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Reaz-ud-dIn Shaikh and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in6Ind.Cas.251
AppellantReaz-ud-dIn Shaikh and ors.
RespondentEmperor
Cases Referred and Satish Chandra Das Bose v. Queen
Excerpt:
penal code (act xlv of 1860), sections 299, 300, 302 - murder--culpable homicide--jury--misdirection--imperfect statement of elements constituting offence--failure to direct that every man is presumed to intend natural consequences of his act. - sharf-ud-din1. there having been a difference of opinion in this case between chatterjee and munro, jj., it has been referred to me under section 429, criminal procedure code.2. there are three appellants in the case, viz., (1) eman-ud-din. (2) tajar-ud-din and (3) reaj-ud-din. there were five accused in the trial i.e., the three appellants above-reamed and alim-ud-din and nehal-ud-din. these two latter have been acquitted by the judge and jury while the remaining threre (the present appellants) have been convicted and sentenced as follows: (1) reaj-ud-din has been convicted under the latter, portion of section 304, indian penal code, and also under section 326, indian penal code, and sentenced to transportation for 10 years under the latter portion of section 304, indian penal code, no.....
Judgment:

Sharf-ud-din

1. There having been a difference of opinion in this case between Chatterjee and Munro, JJ., it has been referred to me under Section 429, Criminal Procedure Code.

2. There are three appellants in the case, viz., (1) Eman-ud-din. (2) Tajar-ud-din and (3) Reaj-ud-din. There were five accused in the trial i.e., the three appellants above-reamed and Alim-ud-din and Nehal-ud-din. These two latter have been acquitted by the Judge and Jury while the remaining threre (the present appellants) have been convicted and sentenced as follows: (1) Reaj-ud-din has been convicted under the latter, portion of Section 304, Indian Penal Code, and also under Section 326, Indian Penal Code, and sentenced to transportation for 10 years Under the latter portion of Section 304, Indian Penal Code, no separate sentence having been passed under Section 326, Indian Penal Code: (2) Eman-ud-din and (3) Tajar-ud-din have been convicted under Section 324, Indian Penal Code and each sentenced to rigorous imprisonment for three years.

3. The charges framed against the five accused were as follows: (1) Reaj-ad-din was charged under Sections 148, 304 and 326, Indian Penal Code, (2) Eman-ud-din was charged under Sections 148, 304/149 and 324, Indian Penal Code, (3) Tajar-ud-din was charged under Sections 148, 304/149, Indian Penal Code,(4) Alim-ud-din was charged under Sections 147, 304/149 and 323, Indian Penal Code (5) Nehal-ud-din was charged under Sections 147 and 300/i49, Indian Penal Code.

4. The three men, viz., (1) Reaj-ud-din, (2) Eman-ud-din and (3) Tajar-ud-din have appealed to this Court and, as already observed, there has been a difference of opinion between Chatterjee and Teunon, JJ. as to whether there had been mis-directions in the charge to the jury. Chatterjee, J. is of opinion that there has not been any misdirection and on the other hand Teunon, J. is of opinion that there have been gross misdirections in the charge to the Jury, and is, therefore, of opinion that there should be afresh trial of all the accused. Teunon J. is of opinion that the facts disclosed a clear case under Section 302, Indian Penal Code, and that the learned Sessions Judge should have framed a charge under Section 302, Indian Penal Code, and should have left it to the Jury to decide as to whether a charge under that section was sustainable or not, and in the latter, case the Jury should have been asked to return their verdict as to whether the accused were or were not guilty of culpable homicide not amounting to murder.

5. It must be remembered that Reaj-ud-din was charged for culpable homicide not amounting to murder and under other sections, and the rest of the accused were charged of the graver offence by reason of Section 109, Indian Penal Code.

6. I have now to decide whether the act of Reaj-ud-din as disclosed in the evidence amounts to murder or culpable homicide not amounting to murder. I propose to give here a short sketch of the facts and circumstances antecedent to the occurrence which resulted in the death of two men viz., Moiz-ud-din and Reaj-ud-din. I may here remark that there are two men bearing the name of Reaj-ud-din, one is the appellant who has been convicted under Section 304, Indian Penal Code and the other is one of the deceased.

