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Appeals Nos. 171, 178, 193 and 197 of 1956, decided on 28th May 1957.
Joinder of persons and charges‑Joint trial in contravention of provisions of Ss. 236 and 239‑Illegality not curable under S. 537‑Penal Code (XLV of 1860), Ss. 302/120‑B and 396.
Where the prosecution case was that whilst some of the accused conspired to murder the deceased, the other accused raided the house of the deceased with the object of commit ting dacoity therein, it was held that clause (d) of section 239, Criminal P. C. did not warrant the joint trial of such persons, nor did section 236, Criminal P. C. apply in such cases. Joinder of charges under sections 396 and 302/120‑B and joint trial of such two sets of accused are not justified either under clause (d) of section 239 or section 236, Criminal P. C. The infringement of section 239, clause (d), would, if made out, constitute an illegality not curable under section 537 and conviction in such a case would require to be quashed.
"Sameness of transaction"‑Criteria for determining‑Penal Code (XLV of 1860), Ss. 302/120‑B and 396.
Sameness of transaction Criteria of determining --Penal Code (XLV of 1860), Ss. 302/120‑B and 396.
The usual criteria applied for the purpose of determining whether two offences arise or do not arise out of the same transaction are usually questions relating to the proximity of time, the unity or proximity of place, the continuity of action and the community of purpose. The existence of any single one of these criteria is not by itself sufficient, nor are the criteria mentioned above cumulative.
Where a conspiracy is alleged, it does not necessarily follow that because one kind of conspiracy is alleged, all manner of acts or offences committed by. one or other of the conspirators, whether they be in pursuance of the conspiracy or not, can be tried together under section 239, clause (d), of the Code of Criminal Procedure as acts done in the course of the same transaction merely by reason of the accident of their having been committed consecutively or immediately after the crime for which the conspiracy came into being.
The offence of conspiracy, being a substantive offence in itself, commences at the point of time when the conspirators first get together and form the design, and continues upto the point of time when the object of conspiracy has been achieved where the common object of the accused conspirators was to commit murder but some of them committed dacoity too and being charged under sections 120‑13/302 and 396, P. P. C. were tried jointly with the accused charged only under section 120‑13/302.
Held, that the two offences one under section 120‑13/302 committed by one accused and the other under sections 120 B/302 and 396 committed by six other accused did not form part of the same transaction for lack of community of purpose and, therefore, the joint trial was not justified either under clause (d) of section 239 or section 236 of the Code of Criminal Procedure.
The Crown v. Abdul Kuddus P L D 1955 Dacca 5 approved.
Babulal Choukhani and another v. King Emperor 42 C W N 621 (P. C) and Asmat and others v. Emperor 44 C W N 315 fol.
Evidence of a conspirator in one conspiracy‑Not admissible against another group of conspirators entering into different conspiracy for some other purpose.
Babulal Choukhani and another v. The King Emperor 42 C W N 621 (P C) fol.
Begu and others v. The King Emperor 52 I A 191 and In re Muhammad Meera Sahib and others 44 Cr. L J 272 distinguished.
D. C. Roy, S. K. Basu, M. Hakim and R. C. Talukdar for Appellants.
A. Hakim for the State.
These four appeals have been filed by seven accused persons who were jointly tried together with one other person on charges under section 120‑B read with section 302 of the P. P. C. Apart from the appellant Fakku Mia alias Mothar Ali Khan, all the other accused were charged on both the above‑mentioned counts. The said Fakku Mia, however, was charged only under sections 120‑13/302 of the P. P. C.
They were tried with the aid of four assessors who were un animously of the opinion that the appellant Bacchu alias Bacchu Mia alias Mosharaf Hossain Khan and Sekendar were not guilty of either of the said charges. Only two of the assessors found that the appellant Fakku Mia guilty of the charge under sections 120‑13/302 of the P. P. C. So far as the other four appellants before us are concerned, they also were found, guilty by only two of the assessors under section 120‑B read with sections 302 and 395 of the said Code. The learned Additional Sessions Judge, however, accepted the unanimous opinion of the assessors only with respect to the accused Sekendar and acquitted him of the said charges. He, however, found the appellant Fakku Mia guilty under sections 120‑13/302 of the Code and sentenced him to transpor tation for life. The other six appellants before us were also found guilty by the learned Additional Judge under sections 120‑B/ 302 and 395 of the P. P. C. and they were all sentenced to transportation for life on the first count but no separate sentence was passed under section 395 of the Code.
