Patna High Court
The State Of Bihar vs Ramautar Singh on 11 May, 1955
Equivalent citations: AIR1956PAT10, 1955(3)BLJR422, 1956CRILJ89, AIR 1956 PATNA 10
JUDGMENT Sahai, J.
1. The appellant has been convicted under S, 302, Penal Code for the murder of one Mangan Singh on 11-7-1954, and has been sentenced to death. He has also been convicted under Section 307 for on attempt to commit the murder of Mangan's daughter, Mt. Basmatia (P. W. 1), but no separate sentence has been imposed under this section. The reference has been made for confirmation of the sentence of death. The appellant has filed the criminal appeal from jail. This judgment will dispose of the reference as well as the appeal.
2. The prosecution case is that Basmatia (P. W. 1) went with her father, Mangan Singh, to the jungle on Sunday, 11-7-1954. On their return, they began watching their maize crops in their field at village Murma within the jurisdiction of Daltonganj police-station in Palamau District. The appellant is an agnate of Mangan Singh, and there was no previous enmity between the two. On Thursday preceding the day of occurrence, a bullock belonging to the appellant's family died. On Saturday, the appellant's father, Chulhan Singh, went to Debas at a village which bears the name of Patna and which is at about 4 or 5 miles from village Murma. He consulted a Bhagat there, and the Bhagat fold him that the bullock had died due to witchcraft practised by Mangan Singh.
This caused annoyance to the appellant, and in the evening, before sunset, he came with a tangi in his hand to the maize field in which Mangan Singh and Basmatia were watching their crops. He gave several blows with the tangi to Mangan Singh and killed him on the spot. He then dragged Mangan's body to a well at a distance of about 195 feet to the north-west of the place of occurrence and close to the south of the appellant's house. The well is dry and the appellant threw Mangan's body in that well. Basmatia raised a halla, whereupon the appellant began to throttle her with the intention of killing her. Nanhak (P. W. 7) heard her cries and came to the place of occurrence. At his intervention, the appellant left Basmatia and went away, saying that he would kill her mother. Basmatia told Nanhak all that had happened, and he took her to his own house. Both of them told Nanhak's brother Gudri Singh (P. W. 4) all about the occurrence.
3. Later, Bhagwati Singh (P. W. 2) of village Murma returned to his village from the market at Satbarwa. He heard Gudri Singh (P. W. 4) and Tribeni Singh (P. W. 3; talking about the murder of Mangan bv appellant Ramautar. He went and saw the dead body lying in the well, and therealter he went with Tribeni Singh and Gudri Singh to the police outpost at Satbarwa.
The Assistant Sub-Inspector in charge of that out-post was absent, and hence he took constable Mia Mustata (P. W. 6) With him and went to Daltonganj police-station. First information report, Ex. 4, was recorded there on the statement of Bhagwati Singh at 9-30 P. M. on the same date the distance from village Murma to the police station at Daltonganj being about 17 miles. Sub-Inspector B. K. Prasad (P. W. 12) investigated the case and submitted charge-sheet against the appellant.
4. The prosecution case further is that Basmatia's mother Mt. Musni had gone to Satbarwa market on the date of occurrence. She never returned from there. On 13-7-1954, Teka Singh (P. W. 8) found her dead body lying in a place called Satbahni-Dorha.,. On receiving this information the Sub-Inspector (P. W. 12) went there, found the dead body which had injuries lying between two' big stone slabs and partially covered with leaves, held inquest and sent the body to the Daltonganj hopsital for post-mortem examination. It is suggested that the appellant killed Mt. Musni also in pursuance of the threat which he had given to Basmatia (P. W. 1).
5. Apart from the charge for the offence under Section 307 for attempting to kill Basmatia, one charge for the offence of murder was framed against the appellant. The material part of this charge runs as follows:
"That you, on the 11th day of July, 1954 at village Murma, P. S. Daltonganj, district Palamau did commit murder by intentionally or knowingly causing the death of Mangan Singh and his wife Musni by means of Tangi and thereby committed an offence punishable under Section 302, Penal Code..,........"
