RANCHHOD SURSANG Vs. EMPEROR

JUDGEMENT

(1.) After dealing with the facts of the case, his Lordship agreed with the Sessions Judge as to the findings of fact and held that the appellants Nos. 2 and, 3 conspired with appellant No. 1 to shoot the complainant, He then proceeded :] I now turn to the legal points in the case, which are of considerable importance. The first point raised by the learned Advocate was that his clients, appellant Nos. 2 and 3, had been charged under Secs.148, 149 and 307. It had been convicted under Section 114 read with Section 307. The learned Counsel next argued that to charge a person with a substantive offence and to convict him on a charge of abetting that offence was illegal and afforded a good ground for retrial.

(2.) In support of his contention the learned Advocate quoted the cases of Reg. v. Chand Nur 11 B.H.C.R. 240 and Emperor V/s. Raghya Nagya 81 Ind. Cas. 959 : (1924) A.I.R. (B.) 432 : 26 Bom. L.R. 323 : 25 Cr.L.J. 1135. I cannot find any such dictum in the two, cases. As regards the first of these two cases, there is not the slightest doubt but that the accused had in the lower Court been convicted not under Section 114 read with Section 302 but under Section 109 read with Section 302. The sections are not given, I admit, in the report; but from the judgment itself it is clear that the accused was charged with murder, but. was afterwards held not to have been present at the commission of the offence. The accused was convicted of abetment of murder. It is clear that such a conviction could only have taken place under Section 109 read with Section 302.

(3.) The facts in Emperor V/s. Raghya Nagya 81 Ind. Cas. 959 : (1924) A.I.R. (B.) 432 : 26 Bom. L.R. 323 : 25 Cr.L.J. 1135 are not so clear, but as the learned Chief Justice in his judgment held that he was bound by the decision in Reg. V/s. Chand Nur,11 B.H.C.R. 240, I must come to the conclusion that there, too, the Judge of the lower Court convicted the accused not under Section 114 read with Section 302, but under Section 109 read with Section 302.