EMPEROR Vs. SHAIK HASAN ABDUL KARIM NO 2

JUDGEMENT

(1.) THE two accused in this case, Shaik Hassan Abdul Karim and Akbarkhan Attamahomed, were tried by Mr. Justice Blagden and a special jury for the murder of a police constable named Nasiruddin on the night of December 25, 1942. THE jury unanimously found both the accused guilty and the learned Judge sentenced both of them to death. THE matter has come up before us on a certificate given by the learned Advocate General under Clause 26 of the Letters Patent that there are certain misdirections or errors in the charge delivered by the learned Judge to the jury which in his opinion should be further considered by this Court. THE following four points have been mentioned by the learned Advocate General in his certificate : (1) That the learned Judge did not point out to the jury with sufficient accuracy and detail the distinction between murder and culpable homicide not amounting to murder, did not read the relevant sections of the Penal Code, and in explaining the law did not use the words of the sections of the Penal Code. (2) That the learned Judge at no time in his summing-up in regard to the charge of murder adverted to exception 4 in Section 300 of the Indian Penal Code, and that it was incumbent on the learned Judge to put before the jury a case for the accused arising on the evidence, even though such case was not raised or suggested by or on behalf of the accused, and that the learned Judge omitted to draw the attention of the jury to a matter, a consideration of which might lead them to a verdict of culpable homicide not amounting to murder instead of murder ; to wit : whether or not the culpable homicide was committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner, (3) That having regard to the evidence on behalf of the prosecution there was no evidence of any agreement between the two accused to kill the deceased and that the learned Judge ought not in' giving the charge to the jury to have used the words " obviously, gentlemen, is it not part and parcel of the same plan that of stopping the dead man's mouth by killing him and scaring the crowd away and preventing them from coming forward ; so that if there is legal trouble afterwards there will be as few witnesses for the prosecution as possible ? If the object is not to stop the dead man's mouth why have recourse to a deadly weapon, when a less dangerous thing has already achieved its object and won the fight of accused No. 1 ? For example, if a gang of people like those who murdered Julius Caesar all agreed to stab the same man and did stab him it does not matter in the least who actually struck the fatal blow," (4) That on the question of identification of accused No. 2 the learned Judge did not sufficiently place before the jury the facts in favour of the accused, viz. that the accused was arrested and identified eight months after the event and that the incident took place at a time when blackout restrictions were in force and that there were several discrepancies in the evidence of the witnesses in the statements made by them before the Coroner and before the Committing Magistrate and in the High Court.

(2.) BEFORE proceeding to deal with the paints on which the certificate has been granted, it is necessary to set out the facts of the case and the evidence which was led by the prosecution. On the night of December 24, 1942, the deceased police constable Nasruddin Badruddin, No. 2744/F of the Mahim Police Station, was present at the Ma-him fair. One Haji Abdulla Kadir Siddik was distributing alms to some fakirs. One of the fakirs was dissatisfied with what was given to him and started abusing Haji Abdulla who had refused to give him anything more. The! two accused came along and accused No. 1 asked Haji Abdulla not to beat the fakirs. Haji Abdulla said that he had not beaten any one. Accused No. 1 thereupon took out two one-rupee notes and offered them to Haji Abdulla and asked him to distribute the money to the fakirs. A crowd had collected at the place at the time. Haji Abdulla said that if the accused wanted to distribute money he should do so himself. At this stage the deceased police constable, who was not in uniform, asked the members of the crowd, including Haji Abdulla and the accused to move on, and Haji Abdulla moved away. Accused No. 1, however, asked the constable who he was and gave him a push and told him to go away. Upon this the constable lifted up his shirt and showed accused No. 1 his policeman's belt which he was wearing below the shirt. Accused No. 1 thereupon gave the constable a push. The constable asked him to take care, whereupon accused No. 1 slapped him. The constable then caught accused No. 1 by the collar of his shirt. Accused No. 2, who was near accused No. 1, asked the constable to let accused No. 1 go. The constable refused to do so. Thereupon accused No. 2 gave a blow to the constable on the abdomen and accused No. 1 gave him a blow on the face. The constable then loosened the belt round his waist and either struck or tried to strike accused No. 1 with the leather end of the belt. Accused No. 1 caught hold of the belt with both hands. Accused No. 2 asked accused No. 1 to let go the belt, and he also asked the constable to let go the shirt of accused No. 1, but neither would release his hold. Accused No. 2 then shouted to accused No. 1 to stab the constable. The word used in the charge by the learned Judge is "thrust in". ' Accused No. 1 replied that he had no Gha or instrument to stab with. Accused No. 2 then butted at the constable with his head. The constable released his hold on accused No. 1's shirt and fell on the bench of a tea shop close by. Accused No. 1 then caught hold of the belt, and as the constable tried to get up, he started striking him with the buckle end of the belt. Accused No. 2 was at this time warning the people in the crowd not to interfere. The deceased fell back a little in his attempt to1 ward off the blows. Accused No. 2 then gave him a blow with his fist on the right side of his neck. Accused No. 1 continued to strike the constable with the belt with the result that the constable again fell down. He got up again. Accused No. 1 continued to give him more blows with the belt until the belt broke. The deceased fell down a third time, accused No. 1 continuing to strike him with the belt. At this stage accused No. 1 called out to accused No. 2 "Why are you looking at his face, stab him ? " Accused No. 2 ran towards the shop and got a knife from a man who was there and returned. Accused No. 1 again called out to him " Why are you looking at his face, stab him ? " The deceased who had fallen down sat up again. Accused No. 1 struck him again with the belt and accused No. 2 stabbed him with the knife on his left buttock. After this accused No. 1 gave some more blows to the constable with the belt. At this stage two or three policemen who had been called by somebody in the crowd came up. They tried to catch the accused but both of them escaped. The injured constable was removed to the hospital at about 1-20 that night. He died within a few hours at about 5-40 a. m. The medical evidence shows that he had several abrasions on the left temple and cheek, near the right eye, a lacerated wound near the left eye, and a stab wound 1 1/2" long 1" broad and 5" deep on the left buttock which punctured the left internal illiac artery. According to the medical evidence the wound was such that if not treated it must cause death. Accused No. 1 was arrested three days later on December28. The second accused was not arrested till nearly eight months later on August 12, 1943. After the arrest of each of the accused the police held an identification parade at which the witnesses who were subsequently examined at the trial identified both the accused.

