D. E. Cranenburgh.

A handbook of criminal cases containing a verbatim reprint of all criminal cases reported in vols. I. to XVI., Calcutta series, I. L. R. [1876-1889] online

. (page 65 of 166)
Online LibraryD. E. CranenburghA handbook of criminal cases containing a verbatim reprint of all criminal cases reported in vols. I. to XVI., Calcutta series, I. L. R. [1876-1889] → online text (page 65 of 166)
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Per Field, J. — It is the duty of a Judge to give a direction upon the law to the jury so
far as to make them understand the law as bearing upon the facts ; and if he does not give
them an explanation of the law sufficiently comprehensive to enable them to decide the par-
ticular issue, it is a misdirection.

Per Field, J, — Where a prisoner is constructively guilty of murder under s. 34 of the
Penal Code, it is doubtful if he can be said to have committed the offence of murder within
the meaning of s. 149, so as to make other prisoners, by a double construction, guilty of
murder.

Per Field, J. — Irregularities under s. 240 of the Criminal Procedure Code in the se-
lection of the jurors, and in the admission of the deposition of a medical witness treated,
it not being shown that the prisoners had been thereby prejudiced, as being objections which
ought not to be entertained for the purpose of interfering with the verdict, regard being had
to the provisions of s. 283 of the Criminal Procedure Code, 'and s. 167 of the Evidence
Act.

This was an appeal from an order of the Sessions Judge of Patna.

The facts of the case are fully set out in the judgment of Field, J.

Mr. BransoHy Mr. Huda, and Mr. Sandel, for the appellants.

The Officiating Advocate-General (Mr, Phillips) and Mr. M, Ghose for
the Crown.

The following judgments were delivered : —

•Field, J. — In this case eight persons have been tried and convicted under
s. 302, read with s. 142, of the Penal Code, and have been sentenced to trans-
portation for life. The circumstance out of which the case arose was a dispute
concerning a piece of land and the crop which, at the time of the occurrence,
was upon this land.

The first prisoner, Jhubboo, was originally charged under ss. 302, 326,
396, and 148 of the Penal Code. In the course of the trial, two further charges
were added, viz., that he, Jhubboo, was a member of an unlawful assembly,

* Criminal Appeal, No. 146 of 1882, against the order of H, Beveridge, Esq., Sessions
Judge of Patna, dated the 22nd February 1889,



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CALCUTTA SERIES. VOL, VIIL \ii



in the prosecution of the common object of which, namely, in taking posses- 1882.
sion of certain crops by force, one of the members committed murder by caus- "
ing the death of one Ibrahim Hossein, and that he was thereby guilty under
s. 302, read with s. 149, of the Penal Code; and, secondly, that he was a mem-



In the
matter of
ber of an unlawful assembly, in the prosecution of the common object of which, ^"^ Petition
namely, in taking possession of the crops by force, one or more of the mem- ^^ Jhubboo
bers caused grievous hurt to one Torab Ali, and that he had thereby commit- Mahton,
ted an offence punishable under s. 325, read with s. 149, of the Penal Code. 8 Cal. 739.

Against the next two prisoners, Lukshman Mahton and Umrao Mahton,
there were charges under s. 302, read with s. 149, s. 326, read with s. 149, and
s. 396 of the Penal Code. The charge under s. 302 runs thus : " That you
were members of an unlawful assembly, by a member of which, to wit, Jhub-
boo, an offence, to wit the murder of Ibrahim Hossein, was committed, such
as you knew to be likely to be committed, in the prosecution of the common
object, to wit, the taking possession of the crops by force. " Lukshman is also
charged with rioting, armed with a deadly weapon, under s. 148.

Against the remaining five prisoners — Harihur Mahton, Ramdehal Mah-
ton, Sajwan Mahton, Mahabir Mahton, and Ramjiwan Mahton — there are
charges under s. 302, read with s. 149, s. 326, read with s. 149, and s. 396 of
the Penal Code ; and in these charges the common object is indefinitely stated
to be ** the taking possession of the crops by force. " And the charges as to
murder and grievous hurt alleged that the accused persons knew these offences
to be likely to be committed in the prosecution of the common object. There
was also against Harihur Mahton an additional charge under s. 148.

