EMPEROR Vs. MORGAN

JUDGEMENT

(1.) Corporal Morgan and Private Lawson of the Highland Light Infantry were placed on their trial before the Sessions Judge of Darjeeling and a Jury on the 16 of November 1908. The charge against them, as amended in the Court of Session, was framed under Section 304A read with Section 114 of the Indian Penal Code, and ran as follows: "That you, on or about the 25 day of October 1903, at Aloobari Busti, each abetted the other in the causing of death by a rash or negligent act, each being present when the act, which resulted in death, was committed, and the act abetted being committed in consequence of the abetment, and thereby committed an offence punishable under Secs.314 a/114 of the Indian Penal Code." We will refer later on to the wording of this charge. The accused pleaded not guilty to the charge and, at the conclusion of the trial, the Jury returned the following verdict: "We find that the accused, or one of them, caused the deceased's death. We find that they were careless, but not criminally so, and that, therefore, they were not negligent within the meaning of the section. We, therefore, find them not guilty of the offence charged." The learned Sessions Judge, however, refused to accept this verdict and has referred the case to us under the provisions of Section 307 of the Criminal P. C..

(2.) The facts of the case are very simple and are admitted. Indeed, almost the entire evidence, which connects the accused with the death of the unfortunate man Kachar Singh, is to be found in the frank statement which the accused made before the committing Magistrate and to which they have all along adhered. It appears from these statements, which we accept, that on the morning in question the two accused, who belong to a regiment that has been stationed for some time at Jalapahar, went out to practise target shooting. They took with them a "small rifle." This rifle is not before us, but it was before the learned Sessions Judge and the Jury, and has been described as having a small bore, one-fourth-inch in diameter, and was sighted for 100 yards. They proceeded down what is known as the Old Calcutta Road and along it to the Bhutia graves, and then climbed up the side of the hill to the cryptomeria plantation. Here they found a small empty tin which they used as a mark. They first stood at a point marked f on the plan, and fired a few shots at the tin, which was placed at a point marked c. They then went from f to a point marked b, and placed the tin at a point marked a. So far their shooting was perfectly safe. Next, they placed the tin again at c on a small eminence on the skyline, and fired at it from b, a distance of 100 feet, against the light. It appears from the evidence that a person standing at b and firing at c, which was on the sky- line, could not see the Old Calcutta Road, a bend of which comes directly into the line of fire from b to c some 640 feet, according to the map, beyond the point c, but some 60 feet lower. This measurement, however, is entirely fallacious, as it was made by passing a tape over the very uneven surface of the intervening ground. The actual distance that the bullet would have to travel between the points c and d does not seem to be more than about 150 yards. For the first 120 yards or so, probably its flight was fairly horizontal; after that the bullet, which had lost much of its velocity would probably have dropped very quickly. It is proved, however, that a person, standing at c could plainly see the road. In their statements the accused say that they both went to the point c to place the tin. They must, therefore, if they had used the least circumspection, have noticed this road. It is true that the road is not one that is usually much used, but the fact remains that it is a public road and is used daily by the inhabitants of the village of Aloobari. After firing a few shots the accused went home, unconscious that any one had been injured. A man named Kachar Singh, however, who was walking along the road at the point d was struck by a falling bullet, which entered the chest and perforated the stomach and wounded the left kidney. Kachar Singh was seen to fall by another way-farer, and was helped to Aloobari Busti and afterwards to the hospital at Jalapahar, where he died some six days later from peritonitis. After a post mortem examination the bullet was found in the body of deceased, and this fitted the cartridges used by the accused. There can, therefore, be no possible doubt that the death of Kachar Singh was caused by this bullet, which had been fired by one or other of the accused. It is impossible to say who fired it. Under these circumstances we have to consider what offence, if any, was committed by either or both of the accused. There would seem to be no doubt that, on similar facts, in England both the accused might be convicted of manslaughter. The case of Reg. V/s. Salmon (1880) L.R. 6 Q.B.D. 79 is similar. There three persons took an army rifle and some ball cartridges into a field, and having fixed a board in a tree 8 feet from the ground, began firing at it from a distance of 100 yards. The second shot that was fired happened to kill a boy, who had climbed up a tree distant about 400 yards away. The Jury convicted all the prisoners of manslaughter, and Coleridge, C.J., stated a case for the Court of Crown Cases Reserved "whether there was any evidence upon which any one or all of the prisoners could be convicted of manslaughter." The Court consisting of Coleridge, C.J., Field, Lopes, Stephen and Williams, JJ., held that the conviction must be affirmed. "If," said Lord Coleridge, "a person will, without taking proper precautions, do an act which is in itself dangerous, even though not an unlawful act in itself, and if in the course of it he kills another person, he does a criminal act, which in law constitutes manslaughter. It was manslaughter in him who killed the boy. The death resulted from the action of the three and they are all liable."

(3.) The learned Sessions Judge, from the way in which he framed the charge, apparently was of opinion that, on the wording; of Section 304A of the Indian Penal Code, the only person, who could be punished under the section was the person, who actually fired that shot, which resulted in death. In his charge to the Jury, he said: "It cannot be known which of the accused committed the act charged, that is, which of them fired the shot, which caused the death. But if you are satisfied that one of them fired the shot, you will probably find that the other abetted such firing." He goes on to say that Secs.34 and 114 of the Indian Penal Code were then explained to the Jury.