Authored By : H. Walmsley, Mookerjee

H. Walmsley, J.

1. There are two appeals before us, and a reference underSection 374 of the Criminal Procedure Code. The circumstances are as follows.It is said that the accused had a quarrel with the family of one Momrej, andthat one night they went to his house and set fire to the hut in which Momrejand his two wives and some children were sleeping: the inmates of this hut werenot allowed to escape, and they were all burned to death. In other huts Entazand Bibijan were sleeping, and they were also killed.

2. The Committing Magistrate framed charges under Section120B, read with Section 302, of the Penal Code, and under Section 302 of thePenal Code, and Section 436 of the Penal Code. The learned Judge made changesin the charge under Section 120B read with Section 302 of the Penal Code. Thejury was unanimous in finding all the accused guilty on all the charges. TheJudge agreed with the verdict and sentenced two of the men to death, and theothers to transportation for life. Hence the two appeals and the reference.Objection is taken on behalf of the appellants that the trial was vitiated bythe charges. It is said that there has been misjoinder of charges and also ofpersons.

3. It must be conceded that a crime of such a wholesalenature presents considerable difficulty.

4. The charges framed by the Committing Magistrate were asfollows:

That you, between December 1923 and 7th January 1924 atDaria, p.-s. Canning, did agree with one another and with other persons,unknown, to do and cause to be done an illegal act, to wit, commission of theoffence of murder of Momrej Boddy and other members of his family by settingfire to his huts, and by means of guns, daggers, spears and other deadlyweapons, and in pursuance of the said conspiracy, caused the death of MomrejBoddy, his two wives, Chandra Bibi and Dasi Bibi, his sons Entaz, Safed Ali,Jabed Ali, Yunus and his grandson, Jiad Ali, and mother, Bibijan Bibi, andthereby committed an offence punishable under Sections 120B/302 of the IndianPenal Code, and within the cognizance of the Court of Sessions. And I herebydirect that you be tried by the said Court on the said charge. In this chargethe conspiracy to commit and the actual commission, with the names of thepersons killed, are mentioned:

(2) of murder under Section 302 of the Penal Code. In thisone charge the names of the seven inmates of Momrejs hut are mentioned;

(3) of murder, under Section 302 of the Penal Code, inregard to the killing of Entaz;

(4) of murder, under Section 302 of the Penal Code, inregard to the killing of Bibijan;

(5) of arson, under Section 436, in pursuance of theconspiracy in the first charge, in respect of the hut occupied by Momrej.

5. These five charges were drawn up against all the accused.

6. The charge under Sections 112B/302 of the Penal Codedrawn by the learned Judge differs from that drawn by the Magistrate in tworespects, namely, that it refers to the date of the occurrence only, and thatit mentions only the conspiracy to commit and not the commission.

7. It is merely a technical defect that the seven inmates ofMomrejs hut are all named in one charge of murder, instead of a separatecharge of murder being drawn in regard to each. To that I attach no importance.It is more serious that all the accused are charged in regard to the killing ofEntaz and in regard to the killing of Bibijan, for those deaths were caused byparticular members of the attacking party, and it is possible that they layoutside the common intention, at any rate that the killing of Bibijan did so.

8. No objection, however, was taken at the trial to the chargesas framed, and it appears to me that they gave the accused full information ofwhat they were said to have done.

9. The learned Judge, however, in his address to the juryseems to have added difficulties. He says "that the first charge ofconspiracy does not seem to be important in view of the main charge of murder.Again he says since the murder was accomplished, the charge of conspiracy is ofno importance. He did, however, continue if you find that the accused agreedwith one another to kill Momrej and the other members of his family, then youcan find them "guilty under Section 120B. With regard to the killing ofEntaz he said that it was for the jury to decide whether any one but Belat Alishould be held guilty, and with reference to Bibijan he said that the murdermay not have been in the programme, adding For that Alimaddin himself alone isresponsible. Then lie went on Against all the accused it is the charge ofmurder of Momrej and six others with him. That is the important charge".

