EMPEROR Vs. DAWOOD HASHAM

JUDGEMENT

(1.) THIS case comes before the Court on a certificate of the Advocate General given under Clause 26 of the Letters Patent. He considers that the question, whether the learned Judge should have withdrawn the case from the jury on the ground that there was no evidence to go to the jury, is a question of law which requires to be considered by this Court.

(2.) THE case in question was tried by Mr. Justice Lokur and a special jury, and in it three accused were charged with murder and abetment of murder. THE actual murder was charged against accused No.1, and abetment of murder against accused Nos. 2 and3.

(3.) NOW, the question is, on which side of the line this case comes. Is it a case of no evidence which can justify a conviction, or is it a case of weak evidence which the jury nevertheless would be entitled to accept? Nobody suggests that the evidence against accused Nos. 2 and 3 is of a convincing character. The learned Judge gave a very full and fair summing-up, indeed, so full is the summing-up that both sides have agreed that it is not necessary to have a transcript of the evidence, because the learned Judge has correctly summarised all the material evidence. The bulk of his charge is, of course, directed to the case against accused No.1, with which we are not concerned, but in the early part of his summing-up he explains to the jury accurately the nature of abetment. He points out that under Section 107 of the Indian Penal Code abetment may be of three characters, either by instigation, or by conspiracy, or by aiding or assisting, and then, at a later stage of his summing-up, he deals with the case against accused Nos. 2 and 3 specifically. There was no evidence that accused Nos. 2 and 3 had instigated accused No.1 to stab Hussein, but the learned Judge discusses the two other aspects.-of abetment--active assistance, and previous conspiracy. He points out that as against accused Nos. 2 and 3 there is no evidence at all that they took any active part in the actual stabbing. He also points out that the whole incident took place in a few minutes and that it is not alleged that accused No.1 shouted out that Hussein should be stabbed. He points out further that if accused Nos. 2 and 3 were locking away from the otla, they could not expect that accused No.1 would immediately come down from the otla and stab Hussein. He says that abetment requires that the persons abetting must intend to facilitate the commission of the offence. Then he says If accused Nos. 2 and 3 did not seize Hussein intending that he should be stabbed by accused No.1, then they cannot be said to have abetted the commission of the offence by accused No.1. It was pointed out to you in the course of the arguments that as accused Nos. 2 and 3 were holding Hussein, they could; not see what the accused No.1 was doing as their backs were turned towards him. I accused No.1 had shouted to accused Nos. 2 and 3, ' Seize Hussein, I am coming to stab him,' then they might perhaps have let him go or prevented accused No.1 from stabbing him. There is no evidence to show that accused Nos. 2 and 3 had their attention directed towards accused No.1. Unless you assume that there must have been a conspiracy; beforehand and in pursuance of that conspiracy accused Nos. 2 and 3 caught hold of Hussein, you cannot say that accused Nos. 2 and 3 abetted the commission of the crime. So that the learned Judge seems definitely to express the view that unless the jury found abetment by means of previous conspiracy, there was no evidence of abetment; there was no evidence, that is to say, of actually aiding in the commission of the murder. Then the learned Judge goes on to discuss the evidence relating to previous conspiracy. He says: It is admitted that accused Nos. 2 and 3 did not speak to accused No.1, nor, did accused No.1 say anything to accused Nos. 2 and 3 or to the deceased before he stabbed the deceased. It was done all of a sudden. Then he says: Accused Nos. 2 and 3 themselves did not know why they were called upon to seize the deceased. It may be that Hasham wanted merely to detain Hussein. Hussein had gone there as a peacemaker to settle the quarrel between accused No.2 and Noor Mahomed Noor Mahomed ran away and then Hasham or some one from the crowd may have thought of keeping Hussein in order to settle the dispute once for all. In these circumstances unless there was a previous conspiracy that Hussein should be seized and stabbed, it would be difficult for you to hold accused Nos. 2 and 3 guilty of abetment. But the presence of Hussein there was accidental. It is, therefore, to my mind clear that on the evidence accused Nos. 2 and 3 cannot be held to have conspired with accused No.1 for stabbing the deceased Hussein. So that the learned Judge has really held that there was no evidence of abetment by active assistance or previous conspiracy, and there was no suggestion of abetment by instigation. I think, therefore, that if the learned Judge's attention had been drawn to Section 289 of the Criminal Procedure Code, he would have held that there was no evidence to go to the jury. Unfortunately, his attention was not directed to that section, and he left the case to the jury, and, no doubt, much to his surprise and regret, the jury brought in a unanimous verdict of guilty against accused Nos. 2 and3.