GOVERNMENT OF BOMBAY Vs. ABDUL WAHAB

JUDGEMENT

(1.) THIS is an appeal by the Government of the Province of Bombay under Section 411a from an order of acquittal passed by Mr. Justice Divatia. The accused was tried on August 7, 1944, at the Criminal Sessions presided over by that learned Judge and he was charged as follows: That you, on or about January 30, 1944, at Bombay, did commit murder by intentionally causing the death of one Balwantsing Mansing, and thereby committed an offence punishable under Section 302 of the Indian Penal Code and within the cognizance of the High Court. The prosecution case was that on January 29, 1944, the accused in the company of one Chandraseker, a motor driver, went at night to Chembur. At Chembur in a hotel they found Balwantsing the deceased. It seems that Balwantsing, the accused and Chandraseker had a few drinks together and there was a quarrel between Balwantsing and the accused. The accused was assaulted and the result of his injuries was that his face became swollen. Next morning Chandraseker brought the accused back to Bombay. He was taken to the J. J. Hospital and his injuries were attended to. On the same day, that is, January 30, 1944, Chandraseker happened to be at Kalbadevi Road and he saw the accused coming from the direction of Pydhonie and going towards a urinal. He also saw Balwantsing standing on the opposite side of the road with four or five persons. Then it seems that Balwantsing and these four or five persons crossed over and came to the place where the accused was, and a fight ensued. The result was that Balwantsing was stabbed and also the accused was stabbed on his leg. As a result of the injuries received Balwantsing died and the prosecution case was that the accused had stabbed Balwantsing and he was guilty of the offence of murder. At the trial the prosecution led the evidence of Chandraseker who deposed to the facts which I have just narrated. They also called Gulab, another motor driver, who saw the deceased and the accused lying on the road, both of them in a pool of blood. They further called one Mukundlal Pitambardas Shah who also deposed to seeing the deceased and the accused lying on the ground. Apart from the evidence of these three witnesses Chandraseker, Gulab and Mukundlal, the prosecution also led the evidence of Keshav Laxman Mane, police constable No.1336/b, who deposed to the deceased having made a statement to him when he took the accused and the deceased to the hospital, and according to him the deceased told him that the accused had stabbed him. There was further the evidence of Sub-Inspector Mahomed Umarkhan who recorded the statement of the deceased at the hospital. In this statement the deceased also gave the name of the accused as his assailant though he stated that he did not know the reason why the accused had stabbed him. And finally there was the evidence of Rao Bahadur Ramchandra Santuram Asavle who recorded the dying declaration of the deceased in the presence of the accused, and the deceased identified the accused from among a few persons who were present there as his assailant. The medical evidence as to the injuries inflicted on the deceased was very clear. There were four stab wounds, and a superficial injury in the nature of an abrasion on the person of the deceased, and the most serious injury was an incised wound 3/4" X 3/4" on the left side at the level of seventh rib midaxillary omentum protruding out. It was found when the deceased was operated upon that spleen had been ruptured. The deceased expired on February 11, 1944, at 1045, and according to the doctor the cause of his death was pericarditis and pneumonia following stab wounds. According to him if two of the injuries which he had described had not been treated the patient would die as a result of haemorrhage.

(2.) ALTHOUGH the accused was only charged with murder, the learned Judge in his charge to the jury directed them that if they found on the facts that the lesser offence was committed they could bring in a verdict on the lesser offence, and he explained the law both in regard to culpable homicide not amounting to murder and to grievous hurt. The jury brought in a unanimous verdict of not guilty on the charge of murder and also on the charge of culpable homicide not amounting to murder, and they brought in a divided verdict of not guilty by six to three on the charge of grievous hurt. On this verdict the accused was acquitted of the charge of murder and culpable homicide not amounting to murder. With regard to the, verdict on the charge of grievous hurt, the learned Judge disagreed with the jury, but instead of discharging the jury he felt bound by a decision given by Mr. Justice Mirza in Emperor v. Abla Isak (1931) I. L. R. 55 Bom. 520: S. C. 33 Bom. L. R. 349 and came to the conclusion that the accused could not be tried again on the charge of grievous hurt and therefore directed the accused to be acquitted and discharged.

(3.) NOW turning to the Sessions trial and the provisions of law as contained in the Criminal Procedure Code, the position is that under Section 299, Sub-section (3), it is the duty of the jury to decide which view of the facts is true and then to return the verdict which under such view ought, according to the direction of the Judge, to be returned. Therefore, it is the function of the jury to find the facts, but as to the law applicable to those facts they must take the direction of the Judge and return the verdict accordingly. Therefore, if the Judge in his summing-up directs the jury that on a certain finding of facts they would be bound to return the verdict on a minor offence, it would be the duty of the jury to return such a verdict although the accused was not charged with the minor offence, Then under Section 305, Sub-section (3), of the Code, if the Judge disagrees with the majority of the jury, he shall at once discharge the jury. And under. Section 308, whenever the jury is discharged, the accused shall be detained in custody or on bail (as the case may be), and shall be tried by another jury unless the Judge considers that he should not be retried, in which case the Judge shall make an entry to that effect on the charge, and such entry shall operate as an acquittal. Therefore, it is clear, reading Section 305, Sub-section (3), and Section 308 together, that if the Judge disagrees with the majority of the jury and does not make an entry as provided by Section 308, the trial of the accused does not come to an end, but continues with another jury, and the trial of the accused by another jury is not a new or a fresh trial but a continuation of the same trial. We must point out with great respect to the learned Judge that technically the form of the order he made was incorrect. The order he made was: acquitting the accused, whereas what he should have done was to have discharged: the jury, and if he felt bound by the judgment of Mr. Justice Mirza, he should have made an entry against the charge as provided by Section 308 that in his opinion the accused should not be retried. |but in substance the effect is the same, namely that the accused has been acquitted by Mr. Justice Divatia.