7. The practically undisputed facts are as follows: One Ramzanullah who possessed a. holding measuring some 22 1/2 bighas died leaving a son Chotay, and three daughters, and of the daughters one, now deceased, was married to appellant Reaj-ud-din and has left by him two children. After the death of Ramzanullah, the holding was sold in execution of a rent decree and was purchased by the landlord who obtained possession and remained in possession for three years. Chotay and his surviving sisters borrowed Rs. 400 from the deceased Moiz-ud-din and his brother Momtaz-ud-din, paid off the landlord's dues and had the auction sale, set -aside by consent and thereupon they, by a deed executed on the 15th Aghrahan 1315, placed Moiz-ud-din and Momtaz-ud-dinin possession as usufructuary mortgagees of 2 plots -measuring some 18 bighas.

7. The case for the prosecution and the evidence is to the following effect.

8. The two mortgagees were in peaceful possession of the 2 plots from the beginning of 1315 and on the day now in question, the 12th Asarh (12th July of 1909) they with their brother Reaj-ud-din (now deceased) and, ploughmen Mehr-ud-din and Abu Baker were working on one of the plots known as 10 bigha's plot and while they were thus engaged the appellant Reaj-ud-din and his two brothers, the appellants Tajar-ud-din and Rman-ud-din and some 7 or 8 others came up to the spot. The three appellants were armed with daos and their companions with lathis. The-three brothers claimed 1/5 share inherited by the children of appellant Reaz-ud-din and said that they could not permit the ploughing and sowing to continue. Momtaz-ud-din referred them to Courts and thereupon after some altercation, on the call or order of the appellant Tajar-ud-din, the three appellants and some of their companions fell upon Momtaz-ud-din and his party.

9. Eman-ud-din wounded Momtaz-ud-din, Taraj-nd-din wounded Abu Baker, and Reaj-ud-din wounded first Mehr-ud-din, next Moiz-ud-din and then Reaz-ud-din--the last named in some 4 places. Moiz-ud-din died of his injuries on the 15th July and Reaz-ud-din on the 15th August. Mehr-ud-din whose life was also for sometime in danger was discharged from the hospital after a period of more than 20 days.

10. The medical evidence shows that the wound causing the death of Moiz-ud-din was an incised wound 8inches in length on the right side of the chest cutting through the chest wall, the sixth rib, the pleura and also the lungs to the depth of 1 1/2 inches.

11. Similarly the injury causing the death of Reaj-ud-din was an incised wound on the left side of the chest 2 inches long dividing the chest wall, part of the sixth rib, the pleura and cutting deep into the lungs. There were three other incised wounds in Reaj-ud-din one of which divided the radius bone of the right forearm. The injuries on the other wounded men were as follows:

On Mehr-ud-din a large wound on the chest cutting into the lungs but not dividing any rib.

On Momtaz-ud-din a severe wound on the thigh; and

On Abu Baker a severe wound on the back.

12. The above were the wounds received by the members of the complainants' party. Tajar-ud-din one of the appellants was found by the Doctor to have a slight contusion on the left forearm and a small superficial laceration on the head. On the appellant Reaj-ud-din was found a superficial cut one inch long on the right forearm.

13. On the above facts, the appellant and the two other accused (acquitted) were charged as detailed above. I have now to consider whether the offence committed by Reaj-ud-din was murder or culpable homicide not amounting to murder;--and also as to whether the other accused apart from their individuals conduct are liable by implication to the offence of murder or culpable homicide not amounting to murder.

14. In the Penal Code 'culpable homicide' is used as the generic term and is exhaustively sub-divided into 2 species, viz., culpable homicide amounting to minder and culpable homicide not amounting to murder. It follows that all murder is culpable homicide but all culpable homicide is not murder. It will, therefore, be found that subject to the five exceptions to Section 300 Indian Penal Code, every act that falls within one or more of the four Clauses of Section 300, Indian Penal Code, is murder and also falls within the definition of culpable homicide in Section 299, Indian Penal Code.

15. Every act that falls within any or more of the four Clauses of Section 300, Indian Penal Code, in respect of which there co exists one or more of the sets of circumstances described in the five exceptions to that section, is by that fact, taken out of Section 300, Indian Penal Code, but the act notwithstanding continues to be within Section 299 and since it is not murder, it is culpable homicide not amounting to murder. Every act that falls within Section 299 and does not fall within Section 300, since it is not murder, is culpable homicide not amounting to murder.

