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The Empress Vs. Harai Mirdha and Umed Sardar - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in(1878)ILR3Cal190
AppellantThe Empress
RespondentHarai Mirdha and Umed Sardar
Excerpt:
criminal procedure code (act x of 1872), section 263 - high court, power of--jury, verdict of acquittal by. - .....assembly, they had committed murder.' this was a charge under sections 302 and 149 of the indian penal code. they were also charged 'that being members of an unlawful assembly and in prosecution of the common object of that assembly, they had voluntarily caused grievous hurt.' this was under sections 326 and 149 of the indian penal code. other prisoners were likewise charged at the same time, and the verdict of the jury as regards these two prisoners was a verdict of acquittal upon both these charges; but in answer to a question put to them by the sessions judge, they stated that the two prisoners, harai and umed, were in the company of two of the other prisoners, whom they found guilty on the second of the charges i have stated, for the purpose of committing riot, but that they did.....
Judgment:

Markby, J.

1. The two prisoners, Harai and Umed, whose case is now before us under Section 263 of the Criminal Procedure Code, were put upon their trial before the Sessions Court on a charge 'that being members of an unlawful assembly and in prosecution of the common object of that assembly, they had committed murder.' This was a charge under Sections 302 and 149 of the Indian Penal Code. They were also charged 'that being members of an unlawful assembly and in prosecution of the common object of that assembly, they had voluntarily caused grievous hurt.' This was under Sections 326 and 149 of the Indian Penal Code. Other prisoners were likewise charged at the same time, and the verdict of the jury as regards these two prisoners was a verdict of acquittal upon both these charges; but in answer to a question put to them by the Sessions Judge, they stated that the two prisoners, Harai and Umed, were in the company of two of the other prisoners, whom they found guilty on the second of the charges I have stated, for the purpose of committing riot, but that they did not commit it, and further, that they were not present in order to commit grievous hurt on the deceased, but only to punish him to a certain extent. The Sessions Judge has declined to record the verdict of acquittal as regards these two prisoners, and has referred the case to this Court in order that these prisoners may be convicted under the second of the two charges which I have mentioned. Now we may say that we have been relieved from all difficulty in this case by the course which has been taken by the Government, and which in our opinion has been very wisely and prudently taken. All that the Government now asks for is a conviction under Section 143 of the Indian Penal Code, that is, that the prisoners now before us were members of an unlawful assembly. That really amounts to this, that we are asked now to carry out the legitimate consequence of the finding of fact at which the jury arrived in respect of these two prisoners. If the Sessions Judge had been so minded instead of referring this case to us, he might, as pointed out by Mr. Justice Mitter in the course of the argument, have pointed out to the jury that their finding was in fact a conviction of an offence under Section 143 of the Indian Penal Code, and that, under the provisions of Section 457 of the Criminal Procedure Code, they were at liberty to find the prisoners guilty under that section. They found the prisoners guilty not of the whole of the offence with which they were charged, but upon that part of the charge which amounts to a different offence. This is not a case in which we are called upon to differ in any way from the conclusion of the jury. We adopt this conclusion, and we are also relieved from the necessity of accurately defining what our powers are under Section 263. Whatever may be the exact position of this Court in dealing with a reference of this kind under Section 263, as to which we express no opinion, we feel no doubt whatever that this Court has a right to convict a prisoner of any offence which the jury could have convicted him of, upon the charge framed and placed before them. Upon the charge as framed and placed before the jury in this case, the jury could have convicted these prisoners of an offence under Section 143. We, therefore, undoubtedly possess that power ourselves. Accordingly we convict these two prisoners of the offence 'that they were members of an unlawful assembly, and thereby committed an offence punishable under Section 143 of the Indian Penal Code,' and we direct that they be rigorously imprisoned for a period of six months.


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