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TMI Blog1923 (9) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... owing terms: 2. Certificate of the Advocate General of Bengal under Clause 26 of the Letters Patent of 1865. 3. I. Whereas the accused above named was on the 16th August, 1923, charged at the Criminal Sessions holden in this Hon'ble Court in its Criminal Jurisdiction before the Hon'ble Mr. Justice Page and a Special Jury on an indictment as follows: 4. First: That he, the said Barendra Kumar Ghosh, together with certain of the other persons on or about the 3rd day of August in the year of our Lord 1923 in Calcutta aforesaid committed murder by causing the death of one Amrita Lal Roy and thereby he, the said Barendra Kumar Ghosh; committed an offence punishable under Section 302 of the Indian Penal Code. 5. Second. That the said Barendra Kumar Ghosh together with certain other persons at or about the time and in the place aforesaid were jointly concerned in attempting to commit robbery on the said Amrita Lal Roy and that at the time of committing such robbery voluntarily caused hurt to the said Amrita Lal Roy and thereby he, the said Barendra Kumar Ghosh, committed an offence punishable under Section 394 of the Indian Penal Code. 6. II. Whereas it has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he prosecution case further was the Post Master had expired within a short interval of being shot, that one bullet was found inside his body which on being extracted fitted into the empty cartridge case picked up inside the room of the Post Office which in its turn was found to be of the same bore as that of the automatic pistol carried by the accused, that the dent of the bullet was found on the wall of 15 Mohendra Sircar's Lane fronting the Post Office, that no other empty cartridge was found inside the same room, that no trace of the third bullet was available in or out of it, and lastly that two revolvers and three daggers were found at premises No, 181, Harrison Road, a Chemist's shop where the accused was employed. 10. IV. Whereas it has been further represented to me that the case for the defence as disclosed in the evidence was as follows: 11. (a) That the case for the defence was embodied in the statement made by the accused in Court which according to him was identical with the statement he had previously made to Inspector Bon Behari Mukherji; a copy of the accused's statement in Court is hereto annexed and marked A. 12. (b) That the main points ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as appears from the certificate hereunder written. 22. Now I, Satish Ranjan Das, Advocate-General of Bengal, do under and by virtue of the powers entrusted to me by the Letters Patent for the High Court of Judicature at Fort William in Bengal bearing date the 28th September, 1865, certify that in my judgment whether the alleged direction and the alleged omission to direct the Jury do not in law amount to a misdirection should be further considered by the said High Court. Sd. S.R. Das. We, the undersigned defended the above accused at his trial by the Hon'ble Mr. Justice Page at the last Criminal Sessions of the High Court on the 16th and 17th instant and were present at his trial throughout and we certify that the facts hereinbefore set out have been correctly stated to the best of our recollection and belief. Sd. B.C. Chatterjee, S.K. Sen, and N.R. Das Gupta, Counsel for the accused. 23. Thereupon, on that very date, Counsel for the prisoner applied to the Chief Justice to appoint a Bench to hear the application for review; and the present Bench was constituted by the Chief Justice under Clause 26 of the Letters Patent read with Section 108(2) of the Government o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he established practice is the proper course to follow. This does not imply that when the Advocate-General is asked to grant a certificate under Clause 26, he should be guided by the views of the Crown; but he should be aware, before he forms his judgment, that the version of what took place at the trial, as given on behalf of the accused, is disputed by the prosecution. I am further of opinion that the allegations embodied in the petition to the Advocate-General should be verified by Counsel present at the trial or by other responsible person. In the case before us, no certificate of any description was attached to the application made to the Advocate-General. The result was that the Advocate-General formed his judgment upon materials, the accuracy whereof was not certified. Counsel for the accused was heard by him, and a draft of a certificate was then prepared: this incorporated some only of the allegations contained in the unverified petition. A certificate was next appended by Counsel present at the trial, to the effect that the facts hereinbefore set out (that is, set out in the certificate of the Advocate-General) had been correctly stated to the best of their recollectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts material for the appreciation of the questions which have emerged for consideration, may now be conveniently narrated. On the 3rd August last, several persons it is a matter for controversy whether their number was three or fourarmed with fire-arms entered the Sankaritola Post Office in this city at about 3-30 p.m. The case for the prosecution is that the gang consisted of four persons, and included the accused. Three of these persons--one of whom was the accused--entered the Post Office, through its southeastern door, while the fourth remained outside. Of the three who went inside, the accused stood in the middle; he had a khaddar coat on and a shirt beneath. The man on his left had a mask on his face, the man on the right had a shirt on with black stripes. Inside, the room there were three officers, at three different tables, namely, the Post Master Amritalal Ray, the packer Haraprasad Das, and the Money Order Clerk Sham-dulal Das. The Post Master was facing west, the packer east and the Money Order Clerk north. The three men who entered the room said to the Post Master, Rupiya dco . The Post Master stood up and said what money. On this; all the three men fired. The Post Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; Then one of the men belonging to the dispensary came after taking his meal. I told my man that I was going to this gentleman's house and wanted a man to stay in the dispensary. Then the gentleman took me to his house and I was made to wait in his drawing room. There I found two young men seated; I knew one of them but did not know the other. The gentleman then said to me you will have to go with me to a certain place and commit dacoity. I was very much frightened. I said what is the dacoity. He took me to a room next to the drawing room away from the two boys. This room was a dark room with all the doors and windows shut. There he began to encourage me saying I would have nothing to do but only to accompany these two boys. He said these two boys will do every thing, you will go there as a mere show.' I told him why should I commit dacoity, I am newly married, I am not in need of money. Instead of replying, he looked at me in the face for some little time. I was sitting quiet, when he called one of the boys into the room he asked the boy to get the four pistols. The boy went out and in quarter of an hour came back with a bundle in his hand. He opened the bundle and produ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a cartridge came out and fell on the ground, when I next attempted to fire a shot to the sky. After going some little distance I fired another shot. When I came to St. James Square, I could not run further and sat down on the ground and threw away the pistol. I was then arrested by three or four men, taken back to the Post Office and handed over to the Police. I heard one witness depose in Court that I fired at him; I can swear before God that I did not intend to fire at him. If I wanted to kill men I could have done so. I have never in my life assaulted any body or caused any bloodshed. This is my first offence, I will not keep bad company any longer. I throw myself on the mercy of the Court. I was married only three months ago and I pray that I may be saved. The period that I was with these men was only an hour. I am prepared to abide by any sentence that your Lordship metes out. I do not Avish to mention the names of the other men here, but I have already given them to the Police. 27. It is necessary at this stage to mention an event of an extraordinary character which took place prior to the commencement of the trial at the Sessions. This can be best described in the words ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at if we could feel that a plea of guilty on the part of the accused under Section 394 were acceptable to the Court, subject to what the accused had to say to us in the interview we were going to have with him, we would advise him to plead guilty under Section 394; I would appeal to Mr. Justice Page to remember in this connection; but as far as my recollection serves me, His Lordship Mr. Justice Page told us that in a case like this, he could not accept a plea of guilty on any count lesser than murder, not even on culpable homicide not amounting to murder. After that we saw the accused, and he told us all that he had to say about the facts of the case; and upon full instructions by him, we came to the conclusion that we should be right, in the circumstances of the case, to advise him to plead guilty under Section 394 and that he should be defended on the charge of murder under Section 302. This is the recollection I have of this matter, and it is unfortunate that my learned friend Mr. Sen is not here, because in that case I am sure he would have repeated the same statement as to what happened. There was a misunderstanding between the learned Judge and ourselves with regard to the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w it. Mr. Basu, we were further told, thereupon asked leave to refer the question to Standing Counsel, and that later, after learned Counsel on both sides had gone into the learned Judge's Chamber and informed him of their agreement on the lines of his suggestion, accused pleaded guilty to the minor charge whereupon the prosecution withdrew the major charge. We were also informed that the prisoner was sentenced leniently as a result of his pleading guilty in the aforesaid manner. Since the learned Judge had done this in a previous case, we thought there would be nothing wrong in our seeing him in Chamber with regard to the present case with a view to request him that he might deal with our client similarly. 