5-a. The appellant's defence is that he is innocent, that Tribeni (P, W. 3), Nima (who has not been examined) and Bhagwati (P. W. 2) together killed Mangan. Singh and that they have implicated him in this case in pursuance of a threat which Tribeni Singh had held out to him on" an earlier occasion when he had nursed Mangan Singh in the hospital where he was taken on account of injuries inflicted upon him by those persons.
6. The learned 2nd Additional Judicial Commissioner of Chota Nagpur, who tried this case, held that the appellant had not been proved to have committed the murder of Mt. Musni. In agreement with the opinions of the two assessors who heard the case until the conclusion of the trial he held the appellant guilty under Section 302 for the murder of Mangari Singh and under Section 307 for the attempt to commit the murder of Basmatia (P. W. 1).
7. I propose first to consider a point of law which Mr. B. D. Singh, appearing on behalf of the appellant, has raised before us. He has contended that the trial has been vitiated for two reasons. His first point is that the charge as framed is illegal, because it offends against the provisions of the first part of Section 233, Criminal P. C which requires that there must be a separate charge for every distinct offence. His second point is that the second part of Section 233 has also been contravened, because there should have been separate trials, one for the murder of Mt. Musni and another for the offences for which the appellant has been convicted.
8. In connection with the first point raised by Mr. Singh, some attempt has been made on behalf of the State to argue that there is nothing wrong with the charge as framed. In support of this argument, reliance has been placed upon a decision of a Division Bench of the Allahabad High Court, in the case of -- 'Chunnoo v. State', AIR 1954 Ail 795 (A). Our attention has been particularly drawn to an 'observation of Kidwai J. relating to the use of the word "distinct" in Section 233 which is as follows:
"Every 'distinct offence' cannot be treated as having the same meaning as 'every offence'. The only meaning that the word 'distinct' can have in the context in which it occurs is to indicate that there should be no connection between the various acts which give rise to criminal liability. If there is such a connection, one action is not 'distinct' from other actions, and each of them, even if constitutes an offence, does not constitute a 'distinct' offence."
This observation has to be understood with reference to the facts of the case in which 'it was made. That was a case of dacoity and, in the course of the same occurrence, the dacoits committed dacoity in three houses. It was found that dacoity was committed in all the three houses simultaneously. The argument which was advanced was that three separate charges should have been framed, one in respect of the dacoity in each house; and as one trial was held, it was contended that the charge was illegally framed and the trial was vitiated. In repelling these arguments, Kidwai J. made the observation, which I have quoted. He held that there was only one dacoity and not three. It followed, therefore, that one charge had been legally framed and the trial was not vitiated.
9. I agree that the word "distinct" used in Section 233 is not without significance, but I cannot accept the argument that unless two acts are unconnected, they cannot constitute distinct offence. If, for instance, the offences of arson and murder are committed in the course of the same occurrence or transaction and arc thus connected, it can hardly be argued that the two offences are not distinct from each other. Reference may be made in this connection to Section 235 (3) 'which provides:
"If several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with, and tried at one trial for the offence constituted by any one, or more, "of such acts." The offence referred to in this sub-section must undoubtedly be connected together, but separate charges have to be framed simply because some acts constitute one offence and those act combined with other acts constitute a different offence.
10. In my opinion, the word "distinct" in Section 233 does not necessarily signify "unconnected"
though there may be circumstances in which connected acts will not constitute "distinct" offences."
If, for instance, each of several acts constitutes an offence and all of them combined together also constitute the same offence, it cannot be held that each offence is distinct from the other. In such a case, one charge for the offence as a whole, will be perfectly legal.
I may take for example the illustrations given under Section 71 of the Indian Penal Code. A voluntarily causes hurt to Z by giving him fifty strokes with a stick. One charge for the entire beating will be perfectly legal, and the use of the word "distinct" in Section 233 makes it perfectly clear that there need not be a charge in respect of each of those fifty strokes. But if Y interferes while A is beating Z, and A beats Y also, the offence of voluntarily causing hurt to Z is certainly distinct from the offence of voluntarily causing hurt to Y because the two offences have affected two different persons and make A liable to separate punishments, although they have been committed in one continuation. In such a case, it will undoubtedly be necessary to frame one charge in respect of the hurt caused to Z and another charge in respect of the hurt caused to Y.
