Hugh Walmsley, J.@mdashThere are two appeals before us and a Reference u/s 374, Cr. P.C. The circumstances are as follows. It is said that
the accused had a quarrel with the family of one Momrez and that one night they went to his house and set fire to the hut in which Momrez and his
two wives and some children were sleeping: the inmates of this hut were not allowed to escape and they were all burned to death. In other huts
Intaz and Bibijan were sleeping and they were also killed.
2. The Committing Magistrate framed charges u/s 120B read with Section 302, Indian Penal Code and u/s 302, Indian Penal Code and Section
436, Indian Penal Code. The learned Judge made changes in the charge u/s 120B read with Section 302, Indian Penal Code. The Jury was
unanimous in finding all the accused guilty on all the charges. The Judge agreed with the verdict and sentenced two of the men to death, and the
others to transportation for life. Hence the two appeals and the Reference Objection is taken on behalf of the appellants that the trial was vitiated
by the charges. It is said that there has been mis-joinder of charges and also of persons.
3. It must be conceded that a crime of such a whole-sale nature presents considerable difficulty.
4. The charges framed by the Committing Magistrate were as follows:
(1) That you, between December, 1923 and 7th January 1924 at Daria P.S. Canning did agree with one another and with other persons unknown
to do and cause to be done an illegal act, to wit, commission of the offence of murder of Momrez Baddy and other members of his family by
setting fire to his huts and by means of guns, daggers, spears and other deadly weapons and in pursuance of the said conspiracy caused the death
of Momrez Baddy, his two wives Chandra Bibi and Dasi Bibi, his sons Intaz, Safed Ali, Jabed Ali, Yunus and his grandson Jead Ali and mother
Bibijan Bibi and thereby committed an offence punishable u/s 120B/302 of the Indian Penal Code, and within the cognizance of the Court of
Sessions. And I hereby direct that you be tried by the said Court on the said charge."" In this charge the conspiracy to commit and the actual
commission, with the names of the persons killed, are mentioned.
(2) Of murder u/s 302, Indian Penal Code. In this one charge the names of the seven inmates of Momrez'' hut are mentioned.
(3) Of murder u/s 302, Indian Penal Code, in regard to the killing of Intaz.
(4) Of murder u/s 302, Indian Penal Code, in regard to the killing of Bibijan.
(5) Of arson u/s 436 in pursuance of the conspiracy in the first charge in respect of the hut occupied by Momrez.
5. These five charges were drawn up against all the accused.
6. The charge under Sections 120B and 302, Indian Penal Code, drawn by the learned Judge differs from that drawn by the Magistrate in two
respects, namely, that it refers to the date of the occurrence only, and that it mentions only the conspiracy to commit and not the commission.
7. It, is merely a technical defect that the seven inmates of Momrez''s hutare all named in one charge of murder, instead of a separate charge of
murder being drawn in regard to each To that I attach no importance. It is more serious that all the accused are charged in regard to the killing of
Intaz and in regard to the killing of Bibijan, for those deaths were caused by particular members of the attacking parity, and it is possible that they
lay outside the common intention, at any rate, that the killing of Bibijan did so.
8. No objection, however, was taken at the trial to the charges as framed, and it appears to me that they gave the accused full information of what
they were said to have done.
9. The learned Judge, however, in his address to the Jury seems to have added difficulties. He says ""that the first charge of conspiracy does not
seem to be imports ant in view of the main charge of murder."" Again he says ""since, the murder was accomplished the charge of conspiracy is of
no importance."" He did, however, continue:"" If you find that the accused agreed to with one another to kill Momrez and the other members of his
family then you can find them guilty u/s 120B."" With regard to the killing of Intaz he said that it was for the Jury to decide whether any one but
Bilait Ali should be held guilty, and with reference to Bibijan he said that the murder may not have been in the programme, adding. ""For that
Alimuddin himself alone is responsible."" Then he went on: ""Against all the accused it is the charge of murder of Momrez, and six others with him.