34. As neither of us knew Mr. Justice Page well enough, we both went, in the first instance, to another learned Judge of this Court to ascertain his views on the propriety of the course we were contemplating; and the said learned Judge unhesitatingly approved of our going in to see Mr. Justice Page in his Chamber. We may add that we fully explained to this learned Judge the object of our proposed visit to Mr. Justice Page. Accordingly, we went into Mr. Justice Page's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1833) 4 B. and Ad. 681 : 1 N. and M. 530 : 110 E.R. 612, Rex v. Grant (1834) 5 B. and Ad. 1081 : 3 N. and M. 106 : 110 E.R. 1092, Gibbs v. Pike (1812) 9 M. and W. 351 : 12 L.J. Ex 257 : 6 Jur. 465 : 152 K.R. 149 : 1 Dowl. (N.S.) 409 : 60 R.R. 749. (24) (1858) Dears and Bell: 468 : 7 Cox C.C. 454 and R. v. Mellor (1858) Dears and Bell 468 7 Cox C.C. 454. The conclusion I have formed is based on the inherent improbability of the version given by the learned Counsel. A plea of guilty in answer to the charge under Section 394 would be of no avail to the prisoner, if he was still to be tried upon the charge of murder with the consequent possibility of capital sentence. The charge under Section 302 could not, at that stage, be withdrawn by the Trial Judge, though, after evidence had been adduced, he might, if satisfied that there was no evidence to go to the Jury, direct the Jury to return a verdict of not guilty. The object of the Counsel, who sought, and secured the interview with the Trial Judge, must have been to bargain with him as to the sentence in respect of, the charge under Section 302, if the prisoner should 'plead guilty to that count. The gravity of their misconduct cann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only by himself and three servants, a young Swiss valet by name Courvoisier and two women, a cook and a house maid. Suspicion fell upon Courvoisier, and he was sent up for trial on a charge of murder. His Counsel Charles Phillips went to the trial with a full persuation of his innocence and conducted the cross-examination of the witnesses closely and zealously, specially of one of the female domestics, with a view to show that there was as much probability that the witness or the other domestic was the culprit, as the prisoner. At the close of the first day's proceedings, the prosecutors were placed unexpectedly in possession of a new and important item of evidence, by the discovery of the plate of the deceased, which had been missed and was found to have been deposited with a lady a week before the murder. The only question remained, whether Courvoisier was the person who had so left it. If he was, it would increase the probability that it was he, who subsequently committed the murder with the object of plunder. On the morning of the second day of the trial, the person who had made this discovery was shown a number of prisoners in the prison yard; one of these was Courvoisier ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent for 1915, page 14 : The Council were asked to advice on the propriety of Counsel defending on a plea of 'Not guilty' a prisoner charged with an offence, capital or otherwise, when the latter has confessed to Counsel himself the fact that he did commit the offence charged. The questions raised were, (1) What is the duty of Counsel under the circumstances? May he, according to modern views defend in such case, and if so ought he to do so? (2) Does the same answer apply where he has already appeared in Court for the prisoner? 42. The Council adopted the following report: 43. Different considerations apply to cases in which the confession has been made before the Advocate has undertaken the defence and to those in which the confession is made subsequently during the course of the proceedings. 44. If the confession has been made before the proceedings have been commenced, it is most undesirable that an Advocate to whom the confession has been made should undertake the defence as he would most certainly be seriously embarrassed in the conduct of the case, and no harm can be done to the accused by requesting him to retain another Advocate. 45. Other considera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Court, to the form of an indictment, to the admissibility of any evidence, or to the sufficiency of the evidence admitted, it would be absolutely wrong to suggest that some other person had committed the offence charged, or to call any evidence Avhich he must know to be false having regard to the confession, such, for instance, as evidence in support of an alibi, which is intended to show that the accused could not have done or in fact had not done the act; that is to say, an Advocate must not (whether by calling the 'accused or otherwise) set up an affirmative case inconsistent with the confession made to him. 52. A more difficult question is within what limits, in the case supposed, may an Advocate attack the evidence for the prosecution either by cross-examination or in his speech to the tribunal charged with the decision of the facts. No clearer rule can be laid down than this, that he is entitled to test the evidence given by each individual witness, and to argue that the evidence taken as a whole is insufficient to amount to proof that the accused is guilty of the offence charged. Further than this he ought not to go. 53. It must be clearly understood that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the duty of an Advocate who has lost faith in the cause he has been engaged to support. This much appears to me to be incontestable that it is not his duty to approach the Trial Judge and to apprise him that in his opinion the man, whose fate has been entrusted to his care, has no defence to make. I venture to add that if, as Trial Judge, I had been placed in such a predicament, I would, without hesitation, have reported the Counsel concerned to the Chief Justice for disciplinary action, and I would have asked to be relieved of the duty of participating in the trial and of passing sentence upon a man whose Counsel had previously assured me that there was no defence to make. 55. Let me now pass on to an examination of the questions specified in the certificate of the Advocate-General. 56. The Advocate-General has certified that whether the direction and the non-direction (as specified by him) amount in law to misdirection, should be further considered by the Court. The direction is alleged to be contained in the three following passages of the summing up: (a) In this case, if these three persons went to that place with a common intention to rob the Post Master, and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion |of the true construction and correct application of Section 34 is beset with graver difficulties than appear at first sight, and as I have arrived at a conclusion contrary to the opinion maintained by Stephen, J., who had made a profound study of Criminal Law, both Indian and English, it is only fair that his views should be stated in his own words. The exposition of these views, concisely set out in his judgment in Emperor v. Nirmal Kanta Roy 24 Ind. Cas. 340 : 41 C. 1072 : 18 C.W.N. 723 : 15 Cri. L.J. 460 was amplified and re-stated by him in the following extract from a letter published by him in the Calcutta Weekly Notces, Volume XVIII, page 222 (ccxxii) short-notes: 59. The case made by the prosecution which had to be put before the Jury may, for present purposes, be presented in the familiar style of an illustration thus: A and B set out to murder G. Both fire pistols at him. A hits him and kills him. B misses him.' Does B's act come under Section 34? That section runs--when a criminal act is done by several persons in furtherance of the common intention of all, each of such, persons is liable for that act in the same manner as if the act were done by him alo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... man who helps the criminal to escape; he completes the group, but otherwise it is unnecessary to consider him for present purposes. 66. I omit any consideration of the non-application of these rules to misdemeanours or treason; but a glance at the cases in Russell (and their number might be indefinitely increased) will show how little our predecessors were open to the reproach of neglecting any technical points that possibly would be available for the defence of prisoners. 67. Such was the English Law before 1861. But in that year the inconvenience of those clumsy distinctions that had slowly grown up since the time of Hale--it is curious how many inconveniences the English Criminal Law owes to his age, if not to him--was clearly recognised, and advantage was taken of the framing of the Consolidation Acts of that year to correct it. The correction contained in the Accessories and Abettors Act, 24 and 25 Vict., c. 241, is characteristic of English legislation in such matters as it abolishes the distinction and leaves the difference. It consists of an enactment to the effect that accessories before the fact, principals in the second degree and principals in the first degree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons have been dropped; but I believe the law is as Macaulay planned it. That is, the man who does a thing is principal, and one who puts him on or helps him to do it, is an abettor whether he is present or not; and there are no other parties. 70. But there remains another little puzzle, and that is Section 114. I need not set out its terms. But what I suspect is that the Commissioners could not help preparing a little resting place for the ghost, they were laying. What they had in their minds was that a principal in the second degree really differed from an abettor, and must be provided for; they, therefore, intended to say that whereas an abettor was to be punished as if he had done the thing (the phrase will bear repetition); if he was present he was to be deemed to have done it, which, after all, was and is English Law. Practically I cannot see that this makes any difference, as the punishment for the thing is all that need be considered. 71. If, therefore, the section said what I think it was intended to say, I should think it superfluous. But it in fact says something else, and when the abetting consists in attempting to do what another man did, which is a most effecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : 17 E.R. 559, when reasonable doubt is entertained as to the true construction of a Statute. The operation may, however, be easily carried too far, and may, in the case of codifying Statutes, lead to results which have been emphatically condemned in decisions of the highest authority; see, for instance, the observations of Lord Herschell in Bank of England, v. Vagliano (1891) App. Cas. 107 : 60 L.J.Q.B. 145 : 64 L.T. 353 : 39 W.R. 657 : 55 J.P.676, of Lord Watson in Robinson v. Canadian Pacific Railway Co. (1892) App. Cas. 481 : 61 L.J.P.C. 79 : 67 L.T. 505 and of Lord Macnaghten in Narendra, Nath v. Kamal Basini 23 I.A. 18 : 23 C. 563 : 6 Sar. P.C.J. 667 : 6 M.L.J. 71 : 12 Ind. Dec. (N.S.) 374 (P.C.) : . (33) 35 C. 34 at p. 55 : 6 C.L.J. 273 (F.B.) . The proper course is, in the first instance, to examine the language of the Statute, to interpret it, to ask what is its natural meaning, uninfluenced by considerations derived from the previous state of the law. To begin with an examinatian of the previous state of the law on the point, is to attack the problem at the wrong end; and it is a grave error to force upon the plain language of the section of an Indian Statute an interpret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t alone, provided the act is done in furtherance of the common intention of all. Section 35 shows that when an act, criminal only in respect of knowledge or intention, is done by several persons, each person, joining With criminal knowledge or intention, is liable as if he had done it alone with that knowledge or intention. Section 36 shows that when an offence is the effect partly of an act or partly of an omission, it is one offence only. Section 37 shows that when an offence is committed by several acts, each person intentionally committing one of those acts singly or jointly with others, commits the offence. Section 38 shows that persons jointly engaged in a criminal act may be guilty of different offences. To justify the application of Section 34, it is, consequently, necessary to prove what may be briefly described as a common act and a common intention. The real difficulty emerges when we are called upon to decide, on the concrete facts of a given case, whether the criminal act can be said to have been done by several persons; in other words, what is it that is involved in the expression a criminal act is done when there is more than one person who has contributed to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a fresh and independent wrong springing wholly from the mind of the doer, the other is not criminal therein, merely, because, when it was done, he was intending to be a partaker with the doer in a different wrong. These propositions may not always be applied readily to cases arising, yet they seem to furnish the true rules. 