Horace Owen Compton Beasley, Kt., C.J.
1. The question raised in this Criminal Revision Case is whether an accused person who has been acquitted of an offence under Section 397, Indian Penal Code, can be tried for an offence under Section 307, Indian Penal Code, that is to say, whether Section 403 of the Criminal Procedure Code bars the trial of the latter offence.
2. The facts of the case are that the petitioner and 19 others were charged with dacoity and other offences relating thereto. The petitioner was charged on the second count with dacoity using a deadly weapon and attempting to cause the death of one Kesava Rao punishable under Section 395 read with Section 397, Indian Penal Code. The charge runs as follows:
That you on or about the 4th June, 1932, committed dacoity of moveables...and at the time of committing the said dacoity you used a deadly weapon, to wit, a loaded revolver and attempted to cause the death of Jupudi Kesava Rao and thereby committed an offence punishable under Section 395 read with Section 397 of the Indian Penal Code.
3. One other charge (No. 5) was originally framed against the petitioner, viz.:
You used a deadly weapon, to wit, a loaded revolver, and attempted to cause the death of J. Kesava Rao.
4. This was an offence punishable under Section 307, Indian Penal Code, and the Sessions Judge scored it out and made a note to the effect that the charge relating to that offence was stayed by him as it was a charge triable by the Sessions Judge with the aid of assessors; and that charge was not put to the jury. The jury by a majority of four to one found the petitioner not guilty of the offences charged under the second count. In his charge to the jury the learned Sessions Judge in dealing with this charge against the petitioner told the jury that the point they would have to consider was whether in the course of the commission of the dacoity the 1st accused (the petitioner here) shot with a loaded revolver and attempted to cause the death of P.W. 3. This was point No. III, point No. I being whether all or any of the accused assembled for the purpose of committing dacoity, an offence punishable under Section 402, Indian Penal Code, and point No. II being whether they all or any of them committed dacoity in Gangayya's house. It is clear from the charge to the jury that the jury were not directed that, even if the offence of dacoity were not proved, they could nevertheless convict the petitioner of attempt to cause the death of or grievous hurt to Kesava Rao if the evidence warranted such a finding. What the jury clearly had in their minds as a result of the learned Sessions Judge's charge to them was the question as to whether or not there had been a dacoity; and it is conceded by Mr. Jayarama Aiyar that the jury therefore never addressed themselves to the alternative that they might find the petitioner guilty under Section 307 or 326, Indian Penal Code. This, however, in my view, cannot affect the question. Section 397 is a combination of several offences, namely, Sections 392, 395, 323, 324, 325, 326 and 307, Indian Penal Code, and a verdict of 'not guilty ' to a charge under that section covers every offence which was slated in it or which could have been charged therein on the same facts. It is, I think, beyond question that the petitioner was on his trial not only with regard to Section 392 but also Section 307, Indian Penal Code, and that one or the other or both could be proved against him; and I am supported in this view, by a Bench decision of this High Court, viz., Futtikadan Umniaru v. Emperor I.L.R. (1902) Mad. 243, which was a case of Section 392 and grievous hurt in the course of robbery (Section 397, Indian Penal Code), and also the decision in Re Mutyalu I.L.R. (1912) Mad. 236, in which the former case was followed. In that case the accused was charged with robbery under Section 397, Indian Penal Code, and was tried by a jury who unanimously found him not guilty. The Sessions Judge in his charge to the jury pointed out that Section 397, Indian Penal Code, was a combination of robbery and voluntary causing of grievous hurt and that it was open to the jury to find him guilty under Section 326, Indian Penal Code, alone. It was held by Ayling and Napier, JJ., that it was open to the jury to have convicted the accused of an offence under Section 326, Indian Penal Code. In my view, the charge of the Sessions Judge in that case was perfectly proper and there should have been a similar direction to the jury in the present case. Mr. Jayarama Aiyar in the course of his argument suggested the test which I think is the correct one, namely, whether separate sentences could have been passed upon the petitioner on a conviction under Sections 397 and 307, Indian Penal Code? The answer, I think, must be in the negative. Similarly, if the trial had ended in the conviction instead of the acquittal of the petitioner of the offence charged under Section 397, i.e., attempt to cause death, I am clearly of the opinion that he would have been able to plead autrefois convict as a bar to his trial under Section 307, Indian Penal Code, and it seems to me that the same principle must govern the plea of autrefois acquit as well. In the former case, the rule of law forbids a man to be punished twice for the same offence, that is to say, the same acts and omissions; and in the case of autrefois acquit the principle is that a man who has once been tried and acquitted may not be tried again for the same offence in respect of which he was in jeopardy in the first trial; and in Russel on Crimes and Misdemeanours, Vol. II, p. 1817 it is stated:
The principles on which the right to plead autrefois convict is based are in substance the same as in the cage of the plea of autrefois acquit.
5. Under Section 397, Indian Penal Code, and the charge as framed thereunder properly directed by the Sessions Judge the jury would have had to consider whether the accused used a revolver and shot at P.W. 3 in an attempt to kill him and in order to convict him they would have had to find that in shooting at P.W. 3 with a revolver he intended to kill him, that is to say, they would have had to find an intention similar to that necessary to support a conviction under Section 307, Indian Penal Code. The accused was therefore in my view on his trial for that offence and having been found not guilty of it he could not again be tried for it. This commitment of the petitioner is quashed and his bail bond is discharged.
6. I agree.