(3.) THERE is nothing in the Code of Criminal Procedure which requires that a Judge in his charge to the jury should read out the sections of the Indian Penal Code which are applicable, though this is usually done, and is in my opinion desirable. Section 297 of the Code of Criminal Procedure says that in cases tried by jury, when the case for the defence and the prosecutor's reply are concluded, the Court shall proceed to charge the jury, summing up the evidence for the prosecution and defence, and laying down the law by which the jury are to be guided. Merely reading to the jury the sections of the Code which are applicable may often not be very helpful to the jury, and might in some cases be somewhat confusing for them. This is especially the case in offences falling under Sections 299, 300 and 304 of the Indian Penal Code. It is always very difficult for laymen to understand the difference between culpable homicide and murder merely from a reading of Sections 299 and 300 of the Code, and it is therefore desirable and necessary that the Judge in charging the jury should explain the law on the subject in single non-technical language. In doing so it is not necessary that the Judge should refer to those parts of Section 300 which on the facts of the particular case are not applicable at all. To refer to such matters would needlessly confuse the jury. Mr. Justice Blagden in his charge pointed out that if a man unlawfully killed another either intending to kill him, or intending to cause an injury of which he would probably die, or of which he was likely to die, the crime he committed would be culpable homicide, and in either of the first two cases, that is, where he intended to kill or intended to cause an injury of which the man would probably die, it would be the aggravated form of culpable homicide which is called murder. He then referred to the point which is covered by the second explanation to Section 299 of the Indian Penal Code, and which arose on the facts of this case, that in estimating the likelihood or probability of death the jury must leave out of account anything which a doctors or any skilled person might do to save the victim, and the fact that prompt medical aid might have saved the man would not prevent the person who inflicted the injuries being held liable for murder where he otherwise would be. Having referred in his explanation of the offences of culpable homicide and murder to the intention to cause an injury of which the man was likely to die, or of which he would probably die, he then explained the difference between likelihood of death and probability of death by saying that likelihood of death simply meant that death would not be a surprising result, and that probability of death meant that survival of the injured man would be a surprising result, and that if the injury inflicted was such that it would surprise anybody if the man lived, then prima facie the offence would be murder and nothing else. He then referred to the fact that according to the medical evidence, which was unchallenged, the) injury was necessarily fatal and that the man did die of it. He referred to the fact that the injury was on a part of the body which was not vital, but he further pointed out that the nature of the injury, namely, that it was a wound five inches deep, had also to be considered. In doing so he used the following words ; If, as the doctor tells you, this wound was five inches deep, it means that someone thrust some instrument into this unfortunate man up to nearly if not quite one-third of the way through his body. Is it not obvious that if you do that to somebody else, you will in all probability cause his death, no matter in what part of his anatomy you gave a fearful wound of that description ? Any man in his senses knows that if you stab a person to that depth, or anything approaching that depth, death is at least likely to ensue, even if it is not probable, and therefore the least offence here must be culpable homicide, apart from anything else. From the mere fact that the wound was so deep a jury would be entitled to draw the inference that the person who caused it meant to kill or that he thought that death would be the probable result, in which case he commits murder.