The appellants in Criminal Appeal No. 171 of 1956 arc Fakku Mia alias Motahar Ali Khan and Bacchu alias Bacchu Mia alias Mosharaf Hossain Khan and they are represented by Mr. Dinesh Chandra Roy before us. The appellants in Crimina l Appeal No. 178 of 1956, which has been preferred from jail, arc Hachon Mohorar and Kala Gani alias Abdul Gani. They have not been represented by any learned Advocate before us. The appellant in Criminal Appeal No, 193 of 1956 is Altaf Hossain alias Altaf alias Altaf Ali alias Alta who has been represented by Mr. Maksum‑ul‑Hakim, Counsel, and the appellants in Criminal Appeal No. 197 of 1956 are Buzrukali alias Buzrukali Howlader and Azahar Dafadar who have been represented by Mr. R. C. Talukdar. All these appeals have been heard together and will be disposed of by this judgment.
The prosecution case against the said appellants may be briefly stated as follows : The appellant Fakku Mia, it is said, had been acting as the President of the Padrishibpur Union Board for 10 or 12 years continuously but, in March 1952, fresh elections for the said Union Board were held after a lapse of about 10 or 12 years. The said Union Board, it appears, was divided into three wards. The candidates for election from Ward No. 1 were the appellants Fakku, Buzruk Ali and one Hossain Karikar, who was an absconding accused in this case, and two other candidates belonging to the party of the deceased Hashemali Khan, a pleader practising in the Barisal Court. There was some trouble at the time of the election in respect of the said Ward, as a result of which the election could not be completed. In respect of the said Ward, therefore, three persons were nominated by the District Magistrate who all happened to belong to the party of the deceased. The deceased himself with two other candidates of his party was elected from Ward No. 2 by defeating the appellant Hachan Mohorar who belonged to the party of the appellant Fakku Mia. In Ward No. 3, again, two candidates of the party of the deceased and one candidate of the party of the appellant Fakku Mia were elected. The appellant Hachan Mohorar filed an election petition before the Additional District Magistrate of Barisal but the same was also dismissed. It appears that the appellant Fakku Mia also preferred an appeal to the Commis sioner of the Dacca Division against the nomination made by the Additional District Magistrate, but the Commissioner eventually, on the 3rd of January 1954, dismissed the appeal preferred by the appellant Fakku Mia.
The election of the President of the said Union Board, which was originally fixed for the 27th of March 1953, could not be held during the pendency of the appeal preferred by the appellant Fakku Mia before the Divisional Commissioner but would have been held after the disposal of the said appeal on the 3rd of January 1954. It was apprehended by the appellant Fakku Mia that, if the elections are held, the deceased Hashemali Khan will be elected the President of the Union Board as the majority of the members of the said Board thus constituted were of his party.
For these disputes over the election of the Union Board, the prosecution alleged that the appellant Fakku Mia had been conspiring with the other appellants and various other-persons f or a considerable time to bring about the death of the said deceased Hashemali Khan and that, in pursuance of the above conspiracy, the appellants did, in fact, murder the said Hashemali Khan on the night of the 7th of January 1954, at about 11 p.m. in his own dwelling house at Padrishibpur. It is further alleged by the prosecution that on this night and at the time afore mentioned the appellants other than the appellant Fakku Mia broke into the dwelling house of the said deceased Hashemali Khan through the southern window, brutally murdered the said deceased Hashemali Khan, as also looted away clothes, ornaments, cash, etc., by breaking open boxes, almirahs, etc. In the course of this dacoity, they were also said to have caused hurt to the wife of the deceased Hashemali Khan, P. W. 21, and his son Khairul Alam alias Naoroj, P. W. 5.
According to the prosecution witnesses, the persons who raided the house were, at least, 10 or 12 in number and were variously armed with ramdaos, daggers, mashals, torch lights and a gun. They were not disguised in any way and were in fact so daring that they had illuminated the entire homestead with the mashals carried by them. The prosecution story is that when they entered into the but in which the deceased Hashem Ali Khan was sleeping they tied up the hands of the deceased behind his back and witnesses heard the deceased saying "Take away all my money and valuables but forgive me." One of the dacoits, however, replied that they had not come for money and valuables only but they had come for him and asked why he had stood for election or uttered words to that effect. Thereupon the deceased replied that he would not stand as a candidate for election and that he would resign from his membership and begged to be forgiven but to no avail. He was almost hacked to death and tire was also set to his beddings. None of the others living in different huts in the same homestead or neighbours, who came there attracted by the hue and cry, could enter the homestead due to the threats of the dacoits but, after the dacoits had retreated, the informant, P. W. 2, a brother of the deceased and the others went in, saw the depredations committed by the dacoits, as also the injuries on the deceased and the other inmates of the house. They found the wife of the deceased who had tried to clasp her husband injured and two sons of the deceased with their hands tied behind them. One of them was also injured. They heard from the widow and the eldest son of the deceased that the dacoits who had entered inside numbered 7 or 8 and one of them, at least, had been recognised by Naoroj, the son of the deceased, who did not, however, disclose the name at that time, as many persons were present and he was apprehensive that, if he did so, he might himself be put in danger.