That is the important charge.
10. These remarks show some confusion or carelessness, but it is clear that the Judge set the main issue before the Jury--Was it proved that the
accused were the men who shut Momrez in the burning hut?
11. The answer of the Jury was free from all ambiguity, but it has this defect that it found all the accused guilty on all the charges, that is to say the
Jurors ignored the Judge''s reference to the individual responsibility in the case of Intaz, and Bibijan.
12. The question is whether, in these circumstances, the defects in the charge have led to a miscarriage of justice. For the purposes of this case that
question means whether the accused were prejudiced in their defence, whether the Jury was confused as to the problem, which it had to solve.
13. As to the defence the accused have'' not gone further than saying that they are innocent: they said that to the Magistrate and they declined to
say more to the Judge; and cross-examination is devoted to showing that the assailants were not recognised and that witnesses are hostile. I find it
difficult to believe that more perfectly drawn charges could, hate lightened the task of the defence.
14. As to the decision of the Jury, when we look at the substance, what they held was this that the accused are the men who went to Momrez''s
house, who set fire to his hut, who prevented the inmates from escaping. Instead, however, of dealing with the individuals responsible for killing
Intaz and Bibijan, they found all the accused guilty in respect of killing those two victims, and again they found all the accused guilty of committing
arson.
15. The case is a very grave one, and it is most desirable that the charges should be framed in such a way as to render it beyond doubt that there
was neither prejudice to the accused nor embarrassment to the Jury. With some hesitation I have come to the conclusion that it cannot be said that
the charges were framed with sufficient clearness, and I think we must set aside the conviction and sentences and order a re-trial. I agree with my
learned brother in the remarks which he makes about the form which the charges should take. The re-trial should take place as early as possible,
and not be allowed to wait until after the vacation.
Mukerji, J.
16. The occurrence which forms the subject-matter of the present case, though perhaps without a parallel in the history of crimes in this part of the
country, may yet be narrated in a few words.
17. In village Daria within the jurisdiction of P.S. Canning in the District of 24-Pargannas there lived two families, the Baddysand the Naskars.
They were neighbours, but for the last four years or so there has been bitter enmity between the families owing to causes into the details of which it
is unnecessary to enter.
18. On the night of Monday, the 7th January 1924, Entaj Baddy was up till about midnight; he was doing some accounts and his wife Jasiman Bibi
was sitting near him. In an adjoining hut, slept Intaz''s father Momrez Baddy, the two wives of Momrez, named Chandra Bibi and Dasi Bibi, three
sons of Momrez names Safed Ali, Jabedali and Yunus, and Momrez''s grandson Jiad Ali. In a third hut there were Esharali, another son of
Momrez and his wife Maurjan Bibi, and Bibijan Bibi, the mother of Momrez. Suddenly the huts were set fire to, the exits from some of them being
barred by closing some of the doors from outside with iron bolts or clamps. Out of the inmates of these huts, Jasiman Bibi, somehow or other,
managed to escape with a child in her arms, and took shelter in the house of a neighbour. Esharali and his wife Maurjan Bibi also succeeded in
running away. Intaz stepped out with a gun which he had in the hut in which he was, but while yet on the threshold he was speared in the leg and he
fell on the courtyard. He tried to crawl and get: up but injuries were inflicted on him and His head was almost severed from his body. Bibijan Bibi
succeeded in coming out of her room, and on her saying that she had recognised all the accused and that there, would be retribution the next day,
she was shot dead. The villagers who came; to the spot on hearing the noise of the crackling flames and report of guns or seeing the blaze were
scared away, by the culprits. Those who arrived in the early, hours of the morning found nearly the whole homestead reduced to ashes. In
Momrez''s hut, close to the door, were seven charred dead bodies. There were the four children, the sons and grandsons of Momrez; over them
lay the two wives of Momrez as if sheltering them from the flames, and over them all lay Momrez with his hands outstretched as if in their
protection. Intaz''s dead body was lying on a step to the threshold partly burnt, and his head almost severed from the body. Bibijan was lying dead
on the verandah of her hut with her entrails out and blood flowing from the verandah into the yard.
