TMI Blog1924 (10) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... e advice, which they would humbly tender to His Majesty, namely, that the appeal should be dismissed. At the same time their Lordships intimated that they were unable to advise that the application for special leave to appeal should be granted. Their reasons are as follows: 2. On August 3rd, 1923, the Sub-Postmaster at Sankaritolla Post Office was counting money at his table in the back room, when several men appeared at the door which leads into the room from a courtyard, and, when just inside the door, called on him to give up the money. Almost immediately afterwards they fired pistols at him. He was hit in two places, in one hand and near the armpit, and died almost at once. Without taking any money the assailants fled, separating as they ran. One man, though he fired his pistol several times, was pursued by a post office assistant and others with commendable tenacity and courage, and eventually was secured just after he had thrown it away. This man was the appellant; the others escaped. The pistol was at once picked up and was produced at the trial. 3. There was evidence for the prosecution, such as the jury was entitled to act upon, that three men fired at the po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his precise position in the yard. Accordingly the evidence called by the prosecution, that the man outside was close to the men inside and, being visible by those within, would also see what went on within, was never challenged at all. The appellant's account was: I took my stand on the portico --this ran round two sides of the courtyard and according to the plan is consistent with a position on the steps of the doorway-- After a minute I heard two sounds--dum dum; when I heard the sounds I was confused. I perspired heavily and could not remember anything. Afterwards I heard chor chor; not finding the others there, I ran away. 7. Finally he said (and it was to this that the only affirmative part of his counsel's cross-examination was directed)-- I have never assaulted anyone in my life. This is my first offence. I throw myself on the mercy of the Court. I was married hardly three months ago. 8. The charges preferred were murder under S. 302 of the Indian Penal Code, and voluntarily causing hurt under S. 394, while jointly concerned in an attempted robbery. To the first charge he pleaded not guilty. To the second he pleaded guilty of robbe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the fact that the prosecution had not actually proved that neither of the other men fired from a German automatic pistol like the prisoner's though there was evidence making it improbable that they were armed as he was. 11. As to the subsequent defence resting on abetment, it does not appear to have been thought of at all. It would be a circumstance proper to be considered on the application for special leave, that, neither in cross-examination nor in argument before the verdict was found, was any point about abetment taken, nor was even any point as to an attempt clearly urged. 12. It was not too late to have amended the charge and to have given further directions to the jury (Criminal Procedure Code, S. 227) and points not properly raised at the trial are not points which, in ordinary circumstances, deserve much consideration as grounds for special leave. In the present case, however their Lordships think it unnecessary to dwell further on this matter. 13. In the period of over sixty years which have elapsed since the Indian Penal Code came into force, a very large number of cases have of course been reported, in which joint commission of crime, attem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minous body of criminal decisions, and it has since been as often criticised as followed, and more often than not has been disregarded altogether. This is so in all the Courts in India. 18. The doing to death of one person at the hands of several by blows or stabs, under circumstances in which it can never be known which blow or blade actually extinguished life, if indeed one only produced that result is common in criminal experience and the impossibility of doing justice, if the crime in such cases is the crime of attempted murder only, has been generally felt. Id is not often that a case is found where several shots can be proved and yet there is only one wound, but even in such circumstances it is obvious that the rule ought to be the same as in the wider class, unless the words of the Code clearly negative it. Of course questions arise in such cases as to the extent to which the common intention and the common contemplation of the gravest consequences may have gone, and participation in a joint crime, as distinguished from mere presence at the scene of its commission, is often a matter not easy to decide in complex states of fact, but the rule is one that has never left ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 24. This argument evidently fixes attention exclusively upon the accused person's own act. Intention to kill and resulting death accordingly are not enough; there must be proved an act which kills, done by several persons and corresponding to, if not identical with, the same fatal act done by one. The answer is that, if this construction is adopted, it defeats itself, for several persons cannot do the same act as one of them does. They may do acts identically similar, but the act of each is his own, and because it is his own and is relative to himself, it is not the act of another, or the same as that other's act. The result is that S. 34, construed thus, has no content and is useless. Before the High Court the appellant's counsel put an illustration of their own, which may be taken now, because, the whole range of feasible illustrations being extraordinarily small, this one is equally exact in theory and paradoxical in practice. 25. Suppose two men tie a rope round the neck of a third and pull opposite ends of the rope till he is strangled. This they said really is an instance of a case under S. 34. Really it is not. 26. Obviously each is pulling his o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and will only be convicted of an attempt, although the victim is and remains a murdered man. 29. If, on the other band, each were tried separately by different juries, either jury or both, taking the view that the violence used by the men before they killed the man, whom they knew to be dead, might return unimpeachable verdicts of murder, and then both men would be justly hanged. 30. As soon, however, as the other sections of this part of the Code are looked at, it becomes plain that the words of S. 34 are not to be eviscerated by reading them in this exceedingly limited sense. 