The information of this incident was lodged at 10 a.m. on the following day, namely, the 8th of January 1954, at the Bakerganj police station which is some six miles away from the place of the incident. In the first information report thus lodged, the informant, however, did not claim to have recognised anyone but it was mentioned therein that Naoroj Mia, the son of the deceased, had recognised some dacoits but had not disclosed their names. The particulars of the articles said to have been looted away were also not given in the first information report, as the informant stated that he had not gathered the said particulars from the inmates of the house. The names of some of the other persons who had come to the house of the deceased at that night after the dacoits had departed were also mentioned in the first information report.
This first information report was recorded by Sub -Inspector Narendra Nath Dutta who went to the place of the incident at about 3 p.m. that day, held an inquest over the dead body and sent it to the morgue for post‑mortem examination. He also seized certain material exhibits and examined two or three of the witnesses. He also prepared a sketch map of the locality. On the 9th of January 1954, however, he made over charge of the investigation to Sub‑Inspector Abdul Gani, P. W. 40, who was the then officer incharge of the said police‑station and the latter, after making certain investigations, submitted a charge‑sheet on the 23rd of June 1954, under section 396 of the P. P. C. only against four persons, namely, the appellants Bacchu, Altaf, and Kala Gani and one Bani Amin who was discharged in the com mitting Court.
It appears that the people of the locality including the relations of the deceased were not satisfied with the conduct of the investigation by the said police‑officer and, therefore, repre sentations were made to the higher authorities against him. As a result of such representation, the case was re‑investigated by Sub- Inspector Azizur Rahman, P. W. 39, who, then attached to Nalchiti police‑station, was specially deputed for the purpose of conducting the investigation with the 'help of the then Superintendent of Police. This re‑investigation was taken up on the 22nd of September 1954. The witnesses previously examined as also some others were re‑examined and a supplementary charge‑sheet was submitted on the 28th of October 1954, against the appel lants Fakku Mia, Azahar Ali Dafadar, Buzruk Ali, Hachon Mohorar and various other persons of whom one Hason Karikar is still absconding. Sekendar Ali has been acquitted by the learned Additional S6ssions Judge and two others, namely, Mukter Kazi and Serajuddin Sardar, were not put upon their trial together with these appellants. The supplementary charge‑sheet was submitted in respect of offences under section 396 against some, 396/120‑B against others.
There was a preliminary enquiry held by a Magistrate of the first class and he committed the appellants Fakku Mia, Hachon Moharar, Buzruk Ali, Azahar Dafadar, Altaf and Bacchu to stand their trial in the Court of Session on a charge under sections 120‑13/302 of the P. P. C. He also committed the appellants Buzruk Ali, Azahar Dafadar, Altaf, Bacchu. Kala Gani and Sekendar Ali to stand their trial in respect of the offence under section 396 of the P. P. C. In the Court of Session, the charges were amended and all the eight accused committed to the Court of Session were charged under sections 120‑13/302 of the Code and seven of them, that is to say, excluding the appellant Fakku Mia, were charged under section 396 of the P. P. C.
The defence of the appellants was that they knew nothing of either the conspiracy or the dacoity and were in no way connected with it. They claimed that they had been falsely implicated in it due to enmity and grudge.
The prosecution, in support of its case, examined‑ as many as 41 witnesses of whom P. Ws. 5, 6, 10 and 21 were actually sleeping in the same but in which the deceased was killed, P. Ws. 2, 8, 9, 12, 23 and 24 may be regarded as persons residing in the same homestead, though not in the same hut, who were prevented from coming to the rescue of the deceased by the dacoits and who all, apart from P. W. 2, claimed to have recognised one or the other dacoit. P. Ws. 13, 14, 15, 16, 19, 20, 22 30 and 31 are neigh bours who came to the house of the deceased upon hearing the hue and cry but dared not enter into the homestead due to fear of the dacoits but they claimed to have recognised one or the other of the dacoits whilst they were retreating from the house and almost all of them claimed to have heard from P. W. 5, Naoroj, immediately upon going to the house of the deceased, after the retreat of the dacoits, about his recognition. They all also confirmed that he did not disclose the name of the dacoit or dacoits recognised by him. In addition to this, P. Ws. 5, 17, 18, 21, 25, 26, 27, 28, 29, 32, 33, 34, 35 and 41 are also witnesses examined for the purposes of establishing the charge of con spiracy.
