1. This is an appeal by accused 1 and 6 against, their convictions under Section 304, Part I, Penal Code for causing the death of Hyderali Nur Mahomed.
2. The prosecution story briefly is that there is a long standing enmity between witnesses Fare-mahomed & Gulammahomed, who are the cousins of the deceased Hyderali, and accused 1 and his father. Accused 6 is the maternal uncle of accused 1. This enmity has resulted in several cases of assault and there have been several criminal cases between the parties.
About two years ago accused 1 was convicted for stabbing Fatemahomed. Fatemahomed and Gutaminahomed were subsequently convicted for assaulting accused 1 s father. Proceedings for taking security for keeping good, behaviour were also instituted against both the parties.
3. On 1-11-1954 at about 3-45 P. M Fatte Mahomed and Gulam Mahomed were returning to their room. The two appellants along with some other persons were then sitting in the room of accused 2. They came out of the room and? threw stones at Fatte Mahomed and Gulam Mahomed, Who in the meantime had gone on the 1st floor of their chawl. They were pursued by the accused.
The accused gave them some blows with spears. Gulammahomed went inside one of the rooms while Fatte Mahomed Jumped down from the balcony and ran away. While he was running away, he met the deceased Hyder. Hyder and Patte Mahomed then walked towards their chawl. The accused pursued them. Fatte Mahomed ran away and concealed himself in the room of witness Talaji.
Hyderali was assaulted with spears by the two appellants and some other persons. He died on the spot as a result of the injuries received by him. Shortly afterwards the police went there. They recorded the complaint of Fatte Mahomed in which he implicated the two appellants as being two of the assailants of Hyderali. Accused 1 also lodged a counter complaint in which he alleged that he had been beaten by six persons, including Fatte Mahomed, Gulam Mahomed and Hyderali.
As Gulammahomed, Fatte Mahomed and ac-cused I had injuries on their persons, they were sent for treatment to the Civil Hospital. The doctor, who examined them, found that Fatte. Mahomed had one lacerated wound on the left thigh and an abrasion on the left palm. Gulam-mahomed had two lacerated wounds' on the left arm. The doctor also found one healed wound on the left thigh.
Accused I had five injuries on his person. One was an abrasion on the right scapular region. The other four were incised wounds skin deep, one on the left palm, two on the left fore-arm and the 4th on near the left ear. The post-mortem examination of the dead body of the deceased showed that he had four incised wounds. This most serious injury was injury No. 1, which was an incised wound on the right side of the chest.
There were serious internal injuries below this injury. Portions of both the right and left lobes were injured and 3/4th of the back part of ascending aorta was also cut. The second serious injury was injury No. 2 on the abdomen. On account of this injury small intestines were injured at two places and large intestines at one place. The third Injury was on the right upper arm, while the 4th one was near the armpit.
In the opinion of the doctor, who held the post-mortem examination, injury No. 1 was sufficient to cause death in the ordinary course of nature, while injury No. 2 was also likely to cause death.
After completing the investigation the police sent up a charge-sheet against 8 persons including the two appellants. They were charged with, being members of an unlawful assembly, the common object of which was to assault and belabour Fatte Mahomed, Gulammahomed and Hyderali and committing offences punishable under Sections 148, 302 and 324, Penal Code in prosecution of the common object of the unlawful assembly.
Both accused 1 and 6 pleaded not guilty. Accused 1 admitted his presence at the time of the Incident. His story was as follows:
'That day I had gone to collect rent near Babu Badrlprasad whose room is downstairs and towards the road. Haider, Fatemahomed, Gulam, Baldev, Kasam and Ismail Alaya assaulted me. Haider gave me a Dharia blow on my ear. I shouted 'save, save' and went near the compound wall in between Advance chawl and Sakalchand Chawl. There I was surrounded by six persons. Kasam gave me two Dharia blows on my left hand in the meanwhile Fate Mahomed ran at me with a spear. I went aside. The spear blow hurt Haider on the chest. Then my uncles No. 2, Nos. 3 and 8 took me to my room. Then I was sent to the civil Hospital by the police. Then my statement was recorded'.
