Karl Heim.

The 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

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vm offence being murder — Sentence,

When an accusal person is convicted in the alternative, one of the offences of which
he might be gniltj being murder, punishable under section 302 of the Indian Penal
Code, section 72 so far overrides section 302 as to admit in such a case of a less punish-
ment than transportation for life being inflicted.

Empbrob r. Sajbeb Singh .,. ... ... ... ... 364

'■ '- 8.81. iSft? P. C, 8. 279 ... ... ... 494

88. 84, .302 — Jfurder — Lvsanitij^ ttigiu and indicia

of — Melanc/udie hitmicidal mania— Incapability ofknnoing illegal nature of act.
The prisoner who was charged with committing murder was a young man of weak
intellect, and the motive actuating the offence was trivial and inadequate. As soon as she
had killed his uncle by hacking him on the head and neck with a sword, the prisoner,
rushed about, brandishing his weapon and shouting " Victory to Kali." He attempted
to strike other persons, including his own father. When the paroxysm had passed off,
during ths police enquiry, the prisoner appeared to be rational, but immediately after-
wards, he developed aphasia^ attempted to commit suicide and was undoubtedly insane
from that time for a period of five years :

Held— That the above are the signs and indicia of insanity as expressed in works
on the subject of Medicial Jurisprudence, and that the prisoner was suffering from a fit
of melancholic homicidal mania at the time he hackeil the deceased with the sword and
was, by reason of unsoundness of mind, Incapable of knowing that he was doing an act
which was wrong or contrary to law, and ther^ore he was not guilty of murder.

Shibo Koebi r. Empebob ... ... ... ... ... 469

L-: -« :_' s, dQ— Right of pricate defence of body — Extent

of rigfU,

The view that a person could have escaped further injury by resorting to less vio-
lence or running away places a greater restriction on the right of private defence of the
body than the law requires. The principle is that a man who is assaulted is not bound
to modulate his defence step by step according to the attack, before there is reason
to believe the attack is over. He is entitle<l to secure his victory, as long as the contest
is continued. He is not obliged to retreat, but may pursue his adversary till he finds
himself out of danger. The ([uestion in such cases is not whether there was an actually
continuing danger, but whether there was a reasonable apprehension of danger.

Alikgal KuNHiNAYAN r. Emperor ... ... ... ... 43

execution of his duty — Vacci-nator attempting to racoinate a child forcibly — Right of

pricate defence,

A vaccinator attempted against the wishes of the child's father to vaccinate a child,
the son of 6ne Bahal. Bahal and some of his relations interveneil and assaulted the vac-
cinator, but did iiot do him any particular haim. Jff^ld that the child's father and other
relations were perfectly justified in interfering, and under the circumstances could not
be said to have acted in excess of their right of private defence.

Empebob r. Bahal ... ... ... ... ... ... 368

s. 100— Right of pricate defence extending to can^

eing of death of auailant.
Where the deceased, sturdy and dissolute youngman, upon a quarrel with the accused,
his uncle and his uncle's son, aged 70 and 35 years respectively, after an exchange of
abuse snatched up a heavy jatu (side post of a cart) 3 feet long and aimed a blow
with it at his uncle and possibly another at his uncle's son and his uncle's son seized a
second jatu^ two feet long and struck the assailant twice on the head with it in conse-
qut^nce of which he died. —

I£el4. that there was no excoss of the right of private defence and the accused had
committed no offence —

Empebob t. Nga Po Gyi ... ... ... ... ... 232

8.107. iS^/j P. C, s. 302 ... ... 317

— -^ s. 109. S?.e P. C, s. 496 ... ... 488

— s. 141, l^\— Members of un^^itpfnl assembly —

Physical jfossession^ and right to possession — Dishonesty — Remocal of joint property

by joint owner without other owner's consent — Joint possejssion — Postession as trustee —

Difference between maintaining right^ and taking or enforcing right.