16. The 4th Clause to Section 300, Indian Penal Code, provides that the act would be a murder if the person committing the act knows that it is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death and commits such act without any excuse for incurring the risk of causing death or such bodily injury as is likely to cause death. Illustration (c) under Section 300, is a clear exposition of law as laid down in Clause 4 of Section 300, Indian Penal Code. The conduct of all the accused in the present case either directly or by implication comes under the 4th Clause of Section 300 and, therefore, the act committed would be murder unless it can be shown that the accused had some excuse for incurring the risk. From the evidence I do not find there was any excuse on the part of the accused to go to the place armed with dangerous weapons for the purpose of disturbing the peaceful possession of the mortgagees. If they had any claim over a portion of the mortgaged properties on behalf of the children of the deceased daughter of Ramzanullah, they had the Civil Courts open to them to seek redress. They knew well that the mortgagees were rightly or wrongly put into the possession of the entire property and were in undisputed possession from the 15th Aghran 1315; their going to the spot, therefore, armed with dangerous weapons must be taken to be intended to carry oat the common object with any risk. In the above circumstance's, the conduct of the accused amounts to murder unless it can be brought under one of the five exceptions. From the charge to the Jury in the present case, it appears to me that the learned Judge thought that the conduct of the accused may come under exception 1 or 2.

17. Exception 1 provides that 'culpable homicide 'is not murder if the offender, while deprived of his powers of self-control by grave and sudden provocation, cause the death of the person who gave the provocation or causes the death of any other person by mistake or accident' provided that the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. I do not consider that the accused can take protection under this exception for the simple reason that they had no legal excuse to go to the spot armed with dangerous weapons to enforce their right or supposed right. The second exception relates to the right of private defence, that is to say, if death is caused in the exercise of private defence it is not murder. I have already explained that the facts disclosed did not justify the accused in doing what they are said to have done.

18. For the above reasons, I am of opinion that a charge under Section 302, Indian Penal Code, and Section 302/149 should have been framed and the learned Sessions Judge should have explained to the Jury the law on the subject and further should have told them, that if they believed the facts and thought that the offence of murder was not made out, it was still open to them to return a verdict of the minor offences under any of the Clauses of Section 304, Indian Penal Code. Going through the heads of the charge to the Jury, I find that there have been gross mis-directions both of fact and law as pointed out by Teunon, J. I am, therefore, of opinion that there should be a fresh trial of all the accused under Section 302, Indian Penal Code, and the allied minor sections in accordance with the evidence against each of the accused. In the heads of the charge to the jury, the learned Sessions Judge should explain the law in accordance with the above observations.

Chatterjee, J.

19. In this case the fight was in consequence of some land dispute. The injuries caused were not premeditated; the Magistrate was, I think, justified in not framing a charge under Section 302. In any case the Sessions Judge explained to the Jury the difference between murder and culpable homicide and the jury found the offence under Section 304 only as proved; Section 149 etc., were explained to the Jury and they did not find any offence under Sections 304/149 proved. I do not think there is any error of law in the charge and I do not think that the sentences are light. I, therefore, dismiss the appeal.

Teunon, J.

20. In this case I have the misfortune to differ from my learned colleague.

21. The practically undisputed facts are as follows: one Ramzanulla, who possessed a holding measuring some 22 1/2 bighas, died leaving a son Chotay and three daughters. Of the daughters one, now deceased, was married to the appellant Reaz-ud-din and has left by him 2 children: after the death of Ramzanulla the holding was sold in execution of a decree for arrears of rent. When the landlord purchasers had been in possession for about three years, Chotay and his surviving sisters borrowed Rs. 400 from the deceased Moiz-ud-din and his brother Momtaz-ud-din, paid off the landlord's dues, had the auction sale set aside by consent, and thereupon, by a deed executed on the 15th Agrahan 1315, placed Moiz-ud-din and Momtaz-ud-din in possession, as usufructuary mortgagees of two plots measuring some 18 bighas.

22. The case for the prosecution and the evidence is then to the following effect:

The two mortgagees were in peaceful possession of their two plots from the beginning of 1316, and on the day now in question, the 28th of Asar, corresponding to the' 12th of July 1909, they with their brothers Reaj-ud-din and two ploughmen Mehr-ud-din and Abu Baker were working on one of the two plots known as the 10 bight plot. While they were thus engaged, the appellant Reaz-ud-din, his two brothers, the appellants Tajar-ud-din and Eman-ud-din, and some 7 or 8 others came upon the scene. The three appellants were armed with dews and their Companions with lathis. The three brothers claimed the shares (1-5th) inherited by Reaz-ud-din's children and said that they could not parmit the ploughing and sowing to continue. Momtaz referred them to the Courts, and thereupon, after some altercation, on the call or order of the appellant Tajar-ud-din, he, the other two appellants, and some of their companions fell upon Momtaz and his party. Rman-ud-din wounded Momtaz, Tajar-ud-din wounded Abu Baker and Reaz-ud-din wounded first Mehar-ud-din, next Moiz-ud-din, and then Reaj-ud-din, the last named in some four places.

