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department and it was alleged that it had been tampered with in the Kulingram post office.

On the 17th September the accused sent to Chouthkhamla a report on the complaint of
the remitter accompanied by a statement in writing of the postman Bepin to the effect that
the money had been paid by mistake to one Jonab whereas in fact it should have been paid
to Jolafau It was statal in report that the money had been recovered from Jonab ami instroc-
tions were a»ked about it. It was allegetl by the prosecution that the story was entirely false
and that in fact the payee Jonab was also called Jolab and that there was no other person of
either name (Jonab or Jolab) in the village to whom the money could have been paid.

On the same day the 17th September an explanation was called for from the Chouthkhamla
po«t office about the cnveloiw of the registered letter which api)eared to have been changed,
and the accused Sourendra replial that he had receivetl the letter in the state in which he
returned it. After submitting these explanations, the accused Souren<lra went away. On the
ard October, Inspector of post offices, Jnanendranarain Rai went to Kulingram aiKl commenced
^epquirx whiph lejl to yie in^titu^on o/thi^casc, . . , . .

In ihe coarse of hi* charge to the jury the learned Sessions Jadge

stated : —

" The above are the main facts allied by the prosecution. It is for you to decide how
far they are estatHished by the evidence.

** You are asked by the prosecution to infer from the facts disclosed in the evidence that
both the accused jointly conspired to embezzle this money and to conceal the fraud by falsely
representing that the money had been paid to the payee, and that in pursuance of that con-
spiraey the aeeused Bepin made a false certificate of payment and the accusetl Sourendra
fakiriy showed the amownt as paid in his accounts and returned the money onler form as paid
to the account office/'

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14$ .The C^imNAL I4AW. JpURNAJif ItBPQBtfi. {Vol/UI


^^bevoptised Saoj^ndra in his defence saye tbat he recciredthe money order and made
i^ over lirith ,%he money for its pay^nept to the accused Bepin and that he rooeived it hack Iq:
l^he ordinary <x>:tir9e of bu8ine88.as paid aijid relying on the postman's report showed the amount
as paid ij^ hjs d^bily account. Bepin o^ the other hand depies that he rec^ved the money or
had any thing to do with it and sayf. tl^t tjh^ sigoatiures ^egeil to be hisfirc foiged. There
is no attempt now to cQQtcnd thftt ,t)ie money ?ra^ in fa^t. paid ,to the .wpong perso^. It 4s, jiot
denied now . .th^ ^^ ^enpe , must haye ji^een ppminitt^ by one at le^t of^the accused. But
each of thorn tluco^ tbe bU^e.on the other. ... Wbil^ for the pro0wuti9n iit is contended that
they.^t^ Jn poBMwrt,, •. . . ,. I ,,:,(.:■•..■.' •

" Now I jftrst take tte case as against SoUre^tidra.' He admits that he was supplied with
funds to meei the money order, and tliat he showed the amount as paid in his daily account
6f the 21 fetJtily, and returned the money oider form as paid. Jonah, however, has given
lividience thAt the^ money was not paid to him afad there has been no attempt here to contend
ihat the nibney had been pdid to idm or to Anyone' else by mistake. Sourendra's defence is
that he accepted in gokxt faith the peon's story that the moiiey had been paid to the payee.

J *\Whf^t y;ou have to consid^ is wh^her undei^.the. circumstftijces you can accept his story
as credible. In deciding this you ought to take into account the whole conduct of Sourendr*
throughout. You should observe that the Kulingram post office is a small one and. that the
money order transactions do not appear lo be numerous or large, in fact it appws frcan the
daily account filed that this money order was one of rather exceptional magnitude for the
office. You should also observe that the accused is a resident of Kulingram and ther^ore
likely to be acquainted with the people of the neighbourhood, and although it is not to be
supposed that he was necessarily acquainted with all the MuhammadatiS of Terapura, he
would presumably have had no difficulty whatever i*i finding out who Jonab AH Was for whom
thA]iion^or(leriiv»»intended<and whether there 'were any. other persons of the name or
similar name if at any stage he were led to look intb'tbeiinatter for himself v and it woukl
have been p^ectly easy for him to di8C9ver that the money had not been paid to Jonah Ali
if once he enqui^^.