11. The murder of Mt. Musni in the present case cannot be said to form a part of the murder of Mangan. It may be that, on the allegations of the prosecution, both murders were committed in the course of the same transaction, but they certainly constitute two different and distinct offences. I may refer in this connection to the case of -- 'Kanai Lal Paladi v. Emperor", AIR 1948 Cal 274 (B) in which the appellant was alleged to have murdered two persons. Both these offences of murder were lumped up together in one charge against him.
Harries C. J., who delivered the leading judgment, observed that the murders undoubtedly constituted two separate offences and held that one charge in respect of each murder should have been framed. I have no doubt that the charge as framed in the present case offends against the first part of Section 233 and is, therefore, improper. It appears that the charge was framed by the committing Magistrate, and it is unfortunate that the learned Additional Judicial Commissioner, who held the trial, did not apply his mind to the question whether the charge had been properly framed before the trial was commenced. It is regrettable that such a defective charge was allowed by him to stand.
12. The question that now arises is whether the defect in the charge constitutes an illegality or an irregularity which is curable. In the case of -- 'Babulal Chankhani v. Emperor', AIR 1938 PC 130 (C), a charge was framed against the appellants and others to the effect that they had conspired together to commit theft of electric energy belonging to the Calcutta Electric Supply Corporation Ltd. by tampering with meters and theft of such energy was committed in pursuance of that conspiracy at Bharat Lakshmi Picture House and other places.
A charge for theft of electric energy at Bharat Lakslimi Picture House was also framed against one appellant and a charge of abetment of that theft was framed against the other appellant. In the latter two charges, the period during which the theft was committed was given as April 1934 to the 16th January, 1935. Lord Wright, who delivered the Judgment of the Judicial Committee, observed as follows:
"Then it was contended that the charge of theft was not properly framed because it alleged a multiplicity of offences between April 1934 and 16th January 1935, whereas the offences did not constitute a single continuing offence; they were separate offences committed on particular dates and should have been separately charged. Their Lordships feel that the form of the charge was most irregular and regrettable and one which should be avoided. But they cannot regard this objection as one which in the circumstances of this case should receive effect, especially because they agree with the High Court that no injustice was inflicted on ' the appellants. The specific offences of which they were accused were satisfactorily proved by competent evidence, corroborated, in all necessary respects. There was no miscarriage of justice. In addition the irregularity was such as could be, and was cured under Sections 225 and 537 by the finding that the accused had not been prejudiced."
On the authority of this decision, it is clear that the defect of a number of offences being included in one charge is curable under Sections 225 and 537, Criminal P. C, I may mention that this question was also considered by Harries C. J. in 'Kanai Lal Paladi's case (B)', which I have already referred to. His Lordship referred to several decisions of the Calcutta High Court and also to the decision of their Lordships of the Privy Council in -- "Subrahmaniya Iyer v. King Emperor', 28 Ind App 257 (D). He, however, left the question, open and did not decide the question whether the defect in the charge constituted an illegality or an irregularity, because he found that prejudice had been caused to the appellant in the case before him.
It docs not appear that 'Babulal Chaukhani's case (C)' was brought to his Lordship's notice, and he has not referred to that case.
13. Mr. Singh has not suggested in the present case that any prejudice has been caused to the appellant. Indeed, there is no question of any prejudice having been caused to him, because the prosecution has not adduced any evidence to prove who actually committed the murder of Mt. Musni and in what circumstances. I, therefore, hold that the defect in the charge has been cured under Ss. 225, 535 and 537.
14. In support of his second point, Mr. Singh has relied upon the decision of the Privy Council in 28 Ind App 257 (D). In that case, the appellant was tried for 41 offences extending over a period of two years. Section 234, Criminal P. C. provides that a person may be tried at the same trial for any number of offences of the same kind committed by him not exceeding three in the course of twelve months. Their Lordships held that disobedience to the provisions of Section 234 did not constitute an irregularity curable under Section 537 but an illegality which vitiated the trial.
