MAHABIR SINGH Vs. EMPEROR

JUDGEMENT

(1.) The facts giving rise to this reference are briefly these: On 12 March 1942, a dacoity was committed in a kacheri at Kolai Kunda near Kharagpur, in the course of which three of the inmates of the kacheri were killed. After the usual police investigation, eight persons were placed on trial. Charges under Secs.396 and 395, Indian Penal Code, read with Section 120B, Indian Penal Code, were framed against Chorobey Kurmi, Kedar Maharaj, Hirga, Jaymull Singh, Mahabir Singh, Arjun Singh and Rajnarayan Sukul; and a charge under Section 412, Penal Code, was framed against Kausalya Bai. The accused were tried by the Additional Sessions Judge of Midnapore and a jury of seven. The jury returned a unanimous verdict in respect of accused Jaymulland of accused Kausalya Bai finding them both not guilty of the charges framed against them. By a majority of 5 to 2, the jury found the remaining six accused persons guilty under Section 396, Indian Penal Code, and also under Section 120.B/395, Indian Penal Code. The learned Additional Sessions Judge acquitted Jaymull and Kausalya Bai, he convicted the remaining six accused and sentenced them each to undergo eight years rigorous imprisonment under sec-lion 396, Indian Penal Code, observing although a most dastardly crime was committed, the murders committed during the commission of the dacoity, could not specifically be fixed upon any of these accused. In the circumstances, it would not be proper to inflict the extreme penalty of law, nor the maximum sentence of imprisonment in this case.

(2.) No separate sentence was imposed under Section 120B/395, Indian Penal Code. Two of the accused persons, namely, Mahabir Singh and Rajnarayan Sukul, appealed against the convictions and sentences. Their applications for admission of appeal were heard by a Division Bench on 9 March 1943. The Division Bench ordered that the appeal be heard and further directed that a Rule be issued on the two appellants and also upon the four accused persons, who had not appealed, to show cause why their sentences should not be enhanced. The appeal of Mahabir Singh, being Appeal no. 96 of 1943, and the appeal of Rajnaryan Sukul, being Appeal No. 100 of 1943, and the rule, being Revision No. 217 of 1943, came up for hearing on 20 May 1943. At the time of hearing, it was contended that under the provisions of Section 439 (6), Criminal P.C. the accused persons were entitled to shew that the evidence on record was not such as to justify their conviction.

(3.) The attention of the Court was drawn to the decisions in Khoda Bux Haji V/s. Emperor . and in Alef Shaikh V/s. Emperor ( 35) 62 Cal. 952, wherein it was held that when a Rule for enhancement of sentence is issued on an accused person who has been convicted in a trial by jury, the convicted person has only the same right as regards challenging the actual conviction as he would have had if he had come before the Court by way of a regular appeal preferred by himself or by proceedings in revision instituted by himself, and to certain observations of Henderson J. in Fazarali V/s. Emperor ( 39) 43 C.W.N. 1032. and of the same learned Judge in Moseladdi V/s. Emperor . The learned Judges wore of opinion that the above mentioned eases were wrongly decided, and they submitted the following question for the decision of a Full Bench, viz.: In a case such as that with which we are now dealing in which an accused person has been called upon to shew cause why his sentence should not be enhanced to a capital sentence, in accordance with the procedure laid down in Section 439, Criminal P.C. has such a person a right to contend that the verdict of the jury was based upon an erroneous view of the evidence and the facts of the case.