; " Now it may I«ea8bnably be contended that in the first instance there was nothing tti
acovse >sus|»idon or to lead hkn to enquire into the matter. But after ihe oontplaioft of the
i]ismitter reached him on the 11th September he certainly had reason for msfcing tenqniry and
it was after this on the 17th ^ptember that he submit^ied the explaiiatioik containing the
false statement that the money had beerf paid to the wrong man by mistake. It is for you
to consider whether you can accept the theory that he made this statement in gopd .feiith
blindly relying on the statement of the peon. . .-

" Then you have the evidence as to the non-delivery of letter, &c., addressed to Jonab All. ]
In the case of the unregistered letters and telegram it may be reasonably contended that this
might have, been the work of the peon without any connivance on the part of the accused
Sourendra." •i»»»«»fc««..,.

"Last you haye the qyidence ft? to the. interference of Amarendra the brother of the accus-
ed on the 30th Bhadra (15th September). There is a conflict of evidence as to w)iat actuaUy
took place and it is entirely for you to consider which witnesses you believe. The case for the
prosecution is that Amarendra sent for Jpnab and trted^tu induce him to accept the money,
while Amarendra's story is that Jonab came to him and asked his advice. The accused him^
self was not present on that occasion. The real importance of this evi4ei;|ce is in its bearing
on the explanation submitted by the acjjused on the 17th SeptemW as showing that Amarendra-
and therefore probably the accused also who is his brother and bves jointly with him, was
aware of the real facts of the case at the time wheq that false explanation was submitted."

The learned Sessions Judge then proceeded to deal with be chai^ against Sourendm
UDder sec. 477A of the Penal Code.

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Yol. Ilf] «The Criminal Law- Journal MbportS. 147


Finally he dealt with the case of die co-accused Bopin and concluded
his observation as follows : —

" You ought to give a careful consideration to the case of each of the accosocl individually
and' if in either case jou* think that there is any reasonable doubt you should give the accused
the benefit of that doubt.'' ...

The jury retumetl a unanimous venlict of guilty against Sourendi:a on both the charges
and of not guilty against the co-accused Bepin.

The learned Sessions Judge agreeing with the jury convictetl the accused SoureridrA And
s^tenced him to undergo rigorous imprisonment for three years on the charge under sec. 409.
i^o further sentence was pa^setl under sec. 477A. Bepin was acquitted. Sourei^lra appealed.

Babus Dasaraihi Sani/al, Amarendra NatU Bose and Sarat Cliandra
Laldn^ for the Appellant.

Mr. Douglas White^ for the Respondent.

The Judgment of the Court was as follows : —

The Appellant, Sourendra Nath Mittra, branch postmaster of KuHn-
gram, in the District of Burdwan, has been convicted by the jury of
ofFences punishable under sees.. 409 and 477 (a) of the Indian Penal Code,
and has been sentenced to three years' rigorous imprisonment.

The appeal before us rests on a question of misdirection by the Judge
to the jury. The Judge, although, dealing separately with the ^evidence
against the present Appellant and his subordinate peon, who was tried
with him, lias not warned the jury that the statement of one priaoner was
not to be used against his co-prisoner. That this is a material error has
been laid down in the case of Reg. v. Shek Miyavalad Daud (1);. and this
misdirection itself would warrant our setting aside the conviction and
directing a retrial. , . .

It has been further urged that the learned Sessions Judge has mis-
directted the jury in the following observations r " What you have to
consider is whether under the circumstances you can accept this story as
credible. In deciding this you ought to take into * account the whole
conduct of Sourendra throughout. You should observe that the Kulin*
gram post oflSce is a small one and that the money order transactjons do
not appear to be numerous or large, in fact it appears from the daily
accounts filed that this money order was one of rather exceptional magni-
tude for the oflSce. You should also observe that the accused is a resident
of Kulingram and therefore likely to be acquainted with the people/ of
the neighbourhood, and although it is not to be supposed that he was
necessarily acquainted with all the Muhammadans of Terapura, he would
presumably have had no difficulty whatever in finding out who Jonab
Ali was for whom this money order was intended and whether there were

^ny other person of the same or similar name, if at any stage he were led
(1) 6 Bom. H. C. R. (Crown Cases) 10 (1869). .

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148 ^HB Criminal Law Journal Reporj^^. fVt)!, Ill


to look into the matter for himself, and it would have been perfectly easy
for him to discover that the money had not been paid to Jonab Ali if once
he enquired."

