Banerjee and S.G. Sale, JJ.

1. The appellants in this case were tried by a jury beforethe Sessions Court of the 24-Pergunnahs on charges under Sections 148 and 304,read with Section 149, of the Indian Penal Code, and they have been convictedunder Sections 304 and 149 of culpable homicide not amounting to murder, bycausing the death of one Mahabir Singh, and sentenced to ten yearstransportation each. In appeal it is contended on their behalf that theconviction is wrong, first, because there is a previous acquittal which is abar to the present trial; and, secondly, because the verdict of the jury iserroneous, owing to material misdirection by the Judge to the jury, themisdirection consisting in (a) the Sessions Judge not pointing out properly thedistinction between murder and culpable homicide, and (b) the Sessions Judgefurther not pointing out properly the circumstances under which Section 149 ofthe Penal Code applies.

2. The facts upon which the first contention is based are asfollows : The accused were tried on a former occasion before the Sessions Courtof the 24-Pergunnahs for offences punishable under Sections 302 and 325 of theIndian Penal Code, each read with Section 149, that is, for the offences ofmurder and grievous hurt alleged to have been committed by some members of anunlawful assembly, of which the accused were also members, in prosecution ofthe common object of the assembly. They were acquitted of the former offence,that is, murder, and were convicted of causing grievous hurt to Mahabir Singh.They appealed to this Court, and the result of the appeal was that theconviction was set aside, the verdict of the jury being found to be erroneous,owing to misdirection by the Judge, and they were ordered to be retried. In theretrial held under the order of this Court, the accused have been convictedunder Section 304, read with Section 149, of the Penal Code, and it is againstthis conviction under Sections 304 and 149 of the Indian Penal Code that thepresent appeal is preferred.

3. These being the facts of the case, it is contended by thelearned Counsel for the appellants in support of his first ground, (1) that, asa matter of law, this Court could not have interfered with the acquittal of theaccused on the charge of murder, there having been no appeal by the LocalGovernment, as provided by Section 417 of the Code of Criminal Procedure; (2)that, as a matter of fact, this Court did not interfere with the acquittal onthe charge of murder, it having set aside only the conviction of the accused;and (3) that the previous acquittal of the accused on the charge of murder isby Section 403 of the Code of Criminal Procedure a bar to the trial andconviction for culpable homicide not amounting to murder.

4. With reference to the first point raised in thiscontention, it is clear from Sections 404 to 417 of the Code of CriminalProcedure, that where a person is tried on one charge only and is acquitted onit, or is tried on several charges and is acquitted on them all, the acquittalcannot in any way be interfered with, except upon appeal by the LocalGovernment. But the matter is not equally clear, when an accused person istried on several charges, is acquitted on some and convicted on the others, andappeals from the conviction. Clause (b) of Section 423 of the CriminalProcedure Code which provides that in an appeal from a conviction the AppellateCourt may set aside the conviction and sentence and order a retrial, or it mayalter the finding, maintaining or reducing the sentence, seems to favour theopposite view. The Appellate Court has the whole of the evidence before it, andif it can order a retrial, or alter the finding on the appeal of the accused,why may it not order a retrial on the charge on which the first Court acquittedthe accused, or find the accused guilty on the charge on which he was acquittedby the first Court No doubt it might be said that this would violate thesalutary principle which protects with jealous care orders of acquittal frominterference except in a special way, that is, on appeal by the LocalGovernment. But the principle would practically be left unimpaired in themajority of cases even if the Appellate Court alters the finding in the waystated above by the express provision in Clause (b), Section 423 against enhancementof sentence. While thus, on the one hand, the construction we put upon Clause(6), Section 423 of the Criminal Procedure Code will not be likely to lead toany prejudice to the accused, on the other hand, it is obviously necessary inthe interests of justice that that construction should be put upon it, asotherwise great miscarriage of justice might result. Thus, suppose that theaccused is charged with theft and criminal breach of trust in respect of thesame property, and that the first Court acquits him of the former offence andconvicts him of the latter. If on appeal by the accused the Appellate Courtfinds that the accused had never been entrusted with the property, but that hestole it, it cannot affirm the conviction for criminal breach of trust; and ifit is precluded from convicting him of theft by reason of the acquittal by thefirst Court, the accused must be acquitted altogether. Such a result, whichwould be inevitable, unless Clause (b) of Section 423 is construed in the waywe have indicated, could never have been intended by the Legislature, which hastaken so much care to provide (see Sections 236 and 237 of the Code of CriminalProcedure) against any similar failure of justice in cases where it is doubtfulwhich of two or more offences is constituted by the acts of the accused.