23. Moiz-ud-din died of his injuries on the 18th of July, and Reaj-ud-din on the 15th of August; Mehr-ud-din, whose life was also for some time in danger, was discharged from hospital after a period of more than twenty (20) days.

24. The medical evidence shows that the wound causing the death of Moiz-ud-din was an incised wound, 8 inches in length, on the right side of the chest, cutting through the chest wall, the 6th rib, the pleura and into the lung to the depth of 1 1/2 inches. Similarly the injury causing the death of Reaj-ud-din was an incised wound, on the left side of the chest, 2 inches long, dividing the chestwall, part of the 6th rib and the pleura and cutting deep into the lung. Of the three incised wounds on Reaj-ud-din's person one divided the radius bone of the right forearm.

25. The injuries on the other wounded men were as follows: On Mehr-ud-din, a large wound on the chest cutting into the lung but not dividing any rib; on Momtaz a severe wound on the thigh; on Abu Baker a severe wound on the back.

26. On the appellant Tajar-ud-din, were found a slight contusion on the left forearm, and a small superficial laceration on the head: on the appellant Reaz-ud-din, a superficial cut one inch long on the right forearm.

27. On the case outlined above the appellants and two others were tried by the jury before the Sessions Court at Khulna on charges named as follows: against Tajar-ud-din and Rman-ud-din, in respect of the injuries caused to Abu Baker and Momtaz charges under Section 324, Indian Penal Code; against Reaz-ud-din in respect of the injury done to Mehr-ud-din a charge under Section 324, against all, charges of rioting under Section 147 or Section 148 and in respect of the deaths of Moiz-ud-din and Reaz-ud-din, eharges against Reaz-ud-din under Section 304, and against Tajar-ud-din and Rman-ud-din and the two others under Section 304 read with Section 149, Indian Penal Code.

28. The appellants have been convicted, Reaz-ud-din under Section 304(2) and Section 32C, Tajar-ud-din and Rman-ud-din under Section 324: and all have been acquitted of the remaining charges.

29. I shall now proceed to give my reasons for thinking that this case has not been properly tried.

30. Having regard to the nature, extent and site of the injuries on the deceased Moiz-ud-din and Reaj-ud-din, to the weapon used, and the general evidence for the prosecution, I am clearly of opinion that the case prima facie was one of murder. The omission to frame a charge under Section 302 of Indian Penal Code and the withholding of such charge from the Jury can have proceeded only on one or other of two assumptions, namely, either that the acts causing the deaths in question could in no view constitute the offence of murder as defined in the four Clauses of Section 300, Indian Penal Code, or, if they did, that facts bringing the accused within the scope of one or other of the exceptions to that section had been established.

31. Now it appears that when on the 16th July, the appellant Reaz-ud-din was brought by a constable before the investigating Sub-Inspector, he made a statement (Exhibit 4) which has been admitted in evidence as a counter-complaint charging Momtaz and his companions with the offence of, rioting. Whether this statement was strictly speaking admissible need not at presente considered as from the fact that it was admitted without objection, and from the fact that the appellants made no statements either to the committing Magistrate, or in the Court of the Sessions Judge and examined no witnesses, it may, perhaps, be assumed that it was the intention of the appellants and their advisers to treat the statement as one made or repeated in Court and as containing the common defence.

32. This statement, no doubt, contains a suggestion that the appellants acted in the exercise of the right of private defence but, even when considered with the trifling injuries found on Tajar-ud-din and Reaz-ud-din, should not have been taken by the Judge as conclusively making out a defence under the second (2nd) or any other, say the 4th or 5th exceptions to Section 300 of the Code. The evidence for the prosecution certainly does not make out any such defence.

33. Thus the record does not explain why either of the two assumptions to which I have referred should have been made. It was, therefore, in my opinion, clearly the duty of the Judge to frame charges under Section 302, Indian Penal Code, and then, in directing the attention of the jury to the evidence to leave it to them to say whether the acts done constituted merely the offences of culpable homicide within the 3rd Clause of Section 299, Indian Penal Code, or amounted to the graver offence of murder as defined in the four Clauses of Section 300, and, in the latter event, to say further whether the accused had succeeded in bringing themselves within the scope of any one of the exceptions, the exceptions relied upon by the defence having been first explained.