Mr. Singh has also relied upon -- 'Keshavalal Tribhuvandas v. Emperor', AIR 1944 Bom 306 (E). In that case, it was held that contravention of the mandatory provisions of Sections 233, 234, 235, 236 and 239 constituted an illegality and the defect could not be cured under Section 537, even if no failure of justice had been caused. On the other hand, the learned Government pleader has relied upon -- V. M. Abdul Rahman v. King Emperor', AIR 1927 PC 44 (F). In that case, the provisions of S, 360, Criminal P. C. had not been complied with. Lord Phillimore, who delivered the judgment of the Judicial Committee, held that the defect was curable under Sections 535 and 537, Criminal P. C. He distinguished 'Subrahmania Ayyar's case (D)', on the ground that the procedure which had been adopted in that case was in contravention of an express 'prohibition contained in Section 234'.
15. A similar question came up for consideration before the Supreme Court in -- 'Aftab Ahmad Khan v. State of Hyderabad', AIR 1954 SC 436 (G). The facts of that case, so far as they are relevant to the question under consideration, were that the appellant was a Reserve Inspector of Police stationed at Mahbtibabad on the first day of the Police action in Hyderabad On that day, he went with a number of persons to village Rajole and arrested P. Ws. 5 and 9 of that case in that village. While taking them to village Korivi, he shot aft some persons and injured one Mura Muthiah and P. W. 2 of that case.
He subsequently shot Mura Muthiah in the chest and killed him. Thereafter he went to Korivi and spent the night there. Next morning, he released P. W. 5 of that case from custody on realising Rs. 200 from him. P. W. 9 could not pay anything and he was let off. The appellant was tried at one trial and convicted for the entire series of offences committed by him. It was argued before their Lordships that the trial had been vitiated.
In this connection, their Lordships considered "Subrahmania Ayyar's case (D)' as well as 'Abdul Rabman's case (F)' and several other cases, but they left open the question as to whether violation of Section 233 amounted to an illegality vitiating the trial, or mere irregularity which could be condoned under Section 537. They held that the trial was perfectly legal in view of Section 235 of the Code, because the entire series of offences, committed by the appellant were so connected together as to form one transaction.
16. It seems to me in the present' case also that there has been no contravention of the second part of Section 233 because all the offences were committed in the course of the same transaction and hence the question whether such contravention could constitute an illegality or irregularity need not be decided. It has been clearly laid down in 'Babulal Chaukham's case (C)' that the point of time, when the condition relating to sameness of transaction must be fulfilled, is the time when the accusation is made, and the result has no bearing upon that question.
As I have already said, the prosecution has not adduced any evidence in this case relating to the murder of Mt. Musni. But the suggestion clearly is that the appellant went just after committing the murder of Mangan and attempting to commit the murder of Rasmatia, intercepted Mt. Musni while she was coming from Satharwa bazar and killed her before she could come back home. Thus, it appears, that there was sufficient community of purpose, continuity of action and proximity of time so as to constitute the entire series of acts committed by the appellant into one transaction. In view of Section 235, therefore, the trial was validly held. Hence Mr. Singh's argument that the trial has been vitiated fails.
17. Coming now to the merits of the case, I find that the most important witness examined on behalf of the prosecution is Mt. Basmatia (P. W. 1). She has stated that she and her father Mangan Singh were watching their maize crops in the afternoon when appellant Ramautar came there with a 'tangi' assaulted Mangan Singh with that 'tangi' and killed him. She has further stated that the raised halla, that the appellant threw Mungan Singh's dead body in the well close to his (the appellant's) house,, that the appellant began to throttle her with a view to kill her but Nanhak (P. W. 7) arrived and saved her and that the appellant left her on Nanhak's remonstrance and went away after giving out a threat that he would kill her mother.
