1. This is an appeal from the order of Shri S. C. Dutt, Additional Sessions Judge, Murshidabad, convicting the appellant Sader Sheikh under Sections 324, 324/149 and 147, Penal Code and sentencing him to suffer rigorous imprisonment for three years, three years and two years respectively under the charges; and convicting the other six appellants, Nader Sheikh, Rajabali Sheikh, Asraf Sheikh, Hamijuddin Sheikh 'alias' Kami Junal Molla 'alias' Hamai, Hakai Sheikh and Jamat Sheikh under Sections 324/149 and 147, Penal Code, and sentencing each of them to suffer rigorous imprisonment for two and a half years and one and a half years respectively under the charges, the sentences to run concurrently. The accused were tried with a jury of nine and the conviction and sentence was based on the unanimous verdict of the jury.
2. The prosecution case was briefly as follows: Besai Sheikh, and Adalat Sheikh 'alias' Adai Sheikh who were brothers residing in Kagram, police station Bharatpur, went on 10-12-1951 to purchase a cow from village Natungram situate about 3 or 31/2 miles to the east of Kagram village. They were unable to purchase the cow that day and they were returning after evening to their village and were passing through an open field between Natungram and Kagram villages at about 9 o' clock at night. The night was a moonlit night. When they were passing through the open field, 15 or 16 persons came up and started an altercation with Basai Sheik, and the appellant Sader Sheik struck Besai Sheik with a 'Pattangi' or a small axe and the appellant Jamat Molla struck Besai Sheik on the leg with a spear. Thereafter Sadar Sheik struck Besai Sheik on the neck repeatedly with a 'Pattangi.' or axe and the other appellants also struck Besai Sheik with lathis. A 'Shabal' or pickaxe was placed against the throat of Besai Sheik. As a result of such assault, Besai Sheik died on the spot. Adalat Sheik brother of Besai Sheik protested. He was also attacked by some of the assailants, the accused Hakai Sheik striking him with a 'Pattangi' and accused Rajabali Sheik and Satkari striking him on the hand with lathis. Adalat Sheik fell down injured.
Hearing the shouts of the injured men, some villagers of Kagram came up including Habal Sheik, Khelai Molla, Abdul Bari, Suku Molla, Siddat Sheik and Jobed Sheik. Some of them were also injured by the assailants as the latter ran away. The villagers found that Besai Sheik had died and that Adalat Sheik was lying severely injured. Ashai Sheik, brother of Besai Sheik and Adalat Sheik also arrived at the spot after the assailants had gone away. He fetched a doctor, Dr. Najibur Rahman, who rendered first-aid to Adalat Sheik. Ashai Sheik had a statement written out by one Asharat Sheik and he made over this written statement as his first information report to a Police Officer whom he happened to meet on the way to the thana. This written information was made over to the Police Officer at 4-45 A.M. on 11-12-1951 according to the prosecution case. The Police Officer started an investigation and submitted a charge sheet against ten accused, namely, theseven appellants and also against accused SatkoriSheik, Kani Kora Sheik and Wahed Molla, who have been acquitted by the learned Additional Sessions Judge on the verdict of the jury.
3. The accused pleaded not guilty and alleged that they had been falsely implicated out of enmity. There was no definite case suggested as to how the occurrence had taken place.
4. There was a charge under Section 302, Penal Code against Sader Sheik for committing murder of Besai Sheik and there was a charge under Section 302/149, I. P. C. against all the ten accused. There was a charge under Section 326/34, i, P. C. against three of the accused, viz., Hakai Sheikh, Satkori Sheik and Rajabali Sheik for causing grievous hurt to Adalat Sheikh. There was a charge under Section 147, I. P. C. against all the accused. The jury unanimously found Satkori Sheik, Hakari Sheikh and Rajab Ali Sheikh not guilty under Section 326/34, I. P.C. in connection with the death of Adalat Sheikh. They found the seven appellants guilty under Section 147, I. P. C. They found Sadar Sheikh guilty under Section 324, I. P. C. and not under Section 302, I. P. C. In respect of the charge under Section 302/149, I. P. C., they at first returned a verdict of guilty against Nader Sheik under Section 324, I. P. C. and not guilty in respect of other accused. The learned Judge finding that the jury had not understood the charge under Section 149, I. P. C., recharged the jury in respect of the charge under Section 302/149, I. P. C only in respect of Nader Sheik. The jury after such further charge amended the verdict in respect of Nader Sheik, finding him guilty under Section 324/149, I. P. C. and not under Section 324, I. P. C. They added a rider, finding the remaining appellants. Sader Sheik, Rajab Ali Sheik, Asraf Sheik, Hamijuddin Sheik, Hakai Sheik, and Jamat Molla also guilty under Section 324/149, I. P. C. The learned Judge accepted the verdict and convicted and sentenced the appellants as stated above.