80. This exposition is reproduced by Bishop, with slight variations, in the latest edition of his great work (New Commentaries, 1892, Volume I, Chapter XLV, Section 641). Mr. Mayne, adhered to this view in his work on the Criminal Law of India. (Fourth Edition, 1914, page 238) where the following statement occurs: Where several persons unite, with a common purpose, to effect any criminal object, all who assist in the accomplishment of that object are equally guilty, though some may be at a distance from the spot where the crime is committed and ignorant of what is actually done. This is manifestly based on the assumption that, in certain circumstances at least, all who assist in the accomplishment of a common purpose to do a criminal act may be deemed to have done that act within the meaning of Section 34. This view of Section 34 does not necessarily ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the criminal act, the intent not contributing to the act, not strengthening it, and not in any way influencing it, there is in the former person no crime; but it is otherwise if there is a unity of intent and act. 83. The subject, as is fairly clear, is by no means free from difficulty and the principle is analysed with great acute-ness by Collett in his Comments on the Indian Penal Code, 1889, pages 2-5. He sums up his conclusion concisely in the statement that community of criminal intention determines the community of liability in every instance of accession at the fact, In illustration, he refers to the two contrasted cases, 'viz., the Sissinghurst House case (1673) 1 Hale P.C. 462, where an assistant of a constable was killed by some members of a riotous assembly and R. v. Sarum (1697) Foster 393, where three soldiers went together to rob an orchard. As instances of cases where the question is as to what constitutes community of action, he refers to the decisions in Reg. v. Salmon (1880) 6 Q.B.D. 79 : 50 L.J.M.C. 25 : 43 L.T. 573 : 29 W.R. 246 : 14 Cox C.C. 494 : 45 J.P. 270 , where three soldiers went to practise firing with rifle, Reg. v. Coney (1882) 8 Q.B.D. 531 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 Ind Jur (N.S.) 177, where he stated that if several persons go out together for the purpose of apprehending a man and taking him to the Police Station on a charge of theft, and some of the party in the presence of the others beat and ill-treat the man in a cruel and violent manner, and the others stand by and look on without endeavouring to dissuade them from their cruel and violent conduct, those who have to deal with the facts might very properly infer that they were all assenting parties and acting in concert, and that the beating was in furtherance of a common design. On the other hand, all who are present do not necessarily assist by their presence every act that is done in their presence. Markby, J., tqok a similar view in Queen v. Hyder Jolaha 6 W.R. 83 Cr, when he stated that if a master accompanies a servant, knowing the latter's intention to commit murder and is present at the commission of the murder, although he struck no blow, still he is guilty as a principal; the reasonable presumption was that both were acting with a common intent. Markby, J., adhered to this view when in Queen v. Mahomed Asger 23 W.R. 11 Cr. he reiterated that if a blow is struck by A in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . L.J. 502Jamiruddi Biswas v. Emperor : 16 Ind. Cas. 523 : 16 C.W.N. 909 : 13 Cri.L.J. 715, Manindra Chandra Ghose v. Emperor 23 Ind. Cas.1002: 41 C. 754 : 18 C.W.N. 580 : 15 CriL.J. 402 :, Emperor v. Nogendra Nath Sen Gupta 30 Ind. Cas.128 : 21 C.L.J. 396 : 19 C.W.N. 923 : 16 Cri. L.J.576 and In the matter of Faezulla 61 Ind. Cas. 522 : 25 C.W.N.24 : 22 Cri. L.J. 394In some of these cases, the Court declined to apply Section 34, not because the act could not be said to have been done by several persons, but because there was no proof that it had been done in furtherance of the common intention; these cases furnish a clear indication that the Court would have applied Section 34 if a common intention had been proved. In, one of these cases Emperor v. Morgan 1 Ind. Cas. 814 : 36 C. 302 : 13 C.W.N. 362 : 9 C.L.J. 204 : 9 Cri. L.J. 393, the Court expressly relied upon the decision in Reg. v. Salmon. The bullet which killed the deceased was fired by one or other of the accused, but it was impossible to say which of them had fired it; the Court expressed the opinion that the rule laid down in Reg. v. Salmon . might be applied. In another case, Amrita Lal Bose.v. The Corporation of Calcut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity of judicial opinion. But it is worthy of note that two of the latest cases, viz., Harnam Singh v. Emperor 52 Ind. Cas. 395 : 21 P.R. 25 Cr. L.J. 547 really presents no difficulty on its special facts. 89. In Patna, a similar difference of attitude is traceable through the decisions. In Lachho Singh v. Emperor 38 Ind. Cas. 766 : 18 Cri. L.J. 382, four persons formed themselves into a body with the common object, of beating the complainant, and while two of them assaulted him, the other two stood by, armed with lathis, ready to take part, if necessary; it was ruled that the latter two were equally guilty, with the others, of an offence under Section 323, Indian Penal Code. The later decisions in Ritbaran Singh v. Emperor 46 Ind. Cas. 709 : 19 Cri. L.J. 789 : 4 P.L.W. 120 and Sat-rughan v. Emperor 50 Ind. Cas. 337 : 20 Cri L.J. 289, however, indicate a distinct reluctance on the part of the Court to push the application of Section 34. 90. What irreconcilable difference of opinion is possible in this class of cases is illustrated by the decision in Emperor v. Mahabir 19 Ind. Cas. 497 : 16 O.C. 19 : 14 Cri. L.J. 241, where two of the Judicial Commissioners (Rafique and Kanahia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diverse circumstances imaginable, we may refer to Breese v. State (186l) 12 Ohio 146 : 80 Am. Dec. 840. In that case the accused had agreed with others to commit a burglary in a store house at night. As a part of the said agreement and to facilitate the breaking and entry and to lessen the chances of detection, it was agreed that the accused should on that night decoy the owner away from the store where he usually slept, to a music party about a mile distant, and detain him there, while the other confederates were to break and enter the store and remove the goods. The parties did, in fact, perform their respective parts of the agreement, and the burglary was successfully committed. The Supreme Court held that the accused was constructively present at the breaking and entry by his confederates and could be convicted as principal therein. Peck, J., referred to the decision in R. v. Standley (1816) Russell and Ryan 305, as an authority for the proposition that if several persons act in concert to steal a man's goods and he is induced by fraud to trust one of them in the presence of the others with the possession of such goods and another of them entices him away, in order that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ches for his companions, the actual perpetrators, to prevent surprise or favour their escape, or give assistance and is near enough to afford it, if required, he may be deemed constructively present. He referred to the decision in Reg. v. Tuckwell (1841) C. and M. 215, where, in circumstances very similar, the employee who had, in pursuance of an arrangement with his confederate, left the house so as to enable the latter to commit the robbery, had been held by Coleridge, J., to be not a principal in the crime, but an accessory before the fact. To the same effect is the decision in Reg. v. Jefferies (1848) 3 Cox C.C. 85. A third illustration is furnished by the decision in State v. Hamilton (1878) 13 Nevada 386 which carries the law probably to its farthest limit. There a plan was arranged to rob an express train on the road; one of the parties to such plan was to ascertain when the express left a certain point and to signal to his confederates by kindling a fire on the top of a mountain in one county which could be seen by them in another county 40 miles distant. This signal was given by him and his confederates, advised by it, met the express; in the attempt to rob it, one of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact, by advising and procuring the commission of the felony; and after the fact, by receiving the property after it was stolen; but he would also be a principal, because, at the time when the felony was committed, he co-operated with the chief perpetrator, and aided and abetted him in doing the acts which constituted the crime. 93. I shall not multiply instances to show when a man may be said to participate in a criminal act, lest we get lost in an endless maze of decisions remarkable for refined distinctions such as we find in R. v. Stewart (1814) R. and R. C. 357 and R.v. Dacre (1542) Palmer 35 : 1 Hale P.C. 439. The balance of reason and authority is, in my opinion, againstthe limited interpretation placed by Stephen, J., on Section 34 in Emperor v. Nirmal Kanta Roy 24 Ind. Cas. 340 : 41 C. 1072 : 18 C.W.N. 723 : 15 Cr. L.J. 460, and I must hold accordingly that the first point specified in the certificate of the Advocate-General, namely, that a direction erroneous in law was given, cannot be sustained. 94. Secondly, as to non-direction. The argument advanced, on behalf of the accused is that Mr. Justice Page omitted to draw the attention of the Jury to the case for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : Rex v. Hill (1911) 7 Cr. App. Rep. 26 : App. Rep. 146 and Rex v. Willet (1.53) The points which have been emphasised before us by Counsel for the prisoner may be summarised as follows: (1) Did three or four persons form the party? (2) Did two or three persons go inside the room and fire? (3) Was the prisoner the man who stood outside? (4) Did the prisoner share the murderous intention of the other members of the party? Special stress has also been laid on what has been called the live cartridge incident. The Standing Counsel has urged, on the other hand, that the case as now presented with so much elaboration was not developed in the evidence as elicited by cross-examination of the witnesses for the Crown. He has further maintained that the live cartridge incident was not mentioned when Counsel for the prisoner addressed the Jury. I have come to the conclusion that the importance of the live cartridge incident, whatever its value may be, was not realised by Counsel for the accused at the trial. Purna Chandra Dey, a clerk in the Metreological office, who was examined as a witness on behalf of the prosecution, produced two cartridges which he stated had been made over to him by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n my mind is that, taken as a whole, it is what is sometimes designated a charge for conviction. But it cannot fairly be said that the facts were not left to the Jury to decide and that the Judge usurped their function, merely because he gave expression, as he was entitled, to his opinion on the evidence strongly: Rest v. West (1910) 4 Cr. App. Rep. 179 Rex v. Beeley (1911) 6 Cr. App. Rep. 138, Rex v. Frampton (1917) 12 Cr. App. Rep. 202 Rex v. O'Donnell (1917) 12 Cr. App. Rep. 219. We must further remember that as Lord Hatherley said in Prudental Assurance Co. v. Edmonds (1877) 2 App. Cas. 494 it is not fair to criticise every line and letter of a summing-up which has been delivered by a Judge in trying a case, specially when there is a somewhat imperfect record of it. We are not called upon to consider whether this or that phrase was the best that might have been chosen or whether a direction which has been attacked might have been more fully or more conveniently expressed, or whether other topics which might have been dealt with on other occasions should have been introduced. As Lord Shaw observed in Channing Arnold v. Emperor 23 Ind. Cas. 661 : 41 I.A. 149 at p. 168 : 41 C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to state and elucidate the circumstances, whatever they may be, which might reconcile such suspicious appearances with perfect innocence; see Amritalal Hazra v. Emperor 29 Ind. Cas. 513 : 42 C. 957 : 21 C.L.J. 331 : MANU/WB/0250/1915 : 19 