1. This is and reference made under Section 374, Criminal P.C., by the learned Sessions Judge of Hoogly for confirmation of a death sentence passed on Kanai Lal Paladi. The latter has also appealed against his convictions under Section 302 and Section 392/397, Penal Code. As I have stated, the appellant was sentenced to death under Section 302, Penal Code, but no separate sentence was passed under Section 392/397, Penal Code. It will be convenient to deal with the reference and the appeal in this judgment.
2. The charge against the appellant was that he had in the early morning of April 6, 1947, at a village called Gopinagar murdered two persons Badal Chandra Das and Sudhan Ruidas. A further charge was that he had committed robbery and at the time of committing the said robbery he used a deadly weapon.
3. The trial was before the learned Sessions Judge sitting with a jury. The jury convicted the appellant upon both charges and the learned Sessions Judge agreeing with the verdict sentenced the appellant to death under Section 302, Penal Code.
4. A preliminary point has been take in this appeal, namely, that the trial was vitiated by reason of a gross illegality. The case against the appellant was that he had murdered two persons in the early morning of April 6. The murder of these two persons undoubtedly constituted two separate offences, yet we find that the two murders were included in one charge. Before the learned Sessions Judge and the jury the first charge read as follows:
That you, on or about the 6th day of April, 1947, at Gopinagar, P.S. Haripal, committed murder by intentionally causing the death of Badal Chandra Das and Sadhan Das and thereby committed offence punishable under Section 302, Penal Code, and within the cognisance of the Court of Sessions.
The second charge, to which no exception is taken relates to the robbery.
5. It has been urged on behalf of the appellant that the inclusion of two distinct offences in the first charge constitutes an illegality which vitiates the whole trial.
6. Section 233, Criminal P.C., provides: ' For every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately, except in the cases mentioned in Sections 234, 235, 236 and 239'. As I have already said, the appellant was charged with the murder of two persons and it is clear from the terms of Section 233 that there should have been a charge in respect of each murder although the two charges might well be tried together under the provisions of Section 234 or Section 235, Criminal. P.C. The objection taken to this trial is not that the Court could not have tried two charges of murder together but that two distinct offences have been included in one and the same charge contrary to the provisions of Section 233, Criminal P.C.
7. On behalf of the appellant reliance has been placed upon the well-known decision of sheir Lordships of the Privy Council in Subramanya Ayyar v. Emperor ('02) 25 Mad. 61. In that case there had been a clear breach of the provisions of Section 234 Criminal P.C. which provides that three offences of the same kind committed within the space of 12 months may be the subject-matter of one trial, though each offence would have to be made the subject of a separate and distinct charge. Before their Lordships of the Privy Council it was urged that a breach of Section 234, Criminal P.C. would at most be an irregularity which could be cured by reason of Section 537, Criminal P.C. Their Lordships, however, drew a distinction between an illegality and an irregularity and pointed out that Section 537, Criminal P.C., dealt only with irregularities and the provisions of that Section could not be called in aid to cure an illegality. At page 97 Lord Halsbury L.C. who delivered the judgment of the Board observed:
The remedying of mere irregularities is familiar in most systems of jurisprudence but it would be an extraordinary extension of such a branch of administering the criminal law to say that when the Court positively enacts that such a trial as that which has taken place here shall not be permitted that this contravention of the Code comes within the description of error, omission, or irregularity.
Some pertinent observations are made upon the subject by Lord Hersohell and Lord Russell of Killowen in Smurthwaite v. Hanny.(1894) 1894 A.C. 494 where in a civil case several causes of action were joined. Lord Herschell says that 'If unwarranted by any enactment or rule it is much more than an irregularity', and Lord Rusell of Killowen in the same case says 'Such a joinder of plaintiffs is more than an irregularity; it is the constitution of a suit in a way not authorised by law and the rule applicable to procedure.'
With all respect to Sir Francis Maclean and the other Judges who agreed with him in In the matter of Abdur Rahman. (1900) 27 Cal. 839 (F.B.), he appears to have fallen into a very manifest logical error in arguing that because all irregularities are illegal as he says in a sense and this trial was illegal that therefore all things that may in his view be called illegal are therefore by that one adjective applied to them become equal in importance and are susceptible of being treated alike. But this trial was prohibited in the mode in which it was conducted, and their Lordships will humbly advise His Majesty that the conviction should be set aside.
8. It has been urged on behalf of the appellant that the present case falls within the principle enunciated in Subramanya Ayyar v. Emperor ('02) 25 Mad. 61. On behalf of the Crown, however, it has been urged that this Court has drawn a distinction between a case such as the present and Subramanya Ayyar v. Emperor ('02) 25 Mad. 61. There are undoubtedly cases in which this Court has held that a joinder of two distinct offences in a single charge is a mere irregularity which may be cured under Section 537, Cr. P.C. That was clearly laid down by a Bench of this Court in Ajgar Shaikh v. Emperor : AIR1928Cal700 . In that case reference was made to Alimuddi Naskar v. Emperor : AIR1925Cal341 . In this latter case seven distinct offences of murder were included in one charge. Walmsley J. referred to that charge in these terms:
It is merely a technical defect that the seven inmates of Momraj's hut are all named in one charge of murder instead of a separate charge for murder being drawn up in regard to each. To that I attach no importance.
I must confess that this is a somewhat strange view. Mukherji J., who also delivered judgment in that case does not assent to the observation of Walmsley J., to which I have made reference. The observation of Walmsley J., is purely obiter because it was unnecessary for the decision of the case.