Mr. Singh has pointed out that Basmatia is a child aged about, eight years, and that the learned Additional Judicial Commissioner does not appear to have satisfied himself by 'pulling questions to her whether she was capable of understanding questions and giving intelligent answers. Section 118, Evidence Act provides that all persons are competent to testily unless the Court considers that, by reason of tender years etc., they are incapable of understanding questions put to them Or giving rational answers to those questions. In view of this provisions, it would ordinarily be prudent for a trial Judge to satisfy himself by pulling questions to a child witness, about his or her mental capacity before proceeding to record the deposition of such a witness.
This would save time in cases where the mental development of the child witness is not found to be sufficient to make him or her a complain witness. The mere fact, however, that the trial Judge does not follow this course cannot make the evidence of a child witness inadmissible. The evidence itself will have to be examined with a view to ascertain the competency or otherwise of the witness. I have examined Basmatia's evidence from this point of view and I find that her evidence relating to the occurrence has been corroborated in material particulars by unimpeachable evidence.
I may' further mention that, on being cross-examined, she has stated that the appellant is a gotia (agnate) of her father; that Gudri Singh (P. W. 4) and Nanhak Singh (P. W. 7) are brothers, that they are 'bhaginas' (nephews) of Bhagwati Singh (P. W. 2) and that the sesor of Trbeni Singh (P. W. 3). is the wife of Bhagwati' Singh. Bhagwati Singh (P. W. 2) has himself admitted that Gudri and Nanhak are his 'bhaginas' and Tribeni is his sala. The fact that the appellant is an agnate of deceased Mangan Singh is also admitted by the prosecution. Thus, Basmatia has undoubtedly given rational and intelligent answers to the questions which were put to her.
She appears to have made only one confusion and that is that she had stated in her cross-examination that her father was killed when lamp had been lighted, though she has stated in her examination-in-chief that he was killed in the afternoon. Any adult witness may also get confused under the stress of cross-examination and I do not think that this confusion shows her mental development to he deficient. On a consideration of her entire evidence, I am clearly of the opinion that she is a competent witness.
18. It appears that Nema Singh, a cousin of Bhagwati Singh (P.. W. 2) assaulted Mangan Singh and caused injuries to him about two months before the occurrence in question. Mangan Singh was taken to the hospital and the appellant nursed him while he was there. As I have already mentioned the appellant has stated in his examination under Section 342, Criminal P. C. that he had taken Mangan Singh to the hospital and had brought him back from there after getting him treated and that Tribenl Singh had threatened him on that occasion, saying "we shall implicate you". It is difficult to see why Tribeni Singh or, for the matter of that, Nema Singh or Bhagwati Singh should have felt any grudge against the appellant only on account of the fact that he had nursed Mangan Singh in the hospital. I think that the appellant's statement in this respect is much too improbable to be accepted.
19. Mr. Singh has argued that the appellant could not have killed Maugan Singh when it is admitted by Basmatia (P. W. 1) herself that she and her father had no quarrel with the appellant previously and that the appellant had nursed her father in the hospital only two months before the occurrence, The motive for the occurrence is, however, perfectly clear. Gudri Singh (P. W. 4) has stated that he went with the appellant's father Chulhan Singh to Devas in village Patna on Saturday i.e., 10-7-1954 and that the Bhagat of that place declared that Mangan Singh had killed Chulhan Singh's bullock by witchcraft.
He has further stated that Chulhan Singh's bullock had died a day or two before that Saturday. Nanhak (P. W. 7) has also stated that Chulhan's bullock had died before the occurrence and that Chulhan had gone to Devas. There is some indication of this fact even in the first information report lodged by Bhagwati Singh. He has stated therein that Mangan Singh was an ojha (i.e., one who practised witchcraft) and that the bullock of the appellant and his brother Prasad Singh had died two or three days before the occurrence. The only ground on which Mr. Singh has attacked the evidence of P. Ws. 4 and 7 is that they are nephews of Bhagwati Singh, whose cousin Nema Singh had assaulted Mangan Singh shortly before the occurrence, and that that shows that all these witnesses are interested.