Two observations may be made in respect of the prisoners other than
Jhubboo \ first, the charges against them did not allege that the offences of
murder and grievous hurt were committed in the prosecution of the common
object of the unlawful assembly, and yet the jury have found that these pri-
soners are guilty, on the ground that the offence of murder was committed in
prosecution of the common object of the unlawful assembly. The Judge gave
no direction upon the matter of the charge as framed, viz., that murder was
such an offence as the members of the unlawful assembly knew to be likely
to be committed in the prosecution of the common object ; he summed up as if
the charge alleged, which it did not, that murder had been committed in pro-
secution of the common object. It is reasonable to suppose that the Judge's
misdirection led the jury into error. Secondly, the charges allege that the offen-
ces of murder an^ grievous hurt were committed by Jhubboo Mahton. These
charges were not amended by the insertion of any such words as the follow-
ing : "or some other person unknown who was a member of the unlawful
assembly." The jury have found, as a fact, that Jhubboo Mahton did not com-
mit the murder; and if Jhubboo did not commit the murder, it is not easy to
understand how the prisoners other than Jhubboo could be constructively con-
victed of murder, on the ground that murder had been committed by Jhubboo
in prosecution of the common object of the unlawful assembly.

Five persons are said to have been injured in the course of the riot — name-
ly, Ibrahim Hossein, Imdad Ali, Gohur Ali, Torab Ali, and Abdul Karim. Of
these, Ibrahim Hossein has since died, in consequence, as is alleged by the
prosecution, of the injuries which he received on the occasion of the riot.

In the petition of appeal which has been presented to this Court, a num-
ber of points have been t^ken ; biit as they have not all been pressed upon us,



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UATTBR OP

THE Petition



4 2 2 INDIAN LA W REPORTS.

1882. I shall, before proceeding to deal with the Judge's charge to the jury, notice

"T those only which formed the subject of the arguments addressed to us.

In the

The first point is, that the jurors who tried the case were not, as they should
have been, chosen by lot from the persons summoned to aft as jurors. S. 239
of the Code of Criminal Procedure directs that assessors shall be chosen by the
OF jHUBBoo judgg s. 240 directs that the jurors shall be chosen by lot from the persons
Mahton, summoned to act as jurors. If. as is alleged in the petition of appeal, the Judge
8 Cal. 739. himself selected the jurors instead of choosing them by lot, he acted contrary to
the provisions of s. 240. But as there is no serious contention that the appel-
lants were in any way prejudiced by what the Judge is said to have done in this
matter, I think the objection is not one which ought to be entertained for the pur-
pose of interfering with the verdict, regard being had to the provisions of s. 283
of the Code of Criminal Procedure.

The next point is, that, although the police-officer, Ram Surrun Lai, was
allowed to refresh his memory by looking at his diary, the Sessions Judge im-
properly refused to allow the counsel for the defence to see this diary. What
really happened was this : The police-officer, Ram Surrun Lai, when under ex-
amination, was asked whether he took down the statement made by the witness
Leakat, and he replied that he did. He then read, or refreshed hij memory,
by looking at the original statement so taken down by him. This was, as I
understand it, a statement taken down under the provisions of s. 119 of the
Code of Criminal Procedure, and was not necessarily a part of the diary which
a police-officer is required to keep by s. 126. The particulars which s. 126 re-
quires to be recorded in a police-diary do not include any written statement
taken down under s. 119 ; and from the papers produced before us, it would
appear that, as a matter of fad, the written statement was not an integral portion
of the diary. Having looked at Leakat's statement, the police-officer said, in
answer to a question put by the prisoner's counsel, that it contained nothing about
Jhubboo jumping on Ibrahim. The objeft of asking this question was to show
that Leakat in his first statement to the police had said nothing about the pri-
soner Jhubboo jumping on the deceased Ibrahim. The medical evidence
showed that Ibrahim had received internal injuries, and the theory of the de-
fence was, that, after these injuries were discovered upon 2, posi-mortem exami-
nation, the witness Leakat improved his testimony by adding a statement about
Jhubboo jumping on Ibrahim with the objeft of accounting for the internal in-
juries discovered by the post-mortem examination. As, however, the police-
officer stated that Leakat had said nothing to him about Jhubboo jumping on
Ibrahim, the object of the question was attained, and it was unnecessary for the
prisoner's counsel to ask to look at the diary.