31. By S. 33 a criminal act in S. 34 includes a series of acts and, further act includes omission to act, for example, an omission to interfere in order to prevent a murder being done before one's very eyes. By S. 37, when any offence is committed by means of several acts whoever intentionally co-operates in the commission of that offence by doing any one of those acts, either singly or jointly with any other person, commits that offence. Even if the appellant did nothing as he stood outside the door, it is to be remembered that in crimes as in other things they also serve who onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 34 to the position of dealing only with joint action by the commission of identically similar criminal acts, a kind of case which is not in itself deserving of separate treatment at all. 36. As to S. 114, it is a provision which is only brought into operation when circumstances amounting to abetment of a particular crime have first been proved, and then the presence of the accused at the commission of that crime is proved in addition: Abhi Misser v. Lachmi Narain [1900] 27 Cal. 566=4 C.W.N. 546 Abetment does not itself involve the actual commission of the crime abetted. It is a crime apart. 37. Section 114, deals with the case where there has been the crime of abetment, but where also there has been actual commission of the crime abetted and the abettor has been present thereat, and the way in which it deals with such a case is this. Instead of the crime being still abetment with circumstances of aggravation, the crime becomes the very crime abetted. The section is evidentiary not punitory. Because participation de facto (as this case shows) may sometimes be obscure in detail, it is established by the presumption juris et de jure that actual presence plus prior abetme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he others had already disappeared; thus it would seem that he covered their retreat. 42. At any rate, his statement supports presence by way of actual participation in the criminal act or series of acts by which the post master was killed rather than such conduct as adds to previous abetment bodily presence at the commission of the crime abetted and nothing more, and S. 114 was never really made applicable for want of proof of abetment of the very crime, at the commission of which the appellant was actually present. 43. For these reasons their Lordships think that only the most unsubstantial foundation was laid for any discussion of S. 114 at all, but as it was fully considered by the High Court, they state their own concurrence in the conclusion of the learned Judges below. Even if it be the case that the accused could have been convicted as an abettor, present at the commission of the offence, this is not to say that, if to presence there is added proof of participation, he could not also be convicted under Ss. 34 and 302. Participation must depend on the facts, but it is not negatived merely because actual presence and prior abetment are proved. 44. Their Lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s himself, as if he had done it by himself, even though others did something at the same time as he did. This actually negatives participation altogether and the amendment was needless, for the original words expressed all that the appellant contends that the amended section expresses. One joint transaction by several is merely resolved into separate several actions, and the actor in each answers for himself, no less and no more than if the other actors had not been there. 48. This got rid of questions about principals in the first or the second degree by ignoring them, and the object of the framers of the Code was attained. In truth, however, the amending words introduced, as an essential part of the section, the element of a common intention prescribing the condition under which each might be criminally liable when there are several actors. 49. Instead of enacting in effect that participation as such might be ignored, which is what the argument amounts to, the amended section said that, if there was action in furtherance of a common intention, the individual came under a special liability thereby, a change altogether repugnant to the suggested view of the original s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se: first that the High Court, in the exercise of its original criminal jurisdiction, has passed a judgment, order or sentence; and, second, that there has been a criminal case where the Court, exercising original jurisdiction in that case, has itself reserved a point or points of law for the opinion of the High Court. The present case does not fall within the words from any judgment, order or sentence of the said High Court of Judicature......made in the exercise of original criminal jurisdiction but it must be brought within the second alternative. Now, the Advocate-General of Bengal, under Art. 26 of the Letters Patent, granted his certificate that in his judgment whether the alleged direction or the alleged omission to direct the jury do not in law amount to a misdirection should be further considered by the said High Court. 55. After full consideration of the question so raised, the Full Bench of the High Court made its order in the following terms: The order of the Court is that the application made by the prisoner under clause 26 of the Letters Patent do stand dismissed ; and this is the order by which the Appellant is really aggrieved. It is true that in his pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... names, as part of the defining limits of the right to appeal to His Majesty in Council, a reservation of points of law by a Court exercising original jurisdiction, which is not the reservation made in this case, and the fact that a reservation by the Advocate-General is mentioned and provided for in Section 26, and is omitted from Section 41, makes the intention clear. 59. When an authority outside the High Court is empowered to bring about a right of first appeal by a certificate of his own, that appeal is to the High Court and is finally concluded by its determination. There is no second appeal. When the reservation originates within the High Court itself, then, subject to the approval of the High Court to the fitness of the case in that regard, a second appeal is competent. With Art. 41 the Advocate-General has nothing to do. The proceedings of the two tribunals, the High Court exercising original criminal jurisdiction and the High Court determining by its judgment points reserved for its consideration, are strictly two proceedings, and, when the trial judge is functus officio and the whole matter has passed to the Court in review, the conditions under which the further d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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