C.W.N. 676 : 16 Cri. L.J. 497. The statement of the accused cannot be placed on a higher level than this, and the Court and the Jury are expressly left free to draw such inference from the refusal of the accused to answer or from the answers he gives, as they think just, Mr. Justice Page accurately appraised the function of the statement of the accused, and no exception can be taken on that ground. But his summing up was defective to this extent that it did not at first specifically refer to the statement. The Standing Counsel, however, properly called attention to the point, whereupon Mr. Justice Page made supplementary observations. This might not have been sufficient, if the points which arose on the statement had not already been dealt with by him on reference to the evidence, for as observed in Rex v. Willet (1922) 16 Cr. App. Rep. 146, a grave omission to direct the Jury on a cardinal matter in the case cannot be made good merely by Counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one becomes responsible for the acts of each and every other, in execution and furtherance of their common purpose; as the purpose is common, so must be the responsibility. In such a contingency, each and every person, co-operating to any extent in a plunder of this description, is responsible in a civil proceeding to recoup the party plundered for the loss he has sustained. But in a criminal matter, punishment may be apportioned. In the civil proceeding, it is immaterial what share of the plunder one received or whether one was coerced to join in the transaction, although if the matter culminated in a criminal proceeding, where the Judge had to inflict a punishment, all that might be taken into account. In my opinion, it would not be right on principle even to consider the punishment, before it has been determined whether the accused is to be convicted under Section 302 alone or under Section 302 read with Section 34. This is precisely a case where a special verdict may appropriately be taken, so as to enable the Judge, who alone fixes the punishment, to ascertain what are the precise facts found by the Jury, on whom after all the duty is imposed to decide which view of the facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court. But it shall be at the discretion of any such Court, to reserve any point or points of law for the opinion of the said High Court. 26 And we do further ordain that on such point or points of law being so reserved as aforesaid, or on its being certified by the said Advocate-General, that, in his judgment, there is an error in the decision of a point or points of law decided by the Court of original criminal jurisdiction, or that a point or points of law which has or have been decided by the said Court should be further considered, the said High Court shall have full power and authority to review the case, or such part of it as may be necessary, and finally determine such point or points of law, and thereupon to alter the sentence passed, by the Court of original jurisdiction, and to pass such judgment and sentence as to the said High Court shall seem right. 96. Clause 25 ordains that there shall, be no appeal from any sentence or order passed or made in any criminal trial before the High Court as a Court of Original Criminal Jurisdiction. The Trial Judge, however, is granted discretion to reserve any point or points of law for the opinion of the High Court. Clause 26 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erved or certified. Such an unqualified interpretation, if adopted, would lead to the result that even if the point of law reserved or certified has been decided against the prisoner, he would be entitled to invite the Court to alter the sentence. Such an interpretation, in my judgment, would be unreasonable, and would defeat the fundamental restriction that no appeal lies from the sentence or order of the Trial Judge. When a point of law is reserved 'by the Trial Judge or a certificate is granted by the Advocate-General, the purpose is to secure an alteration of the sentence on the hypothesis that it is based on an erroneous view taken by the Trial Judge of a point of law. If no error is established, the reason why the prisoner can claim an alteration of the sentence disappears. The term 'thereupon' must consequently be construed with reference to the context; and it may, with good reason, be interpreted as equivalent to upon final determination of the point of law reserved or certified in favour of the prisoner. It is not necessary that the contention of the prisoner should succeed in its entirety; if the opinion of the Trial Judge on the point reserved or certifie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the conviction was proper, but the sentence was illegal, inasmuch as rigorous imprisonment, had been directed where simple imprisonment was prescribed by the Indian Penal Code, This was the error certified, and the sentence was accordingly set right. 108. In cases where the point reserved or certified was decided in favour of the accused, the Court proceeded to consider the evidence on the record, in other words, assumed the functions of the Jury. This class comprises the cases of Queen v. Hurribole Chunder Ghose 25 W.R. 36 Cr: 1 Ind. Dec, (N.S.) 132, the Court, upon consideration of the residue of the evidence, affirmed the conviction and sentence. In the other cases, the Court either set aside the conviction and sentence or affirmed the conviction but modified the sentence. Except in Rex v. Yadali 1 Ind. Jur. 424 in every case that I have been able to discover the conviction was challenged on the ground of what may be comprehensively termed misdirection which includes erroneous direction or non-direction, as also erroneous reception or exclusion of evidence. In cases of misreception of evidence, the Court was faced with Section 167 of the Indian Evidence Act and felt cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal in Reg. v. Crane (1920) 3 K.B. 236 : 89 L.J.K.B. 813 : 15 Cr. App. Rep. 23 : 84 J.P. 210 : 36 T.L.R. 673, was affirmed by a majority. Viscount Finlay maintained that the deliberate policy of the Legislature in the Criminal Appeal Act, 1907, is to prevent any further proceedings, such as would have taken place on an award of a venire de novo by the Court of error or the granting of a new trial by the High Court in criminal cases. Lord Dunedin, Lord Atkinson, Lord Sumner and Lord Parmoor took the contrary view, and upon an analysis of Reg. v. Mellor (1858) Dears and Bell. 468 : 7 Cox C.C. 454 and Reg. v. Yeadon (1861) 9 Cox C.C. 91; L. and C. 81 : 31 L.J.M.C. 70 : 7 Jur. (N.S.) 1128 : 5 L.T. 329 : 10 W.R. 64, held that the award of a venire de novo in the event of mis-trial was competent to the Court of Crown Cases Eeserved and was equally open to the Court of Criminal Appeal Rex. v. Dickman (1910) 74 J.P. 449 : 26 T.L.R. 640 and Rex. v. Wakefield (1918) 1 K.B. 216 : 87 L.J.K.B. 319 : 118 L.T. 576 : 82 J.P. 136 : 13 Cr. App. Rep. 56 : 62 S.J. 309 : 34 T.L.R. 210. To put the matter briefly, the choice, in their opinion, did not lie between affirmation and acquittal. 110. I am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lauses 25 and 26 of the Letters Patent should be so limited in scope and that its exercise should be subject to such stringent conditions. It must be remembered, however, that these provisions were framed in view of the powers, exercised by the Court of King's Bench under a Writ of Error on the fiat of the Attorney-General and by the Court of Crown Cases Reserved under the Statute of 1848. (For the antecedent state of the, law, reference may be made to the charges of Ryan, C.J., and Grant, J., which are set out in the appendix to the edition of the Supreme Court Rules by Smoult and Ryan). Since then, the Criminal Appeal Act of 1907 has been brought into operation, and yet, notwithstanding the extensive powers of interference conferred on the Court of Criminal Appeal, that Court has occasionally found it impossible to grant relief by way of appeal, though it did not hesitate to express the opinion that the circumstances might justify the intervention of the Secretary of State with a view to the exercise of the clemency of the Crown. Two such instances will be found in the cases of Rex v. Law (1913) 9 Cr. App. Kep. 246. (1913) 8 Cr, App, Rep. 198 and Rex v. Pridmore (1913) 8 Cr, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al cases recently this Court has had to complain of the insunleiency of the shorthand notes. It must be understood by shorthand writers that their duty is to take in shorthand everything that occurs at the trial, so that if an appeal is brought, this Court may be able to form as good an opinion as is possible when reading the transcript. An abbreviated note is not sufficient. Everything that occurs at the trial must be taken, in the form of question and answer, which should be numbered, to admit of easy reference. 114. Thomas William Richardson, J.--At the outset I desire to express my concurrence generally with the observations which have been made by the learned Judge presiding in reference to the duties cast upon an Advocate-General by Clause 26 of the Letters Patent. 115. As to the meaning of Section 34 of the Penal Code, which I regard as the main, question in this case, a question which touches the daily administration of the law, I also agree with the conclusion which has been stated. 116. I need not recapitulate the facts. Amrita Lal Roy, the Post Master of the Sankaritolla Post Office in Calcutta, was killed on the 3rd August last by a bullet fired from an automa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... much, if any, light on the meaning of Section 34.Note.--It may bo convenient if I attach a brief note of so much, of the relevant history as I know. [For this note see pages 417 418 of Ind. Cas.--Ed.] The usual rule applies that the intentions of the Legislature are to be gathered from the words used in the context in which they stand. The Code, however, became law in 1860 and in construing any of its provisions, we are entitled to guidance from the course of judicial decisions, even if there be no authority binding on us as a Full Bench. The terms referred to and their meanings are as follows : 121. A principal in the first degree is the immediate perpetrator of an act, the person, for instance, by whose proper hand a death wound is inflicted. 122. A principal in the second degree (1) must be present at the commission of the act and (2) he must be aiding and abetting. The older and perhaps better term ccessory at the fact implies both elements. But if this term be employed, it has to be remembered that the person so described is in Law a principal. 123. An accessory before the fact is under the Code an abettor and is dealt with in the Chapter on Abetment. 124. The a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uction they are interpretative Clauses, included in the Chapter of General Explanations; and must be read into the Code definitions of substantivg offences. 129. The precise point for determination, as I conceive, is whether the liability imposed by Section 34 with which we are chiefly concerned extends only to principals in the first degree or whether it also extends to principals in the second degree or accessories at the fact. The narrower view is urged for the accused, the wider one for the Crown. 130. If the narrower view be adopted the liability of accessories at the fact must depend entirely on provisions in the Chapter on Abetment such as Sections 107, 109 and 114. Another way, therefore, of stating the question is this : 131. As the Code does not use the terms principal in the first degree, and principal in the second degree, the inference is that it was thought unnecessary to retain the distinction. What is the result? Are accessories at the fact classed with principals under Section 34 or are they classed under the later provisions with abettors? 