(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.
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, 5th 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 17th 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 8th day of January 1946.
As it originally stood, the offence of abetment was framed under Section 114, but at some stage that section was struck out and Section 109 substituted for it. The first question we have to consider is what this charge means. Does it charge each of the appellants-accused with one offence or with two offences? Three suggestions have been, made about it. Firstly, that it is a charge of murder under Section 302, Indian Penal Code, and also a charge of aiding and abetting one another in the commission of murder under the conjoint effect of Sections 109 and 302 of the said Code. That is to say, it charges the appellants with two separate and distinct offences. Head as such it is admittedly defective because by Sub-section 221 (4) of the Criminal Procedure Code, "the law and section of the la-w against which the offence is said to have been committed shall be mentioned in the charge", and so far as the charge of murder is concerned, no mention of Section 302 is made. That, however, is a defect which is capable of cure under Section 225 of the Criminal. Procedure Code: "unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justices' Secondly, that A charges the accused with, the offence of abetment of murder only, and that the first part of the charge Is to be regarded as preamable only, and, thirdly, that it is a sort of composite V murder and abetment of murder. There is of course no such single offence known to the Indian Penal Code. In our opinion the first of these alternatives is the correct construction, i-e. it charges each of the appellants offences, with murder and also with abetment of murder. It is no doubt that under Section 109 of the Indian Penal Code the punishment for abetment is the same as the substantive offence, which in the case of murder is death or transportation for life, however the charge of abetment of murder must be a separate and distinct charge.
(3.)HOW this form of charge came into being we have been unable to discover, but it appears to be the common form in this city, though not in the Sessions Courts of the mofussil. During the course of the argument before us the case of Government of Bombay v. Fernandez (1945) 47 Bom. L. R. 363 was referred to, and as the facts were very similar to those in the case before us, we sent for the record. The charge was in similar terms, and the learned trial Judge took a single verdict in the ease of such of the accused upon it. Nevertheless as appears from the report of the case it is clear that the full bench, before whom the case went in appeal, considered that the charge charged the accused with two offences, since at p, 364 Mr. Justice Divatia said: The charge against the accused was that on August 26,1948, they committed the murder of one Mahadeo Khotu and aided and abetted each other in the commission of the said offence.
However, in. that case the verdicts against each of the accused were "not guilty".