In a partition effected between two Kathi Talukdars, the joint account books were

agreed to be kept in the pos^tession of the elder brother, and a list of the books signed

by that brother was to be banded over to the younger brother. Before the books were

Digitized by



( xxxiii )

Penal Code [Act XLV of ISeo], ss. Ul, 144— contlnueil.

haudctl over, they were kept in a room belonging to the latter, an^l thj key v/lth a
servant of the former. Another servant of his. then went to prepare the list-, but, as
the Agency Manager of the younger brother, who was minor, objected to the entry of
certain books, alleging they were the minor's exclusive property, he did not finis'.i liis
task and left, but returned with a cart to take away the books, when the Manriger pro-
liibite<l the removal of the cart owing to that clerk not having passed a receipt. He
Ihr.i brought armed men, and in spite of tlie Jlanager's having posted two policcnicn
wiih a written order not to allow the removal of the cart containing the books, he
rt-movwl the books without passing any receipt. These persons were accortlingly con-
victel under 8. 144, 1. P. C.

Udd that, as the elder brother had admittedly the key of the library room, and als ),
as such was the reasonable interpretation of the partition dee<l, the physical pjs-H^asion
was with him : that the provision in the deed for lists to be made and the el<ler brother's
receipt to be obtained below one list, was a subsequent provision ; that there was no
reason to regard it as a condition precedent ; that a Criminal ('ourt was conceruc;!, not
with title, but with actual physical possession, which was, of course, a very different
thing from the right to possession; (S. 145, 1. P. C, I. L. R. XXIV Cile. 08^, and
XXV Mad, 624): and that, if the elder brother had the exclusive possession, he was not
taklnj possession enforcing the right in possession, but merely maintaining it (W. K.
for 1865, p. 43).

//<?W also that, supposing he was only in joint posse^^sion as a qunfl trustee, even
then he did not appear to have committed any offence, such removal being con-i-^tent
with joint possession ; that, though he was not asserting an exclusive title by sujh re-
moval, still he was removing as a trustee and was entitled to maintain his joint po ses-
sion (XXV Mad. 624) ; and that the omission to give a receipt did not bring the accused
persans' action within the sphere of s. 141, I. P. C, nor could the police sjpoyj be held
to be in physical possession of the books when they were placed in the cart.

Ahmad Kasam r. Emperob ... ... ... ... ... 443

s. 144. S.-e Penal Co le, s. 141 ... ... 443

s. 147 — lUotinfj — Common ohjert — Chnnjc^ fJr/r^'-

tire — Precaufimix^ if may he taken by partf/ in poMe,t.xinn—Arfffrr^gi(m -Preluding—
Code of Criminal Procedure (Act V of 189S)^ sec. 537— Failure of Justice — Jtight (f
private defence,

Pv Jlampini^J. — When a person does something improper and illegal and encroaebas
stealtliily on the land of othei-s sometime before the (lay of occurrence, thosj other
persons have no right to come with a large b xly of armed men and to attack the p'.Tso:i
encroaching and his companions and to beat one or more of them and they have no right
of private defence.

When persons endeavour to take possession of some property by means of criminal
force or to enforce a right or 8Upj>08etl right on it, and are prosecutal and know that they
are tried for the riot they committed for the purpose of taking forcible [MMsession of the
property, they cannot be said tt> have been prejudice<l in any way, and sec. 537 of tho
Code of Criminal Procedure is applicable.

Per Wtwdroft'e and MMfffrJee, JJ.—Jt is essential to sustain a conviction under sec.
147 of the Penal Code that the persons forming the unlawlnl assembly should be aiiimat*
ed by a common object ; and in the absence of such a finding the conviction is not sus-
tainable and ought, on that ground alone, to be set aside.

Where the findings of a Court negative the common object which is not very i>recisely
set out in the charge, and the charge is itself defective, ami docs not specify tht^ properly,
the taking posicssivm of which is supposed to be the common object of the unlawful
assembly, the accused are thereby prejudiced and S2c. 537 of tlie Code of Criminal Pro-
cetlure should not be taken recourse to, particularly when the hpecification of the pro-
perty would alt?r the whole complexion of the case.

