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2. Before proceeding to deal with the paints on which the certificate has been granted, it is necessary to set out the facts of the case and the evidence which was led by the prosecution. On the night of December 24, 1942, the deceased police constable Nasruddin Badruddin, No. 2744/F of the Mahim Police Station, was present at the Ma-him fair. One Haji Abdulla Kadir Siddik was distributing alms to some fakirs. One of the fakirs was dissatisfied with what was given to him and started abusing Haji Abdulla who had refused to give him anything more. The! two accused came along and accused No. 1 asked Haji Abdulla not to beat the fakirs. Haji Abdulla said that he had not beaten any one. Accused No. 1 thereupon took out two one-rupee notes and offered them to Haji Abdulla and asked him to distribute the money to the fakirs. A crowd had collected at the place at the time. Haji Abdulla said that if the accused wanted to distribute money he should do so himself. At this stage the deceased police constable, who was not in uniform, asked the members of the crowd, including Haji Abdulla and the accused to move on, and Haji Abdulla moved away. Accused No. 1, however, asked the constable who he was and gave him a push and told him to go away. Upon this the constable lifted up his shirt and showed accused No. 1 his policeman's belt which he was wearing below the shirt. Accused No. 1 thereupon gave the constable a push. The constable asked him to take care, whereupon accused No. 1 slapped him. The constable then caught accused No. 1 by the collar of his shirt. Accused No. 2, who was near accused No. 1, asked the constable to let accused No. 1 go. The constable refused to do so. Thereupon accused No. 2 gave a blow to the constable on the abdomen and accused No. 1 gave him a blow on the face. The constable then loosened the belt round his waist and either struck or tried to strike accused No. 1 with the leather end of the belt. Accused No. 1 caught hold of the belt with both hands. Accused No. 2 asked accused No. 1 to let go the belt, and he also asked the constable to let go the shirt of accused No. 1, but neither would release his hold. Accused No. 2 then shouted to accused No. 1 to stab the constable. The word used in the charge by the learned Judge is "thrust in". ' Accused No. 1 replied that he had no Gha or instrument to stab with. Accused No. 2 then butted at the constable with his head. The constable released his hold on accused No. 1's shirt and fell on the bench of a tea shop close by. Accused No. 1 then caught hold of the belt, and as the constable tried to get up, he started striking him with the buckle end of the belt. Accused No. 2 was at this time warning the people in the crowd not to interfere. The deceased fell back a little in his attempt to1 ward off the blows. Accused No. 2 then gave him a blow with his fist on the right side of his neck. Accused No. 1 continued to strike the constable with the belt with the result that the constable again fell down. He got up again. Accused No. 1 continued to give him more blows with the belt until the belt broke. The deceased fell down a third time, accused No. 1 continuing to strike him with the belt. At this stage accused No. 1 called out to accused No. 2 "Why are you looking at his face, stab him ? " Accused No. 2 ran towards the shop and got a knife from a man who was there and returned. Accused No. 1 again called out to him " Why are you looking at his face, stab him ? " The deceased who had fallen down sat up again. Accused No. 1 struck him again with the belt and accused No. 2 stabbed him with the knife on his left buttock. After this accused No. 1 gave some more blows to the constable with the belt. At this stage two or three policemen who had been called by somebody in the crowd came up. They tried to catch the accused but both of them escaped. The injured constable was removed to the hospital at about 1-20 that night. He died within a few hours at about 5-40 a.m. The medical evidence shows that he had several abrasions on the left temple and cheek, near the right eye, a lacerated wound near the left eye, and a stab wound 1 1/2" long 1" broad and 5" deep on the left buttock which punctured the left internal illiac artery. According to the medical evidence the wound was such that if not treated it must cause death. Accused No. 1 was arrested three days later on December 28. The second accused was not arrested till nearly eight months later on August 12, 1943. After the arrest of each of the accused the police held an identification parade at which the witnesses who were subsequently examined at the trial identified both the accused.

21. On this view of the case it is not open to us to consider the point raised by Mr. Ghaswalla for accused No. 1, that there was an error on a point of law in the charge of the learned Judge with regard to the applicability of exception 1 of Section 300 to the facts of this case. Even, however, if we were at liberty to deal with this question, I am not prepared to say that there is any error of law in the learned Judge's charge on this point. Exception 1 to Section 300 was relied on by the counsel for the accused at the trial, although it had not been pleaded by either of the accused in their statements. The learned Judge has referred to this exception in his charge and has put it to the jury that no case of grave and sudden provocation, such as would reduce the offence from murder to culpable homicide not amounting to murder, had been made out on the evidence. That view appears to me to be fully justified. The evidence of all the witnesses showed clearly that it was accused No. 1 who struck the first blow. All that the constable did was to ask the accused, as well as Haji Abdulla and the other persons in the crowd, to move on. It is in evidence that when accused No. 1 resented this interference and asked the constable who he was and gave him a push and told him to go away, the constable raised his shirt and showed the policeman's belt which he was wearing under his shirt. He also warned accused No. 1 not to push him again. Thereupon accused No. 1 slapped the constable, and it was after this that the constable caught hold of accused No. 1 by the collar of his shirt. This is the story given by Mahomed Sujauddin and by Yasinkhan. The evidence therefore shows that the accused must have known before the fight began that the deceased was a police constable. Haji Abdulla has stated that as soon as the deceased raised his shirt and showed his belt he recognised it as a policeman's belt. The mere request or order to the accused to move on cannot possibly be regarded as such provocation as could in any way justify the act of the accused in attacking the constable. The constable was acting in the exercise of his duty in asking the accused and others to move on. Even if it could be argued that the action of the constable in asking accused No. 1 to move on, or in seizing him by the collar of his shirt after accused No. 1 had struck him, may to some extent have provoked accused No. 1, the provocation certainly could not be regarded as grave. In order that exception 1 should apply it must be shown that the provocation was so grave and sudden as to deprive the accused of the power of self-control. But an even more important consideration is that the stabbing which was the cause of the constable's death was done not by accused No. 1 but accused No. 2, and there is nothing whatever in the evidence to show that the slightest provocation had been given by the constable to accused No. 2. The altercation which occurred was between accused No. 1 and the constable. It was accused No. 1 who resented the constable's interference, not accused No. 2. It was not accused No. 2 who was seized by the constable or struck by him. It was after the constable had been knocked down three times that accused No. 2, at the request of accused No. 1, deliberately went and obtained a knife from some one in the neighbourhood and came back and stabbed the constable, who at the time was lying on the ground. His act was not done suddenly on the impulse of the moment and was absolutely unprovoked. The learned Judge was therefore perfectly justified in pointing out to the jury that even this exception which had been put forward by the counsel for the accused did not apply. The learned Judge has undoubtedly expressed his own opinion on this point in an unduly emphatic manner. But I am not prepared to say that the language used by him can be regarded as amounting to a direction to the jury that exception I did not apply. The utmost that can be said is that it was a very emphatic expression of the learned Judge's own opinion that the exception did not apply. It does not amount to a misdirection.