text stringlengths 5 5.67k |
|---|
From there we go to his examination under section 342 of the Criminal Procedure Code in the Committal Court. Ratio |
He is specifically told that the only eye witness in the case accuses him and not his brother of having hit the deceased over the head with a hockey stick. Ratio |
No one could misunderstand that. Ratio |
In the Sessions Court we find the same evidence repeated. Ratio |
No witness suggests that anyone else hit the deceased on the head. Ratio |
There was no pos sibility of misunderstanding or mistake. Ratio |
The fact that the appellant did not attempt to confront any of the witnesses with their statements before either the Committing Magistrate or the police on this point shows that the witnesses told a consistent story from the start. Ratio |
Next, the appellant was examined under section 342 in the Sessions Court and was asked the same questions and was confronted in his examination with the same eye witness. Ratio |
He was told clearly and unambiguously that the evidence was that he hit the deceased over the head. Ratio |
Now what was his defence? A curious procedure was adopted, a procedure that has been condemned by the Nagpur High Court in other cases and which we regret to see still persists. Ratio |
Instead of the accused speaking for himself he made a statement through his advocate. Ratio |
However, the defence was this: (1) an alibi: "I wasn 't there". ARG |
(2) It was dark and the deceased rushed at the appellant (who is now said to have been there despite the alibi), fell down the stairs and broke his head; (3) The deceased was the aggressor and the appellant struck him in self defence. ARG |
There is no suggestion here that the other accused hit the deceased or that anyone other than the appellant did. ARG |
The appellant places it beyond doubt that he knew that the case against him was that he is said to have struck the fatal blow. ARG |
Next, what was the cross examination of the only eye witness? There was no suggestion that she was mistaken in her identity, whereas she was crossexamined about this very matter of self defence and questions were put to show that the deceased 1178 and not his brother had threatened the appellant with his fist. ARG |
In the High Court the plea of alibi was dropped and the only argument advanced was self defence. ARG |
There was no hint of prejudice even in the grounds of appeal. ARG |
There was no pretence in the arguments that the appellant did not know he was being accused of having hit the deceased. ARG |
On the contrary, there was a clear admission in the High Court that he did hit the man but that he acted in self defence. ARG |
As the appellant knew that the case against him was that he is the one who is said to have struck the fatal blow, and as he was told in the charge that the offence he is said to have committed was that of murder and was informed of the date and place and person, we find it impossible to infer prejudice. ARG |
As the Privy Council said in Atta Mohammad vs Emperor(1) I "He appeared by an advocate on the appeal and had been legally defended at the trial, and it is as clear as possible that, with full knowledge of the course which the trial had taken, neither the appellant himself nor those who represented him bad any sense wha... |
We would hold that there was no prejudice and that the conviction is not invalid because of the nature of the charge. Ratio |
We now come to the merits, and the question is whether this is a case under section 302 or under the second part of section 304 of the Indian Penal Code. Ratio |
The injury was inflicted with a hockey stick. Ratio |
The head was fractured but the deceased lived for ten days. Ratio |
Therefore, the doctor in whose care the patient was (1) [1929] L.R. 57 I.A. 71, 74. 1179 till he died places the injury no higher than "likely" to cause death. Ratio |
The learned Sessions Judge exonerated the appellant of any intention to kill and the learned High Court Judges say that they agree with his findings. Ratio |
If there was no intention to kill, then it can be murder only if (1) the accused knew that the injury inflicted would be likely to cause death or (2) that it would be sufficient in the ordinary course of nature to cause death or (3) that the accused knew that the act must in all probability cause death. Ratio |
If the case cannot be placed as high as that and the act is only likely to cause death and there is no special knowledge, the offence comes under the second part of section 304 of the Indian Penal Code. Ratio |
The doctor thought that it was only likely to cause death. Ratio |
All blows on the head do not necessarily cause death, and as the deceased lived for ten days, we are unable to deduce from the nature of the injury and from the mere fact of death that the appellant had, or should have had, the special knowledge that section 300 of the Indian Penal Code requires. Ratio |
Admittedly, there was no premeditation and there was a sudden fight, so we are unable to ascribe the necessary knowledge to the appellant; nor was the injury sufficient in the ordinary course of nature to cause death. Ratio |
So the offence falls under the second part of section 304 of the Indian Penal Code. Ratio |
On the question of sentence. Ratio |
There was no enmity according to the finding of the learned Sessions Judge. Ratio |
The appellant did not go there armed with a stick. Ratio |