10. These remarks show some confusion or carelessness, butit is clear that the Judge set the main issue before the jury---was it provedthat the accused were the men who shut Momrej in the burning hut

11. The answer of the jury was free from all ambiguity, butit has this defect that it found all the accused guilty on all the charges,that is to say the jurors ignored the Judges reference to the individualresponsibility, in the case of Entaz and Bibijan.

12. The question is whether in these circumstances the defectsin the charge have led to a miscarriage of justice. For the purposes of thiscase that question means whether the accused were prejudiced in their defence,whether the jury was confused as to the problem which it had to solve.

13. As to the defence the accused have not gone further thansaying that they are innocent: they said that to the Magistrate, and theydeclined to say more to the Judge: and the cross-examination is devoted toshowing that the assailants were not recognised and that witnesses are hostile.I find it difficult to believe that more perfectly drawn charges could havelightened the task of the defence.

14. As to the decision of the jury, when we look at thesubstance, what they held was this that the accused are the men who went to Momrejshouse, who set fire to his hut, who prevented the inmates from escaping.Instead, however, of dealing with the individuals responsible for killing Entazand Bibijan,. they found all the accused guilty in respect of killing those twovictims, and again they found all the accused guilty of committing arson.

15. The case is a very grave one, and it is most desirablethat the charges should be framed in such a way as to render it beyond doubtthat there was neither prejudice to the accused nor embarrassment to the jury.With some hesitation, I have come to the conclusion that it cannot be said thatthe charges were framed with sufficient clearness, and I think we must setaside the conviction and sentences, and order a retrial. I agree with mylearned brother in the remarks which he makes about the form which the chargesshould take. The re trial should take place as early as possible, and not beallowed to wait until after the vacation.

Mookerjee, J.

16. The occurrence which forms the subject matter of thepresent case, though perhaps without a parallel in the history of crimes inthis part of the country, may yet be narrated in a few words.

17. In village Daria, within the jurisdiction of P. S.Canning, in the district of the Twenty-four Parganas, there lived two families,the Boddys and the Naskars. They were neighbours, but for the last four yearsor so there has been bitter enmity between the families owing to causes intothe details of which it is unnecessary to enter.

18. On the night of Monday, the 7th January 1924, EntazBoddy was up till about midnight; he was doing some accounts, and his wifeJasiman Bibi was sitting near him. In an adjoining hut slept Entazs father,Momrej Boddy, the two wives of Momrej, named Chandra Bibi and Dasi Bibi, threesons of Momrej, named Safed Ali, Jabed Ali and Yunus, and Momrejs grandson,Jiad Ali. In a third hut there were Eshar Ali, another son of Momrej, and hiswife Maurjan Bibi, and Bibijan Bibi, the mother of Momrej. Suddenly the hutswere set fire to, the exits from some of them being barred by closing some ofthe doors from outside with iron bolts or clamps. Out of the inmates of thesehuts, Jasiman Bibi somehow or other managed to escape with a child in her arms,and took shelter in the house of a neighbour. Eshar Ali and his wife MaurjanBibi also succeeded in running away. Entaz stepped out with a gun, which he hadin the hut in which he was, but while yet on the threshold he was speared inthe leg and he fell in the courtyard. He tried to crawl and get up, butinjuries were inflicted on him and his head was almost severed from his body.Bibijan Bibi succeeded in coming out of her room, and on her saying that shehad recognised all the accused and there would be retribution the next day, shewas shot dead. The villagers who came to the spot, on hearing the noise of thecrackling flames and report of guns, or seeing the blaze, were scared away bythe culprits. Those who arrived in the early hours of the morning found nearlythe whole homestead reduced to ashes. In Momrejs hut, close to the door, wereseven charred dead bodies. There were the four children, the sons and grandsonof Momrej; over them lay the two wives of Momrej as if sheltering them from theflames, and over them all lay Momrej with his hands outstretched as if in theirprotection. Entazs dead body was lying on a step to the threshold partlyburnt, and his head almost severed from the body. Bibijan was lying dead on theverandah of her hut with her entrails out, and blood flowing from the verandahinto the yard.

