1. This is an appeal by three persons Ajgar Shaikh, Soleman Shaikh and Ekabbar Shaikh. They were tried by the learned Sessions Judge of Khulna with the aid of a Jury. The Jury found Ajgar and Soleman guilty under Section 326 and also under Section 447, Indian Penal Code. The learned Judge sentenced Ajgar to one year's rigorous imprisonment under Section 326 and Soleman to six months' rigorous imprisonment under Section 326. The Jury also found Ekabbar guilty under Sections 323 and 447, Indian Penal Code. The learned Judge sentenced him to six weeks' rigorous imprisonment under Section 323. The learned Judge sentenced all the three appellants to one month's rigorous imprisonment under Section 447 Indian Penal Code. The sentences under Section 447, in the case of all the accused persons were to run concurrently with the sentences under Sections 326 and 323, Indian Penal Code.
2. The facts very briefly are these: There are three brothers Bahadur, Sadeq and Kabiladdi, who live in the same or adjacent homestead. Bahadur is the father of the three appellants now before the Court. In the yard of Kabiladdi there is a certain plum tree which is apparently the cause of the present trouble. On the day of occurrence Maminaddi, the son-in-law of Kabiladdi, cut a branch of the plum tree. Bahadur objected to the tree being cut. Maminaddi apparently then went away. When Kabiladdi returned from a market to which he had gone he was told what had happened. On this a quarrel arose between Kabiladdi on one side and Bahadur on the other. Apparently the quarrel took place from their respective houses. Then Bahadur and the three present appellants rushed up to the plum tree, Ekabbar and Bahadur carrying lathis and Soleman and Ajgar carrying axes. Apparently they had an idea of cutting down the plum tree by force. Ajgar hit the tree several times with his axe. Kabiladdi then came up to the tree when Ekabbar hit him on the head with a lathi. Kiamaddi the son of Kabiladdi then ran to the help of his father Kabiladdi. He was also beaten on the head with a lathi by Ekabbar. Soleman hit him on the elbow with an axe and Ajgar hit him on the back and the waist with an axe. Hearing the row Sadeq came to the scene. He was also beaten on the head with a lathi by Ekabbar. Soleman then hit him on the back with an axe. Ajgar also hit him on the back with an axe. Bahadur and Ekabhar beat Sadeq with lathis. This is shortly the case for the prosecution.
3. The defence admits to some extent the incident of the afternoon. With regard to the fight in the evening Ajgar says he was not at home at the time, Bahadur says he was lying ill at home. Soleman admits some sort of occurrence but his version being that the plum tree belongs to Bahadur that there was an altercation over it between their mother on one side and Kabiladdi on the other, that their mother protested when Kabiladdi proceeded to cut the tree, that Kabiladdi thereupon was about to assault their mother who fell down on the ground that they ran to her assistance on which Maminaddi hit Ekabbar with a spear and that Soleman also received some injuries from the axe in the hand of Kabiladdi, whether intentionally inflicted or not he could not say.
4. The Pleader who appears for them as is usual in such cases raises a question of right of private defence. I may at once point out that it was not the case of the accused that they inflicted these injuries on the other party in the exercise of the right of private defence. On the contrary their case was that they did not inflict them at all. Merely to state that the other party wounded them is not the same as to say that they struck the opposite party in the exercise of the right of private defence. In order to establish the exercise of right of private defence it is absolutely necessary to detail the exact circumstances which led them to strike the blow in question. Obviously such a defence can seldom if ever successfully be made out when the accused's case is that they did not strike the blow at all.
