EMPEROR Vs. AFSARUDDI NASERADDI

JUDGEMENT

(1.) This is a reference under Section 374, Criminal P.C., made by the learned Sessions Judge of Tippera. The facts of the case are peculiar, and we may say at ones that we have no option, in view of the procedure which has been adopted in the Courts below, except to set aside the conviction and sentence and remand the case for a proper trial in accordance with law. The facts briefly stated are as follows : On the night of 28 November last, the accused Afsaruddi apparently, as the learned committing Magistrate puts it, ran amuck, and according to the prosecution evidence killed his wife Rosmatannessa by hitting her on the head with a grinding stone. He then appears to have gone to the house of one Altabali, a neighbour of his, and attacked him with the stone. Altabali was knocked unconscious but was not actually killed. Then the accused went to the house of his sister's husband and told the latter that the accused's mother was ill. There was some sort of altercation as the sister's husband refused to accompany him, whereupon the accused attacked him also with a piece of stone and killed him. In connexion with the occurrence there were three sepapate first information reports lodged with the police. One was lodged by Asmat Ali, the brother of Tamijuddi, the murdered man, and the second by Ali Asraf, the son of Altabali, whose father was the victim of what amounted to grievous hurt. A third information was lodged by Aptabuddin, the father of the deceased woman, who reported to the police that his son-in-law had murdered his own wife.

(2.) In the committing Court, the learned Magistrate framed one single charge with two heads. The first head was that the accused committed murder by intentionally, and knowingly causing the deaths of Tamijuddi and Rosmatunnessa. The second head was that he voluntarily caused grievous hurt to Altabali. This charge was not altered by the Sessions Judge, and formed the basis of the trial. Now it seems clear to us that the trial in the Court below has been vitiated by misjoinder of charges. The accused has been put upon his trial with; respect to three separate incidents, two, involving charges of murder, and one the charge of grievous hurt. It cannot be contended that these incidents formed part of the same transaction as according to the prosecution case they occurred at different times and in different places during the same night, and there is no evidence to suggest any connexion between them. Further, the charge cannot be sustained on the ground that it deals with more offences of the same kind committed within a space of twelve months. The charges of murder are - undoubtedly charges of the offences of the same kind, but the charge of grievous hurt is not. We may observe also in this connexion that it is undesirable to lump together two separate offences of murder under the one head of charge. The general rule that separate offences should be separately charged is definitely one which applies to the facts of the present case. A further difficulty arises from the manner in which the charges have been framed in the case. As noted previously, there were three separate first information reports lodged with the police in connexion with the occurrences on this particular night. So far as the record goes, it would appear that all the three informations were put before the jury. It does not appear to have occurred to the learned Judge to consider the effect of the provisions of Section 162, Criminal P.C., in the circumstances of the particular case, though it is obvious that the question of the admissibility of the three so called first information reports in the same case is one of considerable importance in law.

(3.) For all these reasons, the present reference must, in our opinion, be rejected and the case must be sent back to the Court below for a proper trial in accordance with law. On the evidence, it seems clear that the joint trial of the two charges of murder and one of grievous hurt cannot be supported, and the proper procedure to be adopted is to frame two separate charges under Section 302, I. P.C., against the accused person in respect of the deaths of, Taniijuddi and Rosmatannessa. These charge may be legally tried together under the provisions of Section 234, Criminal P.C. The charge under Section 325, I.P.C., cannot legally be joined with then, and the charge udder that Section, if proceeded with, must from the subject-matter of a separate trial. Lastly, we would advert to the question, which may arise in connexion with the, first information reports. We draw, the attention of the learned Judge of the Court below to the desirability of considering the effect of Section 162, Criminal. P.C. The references in the first information to the assault upon Altabali are, clearly, inadmissible in a trial for the murder of two other people, and should not be allowed to go to the jury. The same observations apply to any references to the assault upon Altabali which may Occur in the confession made by the accused. In the result, we set aside the convictions of the accused Afsaruddi under Secs.302 and 325, I.P.C., and the sentence passed thereunder, and remand the case to the Court below for retrial in accordance with law. Khundkar, J.