EMPEROR Vs. HARI BIJAL

JUDGEMENT

(1.) This is a reference made by the learned Additional Sessions Judge of Ahmedabad in a case in which the two accused, Hari Bijal and Ganda Hari, were charged inter alia with the murder of a village Pagi named Jiva Becher. The learned Sessions Judge was for convicting the accused on the evidence but the Jury were unanimously of opinion that the accused were not guilty . The learned Judge, thinking it necessary in the interests of justice to do so, has submitted the case for this Court s orders.

(2.) Very briefly stated, the story for the prosecution is that on the night of the 8th April a gang of persons, making preparations to commit dacoity, was discovered in the village limits and was pursued by a body of villagers. But while the dacoits-so to call them-were yielding before the advance of the villagers, these two accused were seized and arrested by two of the villagers, and that at or about this critical moment one of the dacoits at large fired his gun and killed the deceased Pagi. The evidence is not consistent as to the precise time at which the Pagi was killed, and it seems to us that we are bound to adopt that version of the prosecution story which bears least heavily upon the accused. That is the version, to which several prosecution witnesses deposed, that the two accused were arrested before the unseized dacoit shot at and killed the deceased. On that state of facts it appears to us that the two accused cannot be visited with liability for the murder committed by a member of that gang to which they no longer belonged. In so far as the common object of the unlawful assembly had been originally to commit a dacoity, that object at the critical time must, in our view, be taken to have been abandoned. And the two accused being by force of circumstances separated from the gang, the subsequent murder committed by one, who still remained a member of the gang, ought, we think, to be regarded, in fact, as an independent and isolated act for which the two accused cannot be held liable. The case would seem clearer if an interval of half an hour, say, had elapsed between the arrest of the two accused by the villagers and the shooting of the Pagi by the dacoit. Yet in substanca there seems to us to be no difference between that case and the case which we have here where some unknown interval, less than half an hour, but appreciable, separated the two events. The important point is that the separation of the two accused from the gang was prior to the murder on the evidence for the prosecution, and in that view of the case we hold that neither Sections 149 nor Section 34 of the Indian Penal Code can render the accused liable for the murder as if the murder had been within the common intention or the common object of the accused and other persons. We find as a fact that it was not within such common intention or object.

(3.) We think, therefore, that on this reference the accused are entitled to be acquitted and discharged on the charge of murder.