BRINCHIPADA DAFADAR Vs. EMPEROR

JUDGEMENT

(1.) The appellants, Brinchipada Dafadar and Sushil Dafadar alias Sushil K. Dafadar, were tried by the learned Additional Sessions Judge of Khulna and a jury, were convicted under Section 307 in the case of appellant 1 and under Section 307/109 in the case of appellant 2. Bach of the appellants were, on conviction, sentenced to transportation for life by the Judge. The charge against appellant 1 was that he on 29 November 1936, at Jaipatrakati alias Beltola Bazar, P. S. Kaliganj, gave cuts to one Hazari Baldeo's throat with a knife with such intention and under such circumstances that if by that act he had caused the death of Hazari Baldeo he would have been guilty of murder, and that he had caused incised injuries to Hazari Baldeo's throat by the said act ( Section 307, I.P.C.). The charge against appellant 2, Sushil K. Dafadar, was that on the date referred to above, in the charge framed against appellant 1, he abetted the offence of attempt to commit murder (committed by Birinchi) by actively aiding him when he gave cuts to Hazari Baldeo's throat to cause death and in consequence thereof and with the said aid the incised injuries were in fact caused to Hazari Baldeo's throat by Birinchi (Section 307/109, I.P.C.). The case for the prosecution and the evidence led in the case in support of that case were placed before the jury by the Judge; and so far as we can see, the Judge exhaustively dealt with the evidence led on behalf of the prosecution in the case. In support of the appeal a number of points were raised.

(2.) It was, in the first place, urged that the conviction of abetment of attempt could not be sustained and the jury were not directed properly on this aspect of the case at all. This relates to the charge of abetment as framed against appellant 2, Sushil K. Dafadar. It appears to be clear from the learned Judge's charge to the jury that the case for the prosecution, so far as the case of abetment by appellant 2 was concerned, was placed before the jury at the very outset. It was stated that the case for the prosecution was that the accused Birinohi, from behind, put a rope round the neck of Hazari as he reclined on his right, that he (Birinchi) called out to Sushil who came with two Moslems and that as he gave out one cry, one of the two Moslems gagged his mouth. Hazari was dragged into a deserted ghar when he was thrown down and the rope was tightened by Sushil, and Birinchi applied knife to his throat, while one Moslem held him fast by hands and legs and the other also helped. Then it appears that when explaining the law to the jury, the Judge referred to the provisions contained in Section 107, I.P.C., and explained the same. It was placed before the jurors that, in the case before them, abetment as charged against appellant 2 Sushil came under the third category of aiding and assistance. The third category referred to here is the third clause occurring in Section 107, I.P.C., mentioned as "Thirdly." The learned Judge stated this to the jury: The aiding by Sushil, according to the prosecution story, and the aiding by Derastulla have been stated by Hazari; if ho is believed, that would amount to aiding. Under Section 109, I.P.C. the man who abets is equally liable with the man who commits.

(3.) Judging from the manner in which the case of abetment was placed before the jury by the learned Judge, we are unable to appreciate the point that was raised in support of the appeal to which reference has been made. Section 107 thirdly, speaks of intentionally aiding by any act or illegal omission, the doing of that thing. Expln. (2) to Section 107, I. P. C, is this: Whoever, either prior to or at the time of the commission of an act; does anything in order to facilitate the commission of that act and thereby facilitates the commission thereof, is said to aid the doing of that Act.