If at the time of the occurrence the ac-'us2d wore in jw-se^sion. their common objcft
could not have been t> take possession by criminal force, and v.'Jien the common object
fails and the substantive charg.i is <lisbjlieved, the ac:*usL» 1 should be a<' juitted. It is not
proper for an appellate Cjurt, wliichdisbelieves the alleged common object of an unlawful
aaMimbly, tj find out a different common object regarding which tlie accuse I were never
called upon to plead nor trieil, and affinn the conviction.

Per Maokerjee^ ./.—Although the High Court will not, as a rule, in the exercise of
its revisional jurisdiction, go into thi evidence and examine the validity of the conclusions
of the Court below, it may, in exceptional cases, enter into mattsrs of fact if it thinks tit.

Digitized by



Penal Code [Act XLV of 18C0], s. 147— continued.

If persons are rightfully in possession of land and find it necessary to protect them-
selves from aggression, they are justified in taking precautions and using such force as is
necessary to prevent the aggression.

Pares Nath Sibcau r. Emperor ... ... ... ... ... 153

8. 154— rV'/w/w/// Procedure (\tde (Act V of 1898),

M, 190 and S66 — JCuft — Vnlaicfnl attscmblij.

Held, that in order to convict an accused person of an offence under s. 154, Indian
Penal Code, the following facts must be established : — (1) That an unlawful assembly or
riot has taken place on the land owned or occupied by the accused or in which he claims
an interest ; (2) that he, knowing that such an offence is being or has been committed or
having reason to believe that it is likely to be committed, does not give the earliest notice
thereof to the princi(>al officer in the nearest Police Station ; (.S) in the case of his having
reason to believe that it was about to be committc<l he does not use all lawful means in
his power to prevent it ; and (4) in the event of its taking place he does not use all
lawful means in his power to disperse or suppress the riot or unlawful assembly.

Baja Bhagwan Bakhsu r. Emperou ... ... ... ... 27

s Ul—Brihery-^Bcid^Hce Act (I of 1872), #. 114

(b) — Utidence of accomplice — Admissibilittf — Corroboratiim—Bribe^girerandwitMtiteA
to payment of bribe.

The person who gives the bribe is an abettor of the offence under s. 161, 1. P. C, and
as such an accomplice. But all persons coming technically within the category of ac-
complices cannot be treated as precisely on the same I'ooting, and no general rule on the
subject can be laitl down. The witnesses to the payment of a bribe are not accomplices
unless they hatl co-operated in the payment of the bribe, or were instrumental in the
negotiations for its i)ayment.

Where the bribe-giver does not offer a bribe ivillingly, but the official concerned makes
use of his official position to enforce his illegitimate demand, and the witnesses as to
])ayment of bribe are not striving to save themselves by throw^ing the blame for the
offence upon the bribe-taker :

i/<?W— That a conviction could be based on the uncorroborated testimony of such
witnesses though accomplices. At any rate they arc such witnesses that a much slighter
degree of coiToboration is needed to establish their credit than would be the case if they
were entirely voluntary accomplices in the offence which they speak to.

Deokakdan Pershad Sinoh r. Emperor ... ... ... ... 452

— s. 172 — AbjtcondiHg in order to avoid being serred

with a summnns, nttice or order— Uunninrj atony to avoid arrest under a warrant,
Hection 172 of th3 Indian Penal Code has no application in the case of a warrant
which is not a 'summons, notice or onler' and a conviction under that section for abs-
conding in order to avoid being served with a warrant is bad in law.

Majhi Mamud f. Emperor ... ... ... ... ... 117

: s. 173. Sse Police Regulation Act, s, 17 ... 169

• — ■• s. 175 — Order directing production of a deed —

Sub-RegtJftrar^ power of to order production—PaHy, if legally bound to produce it—
Xon-production^ if an offence,

A person called upon by a Sub-Registrar to produce the original document which
was registered in his office to enable him to compare it with the copy of the tleed in the
Registration Office Register, which, it was suspected, was tampered with, is not legally
bound to produce it, and he cannot, on his failure to do so, be convictetl under sec. 175
of the Penal Code.

