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Surendra Lal Das and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
Subject Criminal
CourtKolkata
Decided On
Reported inAIR1925Cal413,85Ind.Cas.147
AppellantSurendra Lal Das and ors.
RespondentEmperor
Excerpt:
- .....were as follows: there was a charge against all the accused persons under section 148, indian penal code, and another charge under section 304 read with section 149, indian penal code for causing the death of one bodhi namasut. as against the appellants nos. 1, 2 and 3, there was a further charge under section 304 read with section 34, indian penal code, and as against the appellant no. 5 there was also a charge under section 201, indian penal code. against the appellant no. 4 there was a further charge under section 326, indian penal code, for causing grievous hurt to one jnan namasat.2. the jury were unanimous in their verdict. so far as abudas was concerned, they unanimously found him not guilty of the offences with which he was charged and the learned sessions judge agreeing.....
Judgment:

Mukerji, J.

1. The appellants who are five in number were tried along with another person named Abudas by the learned Sessions Judge of Sylhet with the aid of a jury. The charges on which the accused were tried were as follows: There was a charge against all the accused persons under Section 148, Indian Penal Code, and another charge under Section 304 read with Section 149, Indian Penal Code for causing the death of one Bodhi Namasut. As against the appellants Nos. 1, 2 and 3, there was a further charge under Section 304 read with Section 34, Indian Penal Code, and as against the appellant No. 5 there was also a charge under Section 201, Indian Penal Code. Against the appellant No. 4 there was a further charge under Section 326, Indian Penal Code, for causing grievous hurt to one Jnan Namasat.

2. The jury were unanimous in their verdict. So far as Abudas was concerned, they unanimously found him not guilty of the offences with which he was charged and the learned Sessions Judge agreeing with and accepting their verdict as regards him acquitted him. With regard to the present appellants, the jury found them all guilty under Section 148, Indian Penal Code, with regard to appellants Nos. 1, 2 and 3, they found them also guilty under Section 304 read with Section 34, Indian Penal Code. As to appellant No. 4, they further found him guilty under Section 323, Indian Penal Code, and as to appellant No. 5 under Section 201, Indian Penal Code.

3. The learned Sessions Judge agreed with the unanimous verdict of the jury in so far as they found the appellants Nos. 1 and 4 guilty under Section 148, Indian Penal Code and the appellants Nos. 1, 2 and 3 guilty under Section 304 read with Section 34, Indian Penal Code. But he was of opinion that the appellants Nos. 2, 3 and 5 should have been convicted under Section 147, Indian Penal Code, rather than under Section 148, Indian Penal Code, and that the appellant No. 4 should have been convicted under Section 326, Indian Penal Code, rather than under Section 323, Indian Penal Code; and not being willing to differ from the unanimous verdict of the jury, he accepted the same and convicted the present appellants of the offences in respect of which the jury found them guilty and sentenced appellant No. 1 under Section 304 read with Section 34, Indian Penal Code, to seven years' rigorous imprisonment and appellants Nos. 2 and 3 to five years' rigorous imprisonment each under the same section-no separate sentence being passed on these three accused persons under Section 148, Indian Penal Code. The appellant No. 4 was sentenced to two years' rigorous imprisonment under Section 148, Indian Penal Code-no separate sentience being passed on him under Section 323, Indian Penal Code, and appellant No. 5 was sentenced to rigorous imprisonment; for two years under Section 201, Indian Penal Code-no separate sentence being passed on him for the offence under Section 148, Indian Penal Code.

4. The first and the principal objection that has been taken on behalf of the appellants to their convictions as aforesaid relates to the joinder of the charge under Section 201, Indian Penal Code with the other charges upon which the appellants other than the appellant No. 5 have been tried. It appears that the case for the prosecution was that the riot took place over a dispute relating to a Go-pat and that in the course of the riot one Jnan Namasut was wounded with a bamboo staff at his knee and one Bodhi Namasat was also assaulted-the result of which was that he died on the spot and that thereafter the appellant No. 5 Munshi swung with one other person named Lakhidas who was not on his trial before the learned Judge took away the dead body and the corpse was not recovered since then. Upon this view of the facts it is difficult to hold that the offence under Section 201, Indian Penal Code alleged to have been committed by the appellant No. 5 Munshi was committed in the course of the same transaction in which the other offences were committed. It is quite clear that, so far as the offence of rioting is concerned, that must have ended with the serious injury inflicted upon Bodhi Namasat and the offences that wore committed in the course of the riot had all been completed before the offence under Section 201, Indian Penal Code, with which the appellant No. 5 was charged had come into existence. I, therefore, hold that there was no justification for the trial of appellant No. 5 on the charge under Section 201, Indian Penal Code, along with the other offences for which the appellants were tried by the learned Sessions Judge and that the whole trial was vitiated by mis-joinder of charges.

5. One other objection was taken on behalf of the appellants and it was this: so far as the appellants Nos. 1, 2 and 3 are concerned, there was a charge against them under Section 304 read with Section 149, Indian Penal Code, and also another charge under Section 304 read with Section 34, Indian Penal Code. These charges as they stand were not in the alternative but were substantive charges against these appellants. Although under the law, there cannot be any objection to these charges being put forward against the accused persons at one and the same trial, it is obvious that in some instances they may cause embarrassment to them inasmuch as they proceed upon an assumption of facts which may not be identical so far as the two charges are concerned and it is desirable that, in framing charges with regard to matters of this description, attention should be paid to the case as put forward on behalf of the prosecution and the matter should then be dealt with strictly in accordance with the allegations which the prosecution desires to prove. In this view of the matter, I think that the convictions and the sentences passed upon the present appellants cannot be sustained. Accordingly, I would sot them aside and direct that the live appellants before us be retried in accordance with law. Those appellants, we are informed, are on bail. They will remain on the same bail pending their retrial.

Walmsley, J.

6. I agree.


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