EMPEROR Vs. YESHWANT TUKARAM SALUNKE

JUDGEMENT

(1.) This appeal comes before us under and by virtue of Section 411A of the Criminal Procedure Code. This is a new section introduced in the year 1943 and gives any person convicted at a criminal trial held at the Sessions of a High Court in exercise of its original criminal jurisdiction, the right to appeal to an appellate Court in the circumstances and upon the grounds set out in the section. Formerly there was no such right.

(2.) On October J7, 1944, at about 10-30 p.m. in the evening one Kakhma Bala was fatally stabbed in the Parel Road of this City, and arising from such occurrence the two appellants having been duly arraigned and claiming to be tried were tried before Mr. Justice Macklin and a special jury at the First Criminal Sessions of 1946. In the result the jury by a majority of 6 to 3 returned a verdict of guilty against each of the accused and the learned Judge sentenced them to death.

(3.) Three principal points were taken by Mr. Ghasvala on behalf of the appellants before this Court; first, that there are errors of law in the learned Judge's summing-up to the jury; secondly, that there was non-direction on important points amounting to misdirection; and, thirdly, that the jury have not returned a verdict which is a verdict at all. We have carefully considered the learned Judge's summing-up and are of the opinion that there is no substance in the first and the second contentions, but Mr. Ghasvala's challenge to the verdicts involves a challenge to the form which the charge against the appellants took, .as well as to the verdict given by the jury upon that charge. Mr. Purshottam Tricumdas, who appears for the Crown, admits, and in our opinion rightly admits, that the charge is defective. It is in these terms:- I. J. M. Barot, Presidency Magistrate, 5 Court, Dadar, Bombay, hereby charge you accused No. 1 Yeshvant Tukaram Salunke and you accused No. 2 Vishnoo Krishna Ghadi as follows:- That you along with one Mahadeo now absconding on or about the 17 day of October 1944 at Bombay, did Commit murder by intentionally causing the death of one Rakhma Bala and sided and abetted one another in the commission of the said offence which offence was committed in consequence of such abetment and you thereby committed an offence punishable under Section 302 read with Section 109 of the Indian Penal Code and within the cognisance of the High Court. And I hereby direct that you be committed to the ensuing Sessions of the High Court to be tried on the said charges. Dated this the 8 day of January 1946.