PANDARAN MANI Vs. STATE OF KERALA

JUDGEMENT

(1.) Two persons died, it is alleged as a result of an assault on them on the 25th April 1964 by the accused persons in this case, 12 in number. One of them, Varunny by name, died on the spot; the other, Krishnan, died in hospital about three months later, on the 15th July 1964, after the completion of the preliminary enquiry but before the commencement of the trial. Naturally, while the commitment in respect of the assault on Varunny was on a charge under S.302 I.P.C., that in respect of the assault on Krishnan was only on a charge under S.307 I.P.C. But, on being informed of Krishnan's death, the Sessions Judge altered the latter charge into one under S.302 I.P.C. and proceeded to try the accused on the charge as so altered. He convicted the 1st and 2nd accused under S.302 I.P.C., the former for having caused the death of Varunny and the latter for having caused the death of Krishnan. And he sentenced each of them to suffer rigorous imprisonment for life. He convicted the 3rd accused under S.326 I.P.C. for having caused hurt to Krishnan and sentenced him to suffer rigorous imprisonment for two years. The remaining accused, against whom liability was sought to be cast under S.149 I.P.C. he acquitted. When this appeal by accused 1 to 3 came on for hearing before a division bench, the objection was taken that, in the absence of a commitment for the murder of Krishnan, the alteration of the charge and the trial of the accused of that offence was altogether without jurisdiction and that the entire trial was therefore bad. It would appear that the books disclosed no decided case where this problem, namely, of a victim of a murderous assault dying after the commitment but before the trial, had arisen, and the division bench has, in referring this problem to a full bench for solution, asked the following questions:

(2.) The first question really raises the vital question of jurisdiction, whether, in the absence of a commitment for murder, S.193(1) of the Criminal Procedure Code is a bar to cognizance of that offence by the Sessions Court. If it is, then S.226 and 227 of that Code which permit an alteration of the charge would be of no avail to confer jurisdiction for the trial on the altered charge of murder. If, on the other hand, it is not, then, even if it be that the alteration does not come strictly within the scope of S.226 and 227, that would, at the worst, be an irregularity in the charge not affecting jurisdiction and coming within the scope of S.537(b). For, it is not contended that the accused have suffered any prejudice whatsoever by the procedure adopted by the Sessions Judge, that they have been put in a worse position than they would have occupied had there been a fresh preliminary enquiry and a fresh commitment on a charge of murder, in other words, that the alteration of the charge and the trial on the altered charge has, in fact, occasioned a failure of justice.

(3.) The causing of death with the requisite mens rea is murder (unless the case falls within any of the general or special exceptions) irrespective of when the death occurs, & we have not adopted the artificial rule of the English Law that, unless the death occurs within a year and a day of the act, the causation is too remote to be the legal causation. Whether the death ensuses forthwith, or only after the commitment, or even only after the trial, the offence is still murder. Where it ensues after the trial, S.403(3) of the Code provides for a second trial of the offender on a charge of murder notwithstanding that he has already been tried and convicted of the lesser offence of attempted murder - of course a person who has been tried and acquitted of the lesser offence is not to be tried again. Obviously, where the death occurs before the completion of the trial but after the commitment (which must necessarily be for the lesser offence) it should be possible to try the offender on a charge of murder - indeed S.403(3) implies that in such a case the trial should be for murder if the court comes to know (not necessarily by evidence) that death has occurred. How is this to be done By a mere alteration of the charge to one of murder as the learned Sessions Judge has done in the present case Or by a fresh preliminary inquiry and a fresh commitment on a charge of murder If the latter, what is to happen to the commitment already made Is it to be quashed. If so by whom and under what provision of law Or, if the commitment is to stand, should there not be a trial thereon Or can it be ignored and a fresh inquiry held and a fresh commitment made and a trial had thereon