19. The case for the prosecution was that the perpetratorsof this horrible crime were the Naskars and their men. The accused AlimaddinNaskar, Belatali Naskar, Amir Naskar, Boinaddi Naskar, Farazali Naskar, Golamalias Golap Naskar are six brothers, and the accused Dudali Molla is theirservant.

20. The charges upon which the accused were tried were asfollows. First of all there was a charge, under Section 120 B of the PenalCode, that the accused conspired with one another and with others unknown tocommit the offence of murder of Momrej Boddy and other members of his family,Then there were three counts of charges under Section 302 of the Penal Code;the first one for causing the death of Momrej Bobdy, his two wives Chandra Bibiand Dasi Bibi, and his sons Safed Ali, Jabed Ali and Yunus and his grandsonJiad Ali by barring the exit from their hut and setting fire thereto; thesecond one for causing the death of Entaz Ali; and the third one for causingthe death of Bibijan Bibi. Lastly there was a charge, under Section 436, IndianPenal Code, for setting fire to the huts of Momrej Boddy.

21. The jury unanimously found all the accused guilty on allthe charges, and the learned Judge accepting the verdict convicted the accusedin respect thereof. Under Section 302 of the Penal Code he sentenced Alimaddinand Belatali to death, and Amir, Boinaddi, Farazali, Golam alias Golap andDudali each to transportation for life. He passed no separate sentences for theoffence under Section 120 B, or under Section 436, of the Penal Code. Thematter has now come up before us on a reference for confirmation of thesentences of death as well as on appeals by the accused persons.

22. In dealing with this matter we are met at the outsetwith a serious difficulty arising out of the charges on which the accused weretried in the Court below.

23. As I have stated above, the first charge against theaccused was a charge of conspiracy. As amended in the Court of Sessions, it ranas follows:

That you, on or about the 22nd Pous 1330 B. S.,corresponding to 7th January 1924, at Daria, p.-s. Canning, conspired with oneanother and others, unknown, to commit the offence of murder of Momrej Boddyand other members of his family, and thereby committed an offence punishableunder Section 120B of the Indian Penal Code, and within the cognizance of theCourt of Sessions. And I hereby direct that you be tried by the said Court onthe said charge.

24. It assumed this form, on amendment of a charge ofconspiracy which the Committing Magistrate had framed in these words:

That you, between December 1923 and 5th January 1924, atDaria, P.-S. Canning, did agree with one another and with other persona unknownto do and cause to be done an illegal act, to wit, commission of the offence ofmurder of Momrej Boddy and other members of his family by setting lire to hishuts, and by means of guns, daggers, spears and other deadly weapons; and inpursuance of the said conspiracy caused the death of Momrej Boddy, his twowives Chandra Bibi and Dasi Bibi, his sons Entaz, Safed Ali. Jabed Ali, Yunus,and his grandson Jiad Ali and mother Bibijan Bibi, and thereby committed anoffence punishable under Sections 120B/302 the Indian Penal Code, and withinthe cognizance of the Court of Sessions. And I hereby direct that you be triedby the said Court on the said charge.

25. It is difficult to see why this amendment was made; ifany tiling the charge framed by the Committing Magistrate was fuller and morespecific in details and gave the accused better notice of the case they had tomeet. If instead of the words "you caused the death", the words"death was caused" were substituted, and the allegation as to thehuts having been set fire to was introduced, it would have been an ideal chargeof conspiracy consonant with the facts of the case. It would then have been onthe lines of the charge of conspiracy in the case of Abdul Salim v. Emperor I.L. R. (1921) Cal 573. The amended charge, however, is not open to any objectionwhich can be said to have vitiated the trial or caused prejudice to theaccused.