132. Section 34 speaks of a criminal act being done by several persons in furtherance of the common intention of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect produced. An unjustifiable blow is a criminal act and an assault. If it causes death, the offence may amount to murder. If the injury is not fatal, the offence will amount to something less than murder. 137. The following analysis may perhaps be of assistance. 138. An effect, e.g., death, may be caused-- 139. (a) by a single act done by one man, 140. (b) by a series of acts done by one man at the same time and place, e.g., a succession of blows, 141. (c) by acts done by different men at the same time and place, e.g. two men inflict ing separate wounds each of which, apart from the other would be fatal, or one man holding a ladder while another ascends and kills the occupant of the room above. 142. The acts of the different, men may each be a single act or a series of acts. 143. (d) by separate acts (or series of acts) done by the same man, or by different men, at different times or places, e.g., the case in illustration (a) of Section 37, of a man being killed by small doses of poison administered at different times. 144. The question is, does the group of sections render liable accessories at the fact to these various acts. 145. According to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two men drowning a third, one of the two men might plead that while he only committed an assault by pushing the deceased over the bank, it was the other who held the head of the deceased under the water and so drowned him. 149. The truth is that in all these cases what is single is the effect produced. The different men who take part in the offence may do similar acts. But their acts are not the same. They are different acts. Even if mere similarity were sufficient, it would be impossible to prove. As shown above pleas destructive of similarity, still more of identity, might be put forward in excuse. Murders of the sort suggested are not usually committed in broad daylight in the presence of witnesses able to take stock of the precise part taken by different offenders. 150. In the wider view of Sections 34 and 37, these cases would present no difficulty. Prove the common intention of the persons present at the commission of the offence and all would be equally guilty of nothing less than that offence. If death were the result of the act or series of acts of one out of several confederates, the act would be done by them all within the meaning of Section 34 If death followed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Section 34. This result accords with the opinion of Markby, J. in Queen v. Mohamed Asger 23 W.R. 11 Cr. where the word accessory is used as meaning 'accessory before the fact' or abettor. (See also Mayne, Criminal Law, Part II, Section 246). 156. It may be said that instigation and conspiracy must occur before the offence, even if, in the case of instigation it is only just before. But abettors by these modes seem to be thought of as separated from the commission of the offence not only by time but also by place. Abetment is not thought of as coincident with the offence. If the general term 'abettors' included accessories at the fact, Explanation 2 would be superfluous. Persons who, having previously abetted (as accessories before the fact) are also present when the offence is committed are dealt with in Section 114. 157. Section 114, the only section in the Chapter which speaks of the abettor being present on the scene, supports the foregoing construction of Sections 107 and 109. It provides that when any person who, if absent, would be liable to be punished as an abettor, is present at the commission of the act or offence abetted, ke shall be d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able as an abettor, arid there are many cases in which no such liability can be proved. 161. But supposing that I am wrong arid that a person present aiding and abetting the commission of a criminal act or offence is punishable under Section 109, a conviction thereunder could only be sustained if the part played by the abettor as accessory at the fact could be distinguished from the part played by the principal in the first degree. The principal in the first degree does not, as such, abet the abettors. Section 109 would not supply a general rule that accessories at the fact are equally liable as principals with the principal in the first degree. The result would merely be that Section 109 would to some extent overlap Section 34 in its wider interpretation. If there be this overlapping, we are not thereby precluded from giving a reasonable meaning to Section 34. On the contrary it seems improbable that the framers of the Code would have forgotten to lay down the general rule. And if the general rule cannot be found in Section 109 qr Section 114 it can only be found in Section 34. 162. It was suggested that if Section 34 bore the wider meaning, Section 149 of the Code was unnec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gives it an intelligible content, in conformity with general legal notions. The opposing view involves a distinction dependent on identity or similarity of act which, if admissible at all, is wholly foreign to the law, both civil and criminal and leads nowhere. 167. The wider view, therefore, accords with what a priori the law might have been expected to be. The true doctrine that which leads to fruitful and valid legal consequences must depend on the notion of agency or representation. In the offence of criminal conspiracy, (sections 120 A and 120 B) as in civil law, representation is carried a step further. Conspirators are like partners. They are all principals, The immediate doer of an overt act in pursuance of the conspiracy is the agent of all the others, whether they are present at the time or not (Evidence Act, Section 10). In the case of accessories at the fact, confederates present at the time, representation occurs in its simplest form. If two persons are present, aiding and abetting a third who kills their common enemy with a shot from a revolver or a blow with a knife, every lawyer, and, I think, every reflecting layman would pronounce all three equally guilty. Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mark by, J., in Queen v. Hyder Jolaha 6 W.R. 83 Cr and again in Queen, v. Mohamed Asger 23 W.R. 11 Cr. Later cases explicitly refer to Section 34. A compact and sufficient illustration will be found in Sri. Prosad Misser v. Emperor 4 C.W.N. 193 at p. 196. In that case, a Pathan had killed a Nawab by successive blows with a tulwar. Four other men were present at the time. The Court (Sir Francis Maclean, C.J., and Banerjee J.) observed: The Judge ought to have called the attention of the Jury to the facts, and then said that it was for them to consider whether, from those facts, they concluded that the criminal act was done by the several persons in furtherance of the common intention of all, and if they so concluded then to direct them that the case came within Section 34 of the Penal Code and that each of them would be liable for that act, in the same manner as if it were done by him alone. That this view of the law has predominated is shown again by the judgment of Mitra and Fletcher, JJ., in Nibaran Chandra Roy v. King-Emperor 11 C.W.N. 1085 at p. 1089 : 6 Cr. L.J. 304. The current of decision in this Court was not, I think, disturbed till Stephen, J., delivered his judgment i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gret that the learned Judge gave no indication of the meaning which he attributed to the section on that footing. 174. The learned Judge then turned to the abetment sections. He stated as to Section 109 that there was no reason for supposing that a man must be absent in order to abet under that section. If he then looked to Section 114 to fill the gap left by his view of Section 34, he was putting a forced construction on one Section to avoid what appeared to him a forced construction of another. 175. Finally, he said: In reference to English Law, it seems to me that the effect of Sections 109 and 114 is to supersede all the English Law relating to principals of the first and second degrees and accessories before the fact. I do not see, however, how Sections 109 and 114 can touch principals of the first degree. If the learned Judge had said that the group of sections including Section 34 together with the abetment sections superseded all the English Law on those topics, I could have understood it. But then the difficulty would have remained whether accessories at the fact are to lie treated as principals or abettors. 176. In the case before the learned Judge, the prison ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law. Under milder conditions and legislation, the technicalities have for the most part disappeared along with the excuse for them. And happily, in India, under a modern Code, such as the Penal Code, redress by mere technicality is not required. That, of course, is not to say that an accused person is not always entitled as of right to a fair trial according to the established forms of law In all criminal cases it is necessary that there should be a charge, a finding and a conviction as a foundation for the sentence. Everything should be strictly and accurately pursued; and if in any one of these three points a substantial defect should appear, it would be a ground for revising the proceeding: Ex parte Van Sandau (1844) 1 Ph. 445 : 15 L.J. Bk. 13 : 1 Dec. 55 8 Jur. 193 : 41 B.R. 701, In re Vallabhdas Jairam 27 B. 394 : 5 Bom. L.R. 343. It is a miscarriage of justice to deprive an accused person of the protection given by essential steps in Criminal Procedure. [Per Lord Sumner, Crane v. Director of Public Prosecution (1921) 2 App. Cas. 299 at p. 331 : 90 L.J.K.B. 1160 : 125 L.T. 642 : 85 J.P. 215 : 15 Cr. App. Rep. 183 : 65 S.J. 642 : 37 T.L.R. 788]. In that connection the dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ears to me that this solution cannot possibly have come within the intention or contemplation of the Legislature and is not contemplated by the language of Section 34. The language is compatible with the reasonable solution, namely, that both shots, the shot that took effect, and the shot that missed, are the joint acts of the two men. Each man in the eye of the law does both acts. The result follows that they are severally but equally liable for the effect produced, in accordance with the principle, I again quote my brother Mookerjee, that all who participate in the commission of a crime are severally responsible to the State as though the crime has been committed by any one of them acting alone: Amrita Lal Bose v. Corporation of Calcutta 42 Ind. Cas. 305 : 44 C. 1025 : 26 C.L.J. 215 : 21 C.W.N.1016 : 18 Cr. L.J. 945. The fact that the attack is made by two men and not by one may well be an aggravation and not a palliation of the crime. The attack is cowardly so far as the criminals look to superiority in numbers for security and courage. 181. The second pase on which the learned Counsel relied, that of Emperor v. Profulla Kumar Mazumdar 74 Ind. Cas. 267 : 50 C. 41 at p. 47; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a principal, a charge simply of the offence of murder under Section 302, without express reference to Section 34, is sufficient. As Section 34 must be read into Section 302 of the Penal Code, Section 224 of the Criminal Procedure Code conies into play: In every charge words used in describing an offence shall be deemed to have been used in the sense attached to them respectively by the law under which such offence is punishable. No doubt, it is always open to the prosecution to state in the charge particulars showing that the accused is charged as an accessory at the fact. But it is not necessary, nor always possible, to do so The prosecution cannot state in the charge particulars of which they are ignorant. In a case of murder the murdered man cannot be called at the trial, and there may be no other eye witnesses except the actual principals in the crime. If it is not known which of several men fired the fatal shot or de livered the fatal blow, the charge cannot be explicit and nothing is gained by multiplying charges to meet all possible hypotheses. 