34. The Judge's omission to take this course has, in my opinion, vitiated the whole of his charge to the jury, and the whole of the trial.

35. I shall BOW examine the charge in detail and give instances of what appear to me to be misdirections.

36. Throughout the charge there is no reference to the fourth Clause of Section 300. Then, in dealing with the charge under Section 304, the Judge observes as follows: 'If the act which caused the, death...(was done) with the intention of causing death or of causing such bodily injury as was likely to cause death, the accused will be guilty under Section 304 Clause (a)'.

37. These and similar misdirections may be said to follow from the assumption that a defence under the 2nd, 4th or 5th exceptions to Section 300 had been made out, and the consequent omission to frame a charge under Section 302.

38. But later on in distinguishing between the 1st and the find Clauses of Section 304, the Judge seriously misdirects the jury. Towards the close of the charge he observes: 'If the assstults, were with intent to cause death, he (i.e. Reaz-ud-din) would be guilty under Section 304 Clause (a); if the element of knowledge was only present in the mind of the accused Reaz-ud-din, and no intention to Mil, he would be guilty under Section 304 Clause (&)'. This imperfect statement of the elements constituting an offence under the 1st Clause of Section 304 and the further failure of the Judge to direct the jury that in law every man must be presumed to intend the natural and ordinary consequences of his acts, constitute, in my opinion, very grave misdirection.

39. I shall now quote from the charge the passage in which the Judge is dealing primarily with the charges under Sections 147 and 14S and the charge under Section 304 read with Section 149. It rums as follows: 'Now an unlawful assembly should have a common object to commit an offence. It is admitted that the land...belonged to Choti's father.... The accused Reaj-ud-din's wife clearly inherited l-5th share.... The auction sale was set aside, and with that the interest of the sisters revived. The shares were not divided by metes and bounds. It is for you to say whether the accused Reaj-ud-din was or was not justified in asserting that his son and daughter were also entitled...and that the complainant...should have that share untouched. The mere assertion of right is no offence. It is the unlawful, enforcement of the right which is an offence. When the accused Reaj-ud-din and his brothers went to the land and found the complainant ploughing...they should have, if you so think, simply remonstrated with the complainant and his party, and sought to obtain a Civil remedy or to have recourse to any other legitimate authority for theredress of their grievances. It is for you to say whether they were not justified in going to the field armed with deadly weapons for the enforcement of their right or supposed right, and in trying to oust their opponents from the field, if you think that they really went so armed.... It they went so armed, then they went prepared for a fight. You have been told by the prosecution witnesses that the complainant and his party had no weapons. Only two of the labourers had cattle-driving sticks. That the labourers, or at least one of them, used his goad in self-defence is told you by some prosecution witnesses. If it was a goad only that was used, how would you account for the fact of the accused Reaz-ud-din having received an incised wound with a cutting weapon as the Doctor tells you. It is then for you to consider whether there was a mutual fight or not between the parties in which the complainant and his party were wounded and received severe injuries. The evidence is that Mehr-ud-din struck the accused Reaj-ud-din with his cattle-driving stick (goad) whereas an incised wound was found on his persons. If you think that the charges under Section 147, Section 148, and Section 149 have broken down, then it remains for you only to consider the offence or offences of which the accused are individually guilty'. 'It is difficult to comment on this passage. Much of it appears to be irrelevant to the charges under Sections 147, 148 and 149 with which at the moment the Judge apparently professes to be dealing. It assumes that the appellants had a grievance and that this grievance was against not their co-sharer Choti who had retained 4 1/2 bighas of the holding but against the mortgagees by whose money the property had been recovered. It further appears to assume that the conduct of the mortgagees in ploughing and sowing the land of which they had been placed in possession amounted to a criminal offence, and with no explanation of the law regarding the right of private defence, and in apparent disregard of the terms of Section 141 of the Penal Code, it went informing the Jury that it is for them to say whether the appellants were justified, and indeed suggests that they were justified in going armed with deadly weapons in order to oust the mortgagees, and enforce their own real or imagined claims. In the next place, though the appellants examined no witnesses, and made no statements in Court, and though in the statement or complaint made by the appellant Reaz-ud-din to the Sub-Inspector and, rightly or wrongly, admitted in evidence there is no suggestion that Momtaz and his companions had any weapons other than lathis, the Judge here assumes that the trifling cut on Reaz-ud-din's arm, which might have been fabricated at any moment between the occurrence on the 12th and the medical examination on the 18th of July, was received in the course of that occurrence and, further, resulted from the use by some member of the complainant's party of some cutting weapon. Then on the basis of this cut, and without placing before the jury any of the countervailing considerations, the Judge proceeds to suggest that the present is or may be a case of what he terms a mutual or free fight or as I understand him one of those cases in which, both parties having gone out by concert equally armed with deadly weapons and equally bent on taking the offensive, deaths having been caused in the fight, the 5th exception to Section 300 of the Penal Code has been held to be applicable. But even in a case of the nature just indicated it does not follow, as the Judge here appears to suggest, that charges of rioting against the several members of either party necessarily fail.