The fact that Nema Singh assaulted Mangan Singh may show that there was some ill-will between those two but, as I have already said, it cannot be held merely on that basis that the witnesses had or have any grudge against the appellant. Haying carefully considered their evidence, I am of opinion, that they are perfectly reliable witnesses. Their evidence relating to the motive for the occurrence must, therefore, be accepted. As the learned Additional Judicial Commissioner has mentioned in his judgment, it is well known that the people of the locality in which the occurrence in question took place firmly believe in witchcraft and spirits. There is, therefore, no improbability in the appellant having believed that Mangan Singh was responsible for the death of his bullock and having decided to kill Mangan.
20. It is in evidence that Basmatia lived in the, house of Nanhak (P. W. 7) for some time just after the occurrence and that she also lived in the house of Bhagwati Singh (P. W. 2) for some days. Mr. Singh has argued that she had been turtored by Nanhak and Bhagwati Singh to state falsely that the appellant had killed her father. The fact that Basmatia was being throttled admits of no doubt. A lady doctor, whose deposition before the committing Magistrate was admitted in evidence at the trial under Section 509, Criminal P. C., examined her at 9 A. M. on 13-7-1954,, and found the following, injuries:
"1. One abrasion 21/2 x 1/4" on front of neck at the juncture of back and lower law. Nature simple, caused by friction against hard and rough substance. Duration within 48 hours.
2. One bruise 1" x 1" over the angle of right side of mandible, nature, simple, caused by fall on a hard substance. Age within 48 hours." I do not think that any attempt to throttle her could have been made if she had not seen the murder of her father. It seems to me that she could not have agreed to implicate the appellant falsely if she had seen somebody else killing her father.
21. Beside, I will presently show that Basmatia's evidence has been materially corroborated by other evidence.
22. Mr, Singh has pointed out that Basmatia's evidence shows the sequence of events to be that her father was killed, that she raised halla, that the appellant drugged her father's dead body to the well and threw the body in it and that the appellant then started throttling her. He has argued that the act of dragging the dead body to the well at a distance of about 193 feet must have taken some time. If Basmatia was raising 'halla' all that time, Nanhak or somebody else must have arrived in time to see the dead body being dragged.
But Nanhak says that, when he arrived at the place of occurrence, the appellant was throttling Basmatia in her maize-field, He does not say that he saw the appellant dragging the body of Mangan Singh. I do not think that there is any substance in Mr. Singh's argument. Nanhak says that he was sleeping in his maize-field when he got up on hearing Basmatia's cries. It may be that he did not wake up for some time and the appellant managed, during that time, to drag Mangan Singh's body to the well and drop it therein.
23. Mr. Singh has pointed out that Nanhak Singh (P. W. 7) says, that be saw the dead body of Mangan under a paras tree from some distance. It appears that there are a paras tree and a sharifa tree close to the place of occurrence. Mr. Singh has argued that Nanhak Singh could not have seen the dead body under the' paras tree if it had already been dropped into the well when be arrived to save Basmatia from the appellant's clutches. It is not clear, however, that Nanhak saw the dead body at the time when be arrived at the place of occurrence on hearing Basmatia's cries. It may be that he saw it under the paras tree after it was taken out from the well in the presence of the investigating officer (P. W. 12).
Kapildeo Singh (P. W. 9) is a resident of Satbarwa and he went to village Murma with the Sub-Inspector. He says that the dead body was nearer the sharifa tree than the paras tree. This shows that the dead body was placed there after it was taken out of the well because this witness could not possibly have seen the dead body near the sharifa tree at the time of occurrence. In these circumstances, I am unable to attach any importance to the statement of Nanhak in this connection.
24. Basmatia's evidence that her father was assaulted with a tangi receives support from the evidence of Dr. Pathak, which was admitted at the trial under Section 509, Criminal P. C. This doctor held post-mortem' examination on the body of Mangan Singh at 9 A. M. on 13-7-1954 and found no less than five incised wounds on the head and one incised wound on the right cheek of the deceas ed. On dissection, he found a part of the parietal bone to be fractured into several pieces in an area of 3" x 3". In his opinion, the injuries could be caused by a sharp cutting weapon which might be a tangi.
