused were 'Not guilty'.
7. By Section 303 of the Criminal Procedure Code it is provided:-
303(1) Unless otherwise ordered by the Court, the jury shall return a verdict on all the charges on which the accused is tried, and the Judge may ask them such questions as are necessary to ascertain what their verdict is.
(2) Such questions and the answers to them shall be recorded.
8. The section is mandatory so that unless the Judge orders the jury to the contrary a verdict on each charge must be given.
9. In the case before us the defect in the charge has led to serious consequences because the learned Judge after a careful summary of the evidence said this:-
I do not think, Gentlemen, that there is anything more that I need say as to the facts of this case- As to the law I am going to deal with it within a minute or two. This is an obvious case of murder, and it cannot have been anything less. Anybody who causes injuries such as these or takes part in helping anybody who causes them two stab wounds of unknown depth on the left of the abdomen between the 9th and 10th rib and on the right side in the opposite position and three incised wounds all against the rib and one of them 2 1/2' deep, another one an inch deep, and the third half an inch deep and also two incised wounds on the arm an assault of that kind which causes internal injuries such as this assault caused can only be murder. Anybody who causes death by doing an act with the intention of causing death or by intentionally causing an injury which is sufficient in the ordinary course of nature to cause death (which was the case here) commits murder.
10. And a little later in his summing-up the learned Judge directs the jury as follows :
The two accused are charged with aiding and abetting each other, so that provided you came to the conclusion that there was aiding and abetting (intentional helping is what is meant by abetting), it would not matter who caused which particular injury; it would not matter provided they were helping each other; it comes to exactly the same thing. Of course if you came to the conclusion that there was no abetment, it would be necessary for you to decide who had caused which wound, and unless you take the dying declaration as giving positive evidence of the fact, there is nothing on the record by which you can infer that either of these men caused any particular wound. The dying declaration of course implies that only accused No. 1 did the actual assaulting; and if that is correct, then it would mean that accused No. 1 caused all the wounds. But, as I have suggested already, you should be extremely cautious in treating the dying declaration as positive evidence of the facts to which it relates, because the man who made it was undoubtedly in severe pain at the time and, though conscious, may well have not been particularly careful about what he was saying.
That Gentlemen is all that I have to say. Remember that before you find either of these men guilty, you must be satisfied beyond all resonable doubt that they really are guilty; and if you are left with any doubt, it is your duty to acquit them. On the other hand, if at the end of the case after fully considering all the evidence you feel that there is no reasonable doubt, it is equally your duty to say so regardless of what the consequences may be to them.
11. And the learned Judge after pointing out that it is very much better that their verdict should be unanimous, then left the jury to consider their verdict and the jury in each case by a majority of 6 to 3 brought in a single verdict: 'guilty'. But guilty of what? The learned Judge seems to have assumed that the jury had found the appellants guilty both of murder and of abetment of murder, since immediately after the verdict and before passing sentence he said :
The jury have found both the accused guilty of murder and abetment of murder by a majority of 6 to 3, and I agree with that verdict.
12. On that basis this is a clear infringement of Section 303 of the Criminal Procedure Code, because the jury in each case have only returned a single verdict on two charges, and in our opinion such a verdict cannot be sustained.
13. Our powers under Section 411A of the Criminal Procedure Code are, as has been held by the Privy Council, very wide indeed, but as the learned trial Judge said in his summing-up:
A difficulty arises in this case from the very outset, in that there is a fairly sharp distinction between the story given by the witnesses and the story given in the dying declaration of the deceased.
14. We feel in these circumstances that this prosecution is essentially one in respect of which, a jury should return a verdict on charges which have been, properly formulated, and that it is not a case in which we should exercise our powers by substituting verdicts where none exist. Regarding, as we do, the verdicts of the jury as no verdicts at all, it is in our opinion, right that the accused should be re-tried before a new jury. Accordingly we set aside the convictions and sentences and order a new trial of both the accused.
15. We have invited the Public Prosecutor .to submit a form of charge appropriate to this case, and which may be used as a precedent in similar cases in the future, haying considered the charges submitted and with the assistance of counsel on both sides in this appeal we are of the opinion that the appropriate charges to be formulated in this case and in like cases should be:
1. That you Yeshvant Tukaram Salunke accused No. 1 on or about October 17, 1944, at Bombay murdered Rakhma Bala and thereby committed an offence punishable under Section 2J02 of the Indian Penal Code and within the cognizance of the High Court.
2. Alternatively that you Yeshvant Tukaram Salunke accused No. 1 on or about October 17, 1044, abetted the commission of the said offence of murder which offence was committed in consequence of such abetment and you thereby committed an offence punishable under Section 302 and Section 109 of the Indian Penal Code and within the cognizance of the High Court.
3. That you Vishnu Krishna Ghadi accused No. 2 on or about October 17,1944, at Bombay, did murder Rakhma Bala and thereby committed an offence punishable under Section 302 of the Indian Penal Code and within the cognizance of the High Court.
4. Alternatively that you Vishnu Krishna Ghadi accused No. 2 on or about October 17, 1944, abetted the commission of the said offence of murder which offence was committed in consequence of such abetment and you thereby committed an offence punishable under Section 303 and Section 109 of the Indian Penal Code and within the cognizance of the High Court.