The prosecution attempted by their evidence to show that from July 1953, onwards the appellant Faklu Mia had been conspiring with various persons to bring about the death of the deceased Hashem Ali Khan. The prosecution adduced evidence through P. Ws. 29 and 33 to the effect that the appellant Fakku Mia had himself personally. told these witnesses to warn the deceased Hashem Ali Khan to desist from seeking election as President or else he would not live to see that day. Some of the witnesses gave evidence of having seen the appellant Fakku Mia in the company of the other conspirators and to have heard Fakku Mia negotiating with them for that purpose. Most of this evidence covered a period extending upto about 10 or 15 days prior to the date of the occurrence itself. In their evidence P. Ws. 34 and 35 deposed to the effect thatin July 1953, they had heard from one Mansurali Jamadar, who was not examined as a witness, that the deceased would not be able to become the President of the Union Board because the appellant Fakku had engaged the said informant and another person called Bikram Ali, who was examined as Court witness No. 1 in this case, to murder the deceased for a consideration of Rs. 1,000 to be paid by the said appellant Fakku Mia. The said informant had, however, given him this information so that he may caution the deceased.
This information was passed on by P. W. 34 to P. W. 35 who corroborates P. W. 34 to the extent of having received the said information and states that he duly cautioned the deceased Hashem Ali Khan. The deceased wanted to file a petition to the Collector and ask for protection but the said witness No. 35 advised him not to do so lest it might embitter feelings all the more. P. W. 21, the wife of the deceased, also deposed to the effect that some 8 or 1 J days before the occurrence the deceased told her that over the election matters the appellant Fakku Mia was trying to murder him and she asked him to go away and hide himself elsewhere as also not to stand for the presidential election. Again, P. W. 41, the Vicar of Padrishibpur, deposed to the effect that first on the 26th December 1953, the deceased came to his bungalow in the night, complained to him that the appellant Fakku Mia was conspiring to murder him and sought for the witness's protection and shelter. The witness offered him a room in his bungalow where he remained until about 11 p.m and then wanted to leave for Barisal where he had a case and so the witness accompanied him to the boat and saw him off there. The witness also deposed that on this occasion the deceased had two guards with him, armed with lathis. Further, on the 3rd of January 1954, i.e., some four days before the occurrence the deceased again went to the bungalow of the witness at about noon and again complained to him about the conspiracy of the appellant Fakku Mia to have him murdered. The deceased also complained that he had seen the appellant Altaf, who is a Dafadar in the Union Board under the appellant Fakku Mia, suspiciously moving about the house of the deceased. On this occasion also, the witness offered him shelter and protection. In fact, he told him that if he ever required it, he might come and stay in his bungalow. On the 5th of January 1954, the deceased again went to the bungalow of the witness and again complained about the said conspiracy to murder him and requested the witness to cancel his visit to Chittagong but, as the witness could not do so, . he again told the deceased that he could come and stay in a room in his bungalow. The witness also left such instructions with his servants.
Apart from these, the other witnesses were the usual police witness such as P.W.3, a chowkidar, who accompanied the complainant to the thana when he went to lodge the information ; P. W. 7 is the constable who escorted the dead body to the morgue and P. Ws. 36, 37, 39 and 40, the four investigating officers in this case. P. W. 38 was the clerk at the Sessions Court who was called to prove a radiogram Fwhich was sent to the District Magistrate, Chittagong, for getting the witness P. W. 41 to come and give evidence. P. W. 1 is the doctor who carried out the post‑mortem examination in this case and found as many as 18 injuries on the body of the deceased. 17 of these injuries were incised wounds and one was an abrasion. The injuries were, according to him, such as could have been caused by a ramdao, dagger or leza. The first injury described by him was one which was right across the face cutting the lower lip upto the centre of the head through the nose as also the frontal and parietal bone. The second was also an injury 6" x 3/4" x brain deep on the left side of injury No. 1. The third injury was also a similar injury vertically on the brain at the left side of injury No. 2. In fact, the injuries described by him extended from the head to the abdomen and had, as already stated, almost hacked the deceased to pieces.
