1. The appellants were tried by a learned Assistant Sessions Judge of Midnapore with the aid of a Jury, Appellant No. 1 was charged under Ss. 304 and 326 or the Indian Penal Code. Appellants Nos. 2 to 9 were charged under Section 304, read with Section 149, I.P.C. The Jury returned unanimous verdicts of guilty under Section 326 on two counts against appellant No. 1 and under Section 326 read with Section 149 against the rest. They were sentenced to divers terms of imprisonment.
2. The prosecution case was that the complainant Chandra Mohan Nanda and his brothers were the owners in possession of plot No. 659 of Mouza Gotsanda, recorded in Khatian No. 221, measuring about 1.99 acres. It was alleged that the disputed plot belonged to the deity Raghunath Jiu alias Keshab Jiu which was installed in the house of Abinash Rakhal and Niranjan. The deity along with the disputed debuttar land was alleged to have been given to the Nandas and since then Mrityunjoy, the uncle of the complainant, had been worshipping thedeity and had been in possession of the disputed land. After the death of Mrityunjoy, the complainant and his brother claimed to have inherited the said land and had been worshipping the deity and were in possession of the disputed land and they cultivated the land and grew crops thereon in 1362 B.S., the complainant engaged 50/60 reapers to reap the paddy from the land and on the morning or 3rd Aghran, while the reapers were reaping paddy, the appellants being armed with gun, lathis and axe came there. Appellant No. 1 fired from his gun. as a result of which Maijuddin was injured and fell down dead. Malam Khan, Aftar and Torab and others also received injuries and Maiam died on the way, when he was being removed to hospital. A first information was lodged at the thana by P.W. 1' and after investigation the Police submitted charge-sheet.
3. The appellants pleaded not guilty. Their defence was that they had purchased the land with the deity from the Shebait Rakhal in 1928 and that since then they had been in possession of the land and had grown crops thereon. On the date of occurrence, while they were reaping paddy, the complainant's party being armed with guns and lathis came there and attacked them. At first they fired blank shots and thereafter in self-defence, some one from them might have fired.
4. Mr. Ajit Kumar Dutta, appearing on behalf of the appellants, has taken the point that the charge under Section 304 I. P. C. was bad in that it included two distinct offences of murdering two distinct persons. The charge is as follows :
'That you, on or about the 19th day of November, 1955 at Goteshanda, P.S. Mohanpur, committed culpable homicide not amounting to murder, causing the deaths of Molam Khan and Maijuddin Khan and thereby committed an offence punishable under Section 304 of the Indian Penal Code and within the cognizance of the Court of Sessions.'
5. Mr. Dutta has also contended that, in the summing-up concerned, there was no separate treatment by the learned Judge of the evidence affecting the killing of each of the two men concerned. Mr. Dutta has lastly contended that the verdict taken was in accordance with the charge and that no separate verdict in respect of the alleged killing of each of the two persons was taken. Mr. Dutta's contention is that these defects so vitally affected the trial that there has been a failure of justice.
6. In support of his contention, Mr. Dutta has referred us to the case of The King v. Kanai Lal Paladi. 52 Cal W.N. 636 : (AIR 1948 Cal 274) and Azimuddy v. Emperor : AIR1927Cal17 . A reading of these two decisions clearly shows that although a charge such as the one in question is not by itself illegal, the defect can hardly be cured under Section 537 of the Cri. P. C. and the result has been a failure of justice. In the case of : AIR1927Cal17 it was held that a single head of charge under Section 302, read with, Section 149, I. P. C. in respect of 3 persons killed in the same transaction was illegal. In this case the same charge under Section 304, read with Section 149 I.P.C. was framed against a larger number of persons. In the case of 52 Cal W.N. 636 : (AIR 1948 Cal 274) the same question arose, namely, whether two distinct offences could be charged together in one head of charge. Harries C. J. delivering the judgment of the Court, observed :
'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 of the Code of Criminal Procedure is an illegality, though, as I have said, there are a number of cases which support thatview. The more recent cases, however, suggest that it is an irregularity.
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 sec, 233 amounted only to an irregularity it would in the present case be impassible to say that such had not occasioned a failure of justice and was therefore curable by reason of Section 537 of the Code of Criminal Procedure.'
7. It is clear that although the charge was a rolled up charge, it was clearly the duty of the learned Judge not only to deal with the matter in the summing up but also to invite the Jury to return separate verdicts in respect of the offences as affecting each of the two deceased persons. The failure to do so caused a failure of justice and therefore the impugned charges under the respective sees. 304 and 304 read with Section 149 I. P. C. could not be cured by Section 537 of the Code of Criminal Procedure.
8. We must, therefore, set aside the verdicts of the Jury and the consequent convictions and sentences of the appellants and order that they be retried upon the same charges of which they were convicted, but framed in accordance with law, by the learned Assistant Sessions Judge with the aid of a Jury.
9. Pending the retrial, the appellants are to continue on the same bail.
10. I agree.