5. In this appeal, the first point urged is that the learned Judge finding that the jury had returned a wrong verdict in respect of the charge under Section 302/149, I. P. C. against Nader Sheik re-charged the jury in respect of this charge so far as Nader Sheik only was concerned and that, in the circumstances, the jury had no occasion to add a rider, finding the other six appellants also guilty under Section 324/149, I. P. C., and that the learned Judge also acted illegally in accepting the verdict and convicting and sentencing the accused thereunder.
We must find that there is substance in this contention. The jury in respect of the charge under Section 302/149, I. P. C. so far as Nader Sheik was concerned, found him guilty under Section 324, I. P. C. so, the learned Judge re-charged them in respect of this charge so far as Nader Sheik was concerned, pointing out that there was no independent charge against Nader Sheik under Section 302, I. P. C. or Section 304 or Section 326 or Section 324, I. P. C. and that the charge against him was under Section 302/149, I. P. C. and they could find him guilty of a minor offence taken with Section 149, I. P. C. and not of the substantive offence itself. He also briefly explained the scope of Section 149, I. P. c. The jury after retiring and considering the verdict after 15 minutes more found Nader Sheik guilty under Section 324/149, I. P. C. and the other six appellants also guilty under that section. The learned Judge, however, had not put the case of the other six accused to the jury in respect of the charge under Section 302/149, I. P. C. In respect of them the jury had already returned a verdict of not guilty in respect of that charge. It would appear that after the further charge in respect of Nader Sheik, the jury realised the scope of Section 149, I. P. C. whichthey apparently had not realised before and sothey amended their verdict, finding all the appellants guilty under Section 324/149, I. P. C., as, indeed, they would be guilty under the law, if they were all members of an unlawful assembly who were animated by the common object of causing grievous hurt to Besai Sheik and Adalat Sheik. But the point is that the verdict in respect of the charge under Section 149, I. P. C. so far as other appellants were concerned was not open to the jury to reconsider.
Under Section 304, Criminal P. C. the jury may amend the verdict when by accident or mistake they return a wrong verdict. But such amendment has to be done either before or immediately after the verdict has been recorded. In this case, the verdict in respect of the six appellants other than Nader Sheik was amended after the re-charge and after further consideration by the jury. It was not a case of amending the verdict immediately, and neither was the amendment due to an accident or a mistake but to a misunderstanding of the law which was subsequently cleared up. In the circumstances, the amendment of the charge in respect of the six appellants other than Nader Sheik must be held to have been outside the jurisdiction of the jury and it was, therefore, wrong on the part of the learned Judge to accept the amended verdict in respect of these six appellants. The conviction and sentence of the appellants, other than Nader Sheik under Section 324/149, I. P. C. must, therefore, be set aside.
6. Mr. S. S. Mukherjee has next urged that even in respect of Nader Sheik, the learned Judge could not legally re-charge the jury because there is no provision in the Criminal P. C. for re-charging the jury in any case. Mr. Mukherjee has urged that Section 302, Criminal P. C. contains a provision as to the circumstance in which the Judge may ask the jury to retire for further consideration, that is, when the jury have not agreed and the Judge asks them to retire to consider the verdict further in order to see whether they can become unanimous. There is no provision in the Criminal P. C. for directing the jury to retire again for further consideration in any other circumstances.
But, though, there is no express provision in the Criminal P. C. it must be held that when the Judge finds from the nature of the verdict returned that the jury clearly has not understood the law in a certain respect, the Judge is entitled to explain the law to the jury over again and to ask them to reconsider the verdict. In this case, in particular, there was no charge for a substantive offence against Nader Sheik. He was not charged under Section 302 or 304 or 324 or 323, I. P. C., as pointed out by the learned Additional Sessions Judge. There was only a charge under Section 302/149, I. P. C. against him and the jury could return a verdict of guilty for a minor offence taken with Section 149, I. P. C. and not for a substantive minor offence like the one under Section 324, I. P. C. Accordingly, the verdict was no verdict and the learned Judge could bring this to the attention of the jury and ask them to return a correct verdict after explaining the relevant law. On this point, although there is no express provision, we must hold that it is the inherent jurisdiction of the Court to do so in order to secure the ends of justice. We must hold, therefore, that there is no force in this contention.