Armatullah r. Emperor ... ... ... ... .., 114

s. 176. See Cr. P. C, s. 403 ... ... 388

TTT"": — 7~Z s- ^S2— False information to a Village Magistrate

—Cnmtnal Procedure Code (Act VoflSOSJ, w. 154 102,

It constitutes an offence under s. 182 of the Penal Cotle if a false complaint with evil
intention is made to a Village Magistrate for the purpose of being passed on to a Station-
house Officer, and which it is his boun<len duty so to pass on. On such passing on of the
complaint the Station-house Officer is justifietl to take the complaint in writing from the
informant and such written complaint is one under s. 164 and not under s. 162 of the
Criminal Procedure Code.

Emperor c, Jonnalagadda Venkatrayudu ... ... ... ... 108

— 8*182. iS5p^ Cr. P» C.J 8. 195 .„ ,,, lU

Digitized by


88. 192, 193 — Fabricating false evidence— Red-


( XXXV )

Penal Code [Act XLV of ISOO], 88. 183, n^-Attachment, Obitrmthn of-^Waf^^
rant, Illegalitiei in—

The petitioner was convicted for obstructing an attachment of his property and the
conyiction was upheld on appeal.

It was objei ted on revision that the warrant of attachment being illegal the attach-
ing officer was not duly empowered to affect the attachment and no oflfence was commit-
ted by the petitioner obstructing him.

It appeared that the order of the C!ourt was for attachmentof the judgment-debtor's
property which might be pointal out by the decree-holder but the petitioner was not the
judgment-debtor, and the attaching officer was not provided with a list of the property
to be attached as contemplated by sections 236 and 486 of the (Mvil Procedure Cotle.
Further the warrant was not signed by Court, the provisions of last paragraph of section
483 of the C5ivil Proeotlure Code were not complied with and the parts of the Form used
relating to security were left blank.

Held^ that the objections were valid and the conviction must be sat aside.

Prabh Dyal f. Emperob ... ... ... ... ... 75

8.186. i»V8. 188 ... ... ... 75

s. ISS— Disobedience to order duly promulgated by

public servant — Contempt of court.

Where a person, who had unsuccessfully sued for a declaration of his right to make
a window, and who had been restrained by a civil court's order in his first attempt to
make openings in his wall, having again made holes, the defendant applied to prosecute
him under s. 188, I. P. C. Held that disol^edience to a lawful onler was not an offence
under that sactioii, unles^i such disobedience caused or tcndetl to cause some of the spe-
cific consequences stated in that section ; that that saction applied to orders made public
functionaries for public purposes and not to an order made in a civil suit between party
and party (I. L, R. VI Cat. 445) ; that a contempt of a civil court was a matter within
the jurisdiction of the civil court ; and tliat no order passed by a criminal court could
take effect.

J^#/i also that, as the wonl Ing of the application indicated that 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 involval in their confusion or combi-
nation : but that the civil court was still open to the applicant.

McMON Haji Habib Varindsheixhu r. Memon Haji Jusab Habib ... 150

ss. 191, \W^~Santiijn tj prosecute — Perjury —

Statement not material to thf case ~Xot goinj tj the credit of the witness — Past hixtjry
of the witness — Intentional falseh. Hid — Criounul Procedure O^de^ section 195,

In sanctioning proceedings for perjury against a witness the Magistrate should
remember that the statement must be intentionally false in order to justify a prose-
cution. When the question is neither material to the issue in the case, nor goes to the
credit of the witness, (,tembl^) he is not liable to prosecution. Some allowance ought
to be made to a witnesj seeking to evade sjme matter relating to, for instance, his past