Mr. Singh has pointed out that Bhagwati Singh has mentioned in the first information report that the appellant had assaulted Mangan Singh with the blunt part of a tangi. Bhagwati Singh does not appear to have been cross-examined as to how he came to mention in the first information report that Mnngan Singh had been assaulted with the blunt part of a tangi. It is, therefore, impossible to say that Basmatia made such a statement to him. Hence it cannot be said that there is any discrepancy in the evidence of Basmatia on this point.
25. Basmatia's evidence as to the place where the occurrence took place & as to the dead body of her father being dragged to the well receives full support from the evidence o£ the investigating officer (P. W. 12J. He has stated that the place of occurrence was a maize-field and that he found blood marks there. He also says that there was a dragging mark' with sprinklings of blood from that place for a distance of about 195 feet up to the well in which he found Mangan Singh's dead body.
26. As I have already mentioned, Basmatia's evidence that she was being throttled is supported by the evidence of the lady doctor who found injuries on her neck. This part of her evidence is also corroborated by Nanhak (P. W. 7) who found the appellant throttling her. The evidence of Nanhak further is that the appellant left Basmatia after he. (Nanhak) chicled him.
27. The evidence of Basmatia that it was the appellant who killed her father with a tangi receives corroboration from the evidence of Nanhak, who saw that the appellant had a blood-stained tangi in his hand. Further support for this part of her evidence is forthcoming from the evidence of the investigating officer who says that the appellant took out a blood-stained tangi. (Ext. I) from the chhappar (roof) of his house and handed it over to him. Kapildeo Singh (P. W. 9), who is a perfectly independent witness, says that the Sub-Inspector received the tangi (Ex. I) from the appellant and that it was blood-stained. Bhagwati Singh (P. W. 2) has also stated that the appellant handed over a tangi to the Sub-Inspector (P. W. 12). This tangi was sent by the Sub-Inspector (P. W. 12) to the Chemical Examiner, It appears from the reports of the Chemical Examiner and the Serologist that the tangi was stained with human blood. On being asked in his examination under Section 342, Criminal P. C. whether he made over a blood-stained tangi from the dhaha of his house to the Sub-Inspector of Police, the appellant merely-stated that he had not made it over to him.
The fact that he made over the blood-stained tangi to the Sub-Inspector (P. W. 12) cannot be doubted in view of the evidence of Sub-Inspector himself, supported as it is by the evidence of P. Ws. 2 and 9. The appellant has not offered any explanation and has contented himself by denying a fact which has been proved to be true. In these circumstances, I have no doubt that it was the appellant who killed Mangan Singh,
28. In view of the nature of the injuries which Mangan Singh received and which caused his death, it is clear that the appellant caused those injuries with the intention to kill him. He has, therefore, been rightly convicted under Section 302, Penal Code. In view of the evidence on record, I have also no doubt that he attempted to kill Basmatia. He has, therefore, been rightly convicted under Section 307, Penal Code, also.
29. The only question which remains now to be considered is the question of sentence. The appellant belongs to a backward class & he is aged about 20 to 22 years. Obviously, he believed that deceased Mangan Singh practised witchcraft and was responsible for the death of his bullock. As it seems to me that he was acting under the stress of great emotion, I think that the lesser sentence will meet the ends of justice in this case.
I, therefore, commute the sentence of death passed upon him under Section 302, Penal Code to one of transportation for life. The reference is accordingly discharged, and the appeal is dismissed with this modification in the sentence. There will be no separate sentence under Section 307, Penal Code, as directed by the learned Additional Judicial Commissioner.
Ahmad, J.
30. I agree with the order proposed by my learned brother and also substantially with all the reasoning given by him to arrive at it. I, however, like to add a few words regarding the point of law which Mr. B. D. Singh appearing on behalf of the appellants has raised before us. His contention was that the trial was vitiated for two reasons; firstly, because there was mis-joinder of charges which offended against the provisions of the first part of Section 233, Criminal P. C. and, secondly, because there had been one trial for two murders, one for the murder of Mt. Musni and another for the murder of Mangan Singh and this offended against the second part of Section 233, Criminal P. C.