He was in love with the deceased 's sister who reciprocated his affection but could not marry him be cause her husband had turned her out in England ,and she had no divorce. Ratio |
The deceased, who was the girl 's brother, resented this. Ratio |
The appellant went to the house and asked the sister to come down. Ratio |
The 1180 brother came instead and there was a quarrel. Ratio |
The appellant slapped the deceased across the face. Ratio |
The deceased, who was a big and strong man, shook his fist in the appellant 's face and the appellant snatched a hockey stick from his younger brother Ronnie and hit the deceased one blow over the bead and two blows on the hips. Ratio |
In the circumstances, we think five years ' rigorous imprisonment will suffice. Ratio |
This appeal comes before us on a reference owing to a conflict between two decisions of this Court, Nanak Chand vs The State of Punjab(1) and Suraj Pal vs The State of U. P. (2). Ratio |
Where there is a charge against an accused under section 302, read with section 149, if section 149 of the Indian Penal Code is inapplicable to the facts, can the accused be convicted under section 302 without a separate charge? Ratio |
In the first case, it was held that the omission to have a specific charge under section 302 amounted to an illegality. Ratio |
Section 149 creates a specific offence and without applying its provisions a member of an unlawful assembly could not be made liable for the offence committed not by him but by another member of that assembly. Ratio |
Therefore the case is not similar to the one where there is a charge under section 302, read with section 34 of the Indian Penal Code. Ratio |
When section 149 is ruled out, the liability for murder ceases to be constructive; it becomes direct and there must be a separate charge therefor under section 302 of the Indian Penal Code. Ratio |
This was the line of reasoning in Nanak Chand 's case. Ratio |
In Suraj Pal 's case, the same line is taken but the absence of a specific charge (1) ; (2) ; 1181 is treated as a serious lacuna merely; and not regarded as an illegality. Ratio |
This conflict does not arise in the case before us where the offence charged against two brothers, William and Ronnie for the murder of Donald was under section 302, read with section 34 of the Indian Penal Code. Ratio |
Ronnie was acquitted. Ratio |
But William was found guilty and sentenced to transportation for life. Ratio |
As pointed out by Lord Sumner in his classic judgment in Barendra Kumar Ghosh vs The King Emperor(1), there is much difference in the scope and applicability of sections 34 and 149, though they have some resemblance and are to some extent overlapping. Ratio |
The two sections are again compared and contrasted in Karnail Singh and another vs The State of Punjab(2). Ratio |
Section 34 does not by itself create any offence, whereas it has been held that section 149 does. Ratio |
In a charge under section 34, there is active participation in the commission of the criminal act; under section 149, the liability arises by reason of 'the membership of the unlawful assembly with a common object, and there may be no active participation at all in the perpetration or commission of the crime. Ratio |
The overlapping arises in those cases where two or more persons commit a murder in furtherance of the common intention, but it is not possible to say which of them was responsible for the fatal injury, or whether any one injury by itself was responsible for the death. Ratio |
There may also be a case where it is known that out of the assailants one in particular was responsible for the fatal injury and the others are sought to be made liable for the result owing to the common intention involved. Ratio |
It is, however, necessary having regard to the (1) [1924] L.R. 52 I.A. 40. Ratio |
(2) 1182 lengthy arguments addressed to us, to consider the main question arising on the reference. Ratio |
Though the two cases which gave rise to this reference were cases relating to section 149 of the Indian Penal Code and not to section 34 of the Indian Penal Code, as the Present case is, the order of reference was occasioned by the fact that in Nanak Chand 's case it was stated specifically that the parallel case under... |
In our attempt to resolve the conflict, we covered a wide area of sections and decisions. Ratio |
A detailed discussion of all the decisions cited at the Bar is not of much use as it is not possible to gather from a study of those cases anything very decisive by way of any guiding principle. Ratio |
But a few of them, more important than the rest, must be noticed. Ratio |
The Criminal Procedure Code does not use the word "illegality". Ratio |
Even defects or violations that vitiate the proceedings and render them void are spoken of only as irregularities in section 530. Ratio |
The word illegality was used almost for the first time in the judgment of the Privy Council, L.R. 28 Indian Appeals 257 (familiarly known as Subramania Aiyar 's case), where they speak of a contravention of section 234 of the Code, resulting in a misjoinder of charges, as an illegality. Ratio |
The idea that it was a mere irregularity was repelled in these words: "Their Lordships are unable to regard the disobedience to an express provision as to a mode of trial as a mere irregularity. Ratio |