Sheodahin Singh r. Bandhan Singh ... ... ... ... 46

tals in a document implying false statements— Criminal Procedure Code (Act V of
1808), s. 195, cl, (b)—Sinction —Public sei* cant— Court.
The accused fabricated a zaminnama, in which he made certain false recitals imply-
ing that two excise licensees had executed a sub-lease in his favour, which if they had
done so, would have rendereil their license liable to be cancelled. After fabricating the
zaminnama the accusetl petitioned the Excise Collector stating execution of the sub-
lease. On enquiry all this was found to be false and the zaminntima a fabrication.
Upon this the Collector ordcretl that if the licensees did not, within three days, take
action against the accurictl in a Criminal Court their license would be cancelled. Ac-
tion was taken acconliugly and the accused was convictal under s. 193, I. P. C.

//<»/rf—(l) That the offence of fabricating the ^/M//e««/w/i having been committed
long before the application was made to the Collector, no sanction was
necessary for the prosecution of the accused for such an offence.

(2) That the Collector is not a Court within the meaning of s. 195, cl. (b).

(3) That a document containing recitals, implying a false statement, is fabri-

cated lalsely within the meaning of s. 192, I. P. C.

MOHADEO MiSSEB T, NABAYAN RAH SHA ... ... ... ... 196

8. 193. See P. C, s. 191 ... ... .,. 45

Digitized by


( Tsxvi )

Penal Code TArt XLV of i8r/»],«. 198. s^p.c„%.\9f ... ... i9«

I ^ 8. 193. S^ O. p. r., p. IW ... ... 370

, ■ R. 193. S^ Ct. p. C. 8. 476 ... ... 303

. ?. '2S^\—Erideiire—Caujfing iitappfarcfiee of eri-

d-'/ire of cr'utu* -(iiring fiil*^ infer ni.tfntM to ptdirf to *rrfen offender.

Ihld, that the a^vni-oil wan not Lijilt v *>f an offence umler section 201 of the Penal
fVwlp hv m«T«ly liK-kint' the outer «l«»-»r of h<T hou-<i where her «on baci committeil mur-
der, a« it ai'iK-an-il that the (or|»^e hail not JxH^-n move*! or concealeil bj the accused.

KMPr.nOB r. Mrs-^AMMAT Rajax ... ... ... ... ... 136

8. 201. f^ p. C. 72 ... ... ... 364

«. 201. .Srt- Tr. p. C, ft. 403 ... ... 388

8. 202. Set Cr. P. C, ». 403 ... ... 388

8. 2<m; — 7wji*/>r i/a decree tnhjeei to attaehment

— \t4 fra wiHlrnt.

There i- nothing to prevent a Jmljnnent-Debtor from disposing of his intere^ in
an attaeh'tl deKt. The Court shouhl not presume a fraudaleot intention because he does
wliat lie iH enlillel to «lo.

Ram Xarayan r Jokhai Ram ... ... ... ... ... 92

8. 2\0^Off€nce under fraudulent decree.

An r.*T.'nee under 8. 210 is committe<l as noon as a decree is fraudulently obtained.

The »^^ett:n'j aside hv a rivjl Court of a fraudulently obtaine«l <lecree in not evidence,
in a Criniiii d C«.urr of the exi'-t»Miee t>f frauil whieh it is necessary to prove independently
in eiiiuiiial pr . •' diii^'-i. llenfore tlie faet that *»ueh a <le<'ree has not been Pet asi<le is
no \k\y to a pr. s-, mifu under s. 210, I. p. ('., though it might be admissible as evitlence
to prove lliut theie is no fraud.

Empkh )R /•. MoLLA Fazla Kartm ... ... ... ... ... 3C5

8. 211. See Cr. P. C, s. 195 ... ... 121

s. 22:>(b\ *S>/' Cr. P. C, 8. 54 ... ... 201

— 8. 21^—Sde of njj-iouM food — Definition — Sale of

(jrnin in iiHih in a vU:xr pit.