7. It has next been urged that when there was a charge under Section 147, I. P. C. against all the accused and the charge mentioned the common object of causing grievous hurt to Besai Sheik and Adalat Sheik, there should have been no charge against three of the accused Hakai Sheikh, Rajabali Sheik and Satkari Sheikh under Section 326/34,I, P. C. for voluntarily causing grievous hurt to Adalat Sheik and that the charge should have been under Section 326/149, I. P. C. If there had been a charge under Section 326/149, I. P. C. in respect of causing grievous hurt to Adaiat sheik, that charge would have been against ail the ten accused who were placed on trial. No such charge was framed. If it was the prosecution case that these three particular accused were concerned in, actually causing grievous hurt to Adalat Sheik, there could be a charge against them under Section 326/34, 1. P. C. There was nothing illegal, therefore, in this charge.
8. It has next been, urged by Mr. Mukherjee that in respect of non-examination of certain persons, the learned Judge did not give proper direction to the jury. In this case, there were seven eye-witnesses, viz., P. W. 1, Adalat sheik who was with Besai Sheik at the time of the occurrence and who himself received serious injuries and six other persons, viz., P. W. 3, Abdul Bari, P. W. 8, Habal Mollah, P. W. 9, Khelai Sheikh, P. W. 11, Sukhu Molla, P. W. 12, siadat sheik and P. W. 13, Jabed Sheik, who were some of the villagers who had come up on hearing the shouts of Adalat Sheik & Besai Sheik, in dealing with the evidence of P. W. 3, Abdul Bari, the learned Judge pointed out that he had deposed that on returning to the village, he had spoken to some villagers about the occurrence and given the names of the accused & amongst such villagers, he had named Khoja and Adbul Huq. In connection with the non-examination of Khoja Mia and Abdul Huq, the learned Judge told the jury that they must consider whether they would have been material witnesses in the case and that if they held that they were material witnesses, they must consider that they were entitled under Section 114, Evidence Act to presume that if they had been examined their evidence would have gone against the prosecution.
Similarly, some of the other eye-witnesses spoke of having told other villagers of the occurrence & of having named the accused to them and these other villagers were not examined. In respect of them also the learned Judge charged the jury similarly. We think that the direction given by the learned Judge in this connection was sufficient. These other villagers like Khoja Mia and Abdul Huq were admittedly not eye-witnesses and they could have been examined merely to corroborate the eye-witnesses. But there were as many as seven eye-witnesses and also two other witnesses who deposed to having seen part of the occurrence. If the jury could not believe them, the prosecution case could hardly have improved by the examination of other villagers to whom they spoke of the occurrence. One of the witnesses said that about half the villagers of Kagram came out after the assailants had gone away and they were all told about the occurrence. It was certainly not necessary to examine a large number of villagers merely to corroborate the seven eye-witnesses. It would appear that these witnesses were not really material witnesses at all. That was, however, a question for the jury to decide and the learned Judge quite rightly asked the jury to consider whether in the circumstances, they could hold that these villagers would be material witnesses and quite rightly told them that if so, they could draw an inference that the witnesses, if examined, would not have supported the prosecution case. There was no misdirection in this connection.
9. The only other point urged by Mr. Mukherjee is that the evidence of the eye-witnesses was contradicted in many respects by their statementsin the Committing Court and by their statements before the Investigating Officer and that there was reason to doubt whether the occurrence had taken place in the way alleged by the prosecution. The discrepancies, however, were fully placed by the learned Judge before the jury. The learned Judge also placed before the jury some discrepancies about the way in which the F. I. R. had been handed over to the Investigating Officer and about the time at which the F. I. R. had been handed over to the Police Officer. In respect of these discrepancies, there was no misdirection which would justify our interference with the verdict of the jury.
10. This appeal, therefore, succeeds in part. The conviction of the appellants Sader Sheik, Rajabali Sheik, Asraf Sheik, Hamijuddin Sheik 'alias' Hami Junal Molla 'alias' Hamai, Habai Sheik and Jamat Molla under Section 324/149 and the sentence passed thereunder are set aside. The conviction of Nader sheik under Section 324/149, I. P. C. is upheld, but the sentence is reduced to rigorious imprisonment for one year and a half. The conviction of Sader Sheik under Section 324 and the sentence passed thereunder and the conviction of all the appellants under Section 147, I. P. C. and the sentences passed thereunder are affirmed.
11. The appellants will now surrender to their bail and serve out their sentences.
12. I agree.