5. The first point raised by the learned Vakil for the appellant is that the learned Judge has tried the accused for two distinct offences which have been included in one single charge. He contends that it is illegal to do so. He contends that under Section 233, Criminal Procedure Code for evey distinct offence a separate charge is necessary and that the omission to draw up a separate charge for each distinct offence is an illegality which vitiates the whole trial. On this point the learned Vakil has referred us to a large number of cases in which apparently different views have been taken as to whether inclusion of two distinct offences in one charge is or is not illegal. In the case of Asgar Ali v. Emperor 20 Ind. Cas. 609 : 40 C. 846 : 17 C.W.N. 827 : 14 Cr. L.J. 449 it was no doubt held that a single charge relating to several distinct offences is illegal. Since that decision, however, we have the case of Ram Subhag Singh v. Emperor 30 Ind. Cas. 465 : 19 C.W.N. 972 : 16 Cr. L.J. 641 where it has been distinctly held that joinder of two distinct offences in a single charge amounts to an irregularity only cured by Section 537, Criminal Procedure Code and not an illegality. As far as I can see this decision has never been dissented from. We are referred to the case of Radha Nath Karmakar v. Emperor 71 Ind. Cas. 120 : 50 C. 94 : 36 C.L.J. 149 : A.I.R. 1922 Cal. 573 : 24 Cr. L.J. 72 for an authority that joinder of several distinct offences in a single charge is an illegality and is not curable by Section 537, Criminal Procedure Code. I have read the judgment with considerable care and I admit I cannot find this principle propounded in that case. As far as I can see the learned Judges there seem to have been of opinion that a charge which relates to more than one distinct offence is a bad charge. But the learned Chief Justice in disposing of that case went on to say:
But when he (the learned Vakil) went further and argued that, because that particular charge was in contravention of Section 233, the whole trial was vitiated, I...was unable to agree with him.
6. As far as I can see the learned Judges in that case never really decided whether such a joinder of offences in one charge was or was not an irregularity or illegality. The learned Chief Justice remarks at page 99 Page of 50 C.--[Ed.] that 'strictly speaking there should have been separate charges in respect of these distinct offences. Consequently, in my judgment, we shall be on the safe side in setting aside the convictions under Section 149 read with Sections 325 and 323.'
7. That will be a very long way from saying that inclusion of distinct offences in a single charge is an illegality. As far as I can see the learned Judges avoided deciding that point.
8. The next case to which we have been referred is the case of Alimuddin Naskar v. Emperor : AIR1925Cal341 . This case, far from supporting the view which the learned Vakil has asked us to take on this point is distinctly against him. Walmsley, J., in dealing with the case remarks that '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 of murder, being drawn in regard to each. To that I attach no importance.'
9. The next decision to which we have been referred is the case of Azimaddy v. Emperor : AIR1927Cal17 . I have read this decision also very carefully; and as far as lean see the learned Judges did net decide the particular point with which we are now concerned. In this particular decision we have been referred to that portion of the decision which appears at page 248 Page of 54 C.--[Ed.] of the report. A perusal of this judgment clearly shows that the learned Judges did not decide whether such joinder of offences in a single charge was or was not an illegality. They no doubt remark:
It is clear that the proper way would be to have had three separate heads of charges.
10. I am quite clear in my mind that joinder of two offences in a single charge is an irregularity and not an illegality and the only question is whether the appellants have been prejudiced by this. It has not been suggested to us that they have.
11. The next point, if I understand the learned Vakil for the appellants correctly, is that the learned Judge has not put to the Jury the case of the accused as to the right of private defence. The simple answer to this contention is that it was never the case of the accused that they acted in the exercise of the right of private defence. Their case was that they never struck the opposite party at all. Obviously if they do not admit striking the opposite party they can hardly be heard to urge that they struck the opposite party in the exercise of the right of private defence; for, as I have already remarked unless you make out the exact circumstances in which you struck the blow it is not quite possible to say whether such a blow was struck in the exercise of the right of private defence. The accused possibly may plead that they were not there and at the same time plead that they acted in the right of private defence. If there is evidence either from the evidence of the prosecution witnesses or defence witnesses that they did so then of course the Judge must put the case of private defence to the Jury. But I cannot discover in the present case that there is any evidence to show that they did so and, therefore, there is no case of the right of private defence to be put to the Jury. It is not the duty of the Judge to put to the Jury hypothetical cases unsupported by any evidence.
12. The learned Vakil has next argued that the learned Judge has misdirected the Jury about the boundaries. In view of the fact that the accused did not set up the right of private defence nor is there any evidence that they were acting in the exercise of the right of private defence the question of boundaries has nothing to do with the case and is entirely irrelevant.
13. This disposes of all the objections raised by the learned Vakil for the appellants.
14. The appeal, therefore, stands dismissed. The accused if on bail must surrender to serve out their sentences.
15. I agree.