Whore, a** a matter of trade, the owner of a prain pit Fold the contents of the pit
iK^rore it Wiis opene<l at a certain sum per nmund whether the grain was good or bail,
and on the pit In-in^' opene<l it was found tiiat a large proportion of the grain was unfit
for human {<»ns.m»ption. it was field that the vendor could not be tonvicteil under
5.e<'t:on 273 of tlu In<i:an I'enal Code.

Emper^)U r. Salio Kam ... ... ... ... ... 208

ss. 279, HI— Punirhment— Sentence of one dnif'jt

simple iiiiprit)nment — llaMh dririwj— Offence triable under Sifeclal Act — Bombay
Mofor-Vrliich.^ A:t ( liomhaij Ad JI of 1004).

Per Ji'nf:'nM, C. J. — " The purpose of inflicting one day's simple impriainment is to
cxereire eleniency towards an accused, and so ii is ordinarily passed where imprison-
ment is the only puni-hment allowe<l by law, ami the Court s-ees in the circumstances
of the cr.si* [grounds for pas.-ing the lightest po«>sihle sentence. In practice the person
on whom it is pass^tl is not placed in prison, but is to all intents and pur[K>ses as free
as though the sentence had not been passed."

Per Axfon, J.- " Where there has b.*en special legislature for a particular type of
offence thvi maximum punishment j)rovide<l in such special Act for that particular
olTonco may be a':ceptL'd as an appr«)priate maximum.''

" Though the punishment for rash and negligent driving to the public danger pro-
vi IcmI by s. 271) of the Indian Penal Cotle i> greater, the more general provisions of the
Penal ('(mIc are calculated to remind the Magistrate, when the prosecution is under that
Code, and the danger is alleged to have been cau<e<l, by rash and negligent driving,
thit it is n )t only on the part of the drivers of vehicles tliat the Penal Code enforces
th.' civil duty of circumspection, from the neglect of which the improbability of culp-
abl i n-»gligonce arises.

Kmpeuor r. H. C. Bayne ... ... ... ... ... 494

s. 28.3. .*?vCr. P. C, s. 133 ,.. .,. 331

Digitized by


( XXXVll )


Penal Code [Act XLV of ISeO], es. 28« and SS7-'DfiJlHUioii- Causing huH hj
MMKS of a guH — Ecldence of Tiegligence,

Held that the causing of hurt by negligence in the use of a gun would fall within
the purview of section 337 rather' than of section 286 of the Indian Penal CJode. But
where all the evidence against the accused was that he went out shooting in the month
of July when people were likely to be about in the fields and that a single pellet from
his gun struck a man who was sitting in a field, it was held that this was not sufficient
evidence of rashness or negligence to support a conviction under section 337 of the Cofle.

Empebob r. Abdus Sattab ... ... ... ... ... .S.36

P. 286. 6^<? P. C, 8. 3.37 ... ... ... .363

s. 299. See P. C, s. 300 ... ... ... 355

8. ZOO— Murder— Proof— Prartice,

Where one is charged with the murtler of another, three facts obviously have to be
established. First of all that the person alleged to be murtiered is dead : secondly, that
he died by the means alleged on the ]'.art of the prosecution : and, thirdly that the
accused intentionally took that part in causing bis death which is attributed to him by
the prosecution.

Empebob r. Ananoa Bhau ... ... ... ... ... 85

88. 300, 299, ^i— Murder— Blows on th/; head—


The fourth elaus2 of section 30D, Indian Penal Code, does not apply to a cas2 in
which death has been causctl by an act done with the intention of causing bodily injury
to a particular person. In such a case the question whether the offence is murtler or not
must be decided by reference to the first three clauses of that section and the exceptions.

Shwe Ein V, Empebob ... ... ... ... ... ... 355

gg, .302, and 325 — l^lien viurder changed to grie-

roys hurt — Cattle TreitjuiM (Act I of 1871)^ s, 10 — Driring cattle to pond though graz-
ing on another""* land not tantamount to grare and sudden pro rocation.

Where some shepherds of a village, who were grazing their goats in the limits of

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 89 of 91)