Accused 1 therefore denied that he had assaulted Hyderali, but on the other hand alleged that he himself had been beaten by Hyderali, the two witnesses Fatte Mahomed and Gulammahomed and some other persons. The other appellant, accused 6, denied that he had committed any offence.
4. The charge for the offence of murder was tried with the aid of jury, who unanimously returned a verdict of guilty against the two appellants under Section 304, Part 1, Penal Code.
The other charges were tried by the learned Judge with the aid of the same jurors sitting as assessors. He did not agrea with the opinions expressed by the assessors that the two appellants were also guilty of the other offences punishable under Sections 148 and 324, I. P. C. with which they were charged and accordingly he acquitted them on these charges. He, however, accepted the verdict of the jury and accordingly convicted both the appellants under Section 304 Part I, Penal Code.
5. The charge framed by the learned Judge is defective in several respects. There were 8 accused in this case. The prosecution case was that these 8 accused were members of an unlawful assembly and that in prosecution of the common object of that assembly they had committed several offences.
The learned trial Judge, however, framed only one charge and the facts alleged by the prosecution in respect of all the offences are mentioned in one paragraph. This has created confusion and even the points of determination have not been, correctly drawn up by the learned Judge. For instance the charge states that all the accused were armed with spears and that one of them, accused 6, was also carrying a pistol.
Point 4 of the points which according to the learned Judge arose for determination, is as follows: 'Whether they were armed with dangerous weapons like spears?' There is no reference in it to a pistol. From the charge framed by the learned Judge, it is also difficult to make out with what specific offences any particular accused was charged.
6. With regard to the two appellants, accused 1 and 6, it is stated at the end of the charge, 'thereby the accused committed the following offences: Accused 1 and 6 under Sections 148 324, 302, 324, 302 & 324, 149, Penal Code'. It is not clear why Section 324 had been mentioned twice in the charge. It is also not quite clear whether the charge under Section 324 read with 149 is for causing, injuries to Gulammahomed, Fatte Mahomed or Hyderali.
As I have pointed out, the two appellants were charged both under Section 302 and Section 302 read with Section 149, Penal Code, Evidently the intention was to charge them under Section 302 read with Section 34 or in the alternative under Section 303 read with Section 149, Penal Code. If this was the intention, it should have been made clear by framing two alternative charges.
7. Section 233, Criminal P. C. provides that for every distinct offence of which any person is accused, there shall be a separate charge. A separate charge or head of charge should therefore be framed for each distinct offence. Where it is intended to charge an accused person in the alternative with having committed one or the other offence, separate alternative charges should be framed. The form in which charges should be framed is form No. 28 in Schedule V to the Code. The charge should also contain the particulars; referred to in Sections 221, 222 and 223.
8. Similar defects have been noticed by us in other cases. We would therefore advise all Sessions Judges, Additional Sessions Judges and Assistant Sessions Judges to devote their personal attention to this matter and see that the charges) are framed properly both in order to enable the prosecution to know precisely what facts they have to prove and also in order to give the accused a clear notice of the case he has to meet.
It may here be observed that a Sessions Judge is not bound to frame the charge in the same terms in which it has been drawn up by the Committing Magistrate. Under Section 226 the Sessions Court has the power to alter or modify the charge framed by the Committing Magistrate in such manner as it deems proper.
9. The charge framed in this case is defective in another respect. As I have stated the two appellants were charged under Section 302 and Section 302 read with Section 149. In the body of the charge it is stated that the two appellants, accused 1 and 6 had committed murder of Hyder-ali. It is not quite clear what exactly the learned Judge meant by this statement.
An essential ingredient of the offence of murder is that the offender must by his act cause death. If death is due to one injury, the person, who caused death by inflicting that particular injury, would be guilty of murder His associates would be liable only by the application of Section 34, Penal Code, if the injury is caused in furtherance of the common intention of all, or by the application of Section 149, Penal Code, if the injury is caused in prosecution of the common, object of all the members of the unlawful assembly, or if it is such as they knew was likely to be caused in prosecution of their common object.
