EMPEROR Vs. BASHIR BUNDEKHAN

JUDGEMENT

(1.) The original charge made against the three accused persons in this case consisted of four counts, only the second of which is material for the purposes of the question Which has been raised before me. That count was : Secondly : That you, along with 7 or 8 other persons, on or about the date and at the place aforesaid, were members of an unlawful assembly, and in prosecution of the common object of which, viz., to assault (1) Tajdin Mahomeddin, (2) Khadim Hassan Chiragdin, and (3) Mahomed Anwar Talemahomed, one of the members of such assembly, viz., Bashir Bundekhan, accused No. 1, caused the death of the said Khadim Hassan Chiragdin, and you are thereby, under Section 149 of the Indian Penal Code, guilty of committing the said offence of murder, an offence punishable under Section 302 of the Indian Penal Code and within the cognizance of the High Court. Or in the Alternative. That you, on or about the date and at the place aforesaid, did commit murder by intentionally causing the death of the said Khadim Hassan Chiragdin, and aided and abetted each other in the commission of the said offence, which offence was committed in consequence of such abetment, and thereby committed an offence punishable under Secs.302 and 100 of the Indian Penal Code and within the cognizance of the High Court. On the first part of this count the jury unanimously held that the accused were not guilty, but on the second part (in the alternative) they were divided in opinion. The learned Judge gave judgment in accordance with the unanimous verdict; but he disagreed with the majority verdict on the charge in the alternative and ordered the retrial of the accused in respect of the said charge.

(2.) The question that arises for my consideration is whether, as to the charge in the alternative, the accused are entitled to the benefit of Sub-section (1) of Section 403 of the Criminal P. C., which provides: A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under Section 236, or for which he might have been convicted under Section 237. There can be no doubt that each count in an indictment is, for the purposes of verdict and judgment, to be treated as a separate indictment: Latham V/s. R. (1864) 5 B & Section 635 and Castro V/s. The Queen (1881) 6 App. Cas. 229, Here, therefore, the two parts, quoted above, of the second count of the charge constitute one indictment; and the alternative heads appear to have been framed under Section 236 of the Code, which provides: If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences. This is not a case falling under Section 235, and therefore not under Sub-section (2) of Section 403, under which A person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him on the former trial under Section 235, Sub-section (1). Under Section 236 an accused person may be charged in the alternative where there is a single act or series of acts "of such a nature that it is doubtful which of several offences the facts which can be proved will constitute"; and in such a case, even if a charge in the alternative has not been made, the accused may be convicted of an offence not specifically mentioned in the charge, provided he could have been charged in the alternative in respect of it tinder Section 236 (s. 237). In the present case, the alternative head, having been framed under Section 236, must, I think, be deemed to have been based on the same facts as those on which the first head was based, for presumably both heads are based on "a single act or series of acts", the legal nature of which is doubtful, it not being clear what offences the facts which can be proved would constitute. The basis of a charge, however, is not the facts that may ultimately be held proved but the facts alleged by the prosecution at the commencement of the trial; and it is the duty of the jury, under Sec. 299 of the Code, after hearing the evidence, to decide Which view of the facts is true and then to return the verdict which under such view ought, according to the direction of the Judge, to be returned.

(3.) If, therefore, the two alternative heads of charge in question are based on the same facts according to the prosecution case, and the accused have been acquitted of the charge of murder under Secs.302 and 149 of the Indian Penal Code, they cannot, under Section 403 of the Criminal Procedure Code, be tried again "on the same facts for which a different charge from the one made against them might have been made under Section 236, or for which they might have been convicted under Section 237."