The police-officer then stated in answer to a further question that the state-
ment taken by him did not record that Jhubboo had given orders. It appears
from a note made lower down by the Sessions Judge that this question also
was answered by the witness after looking at the written statements taken by
him, when he questioned the persons afterwards called for the prosecation in
the Court of Session. Here also, as the answer of the witness was all that the
prisoner's counsel could desire, there was no necessity for him to look at the
original statement with which the witness refreshed his memory, and he did
not ask to do so.

After this we have nearly a page and-a-half of the same witness's cross-
examination, and then we find that the witness was asked — ** Did Torab AH sa^
anything to you al>out his having seen Gohur All, Imdad Ali, and Abdul Karim
being struck ? " The answer was, " I do not remember, " Before giving this



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CALCUTTA SERIES, VOL. VltL 423

answer, it is not contended that the ^vitness again looked at the original state^ 1882.

ments of the witnesses, and the Judge then makes this note — " The counsel for •

the defence wishes to see the diary, and to make the witness refresh his memor}' '" '"'"*
therewith. The Court declined to do this. " It is now contended that because ^^'^^^ o^
before answering the two first questions above referred to, the witness had look- "^"^ PftTirioN
ed at the original statements in order to refresh his memory, the counsel was ^^ Jhubboo
entitled to see the diary when, at a later stage of the examination, the witness Mahton;
gave the answer, " I do not remember." I think that this contention is unten- 8 Cal. 739.
able. I have first to observe that, although the term * diary' has been used, I
take it that what the Judge and the counsel were really alluding to was the state-
ment taken down by the police-officer under s. 119. Having regard to s. 161
of the Evidence Aft, the prisoners' counsel was entitled to see the writing with
which the police-officer refreshed his memory in order to answer the first two
questions. This writing was, as to the first question, the original statement of
Leakat. What the writing was with respect to the second question is not very
clear.

Now, the writing which the prisoners' counsel desired to see when the wit-
ness said, " I do not remember,*' was not the statement of Leakat, but the state-
ment of Torab Ali. I think that, as the prisoners' counsel did not exercise
bis right to look at the writing when the first or when the second question was
answered, but allowed the examination to proceed, he lost his opportunity of
claiming to look at the writing to which the witness referred before answering
the first and the second questions. I do not assent to the argument that, because
counsel was entitled to see the writing which contained the statement of Leakat,
he was, therefore, entitled to see other writings which contained the statements
of persons other than Leakat, and which had no connection with Leakat's state-
ment, except that they were taken in the course of the same inquiry by the police.
Nor can I assent to the argument that counsel, having a right to look at a parti-
cular writing before or at the moment when the witness used it to refresh his
memory in order to answer a particular question, and not then exercising this
right, continued to retain it throughout the whole of the subsequent examination
ofthe witness.

The grounds upon which the opposite party is permitted to inspect a writ-
ing and to refresh the memory of a witness are threefold : (i) to secure the full
benefit of the witness's recollection as to the whole of the facts; (ii) to check
the use of improper documents ; and (iii) to compare his oral testimony with
his written statement. The opposite party may look at the writing to see what
kind of writing it is in order to check the use of improper documents ; but I
doubt whether he is entitled, except for this particular purpose, to question the
witness as to other and independent matters contained in the same series
of writings. I think, therefore, that, at the particular stage at which the pri-
soners' counsel asked to see what he called the diary, by which I presume he
meant the whole series of writings containing the statements of all the persons
examined by the police-officer, |he was not entitled to exercise the right claim-
ed in the particular way claimed by him. I further think that the Sessions Judge
was not bound to compel the witness to look at the so-called diary in order to
refresh his memory ; and that it was wholly within his discretion whether he
should do so or not.

The third point is that the deposition of the medical officer was taken by
the -Magistrate when only three prisoners — namely, Jhubboo, Lukshman, and
Umrao— were before him, and that, as regards the remaining five prisoners,



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4i4 INDIAN La W MPORtS.

1882. this examination of the medical officer was improperly used as evidence in the
— — — ^— Court of Session, inasmuch as it was not taken by the Magistrate in their pre-

IN THB «^«*<^.»

sence.