9. It was also held in Ram Subhag Singh v. Emperor 3 A.I.R. 1916 Cal. 693 that a breach of the provisions of Section 233, Criminal P.C., was an irregularity curable under Section 537, Criminal P.C. It is to be observed, however, that Fletcher J., dissented from that view. It was a case in which Fletcher J., and Beachcroft J., had disagreed and which had been referred to Sharfuddin J., as the third Judge. It was the view of Beachcroft and Sharfuddin JJ., that a breach of Section 233, Criminal P.C. was an irregularity curable under Section 537, Criminal P.C.
10. There are however a number of cases in which this Court has held that a breach of the provisions of Section 233, Criminal P.C., is an illegality and does not fall within the ambit of Section 537, Criminal P.C. In John Subama. v. Emperor ('05) 2 C.L.J. 618 a Bench of this Court expressly held that a joinder of two offences committed on two different dates, one following the other, in one charge is an illegality which vitiates the trial and cannot be cured by Section 537, Criminal P.C. It is true that in this case the two offences were committed on two different dates but the reasoning applies generally to all cases where two or more offences have been included in one charge. Another case in which the same view was held is the case in Gul Mohamed v. Chechan Mandal ('06) 10 C.W.N. 53. There a Bench held that the joinder in one charge of two distinct offences though arising out of the same transaction is an illegality fatal to the trial. In the case before us, the two offences of murder certainly arose out of the same transaction and the present case seems to be absolutely, covered by the case of Gul Mahomed Sircar to which I have made reference. A somewhat similar view was taken in Azimuddin v. Emperor : AIR1927Cal17 in which it was held that a single head of charge under Section 302/149, Penal Code, in respect of three persons killed in the same transaction is illegal.
11. On the present state of authorities it is difficult for this Bench to hold that the failure to comply with the provisions of Section 233, Criminal P.C., is an illegality, though as I have said, there are a number of cases which support that view. The more recent cases, however, suggest that it is an irregularity.
12. Having regard to the state of authorities, I do not think it necessary to express my own view on the matter, because I am satisfied that even if non-compliance with Section 233 amounted only to an irregularity it would in the present case be impossible to say that such had not occasioned a failure of justice and was therefore curable by reason of Section 537, Criminal P.C.
13. The two offences which were included in one and the same charge were two of the most serious offences known to the law, namely, offences of murder. It is true that it was alleged that they were committed one after the other at the same place, but it is to be observed that the injuries found on the body of one of the deceased men were far more serious than the injuries found on the body of the other. Indeed it was possible that the death of Badal Chandra Das might have been due to a ruptured spleen, though that ruptured spleen might well have been the result of some blow. In the case of Badal Chandra Das it might possibly have been argued that the offence, if any, was something less than murder and was only an offence under Section 804, Penal Code. I am not suggesting that there would be any force in that argument, but I am merely stating that it was possible to draw a distinction between the murder of Badal Chandra Das and the murder of Sudhan Ruidas. However, these two offences were placed in one charge and the learned Sessions Judge made no effort to distinguish one offence from the other. In his charge to the jury he makes it clear that they should find a verdict of guilty if they were satisfied that the appellant caused the death of either Badal Chandra Das or Sudhan Ruidas. Strictly, that is quite accurate because a verdict of guilty in respect of the death of one of them would be sufficient to support a conviction for murder. The charge as a whole was put to the jury and they were asked to say what was their verdict on that charge. They were not asked to state specifically whether they were satisfied that the appellant had murdered one or other or both of the deceased men. The jury unanimously returned a verdict of guilty, but it is impossible for this Court to say whether they held the appellant guilty of the murder of both Badal Chandra Das and Sudhan Ruidas or the murder of either of them. There can be no doubt that if this Court was of opinion that the jury had found the appellant guilty of the murder of both, the case would assume an even more serious aspect than it would have assumed if the jury had found the appellant guilty of only one murder. In short, it is quite impossible to say that the procedure adopted by the lower Court has not resulted in a failure of justice. In my view, these offences should have been kept apart and each made the subject of a distinct and separate charge. The charges could have been, tried together, but the learned Judge should have directed the jury upon each charge and pointed out to them the evidence relating to each charge. That was not done and the jury were allowed to treat the two charges as one and return a general verdict upon the charge. That being so the trial was, in my view, wholly, unsatisfactory and the verdict cannot be permitted to stand.
14. Learned advocate for the appellant has also pointed out to us what is a substantial misdirection. The learned Judge has pointed out that the evidence in the case was mainly circumstantial and then added that the circumstantial details were proved by three very reliable witnesses, namely, P.W. 5, Dr. Aswini Kumar Biswas, P.W. 16, Barindra Kumar Ghosal and P.W. 1, Prosad Chandra Ghose. He then added that witnesses examined on the same point were P.Ws. 8, 9 and 12. It is to be observed that neither P.W. 8 nor P.W. 12 gave any evidence in chief, but were merely tendered for cross-examination and the cross-examination elicited no facts which supported or corroborated in any substantial degree the evidence of the main witnesses. The learned Judge appears to have had in mind what these witnesses said elsewhere, but of course all that was admissible at this trial was what they deposed to in the presence of the jury. However, it is unnecessary to consider the effect of this misdirection because in my view the convictions must be set aside and a fresh trial ordered.
15. In the result, therefore, the reference is rejected and the conviction under Section 302 and the sentence of death are set aside. The appeal is allowed, the conviction and sentence are set aside and the case is sent back to the Sessions Court to be retried after proper charges have been framed as required by Section 233, Criminal P.C. The learned Sessions Judge of Hooghly should deal with this matter with the utmost expedition.
16. I agree.