184. In England also a principal in the second degree is chargeable with the substantive offence. Sir Mathew Hale for instan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Now, no one who reads the charge can doubt that the learned Judge put that defence to the Jury not once but several times. The Jury were fully instructed that the charge of murder involved participation by the accused in a common intention not only to rob, but also, if necessary, to kill, the Post Master. The point might have been put less specifically. A common intention to carry out an unlawful design at all costs, even at the cost of overcoming resistance, or evading capture by taking life is sufficient. The Jury were a Special Jury and I see no reason to suppose that they did not fully appreciate the legal position. Without mincing matters, the ascription of a common intention to add murder, if necessary, to robbery, is not easily avoided, where all, or some to the knowledge of the rest, of those engaged in the enterprise, are proved to have carried fire-arms and fire-arms have been used with fatal effect. 190. The objections taken to the charge, so far as they seem to me to call for mention at all, are based on the statement made by the accused at the close of the case for the prosecution. It is said that the learned Judge did not advert, or sufficiently advert, to certai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction is that during the trial nothingmore was said about these two exhibits and that he told the Jury that they went out of the case. The learned Judge's statement of what took place is conclusive. It is here abundantly confirmed by the fact that the gun-maker, au expert witness, who went later into the witness-box, was not even asked whether, the live cartridge fitted the accused's pistol. Assuming in accordance with what seems to have been the case for the prosecution, that it did fit the pistol, the gun-maker was not questioned as to the circumstances in which a live cartridge might drop out, or be ejected, from an automatic pistol. There are such things as mis-fires and mis-fits. It does not seem beyond the bounds of possibility that an ill-graduated cartridge should be forced by the mechanism too far into the breach and so be beyond the proper reach of the striker when the trigger is pulled. Such a cartridge might be ejected in the ordinary course of firing without a dent or a visible dent on the cap. I have no wish to speculate. All I am saying is that the matter was not pursued and that no sufficient foundation was laid in cross-examination for any plea founded on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used of a bundle which contained tAvo revolvers and three ugly looking daggers. The accused endeavoured to account for the possession of this armoury by saying that the bundle had been given to him for safe custody by a gentleman unnamed. Having stowed away the bundle, he was taken by the same gentleman to his house, where he seems to have been somewhat easily persuaded, to join in an enterprise in the nature of a dacoity. The pressure brought to bear on him was apparently moral, and not physical, but he says he was not in a position to argue. He speaks of four pistols, one of which was given to him. He was taught by the unnamed gentleman how to use the pistol. That I suppose was to account for his firing as he ran away. The pistol was then loaded and a start was made. I cannot think that such a story would, or ought to make, much impression on a Jury and I have heard no grievance made of any failure of the learned Judge to deal fully with this part of the statement. 197. The trial having taken its course, the Jury returned a verdict of guilty. I doubt whether the fact that the verdict was unanimous ence [see Emperor v. Upendr Nath Das (G) per Holmwood, J., and West India Electr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eful and anxious examination of the case, I can only say that to my mind the complaint of non-direction amounting' to misdirection is not sustainable. In my opinion, on the evidence as it stood, the substantial questions and issues involved, for the defence as well as for the prosecution, were fairly put to the Jury. Their minds were not perplexed by a minute discussion of every detail of the evidence, or of every suggestion made at the close of the evidence. After a trial extending over two days, after the accused had made his statement, after the learned Standing Counsel and the learned Counsel for the accused had delivered their addresses, the case was left to the Jury by the learned Judge broadly on its merits. 200. It is, as I entirely agree, an elementary principle that a defence made by or for an accused, or apparent on the evidence for the prosecution, should be fairly presented to the Jury, and I have before now drawn attention to this principle. As Lord Watson said in Bray v. Ford (1896) A.C. 44 : 65 L.J.Q.B. 213 : 73 L. T 609: Every party to a trial by Jury has a legal and constitutional right to have the case which he has made, either in pursuit or in defence, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er notice of the intention to do so had or had not been given to the learned Standing Counsel. Still less am I prepared to discuss the course taken by the learned'Judge in listening to the learned Counsel and in advising them as he says he did. The questions raised may be questions on which a difference of opinion is possible. They may call for further consideration when the full Court re-assembles after the vacation, not with reference to this case but with reference to the future. The accused is entitled to have any point in his favour considered, but with submission, it appears to me dangerous to convert the trial of the accused into the trial of others officially connected with the proceedings, against whom no specific charge calling for an answer has been made. 204. So far as the accused is concerned I had thought that the incident was disposed of on the first day of the hearing, before us. After the relevant part of the learned Judge's note of the proceedings, which he had prepared for our in to 'information, had been read out in Court to the learned Counsel, Mr. Chatterji, we adjourned the hearing from 11 A.M. to 2-30 P.M. in order that the learned Counsel, mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me that the learned Counsel who appears to have gone to the learned Judge in what they considered to be the interests of their client, did not feel themselves at all hampered by anything which may have fallen from the learned Judge. I have not detected any want of freedom or enterprise in their conduct of the defence or in the mode in which they put before the learned Judge and the Jury the case for the accused on the two crucial questions, the question whether the accused was jone of those who fired at the Post Master and the question of common intention. 210. No witnesses for the accused were called and in such a case and in such circumstances it would be surprising if any were called., The defence was necessarily of a negative rather than an affirmative character. The only hope was by cross-examination to shake the prosecution evidence telling most strongly against the accused. I have already indicated my belief that the learned Counsel toot only acted up to their original instructions but possibly exceeded those instructions. So far as I can see they left no stone unturned and, in my opinion, the accused was in no way prejudiced at his trial. 211. I have made these observ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not repelling the learned Advocate-General's certificate, we should have no, power to direct a re-trial, at any rate on any ground short of an illegality which made the trial abortive and no trial at all. The question is concluded by the authorities reviewed by Mookerjee, J., in Emperor v. Panchu Das 58 Ind. Cas. 929 : 24 C.W.N. 501 : 31 C.L.J. 402 : 47 C. 671 : 21 Cr. L.J. 849. 215. I conclude that AVC should pronounce the certificate of the learned Advocate General to be misconceived. I am glad to think that in so concluding I am in agreement with the learned Judge who has presided over our deliberations. [Note by Kichardson, J., on previous, history of Section 34 and Sections 33, 37, and 38.] 216. The draft Code prepared by Lord Macaulay and his colleagues was Completed in 1837. If began with a Chapter bearing the same heading-- General, Explanations --as the present Chapter II. Notes on various Chapters are appended to the draft but it does not seem: to have been thought, necessary to furnish, any note on the General Explanations which, are in the nature of interpretation clauses. The following observations, however, occur in two paragraphs or the first report dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fence, or in any such act or omission as aforesaid; or (c) Directly or indirectly counsels or procures any person to commit the offence, or to do or omit any such act as aforesaid. 225. Clause (a) contemplates the offenders known in England as principals in the first degree, the immediate perpetrators of the act done, Clause (6) those known as principals in the second degree or accessories at the fact, and Clause (c) those known as accessories before the fact. In English Law, principals in the first degree and principals in the second degree are equally principals and are, as such, distinguished from accessories before the fact. 226. It will be observed that in the Code as finally passed by the Legislature in 1860, Clause 3 of the original draft is drawn out into the Sections 34, 35, 37 and 38. This difference of language may, of course, have affected the meaning. I have no knowledge when or by whom the change was made, or for what reasons the language adopted was chosen. 227. As to the relation of Section 34 and the connected section to abetment, in the original draft, abetment was defined as being of two kinds, previous abetment and subsequent abetment. Clearly Lord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Code, with the reservation that he did not cause hurt to the said Amrita Lal Roy and pleaded not guilty to the charge under Section 302, Indian Penal Code, and thaj; the trial was proceeded with thereafter in respect of the latter charge. 234. The case for the prosecution was as follows: That the accused and three other persons made their appearance at the Sankaritola Post Office at about 3-30 P.M. on the 3rd August, 1923, armed with fire-arms; that three of them, including the accused, entered the Post Office through its south-eastern door, while the fourth man remained outside; that of the three who came, inside, the accused stood in the middle and the masked man 'on his left and the other man on his right;, that they stood within less than two yards of Amrita Lal Roy, who was the Post Master, of whom all the three demanded money with the words Post Master, rupeya deo ; that the Post Master asked kishcr tafca, whereupon all the three levelled their weapons and fired at the Post Master simultaneously; that one of the bullets went through the Post Master's right palm and another struck him on the right side under the right armpit, whereupon he fell down with a cry; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emained back whilst his two companions ran aWay; that he recovered himself later on hearing the cry of chor, chor ; that he was running by himself; that he for the first time tried to fire his revolver in course of being pursued; that his pistol did not go of? when he pulled the trigger; that he thereupon remembered his instructions to pull out a portion of the pistol and to release the safety-catch, and as he did so, a live cartridge fell out. 239. 3. That the accused kept on firing in the air as he rah along and refrained from shooting the packer and others who followed him at close quarters. 