19. The case for the prosecution was that the perpetrators of this horrible crime were the Naskars and their men. The accused Alimudid Naskar,
Bilaitali Naskar, Amir Naskar, Bainaddi Naskar, Farazali Naskar, Golam alias Golap Naskar are six brothers and the accused Dudali Molla is
their servant.
20. The charges upon which the accused were tried were as follows: First of all there was a charge u/s 120B, Indian Penal Code, that the accused
conspired with one another and with others unknown to commit the offence of murder of Momrez Baddy and other members of his family. Then
there were three counts of charges u/s 302, Indian Penal Code, the first one for causing the death of Momrez Baddy, his two wives Chandra Bibi
and Dasi Bibi, and his sons Safed Ali, Jabed Ali and Yunus and his grandson Jiad Ali by barring the exit from their hut and setting fire thereto; the
second one for pausing the death of Intaz Ali; and the third one for causing the death of Bibijan Bibi Lastly there was a charge u/s 436, Indian
Penal Code, for setting fire to the huts of Momrez Boddy.
21. The Jury unanimously found all the accused guilty on all the charges, and the learned Judge accepting the verdict convicted the accused in
respect thereof u/s 302 Indian Penal Code, he sentenced Alimuddin and Bilaitali to death, and Amir Boinaddi, Farazali, Golam alias and Amir,
transportation for life. He passed no separate sentence for the offence u/s 120B or under for the offence u/s 436, Indian Penal Code. The matter
has now come up before us on a Reference for confirmation of the sentences of death as well as on appeals by the accused persons.
22. In dealing with this matter we are met at the outset with a serious difficulty arising out of the charges on which the accused were tried in the
Court below.
23. As I have stated above the first charge against the accused was a charge of conspiracy. As amended in the Court of Sessions, it ran as follows:
That you on or about the 22nd Pous. 1330 B.S. corresponding to 7th January, 1924 at Daria P.S. Canning, conspired with one another and
others unknown, to commit the offence of murder of Momrez Baddy and other members of his family and thereby committed and offence
unishable u/s 120B of the Indian Penal Code, and within the cognizance of the Court of Sessions. And I hereby direct that you be tried by the said
court on the said charge.
24. It assumed this form on amendment of a charge of conspiracy which the Committing Magistrate had framed in these words.
That you, between December, 1923 and 7th January, 1924 at Daria P.S. Canning, did agree with one another and with other persons unknown to
do and cause to be done an illegal act, to wit, commission of the offence of muder of Momrez Baddy and other members of his family by setting
fire to his huts and by means of guns, daggers, spears and other deadly weapons and in pursuance of the said conspiracy caused the death of
Mamorez Boddy, his tow wives Chandra Bibi and Dasi Bibi, his sons Intaz, Safed Ali Jabed Ali and mother Bibijan Bibi and therby committed an
offence punishable under Sections 120B/302 of the Indian Penal Code, and within the congnisance of the Court of Sessions. And I hereby direct
that you be tried by the said Court on the said charge.
25. It is difficult to see why this amendment was made; if any thing, the charge framed by the Committing Magistrate was fuller and more specific in
details and gave the cussed better notice of the case they had meet. If instead of the words ""you used the death"", the words ""death was used"" were
substituted, and the alleition as to the huts having been set fire was introduced it would have been an cal charge of conspiracy consonant with le
facts of the case. It would then have sen on the lines of the charge of conspiracy in the case of Abdul Salim v. Emperor 69 Ind. Cas. 145 : 49 C.
573 : 35 C.L.J. 279 : 26 C.W.N. 680 : AIR(1922) (C.) 107 : 23 Cri. L.J. 657. The amended charge, however, not open to any objection which
can be lid to have vitiated the trial or caused rejudice to the accused.