If the death is due to multiple Injuries caused by different persons and it cannot be said which particular injury has resulted in death, no one can be held liable for murder and each assailant will be liable only for the injuries caused by him, unless Section 34 or Section 149 can be appl'ied, in which case all the assailants will be jointly liable for murder.
10. The result of the improper framing of the charge in the present case has, been that the jury has found both the appellants guilty under Section 304, Part I. This verdict is not correct, because the injury, which proved fatal, cannot be said to have been caused by both the appellants. The jury evidently did not intend to apply Section 149, because although the accused were charged both under Section 302 and Section 302 read with Section 149, they returned the verdict only under Section 304.
Probably the jury was of the opinion that both the appellants intended to kill Hyderali and had in furtherance of their common intention caused his death. We cannot, however, be certain about it, because there was no charge under Section 34 nor has this section been explained to the jury. As therefore, the law has not been properly explained to the jury, it Is necessary for us to go into the evidence in order to decide whether on the evidence the verdict of the jury can be sustained.
11. There is no dispute that an incident took place on 1-11-1954, in which on accused's side accused l received minor injuries, while on the other side Hyderali was killed and witnesses Fatte Mahomed and Gulammahomed were injured. The number of persons injured on either side and the nature of injuries caused to them clearly suggest that the aggressors in this case were the accused.
If accused 1's story that six persons had gone to assault him armed with Dharias and spearswas correct, he would not have escaped with suchlight injuries as were actually found on his person. Witness Talaji, who has tried to avoid implicating the accused, has also stated in his evidence that he had seen Fattemahomed runningfrom his chawl, pursued by ten persons carryingspears and Dharias. There can therefore be nodoubt that the aggressors in this case were theparty of the accused.
The accused cannot consequently claim the right of private defence. Very probably as stated in the first information, that is the statement of Fatte Mahomed recorded almost immediately after the offence, the contents of which have been deposed to to correct by Fatte Mahomed, Hyderall, who came on the scene late, intervened in order to rescue Fatte Mahomed who was being chased by the accused.
In attacking Hyderali, the accused, who had gone armed in order to assault Fatte Mahomed, would not consequently be entitled to claim the benefit of the right of private defence. The injuries to accused 1 are all simple hurts. Not one of them was caused on a vital part of his body. Even if therefore the accused had a right of private defence, in killing Hyderali, they have clearly exceeded this right.
12. The next question to be considered is whether both the appellants had taken part in the assault on Hyderali. The evidence on this point is that of two witnesses, Fatte Mahomed, and Gulammahomed. There are numerous discrepancies in their evidence. Having regard to their previous record and the admitted enmity between them and the accused, it would not be safe to act on their evidence without corroboration.
Both of them have stated that accused 1 had given a blow with a spear to Hyderali on his chest. This is also mentioned in the first information recorded shortly after Hyderali had been killed. Accused 1 was admittedly present at the time of the incident. We, therefore, believe the evidence of Fatte Mahomed and Gulammahomed that accused 1 had given a blow with a spear to Hyderali on his chest.
13. The medical evidence shows that this injury on Hyderali's chest, as well as the other injury caused to him on his abdomen, could both have caused the death. It cannot therefore be definitely said that the death of Hyderali was due to the injury caused to him by accused I. Accused 1's conviction under Section 304, Part I must consequently be set aside. He is however guilty of the offence punishable under Section 326, Penal Code.
The sentence of 7 years' rigorous imprisonment passed upon him is by no means excessive. We therefore alter the conviction of accused 1 from one under Section 304, Part I, Penal Code to that under Section 326, Penal Code. The sentence of 7 years' rigorous imprisonment passed upon him is confirmed.
14. So far as accused 6 is concerned, the only evidence against him is that of the two brothers, Patte Mahomed and Gulammahamed. There is no other evidence, direct or circumstantial, which will show that he was one of the assailants of Hyderali.
For the reasons, which I have already given, it would not be safe to convict him on the evidence of Fattemahomed & Gulammahomed alone. We therefore give the benefit of doubt to accused 6 and set aside his conviction and the sentence passed upon him.
15. Order accordingly.