MATTER OF

THE Petition Under the provisions of s. 333 of the Code of Criminal Procedure, " the ex-

OF Thubboo ^^^'^^^^o^ o^ ^ CW\\ Surgeon or other medical witness, taken and duly attested
- by a Magistrate, may be given in evidence in any criminal trial, although the

' person examined is not called as a witness, but the Court may summon such
* ^^^* Civil Surgeon or other medical witness if it sees sufficient cause for doing so."
I take it that, in order to be admissible under this section as evidence against
any individual accused, the examination must have been taken by the Magis-
trate in his presence. In the present case, I think it exceedingly probable that
the examination of the medical witness was not taken in the presence of the five
prisoners other than Jhubboo, Lukshman, and Umrao. At the same time I can-
not say that this is a point upon which there is no possible doubt. No specific
objection to the admissibility of the medical officer's examination was taken upon
this ground in the Court of Session. If such objection had been taken, it is just
possible that matter might have been forthcoming to show that the other five ac-
cused were present in person or by agent (s. 191, Criminal Procedure Code)
when the medical officer was examined by the Magistrate.

The medical officer was called in the Court of Session, and it has been con-
tended before us that, as he was called, his deposition taken by the Magistrate
was absolutely inadmissible. I do not assent to this argument. I think that a
deposition, properly taken, may be put in, and that the medical officer may then
be called and further interrogated upon any points upon which there had not
been a sufficient examination by the Magistrate. In the present case the medi-
cal officer was called, and was cross-examined by the prisoners' counsel. It is
true that this cross-examination was expressly stated to be on behalf of one of
the prisoners only; but it is equally true that counsel had an opf)ortunity of cross-
examining on behalf of all the prisoners. One important reason why a depo-
sition not taken in the presence of a person sought to be affected by it is inad-
missible is, that such person had no op[>ortunity of cross-examining the witness.
In this case all the accused were afforded this opportunity in the Court of Session.
Then, further, it has not been contended that, if the medical officer had been
examined again in-chief in the Court of Session, any advantage would have ac-
crued to the appellants which they could not have obtained by cross-examining
him when he was called by the Sessions Judge.

Under these circumstances, I think, it has not been shown to us that the
prisoners were prejudiced by the irregularity, if committed ; and, with reference
to s. 383 of the Code of Criminal Procedure and s. 167 of the Evidence Aft, I
think that this objection would not justify us in interfering with the verdict.

Having disposed of these preliminary questions, I now come to consider the
Judge's charge to the jury, and as the conclusion to which I feel myself con-
strained to come is, that this charge is radically defective in at least two essen-
tial particulars, I shall set out the essential portions of the charge, and state
somewhat fully the grounds upon which I am led to this conclusion.

After some preliminary observations the Judge proceeds to say : " The
first question which you have to decide is — ^Was there a disturbance in the vil-
lage of Sopowan and plot called Jhikitia Kunda on the morning of Monday, the
28th November last, and were Ibrahim and four others wounded there ? There
can be no doubt that Ibrahim is dead, and I do not think that there can be any
reasonable doubt that he was killed. The medical evidence shows that he had



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CALCUTTA SERIES. VOL. VIIL 4*5

a severe and dangerous wound on the left arm. The ulnar artery had been i8to.

cut, and the ulnar bone broken and comminuted, and this wound appeared to

have been inflicted with a sword. The medical evidence shows that death was

the result of haemorrhage and shock. '' "^nl^^

He then proceeds to remark upon the injuries said to have been caused to ^ jinmtfoo
Torab Ali, Imdad Ali, Gohur Ali, and Abdul Karim ; and after this he says : jl/u-^^-
** The next questions which you have to decide are : Were the prisoners present *

at that disturbance ? Did they take part in it? Was that disturbance a riot? ^^***^'
Did the prisoners take part in the riot ? Was the common object of the rioters
to take possession by force of a crop of paddy, and were the killing of Ibrahim
Hossein and the wounding of the other four men done in prosecution of the
common object of the rioters ? The question of the presence of the prisoners
and of their participation in the riot must be considered by yoif separately for
each prisoner. You must consider if the evidence shows that each of the pri-
soners was present and took part in the riot. If you have any doubt as to the
presence or participation of any one of the prisoners, you will give him the be-
nefit of it. If you find that there was a riot, and that the prisoners took part
in it, then you have to consider under what circumstances the riot was com-
mitted. It is evident that the dispute was about the cutting of a crop of paddy.
A most important question here arises — namely, who cultivated the land and
sowed the paddy ? "

After this he discusses the question as to who sowed the paddy ; and he
then continues : —