26. Then as to the charges u/s 302, Indian Penal Code, the first count runs thus:
That you on or about the 7th day of January, 1924 at Daria committed murder by intentionally causing the death of Momrez Baddy, his two wives
Chandra Bibi and Dasi Bibi and his sons Safed AH, Jabed Ali and Yunus and his grandson Jiad Ali by barring the exit from their hut and setting ire
thereto and thereby committed"" an offence punishable u/s 302 of the Indian Penal Code, and within the cognizance of he Court of Sessions.
27. This charge on the face of it relates to Seven offences of murder. Causing the death of one person is one offence; there can be no question that
seven offences were committed. Whether the offences were separable or not, so as to justify the application of Section 71 of the Indian Penal
Code, is outside the purview of this enquiry. They may have been committed by one single act or set of acts, but the result has been seven different
offences. That they are distinct offences cannot for a moment be doubted. Even under the Code of 1898 wherein in Section 35 there was some
apparent ambiguity in the meaning of the expression ""distinct offences,"" Sir Henry Prinsep observed: ""Section 35, Cr. P.C. seems to have been
intended to enhance the ordinary powers of a Court convicting, at the same trial, a person of distinct offences, rather than to declare what are to be
distinct offences."" By Act XVIII of 1923, the explanation and the illustration have been deleted; and there is nothing to suggest now at any rate that
separate or different offences are not distinct offences. The first part of Section 233, Cr. P.C., lays down that for each distinct offence there shall
be a separate charge. This provision is mandatory and seven different charges should have been framed for these seven offences of murder which
appear to have been huddled into the first count as it stands. Whether this provision of the law is obligatory or merely directory, or whether the
failure to comply with is an illegality which vitiates the trial or is a mere irregularity--a question with regard to which there is a clear conflict of
judicial opinion in this Court, is a matter upon which I need not express my opinion on the present occasion. Suffice it to say that it is clear that the
practical effect of the charges has been to try the accused persons in respect of a charge of conspiracy, and on nine separate charges of murder
and one of arson. I do not suggest that upon the allegation that all these offences were committed in pursuance of the conspiracy or at any rate in
the course of the same transaction, such a joinder of charges was not permissible. Applying the exceptions laid down in Sections 235 and 239, Cr.
P.C. all these charges could, no doubt, be legally joined; but it should be remembered that the provisions of these sections are merely enabling
ones and if there is risk of embarrassing the defence such joinder of charges should not be resorted to.
28. It is, therefore, necessary to consider the facts and materials upon which these charges have been framed. So far as the charge of conspiracy is
concerned, there is no direct evidence of it, but it is based upon some evidence as to preparation on the part of Alimuddi and perhaps of some of
the other accused as well. The main evidence, however, is afforded by the presence of the accused at the house of Momrez and the acts done by
them there and the learned Judge was right in directing the Jury thus: ""To bring home the charge of conspiracy against them (meaning the accused)
the prosecution rely on the same evidence on which they rely for their charge u/s 302, Indian Penal Code. If you believe that the accused went to
the house of Momrez that night, you will not have much difficulty in holding that they agreed with one another to kill Momrez and the other
members of his family."" So far then as the charge of conspiracy was concerned there was ample foundation for it.