Such a phrase as irregularity is not appropriate to the illegality of trying an accused person for many different offences at the same time, and those offences being spread over a longer period than by law could have been joined together in one indictment. Ratio |
The illustration of the section itself sufficiently shows what was meant". Ratio |
Again, they say: ". . it would be an extraordinary extension of such a branch of administering the criminal law to say that when the Code positively enacts that such a trial as that which has taken place here shall not be permitted that this contravention of the Code comes 1183 within the description of error, omission... |
Subsequently, however, there have been systematic attempts to explain away the said decision and restrict its scope to narrow limits. Ratio |
This was possibly because it was realised even by the Judicial Committee itself that the view taken by them to the effect that a violation of the mandatory provisions of the Code would be an illegality was rather an extreme one. Ratio |
It may be pointed out that even in that case the question of prejudice was not entirely absent from their Lordships ' minds. Ratio |
Both sides referred to it in the course of the arguments, and the Lord Chancellor alludes to the prejudice inherent in the trial on a multitude of charges. Ratio |
The exact effect of this inclusion may require consideration in an appropriate case. Ratio |
Before dealing with the other relevant sections of the Code, let us examine some of the later decisions of the Privy Council which seem to indicate a swing of the pendulum to the other side. Ratio |
In Abdul Rahman vs The King Emperor(1), there was a violation of section 360 of the Code which provides that the deposition of each witness shall be read over to him in the presence of the accused or his pleader. Ratio |
The High Court held that this was a mere irregularity, and confirmed the conviction as no failure of justice had resulted. Ratio |
It was contended on appeal before the Privy Council that the section was obligatory, and that non compliance with such a mandatory provision was illegal, on the principle laid down in Subramania Aiyar 's case(2). Ratio |
But their Lordships rejected this contention pointing out that in the earlier case the procedure adopted was one which the Code positively prohibited, and it was possible that it might have worked actual injustice to the accused; and they confirmed the conviction. Ratio |
The question was again raised in Babulal Choukhani vs The King Emperor(3) (1) [1926] L.R. 54 I.A. 96. Ratio |
(2) [1901] L.R. 28 I.A. 257. Ratio |
(3) [1938] 65 I.A. 158. Ratio |
1184 as to what would be an illegality as distinguished from an irregularity. Ratio |
Lord Wright who delivered the judgment of the Board assumed that an infringement of section 239(b) of the Code would be an illegality, and proceeded to state that the question did not, however, arise, and it was hence unnecessary to discuss the precise scope of what was decided in Subramania Aiyar 's case(1). Ratio |
The matter cropped up once again in Pulukuri Kotayya and others vs KingEmperor (2) where there was a breach of the statutory requirement found in section 162 of the Code, inasmuch as the accused were not supplied with copies of the statements first recorded by a police officer for cross examining the prosecution witnes... |
The defect was recognized to be a matter of gravity, and if the statements bad been completely destroyed, or if there had been a total refusal to supply copies to the accused, the convictions were liable to be quashed. Ratio |
But in the case before them, as the statements were made available, though too late to be effective, and the Circle Inspector 's notes of the examination of witnesses were put into the hands of the accused, it was taken to be an irregularity merely. Ratio |
Referring to the contention that the breach of a direct and important provision of the Code cannot be cured but must lead to the quashing of the conviction, Sir John Beaumont observed: ". . Ratio |
In their Lordships ' opinion, this argument is based on too narrow a view of the operation of section 537. Ratio |
When a trial is conducted in a manner different from that prescribed by the Code (as in N. A. Subramania Iyer 's case(1)), the trial is bad, and no question of curing an irregularity arises; but if the trial is conducted substantially in the manner prescribed by the Code, but some irregularity occurs in the course of s... |
The distinction drawn in many of the cases in India between an illegality and (1) [1901] L. R. 28 I.A. 257. Ratio |
(2) [1947] L.R. 74 I.A. 65. 1185 ail irregularity is one of degree rather than of kind. Ratio |
This view finds support in the decision of their Lordships ' Board in Abdul Rahman vs The King Emperor (1) where failure to comply with section 360 of the Code of Criminal Procedure was held to be cured by sections 535 and 537. Ratio |
The present case falls under section 537, and their Lordships hold the trial valid notwithstanding the breach of section 162". Ratio |
Of course, lack of competency of jurisdiction, absence of a complaint by the proper person or authority specified, want of sanction prescribed as a condition precedent for a prosecution, in short, defects that strike at the very root of jurisdiction stand on a separate footing, and the proceedings taken in disregard or... |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.