HARENDRA KUMAR MONDAL Vs. EMPEROR

JUDGEMENT

(1.) These two appeals have been heard together. There are three appellants before us, Harendra Kumar Mondal, Amulya Bagdi and Ratan Para-manik. Appeal 236 is by Harendra and Appeal 287 is by the other two. The appellants were charged with abetment of murder. The charge was in these terms: That an unknown person or persons on the night of 18 June 1936, at, Simulia, P.S. Mongalkote, committed the offence of murder of Khudi-ram, and that you at Simulia, P.S. Mongalkote, abetted the unknown person or persona in the commission of the said offence of murder of Khudiram Mandal which was committed in consequence of your abetment, and thereby committed an offence punishable under Ss, 109/302, I.P.C., and within the cognizance of the Court of Session.

(2.) They were tried before the Sessions Judge of Burdwan, Mr. M. H. B. Leth-bridge, by a jury, who returned a unanimous verdict of guilty against all the accused, and the learned Judge agreeing with the verdict sentenced each of them to transportation for life. The prosecution case briefly is that the deceased was a gomostha of the local zamindars, and that for some months past, Harendra and Amulya had been contriving to get him killed. On the night of the alleged murder, these two accused with Ratan were seen " together in Harendra's baitakkhana, and overheard to say, "The work must be finished to-night", meaning the work of murdering Khudiram. It is said that Khudiram held a satish that evening at his kutcherry or baitakkhana at which Ratan was present, and that after the salish he went home at about 11 P. M. for his meals. He ate a few pieces of bread in his house, and while returning from there to his baitakkhana to sleep, was murdered on the way. The prosecution cannot say who committed the murder, but their case is that the deceased was escorted by Ratan on the way from the baitakkhana to his house and back. They have also given evidence that Amulya and Ratan were seen together on the night of the murder near the scene of the crime, hurrying from south to north with their clothes tucked up in malkocha fashion, and further that Amulya and his son were seen washing their clothes in a tank near-by very late at night. The dead body was discovered in Kashi Nath's khamar the next morning, and was identified to be that of Khudiram Mandal.

(3.) The appellants have assailed the Judge's charge to the jury on various grounds of misdirection. A preliminary point is takers that the charge as framed was too vague thereby prejudicing the accused. The complaint is that the charge did not specify the particular species of abetment of which the appellants were accused. Section 107, I.P.C., shows that abetment may be by instigation, or by engaging in a conspiracy to commit the offence abetted, or by intentionally aiding a person to commit it. From the Judge's summing up, it is clear that the prosecution case was one of abetment in the second of the three ways mentioned, but the appellants argue that this had not been indicated to them at the commencement of the trial, and that the summing up cannot therefore be regarded as having cured the prejudice that had been already occasioned. We do not think that the accused have really made out a case of prejudice on this head. It was in our opinion open to the prosecution to charge abetment generally, and then, if the evidence did not establish abetment other than in one particular form, to rely on this particular form for a conviction. The charge would amount to notice to the accused that they had to meet a case of abetment in one or more of the different ways indicated in Section 107. Section 221 (2), Criminal P.C., says that if the law which creates the offence gives it any specific name, the offence may be described in the charge by that name only, and Section 222 (1) requires that the charge shall contain such particulars as are reasonably sufficient to give the accused notice of the matter with which he is charged. It cannot be said that the nature of the case here was such that the non-particularisation of the species of abetment charged resulted in withholding such reasonably sufficient notice as the appellants were entitled to. It would no doubt have been better, having regard to the evidence which the prosecution had at their disposal, to have made the charge more specific.