JAHUR SHEIKH Vs. KING-EMPEROR

JUDGEMENT

(1.) In this case, the two appellants before the Court were convicted by a jury by a majority of 5 to 4. They were accused of having caused the death of one Abul Hossein otherwise called Munser Bap and the charge against them was one under Section 302 read with Section 34, I.P.C. The case, in effect, is that the deceased man together with one Mahomed Jan who lived in his house as a servant went from his own village to another village called Kaichipore, that these two men were returning in the evening and just after sunset, they were met by the two appellants, that after a word or two of conversation what happened was that Samiuddin--the second appellant--struck Abul Hossein on or about his shoulder with an instrument which looked like a ruler and knocked him down on the road and that thereupon Jahur--the first appellant--made after Mahomed Jan, the servant, with a dao and the servant ran home to his own village and meeting certain persons there told them what had happened. It appears that near to the scene of occurrence there were a good many houses of different people--some of whom appear to have been tenants of the deceased man. These people were not alarmed and they were not told anything about the matter at the time: but Muhamed Jan went back to his village and there, according to him, after having told his story, he was so overcome that he retired to bed in a state of unconsciousness. The first information report was given late in the night of the 30 of May, that is to say, the day of the occurrence and it was given by the deceased man's brother Faizuddin.

(2.) Now, what happened in this case, in effect, was that the jury were almost evenly divided. Four of them thought that the accused should be acquitted: five brought in a verdict of guilty under Section 302 read with Section 34, I.P.C. The learned Judge states that personally he should have given the accused the benefit of the doubt; but he says also that the verdict of the majority of the jury is not perverse or unwarranted by the evidence. In order to justify a reference under Section 307, Criminal P.C., it is not necessary that the Judge should be able to describe the jury's finding as perverse. The language of that section is reasonably plain and may be adhered to. No translation or substitution of other phrase is necessary. In the present case the learned Judge says that the verdict of the majority of the jury is not unwarranted by the evidence and he was quite within his rights in not making a reference to this Court under Section 307, Criminal P.C. The result is that this verdict is one with which we can only interfere provided that there has been a misdirection on a point of law or that the jury have misunderstood the law as laid down to them.

(3.) Now, it was pointed out to us at the opening of this appeal that the learned Judge had not explained to the jury the difference between murder and culpable homicide. He has not said a single word about culpable homicide and the way in which he left the matter to the jury is, in effect, this: He has carefully described to them the effect of Section 34, I.P.C., and he has said that the jury ought to be satisfied in order to convict the accused that the two accused persons caused the death of Abul Hossein with a common intention either of causing his death or of causing such injury to him as they knew was likely to cause his death. That is all that the learned Judge has said. He has given the jury another direction, namely, that if they find that there was a common intention of causing grievous hurt, then the verdict which they should give against both the accused is one of guilty under Section 326, I.P.C. But he has said nothing whatever by way of direction to the jury about any other possibility lying between murder on the one hand and grievous hurt on the other.