Raman Nayar, J.
1. These appeals and the reference arise out of Sessions Case No. 27 of 1957 on the file of the Additional Sessions Judge of Quilon sitting at A1-leppy. There were originally five accused persons in the case. Of these, one, namely, the 2nd accused, died pending the trial, while another, namely, the 5th accused, has been acquitted. Of the remaining three, the 1st accused has been convicted under Section 302, I. P. C. and sentenced to death and it is for the confirmation of this sentence that the reference has been made. He has also been convicted under Section 449, I. P. C. and sentenced to three years' rigorous imprisonment for that offence. The 3rd accused has been convicted under Section 324, I. P. C. and sentenced to two years' rigorous imprisonment; and the 4th accused has been convicted under Section 302 read with Section 34 and under Sections 440 and 324, I. P. C. and sentenced to concurrent terms of rigorous imprisonment for life, for three years, and for two years respectively. These three accused have filed separate appeals against their convictions and sentences.
2. We do not propose to enter into the merits of the case since we are satisfied that the charges framed against the accused are so defective as to necessitate a retrial in the interests of justice. The purpose of a charge is to tell an accused person as precisely and concisely as possible of the matter with which he is charged and Sections 221 - 224 of the Criminal Procedure Code give clear and explicit directions as to how a charge should be drawn up. It has been repeatedly held that the framing of a proper charge is vital to a criminal trial and that this is a matter on which the Judge should bestow the most careful attention. We are constrained to observe that it does not appear to us that that attention has been bestowed on the charges framed in this case. They are long and rambling documents setting forth the entire evidence for the prosecution and abounding in a wealth of unnecessary detail; and yet they do not give the accused reasonable notice of the matter constituting the offences with which they stand convicted.
3. The prosecution case was that, on the morning of the 10th December, 1956, owing to some previous enmity, the five accused formed themselves into an unlawful assembly with the common object of murdering the deceased and went in a body to a barber's shop where the deceased was sitting and chatting with P.Ws. 1 and 3 while awaiting the arrival of the barber who had gone out. The 1st accused was armed with a sword-stick, the 2nd accused with a ferruled stick, and the 3rd and 4th accused with ordinary sticks. The 5th accused was unarmed. The 1st and 2nd accused rushed into the shop and dealt the deceased a number of blows on his head with the weapons they were carrying, and as a consequence thereof the deceased suffered a large number of injuries, four of which were each of them, in itself, sufficient to cause death, and to which the deceased succumbed that after-noon while he was being carried to the hospital. Seeing the assault on the deceased, P.Ws. 1 and 3 went out of the shop, the latter after an unsuccessful attempt to intervene.
Thereupon P.W. 3 was attacked by accused 3 and 4 who had stationed themselves in front of the shop, and they gave him a number of blows with the sticks they were carrying. Then the 4th accused went into the shop and gave the deceased, who was lying on the floor half dead, a blow with his stick. The 5th accused also, it was said, entered the shop and asked the 1st accused to lend him his sword-stick so that he could finish off the deceased, but on being assured by the 1st accused that the deceased had already been safely despatched he came out. The five accused then ran away northwards taking their weapons with them. Within an hour P.W. 1 went to the police station and made the report, Ext. P-2, on which the case was registered and investigated.
4. The charge against the 1st accused mentioned Sections 141, 148, 449, 494/149, 302, 302/149 and 324/149, that against the 3rd accused Sections 144, 148, 449/149. 302/149, 324 and 324/149, and that against the 4th accused, Sections 144, 148, 449, 449/149 302, 302/149, 32 and 324/149 of the Indian Penal Code. The learned Sessions Judge doubted the 5th accused's participation in the crime and, we may observe, rightly, in view of the fact that he is not even mentioned in Ext. P-2. The 5th accused was accordingly acquitted, and against that acquittal there is no appeal.
With the elimination of the 5th accused only four persons were left as participants in the crime, and with 5th accused went the charges of rioting and of constructive liability under Section 149, I. P. C. for the offences under Sections 302, 324 and 449, I. P. C. The learned Sessions Judge however found that the injuries inflicted by the 1st accused on the deceased were sufficient, in the ordinary course of nature to cause death, and that having regard to the nature of the injuries, the weapons used, the parts of the body attacked and the manner of the attack, the 1st accused was guilty of nothing short of murder. Accordingly, as We have seen, he convicted the 1st accused under Sections 302 and 449, I. P. C.
So far as the 3rd accused was concerned, the learned Sessions Judge convicted him only under Section 324, I. P. C. for having caused hurt to P.W. 3, and by implication, though not expressly, he acquitted him of the remaining charges. He also found that no common intention to murder the deceased could be attributed to the 3rd accused. But, so far as the 4th accused was concerned, he held that the circumstance that this accused, after attacking P.W. 3 and driving him away, entered the shop & attacked the deceased, loudly spoke to his common intention to commit murder. And he convicted the 4th accused under Section 302 read with Section 34, I. P. C. and under Section 449, I. P. C. in connection with the murder of the deceased, and under Section 324, I. P. C. for the hurt caused to P.W. 3.