No doubt, the Judge was entitled to state his opinion to the jury but
it is advisable in such a case that he should guard himself by indicating
clearly that the opinion is his own and that the jury are entitled to draw
their own independent conclusions upon the facts.

We think further that the evidence of the Appellant's brother Ama-
rendra and that of others proving Amarendra's conduct ought to be ex-
cluded upon the trial of the case, as there is nothing beyond surmise to
indicate that his source of knowledge was necessarily derived from the
accused and that he did not act solely upon his own initiative and without
any suggestion from the accused.

With these observations we direct that the conviction and sentence
of the Appellant be set aside and the case be sent back to be retried with a
fresh jury.

We further direct that the appellant be admitted to bail to the same
amount as before pending the new trial.

ii M. .'.. A-. Metrial ordered.

(15 K. L. R., 286.)


Feb. 16 [CRIMINAL SESSIONS CASE No. 16 of 1904-05.] 1905.

Present : — C. A. Kincaid, Esq., I. C. S. , ' ;





Murder h^ stick— Deceased suffering from intestine w wind colic— Penal Chde (Act XLV
of 1860) ss. 302,323.

A husband in an extra-judicial confession said he struck his wife at supper time with a
stick and that she curled up (ffiftv walio) and died at 3 a. m. Before a Magistrate he con-
fessed having struck her, but added that that night she complained of a violent pain in her
stomach (ffcte ekadtfo). Subsequently he retracted the confession. Defence brought evidence
that she had been previously suffering from fever, and for two months had had a violent
internal complaint. The stick was heavy and ironshod. It was also in evidence that some
nickel or G^man silver earrings worn by her excited his suspicions though she explained that
the had bought them. i5fe« that he should be convicted of simple hurt, as the witness, to
whom he confessed out of court, might have misunderstood what the accused saicL

Address to the Members.
As two o£ the accused committed to this Court have on the motion
o£ the Public Prosecutor been acquitted and discharged, we are at present
concerned only with the accused Jivo.

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Vol. Ill J. The Crihinal Law Jourkal Reports* U9


He stands charged with having on the 2nd Kovember 1904 caused
the death of his wife Nandu and thereby committed an offence punishable
under section 302, Indian Penal Code.

The two issues framed by the Public Prosecutor are : —

(1) Did the accused cause the death of Nandu ?

(2) And, if so, of what offence is he guilty ?

The facts of the case as they appear from the evidenoe supplied by
the Crown are somewhat as follows :

The accused and his wife Nandu were married in St. 1957 (A. D.
1901) and earned their livelihood as day labourers. Some 6 months
before the murder they rented a house or rather a room from the witness
Rani. On the evening before her death the accused and Nandu returned
from their work which appears to have been that of cooly labour at a
bungalow which was in course of erection by the Jasdan Dui^Mtr. It
appears that Nandu was wearing some nickel or German silver earrings
which excited the accused's suspicions. She explained that she bad
bought them. He however was not satisfied and as he stated to the
Magistrate struck her with his stick. About 3 a. m. the next morning, he
came into the room of his landlady Rani who lived in the same verandah
and waking her up said that his wife had died. Rani asked how and he
said that he had struck her with a stick and that she had at once curled
up and died. Rani went and saw the dead body and prevented Jivo from
running away as she feared that suspicion would fall on herself. She,
however, allowed Jivo to fetch in turn his mother and sister who took
away the body. Jivo locked the door and followed them. Next morning
the body appears to have been burnt. Some-how or other, probably
through Rani, the matter leaked out and a rumour spread that Nandu*s
death was due to foul pky. Two days later the rumour came to the ears
of her brother who was staying with his relatives at the neighbouring
village of Hingalvad. He went to Jasdan and laid a formal complaint
before the Faujdar. The latter questioned Jivo's sister and then arrested
the accused. He was sent to the Magistrate and was again on the 8th
requisitioned by the Faujdar when he produced the stick in Court. On
the 12th December he made to the Magistrate the confession Exh. 5 A.
Therein he stated that he struck his wife before supper and that she died
about 3 a. m. He has, however, added that that night she would not eat
and complaining of a violent pain in her stomach insisted on lying on the
floor instead of on the cot. Subsequently in the Magistrate's Court he
retracted the admission that he had struck his wife and in this Court h^
retracted every thing.