29. The same, however, cannot be said in respect of the other charges framed in this case. As for the offences of murder as regards he seven
persons named in the first count, here is no evidence against any of the accused such as would justify the framing of the charge. As to the offence,
of murder of Intaz there is nothing on which such a marge can be framed against any of the accused other than Bilatali. As to the offence of
murdering Bibijari none except Alimuddi can be charged with it. As for the offence of arson there is evidence only against Dudali. The charges,
however, have been framed on the assumption that as they were all members of a conspiracy for committing these offences, and these offences
were committed, they may be charged with having themselves committed the offences. This position is"" hardly tenable in law. It is true that where a
conspirator is present at the commission of the offence he may, under the provisions of Section 114, Indian Penal Code, be deemed to have
committed the offence, but if that is the way in which the accused are all to be made responsible for the offences, they should be specifically
charged with such offences as read with the provisions of Section 114, Indian Penal Code. There may arise a further question in that case in
respect of some of the"" accused, namely, whether it would be permissible to infer ''conspiracy from mere presence, and again to make them liable
as principals by taking into account the fact that they were present at the commission of the offence. ''The charges of murder and arson, apart from
the weight and number of them which in itself is sufficient to crush the accused, relating as they do to such serious offences as murder and arson,
must necessarily embarrass the accused all the more when there is really no foundation for them as regards most of the accused persons in this
case. They are likely to be bewildered in their defence, unable to discover how they are ''to meet the charges when there is no allegation upon
which such charges could be based.'' They are equally apt to confuse the Jury; and that they did confuse them is clear for inspite of the fact that
there is no, evidence in suppose of these charges so far as many of the accused are concerned, as pointed out above, the Jury returned a
unanimous verdict of guilty against all the accused ''in respect of all the charges. The confusion'' could perhaps have been avoided by giving them
proper directions discriminating, between the different charges; but that does not appear to have been done in this case, On the other hand the
learned Judge observed as follows: ""The first charge of conspiracy does not seem to be important in view of the main charge of murder against the
accused, for if you do not believe the charge of murder I do not suppose that you will believe the charge of conspiracy against the accused."" Then,
the Jury were asked to consider whether they would not hold all the accused responsible for the murder of Intaz although the evidence was that
Belait struckhimon the neck with a dao, and that although Alimuddin shot Bibijan dead whether they should not hold any of the others responsible
for it, and it was also suggested to them they might not hold the others responsible as the murder of Bibijan in the manner in which it was done
might not have been in the programme; and further more they were told as regards the murder of Momrez and the other six persons, that if they
believed that the accused had a common intention to cause the death of these people in that way. then they could find them all guilty. These
directions had the effect of misleading the Jury as to how they were to deal with the charges before them and that they were so misled is evident
from the verdict ''which, they returned.
30. In my opinion the accused were embarrassed in their defence and the Jury misled and confused, and there has not been a trial of the case upon
charges properly framed in consonance with the facts alleged by the prosecution, a multitude of charges, not having any proper foundation
obscuring the case which the accused had got to meet, were put forward and, therefore, there was no proper trial which the accused were entitled
to under the law.
31. In my opinion the observations of the Lord Chancellor in the case of Subrahmania Iyer v. King-Emperor 25 M. 61 : 28 I.A. 257 : 11 M.L.J.
233 : 3 Bom. L.R. 540 : 5 C.W.N. 866 : 2 Weir. 271 : 8 S. P.C.J. 160 (P.C.), apply in substance to the charges framed in the present case. In
that case though their Lordships were dealing with Section 234, Cr. P.C., the importance and necessity of precision in the framing of charges was
pointed out in the following passage in the judgment: ""The reason of such a provision...is obviously in order that the Jury may not be prejudiced by
the multitude of charges and the inconvenience of hearing together of such a number of instances of culpability and the consequent embarrassment
both to Judges and the accused. It is likely to cause confusion and to interfere with the: definite proof of a distinct offence which it is the object of
all criminal procedure to obtain: The policy of such a provision is manifest and the necessity of a system of written accusation specifying a definite
criminal offence is of the essence of criminal procedure."" The mischief sought to be averted by the Statute has been done as is evident from the
verdict of the Jury and the acceptance of it by the learned Judge; and the effect cannot now-be ""averted by dissecting the verdict"" and
appropriating the finding of guilty only to such parts of the written accusation as ought to have been submitted to the Jury.
32. I would, therefore, set aside the convictions of and the sentences passed upon the accused and direct that they be re-tried on a charge of
conspiracy against all of them u/s 120B, Indian Penal Code, together with a charge u/s 302, Indian Penal Code, against Belaitali for the death
caused to Intaz Ali and a charge u/s 302, Indian Penal Code, against Alimuddin for the death caused to Bibijan Bibi.