5. Now, as we have already said, the charge against each of the accused is a long rambling document cluttered with irrelevant detail telling him not merely what he himself but also what the other accused persons did in the course of the transaction, but at the same time failing to tell him--and it is here that the objection lies-- of the matters making out the offences with which he was eventually convicted. Taking first the charge against the 1st accused, it is no doubt true that Section 302, I. P. C. is mentioned in charge in addition to Section 302, 149, I. P. C., but nowhere in the charge is it said that the 1st accused was being held liable for having himself caused the death of the deceased.
What is said is that he along with the remaining accused formed an unlawful assembly and caused the death of the deceased in prosecution of their common object, thus casting liability on him under Section 149, I. P. C., and the mere mention of Section 302, I. P. C. at the end is not, in our opinion, calculated to give him reasonable notice of the fact that he was being held responsible for having himself caused the death and thus committed murder. In a case where injuries are alleged to have been inflicted by more than one person, it is bound to cause serious prejudice if a person who is to be eventually convicted of having himself committed the murder is not told by the charge that it was his act that caused the death.
6. The charges against the 3rd and 4th accused are similarly defective and excepting that Section 302, I. P. C. is mentioned in the charge, the 4th accused was not told that he was being tried for having joined in the act of causing death-- his liability as in the case of the 1st accused was founded on Section 149, I. P. C. It is true that in certain circumstances a conviction for liability under Section 34, I. P. C. can be entered even though the charge mentions only Section 149, I. P. C. But there can be no doubt that the proper procedure is to put the accused person in notice of the precise ground on which liability is cast upon him.
In any event we do not think it would be right for us to consider the case against accused 3 and 4 separately from that against the 1st accused and express any opinion thereon since the case against all the three depends on the same evidence. As we have already observed it seems to us that the absence of a proper charge in this case is a material error which it may be presumed has misled the accused persons in their defence and thus occasioned a failure of justice. Under the provisions of Section 232(1) of the Criminal Procedure Code, it is therefore necessary to direct a new trial upon charges properly framed.
7. We might mention that it has been argued before us that the murder of the deceased which took place within the shop and in which only accused 1 and 2 participated is an entirely different transaction from the causing of hurt to P.W. 3 which took place outside the shop and in which only accused 3 and 4 took part. Therefore, it is said, there has been a misjoinder of persons as also of offences. We see no substance in this argument. The case is that the accused went in a body for the purpose of attacking the deceased and that while two of them attacked the deceased, two others attacked P.W. 3 who happened to be with the deceased. There is sufficient unity of time, place, purpose and action as to so connect the acts as to make of them one transaction.
8. We shall now set out the charges on which the new trial is to be held. Against the 1st accused there will be a charge under Section 302, I. P. C. for having intentionally caused the death of the deceased. By way of abundant caution, there will also be a charge against him under Section 302 read with Section 34, I.P.C. in that he jointly with the 2nd accused (now dead), and in furtherance of their common intention, did commit murder by intentionally causing the death of the deceased. There will also be a charge against him under Section 449, I. P. C.
9. Against the 3rd and 4th accused there will be individual charges under Section 324, I, P. C. for having caused hurt to P.W. 3 in the course of the same transaction.
10. We have considered the question whether there should be a charge under Section 302, read with Section 34, I. P. C. against the 4th accused in respect of the murder of the deceased and we have decided against such a charge. For, it seems to us that the evidence of common intention in respect of the murder is the same so far as the 3rd and 4th accused are concerned, and that the allegation that, after accused 1 and 2 had inflicted fatal injuries on the deceased and all but killed him, the 4th accused gave the deceased a blow with a stick, even if accepted makes no great difference.
The learned Sessions Judge has found that, so far as the murder of the deceased is concerned the 3rd accused shared no common intention with the 1st and 2nd accused and has, on that finding, acquitted the 3rd accused of the charge of murder. There is no appeal against this acquittal and we do not consider that the evidence is of such a character as to require us to interfere with the acquittal in revision. We think that the cases of the 3rd and 4th accused stand on much the same footing and that therefore there should be no charge against the 4th accused under Section 302 read with Section 34, I. P. C.
11. In framing the new charges the Sessions Judge can, with profit, adopt, with such additions or modification as may be necessary, the model charges given in Ratanlal's Law of Crimes. These are, of course, in English while the practice here appears to be to write the charge in Malayalam. Under Section 221(6) of the Criminal Procedure Code, the charge can be either in English or in the language of the Court. If necessary, the charges based on the model charges may be translated into Malayalam. But if they are writ-ten in English, the charges will, of course, be explained to the accused in Malayalam before their plea is recorded.
12. For the reasons mentioned we set aside the convictions and sentences entered against accused 1, 3, and 4 and direct that they be tried afresh on the charges mentioned above.