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150^ Thb CimnNAL Law JotRNAL Rkwrts, [Vol. HI


There are the facts on which the CV)urt has to judge the accused.
The counsel for the defence has contended that it is impossible to connect
the deceased's death with the stick blow and has relied upon the fact that
as stated by Rani the deceased had been previously suffering from fever
and that some two months before she had had a violent internal complaint.
I am of opinion that these pleas are not without w^eight. It is certainly
out of the question to convict the accused of murder. Of what other
offence, if any, has he been guilty. Now his admission that he struck his
wife is clear. But he struck her before supper. The public Prosecutor
has laid great stress on the evidence of Rani, according to whom, the '
accused stated that he struck his wife and she at once curled up and died.
Now although I think that Rani is a perfectly truthful witness, her state-
ment on this point is, I think, incorrect. The accused said in his confession
that his wife (goto chailyo) i. e. died of an internal complaint and the
words used by Rani are " goto tcalio " curled up. It is therefore quite
possible that she may have misunderstood what the accused said. I think
therefore under the circumstances the safest course will be to convict the
accused of having caused simple hurt to his wife.

(Sd.) C. A. Kincaid,
16th February, 1905, Judicial Assistant,

The Court agreeing with the President unanimously finds the accused
guilty of voluntarily causing simple hurt under sec. 323, Indian Penal
(^ode. Looking to all the circumstances of the case and the extremely
heavy and ironshod stick with which the blow was inflicted the Court
sentences the accused to undergo six months' rigorous imprisonment.

(Sd.) C. A. Kincaid,
16th February 1905. Judicial Assistant,

(Sd.) Kumar Dipsingji.
(Sd.) Amarji Bholanath.
(Sd.) Balubhai Pranjivandas.

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YoL in] Thk CanuHAi Law JoubkaI" Repobts. 151


(15 K. L. It., 302.)



Nov. 4 [CRIMINAL REVISION No. i op 1905-06.] 1905.

Present ;— H. D. R«n<kll, Esq.


OF BANTWA. / Applicant.


Omtempt of c(mrt— Indian Penal Code (Act XLVo/lSeO) #. ISS—DUobedienee to order
duljf promMlgated hjf public eerrant.

Where a person, who had unsuccessfully sued for a declaration of his rl^ht to make ' a
window, and who had been i*estrained by a civil court's order in his first attempt to make
openingsin his :wal),haTiiig again made boles, the defendant applied to prosecute him under
8. 188, 1. P. C. Mel4> that disobedience to a lawful order was not an offence under that sec-
tion, unless such disobedience caused or tended to cause some of the specific consequences
stated in that seciion; that that section applied to orders made by public functionaries for
public purposes and not to an order muKle in a cItU suit between party and party . (I, L, JB.
VI QU. 445) : that a contempt of a. ^iril court was a matter within the jurisdictioQ <^ the
civil court \ and that no order, passed by a criminal court coukl take effect

Held also that, as the woidipg of the application indicated thc^t the court was moved as a
Criminal Court, the application could not be treated as a civil one, as both the functions
being distinct, there was grave risk involved In their confusion or combination ; but that the
civil court was still open to the applicant. <

This is an application in criminal revision against the order o£ the
Njayadhish of Bantwa dated August 3rd 1906, passed on appellant*))
application dated 29th May 1905.

Mr. D. B. Shukla with Mr. A. Baxi for appellant. '

Mr. G. B. Munski with Mr. Lallubhai for opponent.

The facts of the cases as stated hy counsel for appellant are briefly
somewhat as follows.

In 1869 opponent's father brought a suit in the Court of the then
Special Assistant Bantwa, for a declaration of his right to make a window
in the back wall of his house and to restrain appellant's father from
obstructing him. In spite of a decision on 8th April 1869, opponent
attempted to make certain openings in his wall, but was restrained by an
order of the Prant Officer in appeal on 6th September 1879. This order
appears to have been communicated to the parties by the Nyayadhish and
when opponent recently made holes in the aforesaid wall, an application
was made on 31st May 1905 to the Bantwa Nyayadhish, containing three
prayers : —

(1) to proceed against opponent under section 188, 1. P.

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!li2 , Thr Criminal Law Joubnal Bepobtb. [Vot. HI


(2) to proceed against opponent for contempt of Court.

