EMPEROR Vs. RANCHHOD SURSANG

JUDGEMENT

(1.) [His lordship first dealt with the facts of the case. The case of appellant No. 1 was then considered, and his appeal was dismissed. The cases of appellants Nos. 2 and 3 were next taken up, and after setting out the facts as regards them the judgment proceeded:] On the facts, therefore, I have not the slightest doubt that the appellants Nos.2 and 3 conspired with appellant No. 1 to shoot Nathuram on the morning of October 24.

(2.) 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, appellants Nos. 2 and 3, had been charged under Sub-section 148, 146 and 307, but 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 re-trial.

(3.) In support of his contention the learned advocate quoted the cases of Reg. v. Chand Nur (1874) 11 B.H.C.R. 240 and Emperor V/s. Raghya Nagya . 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.