26. Then as to the charges under Section 302 of the PenalCode the first count runs thus:

That you, on or about the 7th day of January 1924, at Daria,committed murder by intentionally causing the death of Momrej Boddy, his twowives Chandra Bibi and Dasi Bibi, and his sons Safed Ali, Jabed Ali and Yunus,and his grandson Jiad Ali. by barring the exit from their hut and setting firethereto, and thereby committed an offence punishable under Section 302 of theIndian Penal Code, and within the cognizance of the Court of Sessions.

27. This charge on the face of it relates to seven offencesof murder. Causing the death of one person is one offence; there can be noquestion that seven offences were committed. Whether the offences wereseparable or not, so as to justify the application of Section 71 of the IndianPenal Code, is outside the purview of this enquiry. They may have beencommitted by one single act or set of acts, but the result has been sevendifferent offences. That they are distinct offences cannot for a moment bedoubted. Even under the Code of 1898, wherein in Section 35 there was sameapparent ambiguity in the meaning of the expression "distinctoffences," Sir Henry Prinsep observed: "Section 35 of the CriminalProcedure Code seems to have been intended to enhance the ordinary powers of aCourt convicting, at the same trial, a person of distinct offences, rather thanto declare what are to be distinct offences." By Act XVIII of 1923, the Explanationand the Illustration have been deleted; and there is nothing to suggest now atany rate that separate or different offences are not distinct offences. Thefirst part of Section 233 of the Criminal Procedure Code lays down that foreach distinct offence there shall be a separate charge. This provision ismandatory, and seven different charges should have been framed for these sevenoffences of murder which appear to have been huddled into the first count as itstands. Whether this pro vision of the law is obligatory or merely directory,or whether the failure to comply with it is an illegality which vitiates thetrial or is a mere irregularity,---a question with regard to which there is aclear conflict of judicial opinion in this Court,---is a matter upon which Ineed not express any opinion on the present occasion. Suffice it to say that itis clear that the practical effect of the charges has been to try the accusedperson in respect of a charge of conspiracy, and on nine separate charges of murder,and one of arson. I do not suggest that, upon the allegation that all theseoffences were committed in pursuance of the conspiracy, or at any rate in thecourse of the same transaction, such a joinder of charges was not permissible.Applying the exceptions laid down in Sections 235 and 239, Criminal ProcedureCode, all these charges could, no doubt, be legally joined; but it should beremembered that the provisions of these sections are merely enabling ones, andif there is risk of embarrassing the defence such joinder of charges should notbe resorted to.

28. It is, therefore, necessary to consider the facts andmaterials upon which these charges have been framed. So far as the charge ofconspiracy is concerned, there is no direct evidence of it, but it is basedupon some evidence as to preparation on the part of Alimaddin, and perhaps ofsome of the other accused as well. The main evidence, however, is afforded bythe presence of the accused at the house of Momrej and the acts done by themthere, and the learned Judge was right in directing the jury thus : "Tobring home the charge of conspiracy against them (meaning the accused) theprosecution rely on the same evidence on which they rely for their charge underSection 302 of the Indian Penal Code. If you believe that the accused went tothe house of Momrej that night, you will not have much difficulty in holdingthat they agreed with one another to kill Momrej and the other members of hisfamily." So far then as the charge of conspiracy was concerned, there wasample foundation for it.