/'' (3) to have the holeii in the wall filled up and grant such other
relief or redress as may bo proper.

The Nyayadhis held that no oflEence under section 188, I. P. C, was
disclosed, that an application could not be made criminally in respect of
any such contempt of Court, and that the application^ must therefore be

I find myself in substantial agreement with the opinion of the Nyaya-
dhish. It is quite clear that disobedience to a lawful order is not an
offence under section 188, I. P. C, unless such disobedience causes or
tends to cause some of the specific consequences stated in that section.
In fact it applies to orders made by public functionaries for public pur-
poses, and not to an order made in a civil suit between party and party.
This is the view taken in the ruling reported at /. L. R. 6 Calcutta p. 445y
and Mr. Shukla has therefore abandoned any contention in this respect.
If then, as is admitted, the alleged contempt of Court was contempt of a
CSvil Court's order, it is a matter within the jurisdiction of the Civil Court
and no order passed by a court in the exercise of its criminal jurisdiction
could take effect. It is urged that the Nyayadhish has civil powers also
and that this Court has also appellate and revisional civil powers of the
highest order, and that the present application could have been dealt with
by the Nyayadhish and can now be decided by this Court. This conten-
tion cannot however avail, for the very simple reason that the wording of
the application to the Nyayadhish and the terms of the application to this
Court are a sufficient indication that both Courts were moved as criminal
Courts. This is not a mere technical error, it is a fatal bar to the present
proceedings; for I cannot allow the functions of civil and criminal
jurisdiction to be joined together for appellant's personal satisfaction.
These functions are distinct, there is grave risk involved in their confusion
or combination, and thisy niust therefore be kept separate. I accordingly
find it unnecessary to call upon the learned counsel for opponent to enter
into the merits of this application, and I direct that this application be

The Civil Court is still open to the present applicant ; if he desire to
seek a remedy there, he is of course at liberty to do so, and I can make no
pronouncement as to his chance of success whilst I am sitting as a ( -ourt
of Criminal Revision. The order of the Nyayadhish is therefore confirmed.

Rajkot: (Sd.) H. D. Rendall,

November 4th 1905. Judicial Assistant,


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Tol. ni] The Criminal Law Joui^al Rkkhh^. 153^

(2 C. L. J., 516.)


Augt. 28, 30 [CRIMINAL REVISION No. 757 of 1905.] 1905.

Present : — Mr. Justice Rampini, Mr. Justice WoodroflEe and

Mr. Justice Mookerjee.

J^Hol Code (Act XLV of 1860), tee. 147— Rioting— Comnum object— Clmrge, defective—
Precautions, if may he taken hg party in possession— Aggression— Prejudice— Code of Criminal
Procedtire (Act VoflSBS), sec. 537— Failure of justice— Itight of private defence.

Per Rampini, 7".— When a person does something improper and illegal and encroaches
stealthily on the land of others sometime before the day of occurrence, those other persons
have no right to come with a large body of armed men and to attack the person encroaching
and his companions and to beat one or more of them and they have no right of private

When persons endeavour to take possession of some property by means of criminal force
or to enforce a right or supposed right on it, and are prosecuted and know that they are tried
for the riot they committed for the purpose of taking forcible possession of the propei-ty, they
cannot be said to have been prejudiced in any way, and sec. 537 of the Code of Criminal Pro«
cedure is applicable.

Per Woodroffe and Mookerjee, JJ.— It is essantial to sustain a conviction under se3. 147
of the Penal Code that the persons forming the unlawful assembly should be animated by a
common object ; and in the absence of such a finding the conviction is not sustainable and
ought, on that ground alone, to be set aside.

"Where the findings of a Court negative the common object which is not very precisely set
out in the charge, and the charge is itself defective, and do28 not specify the property, the
taking possession of which is supposed to be the common object of the unlawful assembly, the
accused are thereby prejudiced and sec. 537 of the Code of Criminal Procedure should not be
taken recourse to, particularly when the specification of the property would alter the whole
complexion of the case.

If at the time of the occurrence the accused were in possession, their common object
could not have been to take possession by criminal force, and when the common object fails
and the substantive charge is disbelieved, the accused should be acquitted. It is not proper

Online LibraryKarl HeimThe Criminal law journal of India : a monthly legal publication containing full reports of all reported criminal cases of the high courts and chief courts in India → online text (page 42 of 91)