240. No evidence was called tin behalf of the accused and the accused contented himself with making the statement referred to above. There was evidence, as indicated above, before the Jury that immediately on the demand for money being made of the Past Master by the three men who had entered the room, in which the Post Master was working, the packer, Hara Parasad Das, at once ran up towards the Post Master's table and saw three men at the door of the room and that the accused was one of the three and' that there was another man in the courtyard near the steps leading to the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reafter; by virtue, of the powers entrusted to him by the Letters Patent, bearing date the 28th September, 1865, certified that in his judgment whether the alleged direction and the alleged omission tb direct the Jury did riot ill law amount to a misdirection should be further considered by this Court, and the matter has accordingly come before this Court for consideration. 244. The certificate of the learned Advocate-General raises two questions, namely, whether there was misdirection on a question of law, and whether there was non-direction with regard to the case for the defence; but before I proceed to deal with these matters, it is necessary tq examine the scope and extent of Clause 26 of the Letters' Patent of 1865 under which the learned Advocate-General has given his fiat. 245. Clause 26 of the Letters Patent runs as follows: And we do further ordain, that on such point or points of law being so reserved as aforesaid, or on its being certified by the said Advocate-General that, in his judgment, there is an error in the decision of a point or points of law decided by the Court of original criminal jurisdiction, or that a point or points of law which has or have be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 42 : 8 Ind. Dec. (N.S.) 967 (F.B.), in each instance, the point of law was decided, in favour of the accused; but on a review of the whole evidence, while the conviction was affirmed in the former, case, it was set aside in the latter instance. The cases of Queen-Empress v. Shib Chunder Mitter 10 C. 1079 : 5 Ind. Dec. (N.S.) 721 and Emperor v. Upendra Nath Das 30 Ind. Cas 113 : 19 C.W.N. 653 : 21 C.L.J. 377 : 16 Cr. L.J. 561 (F.B.) do not directly touch the present question, inasmuch as the alleged error of law was not established in either instance. In the case Queen-Empress v. Shib Chunder Mitter 10 C. 1079 : 5 Ind. Dec. (N.S.) 721, a Rule was obtained under the provisions of Clause 26 of the Letters, Patent calling upon the Law Officers of the Crown, to show cause why the prisoner, Shib Chundra Mitter, should not be acquitted or why there should not be a new trial on the ground that the learned Judge, Mr. Justice Eield, who tried him had misdirected the Jury on a point of law. Sir Richard. Garth, C.J., observed as follows: That being so, we consider that there was no misdirection; and, as in this case it is not shown that in his charge to the Jury the learned Judge committed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... review and that an order for re-trial is not comDete.it [See Emperor v. Panchu Das 58 Ind. Cas. 929 : 24 C.W.N. 501 : 31 C.L.J. 402:47 C. 671:21 Cr. L.J. 849] I think the authorities referred to above are binding on us and that we must proceed upon the footing that there is no power in the High Court to direct a trial. 247. I am not unmindful of the fact that it has recently been held in England that in cases of mis-trial the Court of Criminal Appeal has power under the Criminal Appeal Act, 1907 (7 Edw. 7, c. 23) to order a new trial: Crane v. Director of Public Prosecution (1921) 2 App. Cas. 299 at p. 331 : 90 L.J.K.B. 1160 : 125 L.T. 642 : 85 J.P. 215 : 15 Cr. App. Rep. 183 : 65 S.J. 642 : 37 T.L.R. 788. In that case there was a triaj before a Jury of two persons on separate indictments and it was held that the.trial was a nullity and was not a mere irregularity. The Court of Criminal Appeal, as also the majority of the noble and learned Lords in the House of Lords went at great length into the question of the powers of the Court for the consideration of Crown cases reserved under the Crown Cases Act of 1848 and into the powers of the old Court of Queen's Bench on a writ o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel. A short adjournment was granted and arrangements were made so that Mr. Chatterji might interview the accused in the Presidency Jail. Later on, Mr. Chatterji informed us that the accused had definitely stated that he wished him (Mr. Chatterji) to represent him at the hearing before us and to argue the case on his behalf. Thereupon the hearing proceeded. It is unnecessary for me to dwell further on the incident referred to above or to refer to the statement made by Mr. Chatterji from his place at the Bar, or to the written statement handed in to the Court on behalf of Mr. Sen and himself, or to elaborate the duty of Counsel, assuming that they are impressed with a belief in their client's guilt. 250. Now, it was said that the accused had pleaded guilty to the charge under Section 394, Indian Penal, Code, with the reservation that he did not cause hurt to the Post Master. With reference to this allegation, however, the learnedj-Judge who presided at the trial has informed us of what precisely happened at the trial when the accused was asked whether he was guilty of the offences charged against him, and we have the learned Judge's word that in respect of the charge und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th resulted from their act, the man who stood outside the Post Office room, and in the courtyard would be equally guilty with the men who were inside the Post Office room, and that in this the learned Judge, was wrong. Jt is argued that if these submissions are correct the learned Judge misdirected the Jury in the passages which haye been quoted above. 252. It therefore, bec.pmes necessary to ascertain, what is the true meaning pf Section 34 of the Indian Penal Code, Section 34 runs as follows;-- When a criminal act is done by several persons, in furtherance of the common intention of all each of such persons is, liable for that act in the same manner as, if it were done by him alone. 253. To start with, it is reasonably clear that the section does not Qreate a distinct offence and it merely lays down a principle of liability: [In the matter of Faezulla,. (57).] What is this principle f It is, to use the words of their Lordships of the Judicial Committee of the Privy Council, this, that where parties go with a cqm-moii purpose tp execute a common object each and every one becomes responsible, for the acts of each and every other in execution and' furtherance of their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. If several persons combine to forge an instrument, and each executes by hjnaself a distinct part of the forgery in pursuance of a conilnon intention, they are all equally guilty of forgery, thqugh they niay not be together when the forgery is completed by one of them, adding the signature. [Bee Rfx v. Bingely (1821) R. and R. 446, Rex v. Dade (1825) 1 Moody C.C. 307; Rex. v. Kelly (1820) R. and R. 421]. If several persons act in concert to steal a man's, goods, and he is induped by fraud tq trust one of thena, in the presence of others, with the possession of the goods and another of them entices him away, so that the one who has the gpods may carry them away, all are equally guilty of theft. [See Rex v. Standley (1821) R. and R. 305]. The foregoing examples serve to visualise the principle that if persons combining in intention perform a criminal act jointly the guilt of each is the same as if he had done it alone and it is the same, if the act being divided into parts, each proceeds with his part unaided. In other words, if several persons unite in one common design to do some criminal act and each takes the part assigned to him though all are not or may not be actually pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C. 1072 : 18 C.W.N. 723 : 15 Cr. L.J. 460, which w-as cited apparently with approval by the Chief Justice in the case of Emperor v. Profulla Kumar Mqzumdar 74 Ind. Cas. 267 : 50 C. 41 at p. 47; (1923) A.I.R. (C.) 453 : 24 Cr. L.J. 763, and it has been held that Section 34 applies only where a, criminal act is done by several persons, of whom the accused charged thereunder, is one, and not where an act is physipally done by some persons other than the latter. In other words, it has been held that where two persons fire at another and one actually hits and kills him, the other is not guilty of murder under Sections 302 and 34, Indian Penal Code,' but of attempt to murder, which offences do not constitute the same act . Giving the words of Section 34 their plain and natural meaning, I am unable to take the restricted view of Section 34, which apparently found fayoiir with the learned Judges who decided the two cases just referred to. In my judgment, the effect pf Section 34, Indian Penal Code, would be entirely nullified if such a restricted meaning of this action is accepted. 254. The above being my reading of Section 34, Indian Penal Code, I have carefully examined the summi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as. 438 : 40 A. 103 : 16 A.L.J. 11 : 19 Cr. L.J. 150 and Emperor v. Guiab 47 Ind. Cas. 805 : 40 A. 686 : 16 A.L.J. 731 : 19 Cr. L.J. 953. The Patna High Court has taken the same view in the cases of Ritbaran Singh v. Emperor 46 Ind. Cas. 709 : 19 Cr. L.J. 789 : 4 P.L.W. 120 and Strughan Patar v. Emperor 50 Ind. Cas. 337 : 20 Cr. L.J. 289. So far as the Punjab Court is concerned, the case of Emperor v. Nirmal Kanta' Roy 24 Ind. Cas. 340 : 41 C. 1072 : 18 C.W.N. 723 : 15 Cr. L.J. 460 has been followed in the case of Bahal Singh v. Emperor 52 Ind. Cas. 791 : 24 P.R. 1919 Cr.; 20 Cr. L.J. 711. It is not to be understood that the above is an exhaustive summary of the cases on Section 34, Indian Penal Code. There are a great many more decisions on that section, but I have only selected the typical ones, more specially so because of the fact that a full discussion of them is contained in the judgment of Mookerjee, J. 256. I now pass on to consider the second question raised on the fiat of the learned Advocate-General, namely, that the learned Judge had omitted to draw the attention of the Jury to the defence of the accused save and except a mere reference to the statement made by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection, and those who allege misdirection must show that something wrong was said or that something was said which would make wrong that which was left to be understood. Every summing up must be regarded in the light of the conduct of the trial and the questions which have been raised by the Counsel for the prosecution and for the defence respectively. This Court does not sit to consider whether this or that phrase was the best that might have been chosen, or whether a direction which has been attacked might have been fuller or more conveniently expressed or whether other topics which might have been dealt with on other occasions should be introduced. This Court sits here to administer justice and to deal with valid objections to matters which may have led to a miscarriage of justice. Its work would become well nigh impossible if it is to be supposed that, regardless of their real merits or of their effect upon the result, objections are to be raised and argued at great length which were never suggested at the trial and which are only the result of criticism directed to discover some possible ground for argument. These observations have been approved of and acted upon in the Full ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urtyard, the man who stood outside the Post Office room and near the steps leading thereto; but there is no cross-examination upon this most vital point and it is impossible for me to found my judgment in favour of the accused in the absence of cross-examination. There is, however, enough in the learned Judge's charge to the Jury which indicates to my mind that he had not overlooked the question raised in the first ppint indicated above. In at least three passages in that charge the learned Judge directed, and properly directed, the attention of the Jury to this matter. 