40. Thus the passage just cited appears to be one long series of misdirections. I may next quote the material portions of the only other passage in which the learned Sessions Judge deals with the charges under Sections 147 and 148 and Section 304 read with Section 149. They run as follows: 'In order to constitute an offence under Section 147. Indian Penal Code, there must be an unlawful assembly with some common object as mentioned in Section 141. Indian Penal Code, and there must also be the use of force by...(some) members thereof.... If you are satisfied...that; there was not an unlawful assembly of five or more persons, that there is no sufficient ground for you to hold that the accused Alim-ud-din and Nehal-ud-din, and the seven or eight other persons armed with lathis were present at the time of the occurrence, then there is no case either under Section 147 or Section 148 and I should also add Section 149. In that case the constructive charge of culpable homicide read with Section 149 against Eman-ud-din, Tajar-ud-din, Alim-ud-din and Nehalud-din falls through. It is not enough for a conviction under Section 149 simply to prove that these four persons came armed with daos and lathis. It must be proved that the offence, though committed in the prosecution of the common object, was one which the accused knew would likely to be committed in prosecution of the common object'. This passage contains or involves serious misdirections. In the first place it gives an incomplete or inaccurate explanation of Section 149. Next, neither in this passage nor elsewhere does the Judge remind the jury of the inferences which may legitimately be drawn from the fact that to the knowledge of all the members of the assembly, some of their members carried deadly weapons. Lastly he directs the jury that should they find that only the three appellants were present the charge under Section 304 against Tajar-ud-din and Eman-ud-din necessarily fails. The evidence in the case is to the effect that all three appellants came armed with does, that they made a practically simultaneous attack upon Monltaz and his companions and that this attack followed immediately upon the order or direct incitement of Tajar-ud-din. In this state of the evidence, it became, in my opinion, clearly the duty of the Judge, after framing appropriate charges, to explain to the Jury the law contained in Sections 34, 107, 108 and 114 of the Penal Code and then in dealing' with the evidence to leave it to the Jury to say whether in respect of the injuries done to Moiz-ud-din, Reaj-ud-din and Mehr-ud-din a case under Section 302 or Section 304 or Section 326 read with the sections just cited had been made out against the appellant Tajar-ud-din and Eman-ud-din or either of them.

41. Thus from the omission to frame charges under Section 302, Indian Penal Code, from the omission to explain the law as contained in Sections 34, 107, 108 and 114, from the mis-directions in explaining Section 149 and the distinction between the 1st and 2nd Clauses of Section 304, and from the many other positive mis-directions upon questions both of fact and of law all tending to extenuate or minimise the offence committed, I am of opinion that the trial of this case has been vitiated, that grave failure of justice has resulted, and that in the public interests it is necessary to direct a re-trial.

42. I have then considered whether in the first instance a rule should not be issued under Section 439, Criminal Procedure Code, calling upon the appellants to show cause why a re-trial under Section 302, Indian Penal Code, and other section should not be ordered but on the authority of the cases Queen-Empress v. Jabanulla 27 C. 172 : 4 C.W.N. 166 and Satish Chandra Das Bose v. Queen-Empress 23 C. 975, I am of opinion that the proposed order for re-trial may be made forthwith under Section 423(1)(c) of the Criminal Procedure Code.

43. For these reasons, I am of opinion that the proper order to make in this appeal is to reverse the finding and sentence in the case of all the appellants and to direct that they be re-tried on charges, in respect of the deaths of Moiz-ud-din and Eman-ud-din, under Section 322 and in respect of the hurt caused to Mehr-ud-din under station 326, Indian Penal Code, (both sections, in the case of Tajar-ud-din and Eman-ud-din, being read with Sections 34, 114, and 149 of the Code), with additional charges (1) against all under Section 148, and (2) in respect of the hurt caused to Abu Baker and Momtaz, against Tajar-ud-did and Eman-ud-din, under Section 324, Indian Penal Code.


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