EMPEROR Vs. HARILAL TAMBOLI

JUDGEMENT

(1.) HARILAL was charged with an offence punishable under Section 459, I.P.C., that whilst committing house-breaking he caused grievous hurt to Rasul. The trial Judge when charging the jury directed them, if they found that Harilal was not guilty under Section 459, I.P.C., to find whether he was guilty of grievous hurt to Rasul under Section 325. The verdict of the jury was that Harilal was guilty of no offence. The trial Judge agreed with the jury that no offence had been committed under Section 459,I.P.C., but was of opinion that Harilal had committed an offence under Section 325 and submitted the case in accordance with the provisions of Section 307, Criminal P. C to this Court.

(2.) A preliminary objection has been taken that Section 307 does not authorize the submission of the case in respact of Harilal to this Court. The argument is that it is only when a Judge disagrees with the verdict of the jurors on a charge on which any accused parson his been tried that he any submit the case; and in this case the Judge agreed with the verdict of acquittal on the charge framed. Now, Section 238, Criminal P.C. made it lawful for the jury to return a verdict that Harilal was guilty of the minor offence punishable under Section 325, I.P.C. It was necessary in view of the Judge's charge to the jury that their verdict should include a decision whether Harilal was guilty of the minor offence or not. Their verdict on the charge framed did include such a decision and the Sessions Judge as he disagreed with this decision disagreed with the verdict of the jury.

(3.) THE counsel for the accused has referred me to Emperor v. Madan Mandal [1914] 41 Cal. 662, but in that case the verdict of the jury was that the accused had not committed the offence of which he was charged but had committed an offence of which they had no power to convict him. Clearly this was a verdict of acquittal and the opinion of the jury on a point which did not arise had to be ignored.