" You will ask yourselves who sowed the land ? Was it Jhubboo or Leakat ?
If you find that Leakat sowed the lands, then Jhubboo's right of private defence is
gone,^ whether the land was really his or not. For if be allowed^ Leakat to take
possession in Assar, he had no right to resist the cutting in Aghran. If Leakat
sowed the land in Assar, even though wrongfully, his cutting the crop in Aghran
was not theft, &c., so as to give Jhubboo a right of private defence.' If you
find that Leakat sowed the crops, and that the prisoners were present and took
part in the riot, I think that you must find them guilty.^

" If, again, you find that the crop was sown by Jhubboo, then the question
which you have to ask yourselves is — if he and his party exceeded their right
of private defence ? The fourth exception to s. 99 declares that the right of pri-
vate defence in no case extends to the Inflicting more harm than it is necessary
to inflict for the purpose of defence. Did the prisoners or any of them exceed
this limit ? The evidence shows that there were some 300 Kurmis armed with
swords and latties, while there were only four or ^vt Mahomedans, and that they
were unarmed. I do not think that it can be said that they needed to wound
three persons and kill a fourth in order to preserve the paddy.^ The case is

' The soundness of this direction is very questionable. — Note bv Field, J,
^ It is said that there is no evidence that he allowed him ; that no such case was
made ; that the prisoners did not rely upon the right of private defence, but denied the
transaction asstat^ by the prosecution ; and* that the Judge, assuming for the prisoners
a defence based on the exercise of the right of private defence, misled the iury with sup-
posing that they admitted the facts, and sought to explain away their criminality. — Note
by Field, J.

' This also is questionable. It can scarcely be said that, if A wrongfully sows a crop
on B*s land, A is entitled to reap this crop, and B has no right to prevent him. — Note by
Field, J.

* Of murder. — Note by Field, J.

* It might, with equal truth, have been pointed out that two hundred men did not
need to wound three persons and kill a fourth in order to achieve the common object ^f
getting possession of the crop.— 'Note by Field, J.

L L. R.i Cal. 54*



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426 INDIAN LAW REPORTS.

1883. rather one of killing and wounding under grave and sudden provocation,^ and
therefore punishable under ss. 304, 334, and 335. Here it will be necessary
IN THE £qj. y^^j ^Q consider the evidence against each prisoner/'

THE Petition '^^^ Sessions Judge then discusses the part which Jhubboo took in the oc-
1 BBoo c^'^r^^^®' ^^^ adverts to the fact that the witnesses in their statements before

°M ^^® police, and the deceased Ibrahim in his dying declaration, said nothing

MAHTON, i^bout Jhubboo giving orders or jumping upon Ibrahim when down. The
S.Cai. 739* direction of the Judge uf)on this part of the evidence was particularly favour-
able to the prisoner Jhubboo. In order to enable the jury to consider the effect
of the evidence against each of the other accused, the learned Judge says that
he here * summarized * the evidence of each witness ; but the charge does not
contain this summary. The Judge then proceeds : " If you find that the crop
was sown by Jhubboo, and that he and the other prisoners had a right of pro-
tecting the crop from being cut and carried away by Torab and Leakat's party,
but that the limits of the right of private defence were excee'ded, you shall con-
sider what, in your opinion, each prisoner did. Jhubboo is said to have order-
ed the killing of Ibrahim, and to have aided in doing so by stamping on his
chest, Ac. He is also said to have wounded Torab, an old and feeble man.
It could scarcely have been necessary for him to do this in order to defend*
his property. Lukshman is said to have wounded Gohur Ali with a sword, and
Harihur to have wounded Abdul Karim with a sword. The other five are all
said to have used their latties. If you believe that they did, and that they ex-
ceeded their right of private defence by doing so, then you can find them guilty
of causing hurt. You will also remember that, if all the prisoners joined toge-
ther in assaulting the other side> and if they were not justified by the law of
private defence in doing so, or if they exceeded that right by striking the other
party, then they were an unlawful assembly, and each is liable for the acts done
by the assembly or any member thereof. You will also remember the law that
an assembly not originally unlawful may become unlawful afterwards. If the
crop was Jhubboo's, and he and the other prisoners went to protect it, they did
not commit a riot by assembly ; but if they went on and attacked the other party,
and in doing so exceeded the limits of their right of private defence, they be-



Online LibraryD. E. CranenburghA handbook of criminal cases containing a verbatim reprint of all criminal cases reported in vols. I. to XVI., Calcutta series, I. L. R. [1876-1889] → online text (page 65 of 166)