GOVERNMENT OF BOMBAY Vs. SAKUR SAMUEL

JUDGEMENT

(1.) This is an appeal by the Government of Bombay against the acquittal of accused No. 1 in a ease of murder tried before Mr. Justice Baja-dhyalraha and a special jury. The jury unanimously acquitted the rest of the accused; but they brought in a verdict of 7 to 2 for the acquittal of accused No, 1, and the learned Judge accepted that verdict and directed an acquittal The appeal is presented on grounds of misdirection, in particular misdirection as to the burden of proof lying upon an accused person who alleges circumstances bringing his case within one of the exceptions to the ordinary law, in this case the exception relating to the right of private defence.

(2.) The case arose out of the death of one Benjamin Samuel, who was stabbed through the heart on the evening of September 18, 1944, in full view of the general public in Hornby Vellard, Bombay. It was a special Jewish day; and the deceased was himself a Jew, as are all the accused. Accused Nos. 1 and 4 are brothers and were related to Benjamin Samuel by marriage, in that their sister was married to Benjamin's brother Isaac. There were serious quarrels between the two families; and in due course Isaac's wife obtained a divorce in March, 1944. On the day in question two parties from two rival synagogues went to Hornby Vellard to -worship, as that is the regular practice on this particular day of the Jewish year. The family of Benjamin Samuel was in the party belonging to one synagogue, and the accused and their friends were in the party belonging to the other synagogue. It seems beyond dispute that the deceased and his family on the conclusion of their part of the worship walked past the other group; and it was when the deceased was about to walk past the other group that the trouble occurred. There may or may not have been some general trouble. But however that may be, according to the evidence of three Jewish eye-witnesses, who cannot be said to be altogether independent, an -unprovoked attack with a knife was made by accused No. 1 upon Benjamin. He was stabbed through the heart and immediately collapsed j and so far as it goes this evidence is corroborated by the independent evidence of a Parsi who was passing on a bicycle at that moment and arrived in time to see the actual stab wound but not in time to see anything that had happened before. There is evidence to suggest that after the stabbing a violent and prolonged attempt was made to get the knife out of the hand of aectised No. 1, and to some extent that is borne out by the injuries to the fingers and other parts of the persons said to have participated in that particular struggle. But in the course of the trial and arguments an attempt was made to show that the injuries to the accused arose out of a previous attack by Benjamin, who on the suggestion of the defence is said to have had this particular knife in his hand in the first instance but had it snatched out of his hand by accused No. 1.

(3.) The defence as disclosed by the statement of accused No. 1 was that he found MS brother lying on the ground and the eye-witnesses Isaac and Moses kicking Mm and two or three more persons having a fight with accused No. 5 at some distance away. He says that Benjamin was standing near the railing; and that as soon as he saw the accused Benjamin rushed on him with an open knife and the accused caught hold of the knife with both his hands. He repudiates in his statement a suggestion which had been put to various witnesses but denied by them to the effect that Benjamin was accidentally stabbed in the course of a struggle; that is evidently his meaning, though lie does not express it very clearly. But he also says that he does not know whether that really is the case or whether the fact is that he took the knife from Benjamin's hand and stabbed him. It is to be noted that he does not in terms raise any plea, of self-defence. But self-defence played a prominent part in the arguments; and the principal ground of this appeal is that the learned Judge has misdirected the jury as to the obligations of an accused person who wishes to take advantage of a plea of self-defence. Other misdirections have been alleged in the memorandum of appeal, but they have not been seriously argued; and we do not think that there is any reason for going into them. The whole centre of the alleged misdirection is the plea of self-defence; and that is the only misdirection that we need consider.