29. The same, however, can not be said in respect of theother charges framed in this case. As for the offences of murder, as regardsthe seven persons named in the first count, there is no evidence against any ofthe accused such as would justify the framing of the charge. As to the offenceof murder of Entaz, there is nothing on which such a charge can be framedagainst any of the accused other than Belatali. As to the offence of murderingBibijan, none except Alimaddin can be charged with it. As for the offence ofarson, there is evidence only against Dudali The charges, however, have beenframed on the assumption that, as they were all members of a conspiracy forcommitting these offences, and these offences were committed, they may becharged with having themselves committed the offences. This position is hardlytenable in law. It is true that where a conspirator is present at thecommission of the offence, he may, under the provisions of Section 114 of theIndian Penal Code, be deemed to have committed the offence but if that is theway in which the accused are all to be made responsible for the offences, theyshould be specifically charged with such offences as read with the provisionsof Section 114 of the Indian Penal Code. There may arise a further question inthat case, in respect of some of the accused, namely, whether it would bepermissible to infer conspiracy from mere presence, and again to make themliable as principals by taking into account the fact that they were present atthe commission of the offences.

30. The charges of murder and arson, apart from the weightand number of them, which in itself is sufficient to crush the accused,relating as they do to such serious offences, must necessarily embarrass theaccused all the mere when there is really no foundation for them as regardsmost of the accused persons in; this case. They are likely to be bewildered intheir defence, unable to discover how they are to meet the charges, when thereis no allegation upon which such charges could be based. They are equally aptto confuse the jury; and that they did contuse them is clear, for in spite ofthe fact there is no evidence in support of these charges, so far as many ofthe accused are concerned, as pointed out above, the jury returned a unanimousverdict of guilty against all the accused in respect of all the charges. Theconfusion could perhaps have been avoided by giving them proper directionsdiscriminating between the different charges; but that does not appear to havebeen done in this case. On the other hand the learned Judge observed asfollows: "the first charge of conspiracy does not seem to be important inview of the main charge of murder against the accused, for if you do notbelieve the charge of murder I do not suppose that you will believe the chargeof conspiracy against the accused. Then the jury were asked to consider whetherthey would not hold all the accused responsible for the murder of Entaz,although the evidence was that Belat struck him on the neck with a dao, andthat, although Alimaddin shot Bibijan dead, whether they should not hold any ofthe others responsible for it, and it was also suggested to them they might nothold the others responsible, as the murder of Bibijan in the manner in which itwas done might not have been in the programme; and furthermore they were told,as regards the murder of Momrej and the other six persons, that if theybelieved that the accused had a common intention to cause the death of thesepeople in that way then they could find them all guilty. These directions hadthe effect of misleading the jury as to how they were to deal with the chargesbefore them, and that that they were so misled is evident from the verdictwhich they returned.

31. In my opinion the accused were embarrassed in theirdefence and the jury misled and confused, and there has not been a trial of thecase upon charges properly framed in consonance with the facts alleged by theprosecution; a multitude of charges not having any proper foundation, obscuringthe case which the accused had got to meet were put forward, and, therefore,there was no proper trial which the accused were entitled to under the law.

32. In my opinion the observations of the Lord Chancellor,in the case of Subrahmania Iyer v. King-Emperor I. L. R (1901). Mad. 61, 97.,apply in substance to the charges framed in the present case. In that case,though their Lordships were dealing with Section 234 of the Criminal ProcedureCode, the importance and necessity of precision in the framing of charges waspointed out in the following passage in the judgment t The reason of such aprovision is obviously in order that the jury may not be prejudiced by themultitude of charges and the inconvenience of hearing together of such a numberof instances of culpability, and the consequent embarrassment both to Judgesand the accused. It is likely to cause confusion and to interfere with thedefinite proof of a distinct offence, which it is the object of all criminalprocedure to obtain. The policy of such a provision is manifest, and thenecessity of a system of written accusation specifying a definite criminaloffence is of the essence of criminal procedure. The mischief sought to beaverted by the Statute has been done, as is evident from the verdict of thejury, and the acceptance of it by the learned Judge; and the effect cannot nowbe "averted by dissecting the verdict" and appropriating the findingof guilty only to.

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Alimaddin Naskar vs.Emperor (01.08.1924 - CALHC)