267. Now, as regards the second issue, viz., was the prisoner outside the Post Office room and in the courtyard, the learned Judge did draw the attention pf the Jury to the suggestion made on behalf pf the defence, although no doubt he pointed out, as he was entirely right in doing so, that there was no evidence in suppprt of the suggestion made by the defence. 268. As regards the third issue, viz., whether the prisoner had any rriurderous intention, the learned Judge has time after time in the course of his charge to the Jury referred to the question of the common intention of the men whp had joined in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en made before us was never made before the Trial Judge and Jury. In the second place, having regard to, what happened at the trial when the witness, Punio Chandra De, was examined, and having regard to the facts which haye been stated to us by the learned judge showing conclusively that Exhibit 10 went out of the case altogether, it is, not open, in my opinion, to learned Counsel for the accused at this stage of the case to hark back to Exhibit 10 and to make; use of it for the purpose pf supporting his theory. In the third place, having regard to the fact that the gun expert, Mr. Todd, was not examined on the point as to whether Exhibit 10 could fit into the automatic pistol which was in the hands of the accused, it would be mere speculation to enlarge further on the question. I am satisfied on the evidence and on the statement of the learned Judge that the case now raised on behalf of the Accused was not made at the trial and was not even remotely indicated during the progress of the trial and that it is an afterthought. So much for the theory of the live cartridge. As regards the dther points referred to above, under this head, I db not think it is necessary for me to go into t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... addressed to us by Mr. Chattetji and the Standing Counsel and after giving them my most careful consideration am of opinion that this certificate of the learned Advocate-General is misconceived and this application for review under Clause 28 of the Letters Patent should be refused. 272. It is unnecessary for me tb set out the facts of the case which will be found in the judgment of my learned brother Mookerjee. 273. Mr. Chatterji has Urged three points. 274. His first point is that Mr. Justice Page in his charge to the Jury laid down the law as follows: Therefore, in this case, if these three persons went to that place with a common intention to rob the Post Master and, if necessary, ob kill him, and if death resulted each of them is liable whichever of the three fired the fatal shot. 275. Mr. Chatterji's argument 'seems tb be that this may be the law in England, he does not seem to dispute that it is so, but he Would contend that it is hot the law in India. His contention seems to be that those who did not actually fire the fatal shot might be charged With abetment but not as principals. That in the present case, there is no charge of abetment neither did t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y must, therefore, be considered to be all doing the act though each is executing a different part of the act. 280. Further, if the expression act includes a series of acts then all the different acts of the conspirators such as keeping guard, terrorising the onlookers or victim must be considered as one act. It is impossible to conceive two individuals doing the identically same act. Such a thing is impossible. Therefore to have any meaning the expression criminal act done by several persons must contemplate an act which can be divided into parts each part being executed by a different person, the whole making up the criminal act which was the common intention of all. To put it in another way, the one criminal act may be regarded as made up of a number of acts done by the individual conspirators the result of their individual acts being the criminal act which was the common intention of them all. 281. I think that the expression criminal act done by several persons includes the case of a number of persons acting together for a common object and each doing some act in furtherance of the final result which various acts make up the final act. 282. Mr. Chatterji has cit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is escape afterwards, and if Dinesh threw the bomb the accused (Khudiram) would be equally guilty with Dinesh of committing the offence of murder (section 34, Indian Penal Code). 286. In the case of Nibaran Chandra Roy v. King-Emperor 11 C.W.N. 1085 at p. 1089 : 6 Cr. L.J. 304, the learned Judges (Mitra and Fletcher, JJ.) remark: If, however, two persons are found under circumstances as assumed in the hypothetical case, with guns in their hands and they had been acting in concert, or that each was an assenting party to the action of the other, the criminal act done by one must be presumed to have been done in furtherance of the common intention of both, and Section 34, Indian Penal Code, may be invoked to impose penal liability on any one of the persons in the same: manner as if the act was by him alone. 287. In support of this proposition the learned Judges refer to Queen v: Gora Chand Gopee 5 W.R. 45 at p. 48 Cr.; 1 Ind Jur (N.S.) 177. 288. The case of In the matter of Faezulla (57) on which Mr. Ghatterji apparently relies really supports the case of the prosecution for the learned Judges held that when two or more persons join actively in an assault on a third perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judge Could have differentiated his case from the Other threes or asked the Jury to do so and separately consider it. 294. Mr. Chatterji has next Contended that the learned Judge omitted to put they defence of the accused to the Jury beyond making a mere reference to the statement of the accused. 295. He argues that Section 297 applies t High Court. 296. Section 297 provides that in cases tried by Jury, when the case for the defence and the prosecutor's reply (if any) are concluded, the Court shall proceed to charge the Jury, summing up the evidence for the prosecution and defence and laying down the law by which the Jury are to be guided. 297. Now it is difficult to see what evidence the learned Judge could have put to the Jury on behalf of the accused. The accused himself had examined no witnesses. Mr. Chattsrji, however, argues that there was evidence to support the case of the accused that a live cartridge came out of his pistol and he says this evidence was the finding of a live cartridge. But there is no evidence on the record to prove this live cartridge was found. The prosecution was unable to put into the box the man who found it as he could not be found a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is is what the learned Judge did. I cannot find that beyond his own state-in eut which was put to the Jury there is any evidence on his behalf which could have been put to the Jury and which was not put. Putting-the accused's case to the Jury cannot possibly mean putting to the Jury every argument and comment of the learned Counsel for the defence. A charge to the J ury must be read as a whole and also in the light of the questions raised by Counsel during the conduct of the trial. The Crown case was that there were four men one of whom stayed outside and did not fire and that accused was one of those that entered and fired. The accused's case was that there were three men one of whom stayed outside. The learned Judge did put this case of the accused to the Jury. See pages 20-22. 300. Mr. Chatterji then argues that the learned Judge was bound to read the sections of the Code to the Jury. 301. Now the law on murder is contained in Sections 299, 300, 301, and 302 and I am prepared to say that to read these sections to a number of laymen would be to convey nothing to them and to hopelessly confuse them. Then again with regard to Section 34, apparently Mr. Chatterji argue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le the accused person in whose favour a certificate could not be obtained would not enjoy the same privilege. Such an anomalous position could not be contemplated. 308. A little further consideration would show that what the Advocate-General would in this view of the law be doing when he granted a certificate would be granting leave to appeal to the High Court against an order which Clause 25 expressly says is not appealable. 309. In the view which I take of the meaning of Clause 26 I am supported by the case of Emperor v. Upendra Nath Das 30 Ind. Cas 113 : 19 C.W.N. 653 : 21 C.L.J. 377 : 16 Cri. L.J. 561 (F.B.). That case was similar in many respects to the present case. In that case which was also a capital sentence case, a certificate had been granted by the Advocate-General that certain points.of law had been wrongly decided by the Trial Judge (Stephen, J.) and hence that the Jury had been misdirected. 310. The Full Bench decided that the certificate of the Advocate-General was misconceived and that no error of law-had in fact been made: The learned Chiefy Justice, Sir Lawrence Jenkins concluded his judgment as follows : 311. In this view of the case it is not wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and reviewed. The Court excluded the inadmissible evidence and dealt with the case. 316. In the other case, Emperor v. Narayan Raghunath Patki 32 B. 111 : 9 Bom. L.R. 789 : 6 Cri. L.J. 164 : 2 M.L.T. 414, the same point arose. It was held that inadmissible evidence had been admitted and the Court dealt with the whole case on the evidence properly admitted The same principle was followed in O'Hara's case (13). I am aware of no case in which the Court where it has found the certificate misconceived has dealt with the case and interfered with the sentence. 317. In my opinion, therefore the certificate in this case has been misconceived and the application must fail. 318. Certain other points and incidents have arisen during the hearing of this case, and in the course of this trial. These points have not been argued by Counsel and form as far as I know no part of the case of either party. In these circumstances I do not think it necessary that I should discuss them and I have confined myself to the case of the parties as presented to me in Court. 319. Arthur Page, J.--I should have felt it to be my duty to state in my own words what I conceive to be the meaning and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ideration of these matters until they can effectively be determined. In my opinion, this is not a suitable occasion, and this Court is not the proper Tribunal for disposing of them. 326. There is only one other matter to which I desire to refer. That Judges exercising original civil or criminal jurisdiction should be compelled to transact business without the assistance of shorthand writers is false economy, and an anachronism which I trust in the near future will come to an end. But shorthand writers are not infallible, and these proceedings emphasize the importance of rigidly maintaining the rule that a statement by a learned Judge as to what took place during the course of a trial before him is final and decisive: It is not to be criticized or circumvented; much less is it to be exposed to animadversion. 327. Arthur Page, J.--(Post script)--As I was seriously ill when judgment was given and had no notice of the statement which Mookerjee, J., thought it right to make as to what he would or might have done if Counsel had sought an interview with him, I desire to place on record that it was well-known that the two Counsel who came to my Chamber were appearing for the accused ..... X X X X Extracts X X X X X X X X Extracts X X X X
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