31. Section 233, Criminal P. C. says: "For every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately, except in the cases mentioned in Sections 234, 235, 236 and 239."
32. It is, therefore, clear that the general rule on the subject of charge is given in Section 233 and the exceptions thereto are given in Sections 234, 235, 236 and 239.
33. Section 234 deals with the offences of the same kind and according to Sub-section (2) of Section 234, "offences are of the same kind when they are punishable with the same amount of punishment under the same section of the Indian Penal Code or of any special or local law". Regarding offences of the same kind, Section 234(1) lays down:
"When a person is accused of more offences than one of the same' kind committed within, the space of twelve months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with, and tried at one trial for any number of them not exceeding three".
Section 235 deals with offences when there are more than one but when they are so connected as to have been committed in the course of the same transaction.
34. Sub-section (1) of Section 235 directs that if, in one series of acts so connected together as to form the same transaction, more offenees than one arc committed by the same person, he may be charged with, and tried at one trial for every such offence.
35. Sub-sections (2), (3) & (4) of Section 235 deal with entirely different subjects and are not relevant for the purpose of the point under discussion.
36. Section 238 deals with cases where it is doubtful what offence has been committed. That also has got no bearing with the facts of the present case.
37. Section 239, Criminal P. C.' deals with persons who may be charged jointly. Here the person to be tried was only one and that being so, that section also does not apply to the facts of the present case.
38. In the result, therefore, the question of law raised in this case has to be decided mainly in the light of rules of law laid down in Sections 233, 234(1) and 235(1), Criminal P. C.
39. On the basis of the general principle laid down in Section 233, Criminal P. C., there should have been two separate charges, one for the murder of Mangan Singh and the other for the murder of Mt. Musni and each of these charges should have been tried separately. The only question that arises for consideration is whether the facts of this case are covered by any of the two exceptions to this general rule which are laid down in Sections 234(1) and 235(1), Criminal P. C.
40. The allegations made in the first information report given to the police which was recorded on the basis of the statement made by Mt. Basmatia (P. W. 1) obviously make it clear that the murders of Mangan Singh and that of Mt. Musni were committed in the course of the same transaction. Therefore, though the acts, which resulted in the murders of these two persons constituted distinct offences, yet they could be tried at one trial as provided in Section 235(1), Criminal P. C. That being so, there was no non-compliance with regard to the mode of trial and the non-compliance, if any, was only as regards the framing of the charge.
41. The question, therefore, now for consideration is, as to whether the appellants could be charged with these two offences in one charge at that trial as was done in the present case. In my opinion, the learned Additional Judicial Commissioner made an error in framing one charge for these two murders. There cannot be 'any doubt that the acts resulting in the murders of the two persons constituted two distinct offences. Therefore, under the general rule laid, down in Section 233, Criminal P. C., there should have been a separate charge for each of those distinct offences, that means, for each of those two murders.
To this extent, I think the argument of Mr. B. D. Singh is justified, but there is no force in his other contention that this defect in the framing of the charge is an illegality not curable by Section 537, Criminal P. C, or that it is of such a character which is governed by 'the rule enunciated in 28 Ind App 257 (PC) (D). 1 think that such a defect in the framing, of the charge amounts to only an irregularity which is curable under Section 537, Criminal P. C. as was held by this Court in the case. of -- 'Chandra Narain Jha v. Emperor', AIR 1940 Pat 603 (H).
42. In this view of the matter, all that is to be looked in is as to whether the defect in framing one charge for the two distinct offences has, in fact, caused any prejudice to the appellant. My learned brother has elaborately dealt with this aspect of the question and he has rightly come to the conclusion that no prejudice whatsoever was caused to him by this defect. I, therefore, entirely agree with my learned brother that this defect is after all one of irregularity curable under Section 537, Criminal P. C. and has not in any way in the circum stances of this case vitiated the trial.