5. There is one other way of viewing the matter which willmake it clear that the construction we have put upon Clause (b) of Section 423is the only one that it should bear. If the contention of the appellants werecorrect that the acquittal on the charge of murder was final and incapable ofbeing interfered with in the appeal by the accused from the conviction forgrievous hurt, and must be a bar to any further trial for murder or culpablehomicide not amounting to murder, it would equally well be a bar under thefirst paragraph of Section 403 to any fresh trial for grievous hurt. This wouldbe manifestly absurd, and would render Section 423, Clause (b), and Section 403incompatible with one another. When an act or a series of acts is of such anature that it is doubtful which of several offences the facts which can beproved will constitute, an appeal from a conviction for any one of suchoffences must lay the whole case open to the interference of the AppellateCourt notwithstanding any order of acquittal by the first Court in regard toany of the other offences. The interference of the Appellate Court in such acase is directed primarily, not against the acquittal, but against theconviction which is called in question by the accused, though if theinterference is to be rational and complete, the Appellate Court must deal withthe whole case. And this becomes more than ordinarily necessary, in a case likethe present, where the trial is by jury. Here if the verdict is found to beerroneous, owing to a misdirection by the Judge, it must be set aside in itsentirety, as the Appellate Court cannot go into the facts (see Section 418 ofthe Code of Criminal Procedure), and substitute its own verdict for that of thejury. There was some discussion as to what was meant by the verdict in Section423, Clause (d)-Mr. Allen, for the appellants, contending that it meant theverdict upon each charge separately, and Babu Ram Churn Mitter, for the Crown,urging that it meant the entire verdict on all the charges collectively. Havingregard to the provisions of Sections 300 to 307 of the Code of CriminalProcedure, we think the "verdict" in Section 423, Clause (d), meansthe entire verdict on all the charges.

6. Where, therefore, the Appellate Court reverses theverdict of a jury and orders a retrial, unless it has limited the scope of theretrial, such retrial must be taken to be one upon all the charges originallyframed.

7. This brings us to the consideration of the second point,namely, whether, as a matter of fact, this Court ordered a retrial of the wholecase. In its judgment it no doubt simply sets aside the conviction and directsa retrial. But as we have said above, this, in the absence of any expresslimitation, must be taken to mean a retrial of the whole case.

8. We wish it to be distinctly understood that what we havesaid above is intended to apply only to those cases which are contemplated bySection 236 of the Code of Criminal Procedure, and in which the accused ischarged with different offences arising out of a single act or a series ofacts, it being doubtful which of those offences the act or acts constitute, andthe accused is convicted by the first Court of one of these and acquitted ofthe others. Where an accused person is charged at one trial with distinctoffences constituted by distinct acts, such as the causing of death to A and ofgrievous hurt to B, or the forgery of document A, and that of document B, andhe is acquitted of one of these offences and convicted of the other, adifferent principle would, we think, apply. That is not the kind of case wehave before us, and we do not here determine anything with reference to casesof that class.

9. From what has been said above, it would follow that theformer acquittal on the charge of murder is no bar to the present trial, forthis simple reason, that that acquittal is no longer in force having in effectbeen set aside by the order for retrial made by this Court on the appeal of theaccused.

10. Babu Ram Churn Mitter, for the Crown, relied upon a furtherreason for holding that the previous acquittal was no bar to the present trial,viz., that the previous acquittal was on a charge of murder, whereas thepresent trial is for culpable homicide not amounting to murder. We do notconsider this argument sound, as it appears from the first paragraph of Section403 of the Criminal Procedure Code, that a previous acquittal for an offence isa bar to a trial on the same facts for any other offence for which a differentcharge might have been made under Section 236 of the Criminal Procedure Code.

11. It remains now to consider the second ground urged onbehalf of the appellants, namely, that relating to misdirection by the Judge.The misdirections are said to consist in the Judge not having properlyexplained to the jury, first, the distinction between murder and culpablehomicide; and, secondly, the meaning and effect of Section 149 of the IndianPenal Code. As to the first we do not think that there is any misdirection atall, and even if there had been any misdirection, it could not possibly haveprejudiced the accused, seeing that the verdict is one of guilty on the chargeof culpable homicide not amounting to murder.

12. As to the second, it is not contended that the Judgegave any wrong direction to the jury. What is urged is that he did not explainto them the meaning of Section 149 of the Indian Penal Code, as fully as it hasbeen explained by a Full Bench of this Court in The Queen v. Sabed Ali 11B.L.R. 247 : 20 W.R. Cr. 5. Considering that there has been much discussion,and some difference of opinion, regarding the meaning of Section 149 of theIndian Penal Code, it would certainly have been better if the Judge hadexplained that section to the jury somewhat more fully. But what the learnedJudge said in his charge in explaining Section 149 of the Indian Penal Code,though concise, is in our opinion quite sufficient and clear. We do not thinkthat there was any misdirection in the Judges charge to the jury.

13. The two grounds urged before us, therefore, both fail.We see no reason for interfering with the convictions and sentences, and weaccordingly dismiss the appeal.

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Krishna Dhan Mandal and Ors.vs. Queen-Empress (13.11.1894 -CALHC)