JHINA SOMA Vs. EMPEROR

JUDGEMENT

(1.) THIS is an appeal by the Government of Bombay1 against the acquittal of the accused on the charge of murder and abetment of the commission of the offence of murder. The third accused is the father of the first and second accused who are brothers. The charge against them was that the first accused on or about May 5, 1938, at about 9-30 p. m. at Malvan did commit murder by intentionally causing the death of Ranchhod Bhula of Vasan, and that the second and third accused abetted the commission of the said offence of murder by the first accused, and thereby committed an offence under Section 302 of the Indian Penal Code so far as the first accused was concerned, and under Sections 302 and 114 of the Indian Penal Code so far as the second and third accused were concerned. The accused were tried by the learned Sessions Judge at Surat with the help of a jury. The jury unanimously came to the conclusion that the accused were not guilty of the offences with which they were charged, and the learned Judge agreeing with the verdict of the jury act quitted and discharged the accused on August 5, 1938.

(2.) THE facts leading up to the alleged offence are that on the day in question (May 5, 1938) there was a marriage procession proceeding from the village of Vasan towards Malvan at about lamplight Vasan is in the Chikhli taluka, while Malvan is in the taluka of Bulsar. THE occasion of the procession was the marriage of one Jogi, son of Bhangia Lala. Several persons from Vasan joined the procession including the wife of the deceased, her parents and her aunt. THE deceased who had gone to Billimora to get a wedding present for the bridegroom joined the procession later. THE procession was on the move after lamplight, but as the little child of the deceased wanted to ease herself, the deceased, his wife, her parents and her aunt stayed behind. THEreupon the three accused came up along with one Chankka, followed by another person, Ukadia Lala. It is alleged that the first accused shouted, " where is the Khandhad? " THE deceased Ranchhod said that he was there. It is further alleged that, thereupon, the third accused caught the deceased by the neck, and the second accused held his hands, and the first accused started giving him blows with a; penknife; the deceased fell down and died almost instantaneously. THE defence of the accused was that they were not the aggressors ; the aggressors were the deceased and Chankka ; that there was a scuffle, and that the deceased was hit accidentally by a thrust of the penknife in the hand of Chankka who really intended the blow for the first accused. In the alternative, the accused alleged that they killed the deceased in exercise of their right of private defence, viz. , defending their person against the attacks of the deceased and Chankka. THE first accused in the afternoon of the next day made a complaint in which he charged Chankka and the deceased, not knowing that he was dead, with having attacked his brother (second accused) and also himself when he went to help his brother. THEre was a long trial, several witnesses were examined on behalf of the prosecution, but no evidence was led on behalf of the accused, and the learned Sessions Judge summed up the case at great length to the jury. As I have stated before, the jury came to the unanimous conclusion that the accused were not guilty, and the learned Judge agreeing with the verdict of the jury ordered their acquittal and discharge. THE main grounds of appeal are : (a) that the direction given by the Judge to the jury as to the consideration of the alternative defences was not proper and should have been placed more clearly ; (6) that the point whether there was occasion for reasonable apprehension in the mind of the opponents (accused) justifying the killing of the deceased was not explained to the jury in a proper way ; (c) that having regard to the medical evidence and to the conduct of the first and second opponents! after the commission of the murder, and to the facts stated in the counter-complaint of the first opponent, the verdict of the jury was unreasonable and unjust; and, lastly, (d) that the point as to why the opponents happened to be on the spot was not put to the jury in respect of its bearing on the possible guilt of the opponents. THE Government, therefore, pray that the order of acquittal be set aside and the accused dealt with according to the law, and, if necessary, process be ordered to A. issue against the) accused under Section 427 of the Criminal Procedure Code.

(3.) AN important non-direction to the jury, or an omission to direct them on an important point, amounts to a misdirection ; but we must read Section 297 along with the provisions of Section 537 of the Code. In that section it is laid down that "subject to the provisions hereinbefore contained no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered on account of any error, omission or irregularity (as mentioned in Sub-clause (a) of that section or of the omission to revise any list of jurors or assessors in accordance with Section 324 or of any misdirection in any charge to a jury unless a such error, omission, irregularity, or misdirection, has in fact occasioned a failure of justice. "there are, therefore, three categories coming under this section, first, where there is an error, omission, or irregularity, in any stage of a trial or enquiry or proceeding secondly, where there is an omission in revising the list of jurors or assessors ; and, thirdly, in the case of misdirection in the charge to the jury. It is necessary, however, that the misdirection should be such as to occasion failure of justice, such failure of justice as would vitiate the trial or proceedings. The misdirection causing failure of justice may at times arise in relation to the case for the prosecution ; but in the majority of cases the effect of a misdirection to the jury comes up for consideration on the ground that it has prejudicially affected the accused. There is, however, no ground for broadly assuming that if even a mandatory provision of the Code is infringed, the result in all cases must be to vitiate the trial irrespective of whether it has or has not occasioned failure of justice. It was undoubtedly the bounden duty of the Sessions Judge to explain the law to the jury before dealing with the evidence, but I do not think that the omission to read and explain the relevant sections in this case has been such as can be said to have occasioned a failure of justice. It was pointed out to us by the learned Counsel for the accused that this ground was not even taken by Government, but that would not debar the prosecution from urging it in the appeal.