In view of the legal objections that have been taken to the validity of this trial by reason of misjoinder of persons and charges and the view that we have formed with regard to the said objection, we do not consider it necessary to enter upon a more detailed examination of the evidence in this case and the various argu ments that have been advanced before us by the learned Advocates, appearing on behalf of the appellants, assailing the credibility of this evidence.
Mr. Roy, the learned Advocate for the appellants in Criminal Appeal No. 171 of 1956, has contended that in so far as all the appellants charged under sections 120‑B/302 of the P. P. C. had not also been charged under section 396 of the said Code, there was a serious misjoinder of persons and charges. According to him, since the prosecution did not allege in the accusations made by it that the offence under section 396 of the P. P. C. was also committed in pursuance of the conspiracy alleged, it did not form part of the same transaction as the offence under sections 120‑B/ 302. According to the learned Advocate, the prosecution case appears to have been that whilst some of the appellants conspired to murder the deceased, the other appellants raided the house of the deceased with tile object‑of committing dacoity therein and, therefore, the two offences could not be tried together under clause (d) of section 239 of the Code of Criminal Procedure. This argument is sought further to be strengthened by pointing out that upon the prosecution case itself the appellant Fakku Mia had no hand in the dacoity, nor was he present at the time when the dacoity was committed. Indeed, upon the prosecution evidence, he had'left Barisal 3 or 4 days prior to this and was in Dacca even upto about 6 or 7 days after the incident and, therefore, he could not possibly have had anything to do with the dacoity itself.
In support of his argument, the learned Advocate has placed strong reliance on the observations of their Lordships of the Judicial committee in the cage of Babulal Choukhani (42 C W N 621 (P C)) where their lordships observed :‑
"That if several persons conspire to commit offences, and commit overt acts in pursuance of the conspiracy (a circumstances which makes act of one the act of each and all the conspirators), these acts are committed in the course of the same transaction, which embraces the conspiracy and the acts done under it. The common concert and agreement, which constitute the conspiracy, serve to unity the acts done in pursuance of it."
From this, it is argued that where there is absence of common concert or agreement, the unifying factor is absent and, therefore, the offences cannot be said to form part of the same transaction. Upon the charges as framed in the present case, it is clear that the prosecution do not allege that the dacoity was also committed in pursuance of the conspiracy, for, had that been so, there would have been no difficulty in the present case to charge the appellants also under sections 120‑B/396 of the P. P. C.
Mr. Roy has also placed strong reliance on a Division Bench decision of this Court in the case of The Crown v. Abdul Kuddus (P L D 1955 Dacca 5), where their Lordships Ellis and Ispahani, JJ. held that where the accused persons were charged with offences under sections 396 and 302/120‑B of the P. P. C., as in the case before us, on the allegation that some of them went to commit dacoity ,q while others to commit murder, clause' (d) of section 239 of the Code of Criminal Procedure did not warrant the joint trial oft such persons, nor did section 236 of the Code of Criminal Procedure apply in such cases. It is urged that this case is) directly on the point and, if anything, the facts of the case before us are stronger, in so far as, on the prosecution case itself at least one of the persons had nothing to do with the charge under section 396 of the Code. Mr. Roy has also relied on the decision in the case of Asmat and others v. Emperor (44 C W N 315), where Khundkar and Edgley, JJ., held that a joint trial of persons charged under sections 147 and 379 of the Penal Code was illegal where the object of the unlawful assembly was to rescue the thief from the custody of the complainant after the theft.
As against this, Mr. Abdul Hakim, appearing on behalf of the State, has contended that the joint trial in the present case was justified both under clause (d) of section 239 of the Code of Criminal Procedure as also under section 236 of the said Code and, for this purpose, he has relied on a decision of the Judicial Committee in the case of Begu and others v. The King Emperor (52 1 A 191), a Single Bench decision of the Madras High Court in the case In re : Muhammad Meera Sahib and others (44 Cr. L J 272) and on the case of Khagendra Nath Chaudhuri and another v. The King Emperor C W N 706 (sic).
The decision in Begu's case was that where five persons had been charged under section 302 of the P. P. C. with murder but two of them were convicted of the said offence and three others were convicted under section 201 of the said Code without any, further charge being made, it was held that that was justified under section 237 of the Code of Criminal Procedure and was, therefore, not an illegality at all. It was there pointed out that a man may be convicted of an offence although there has been no charge in respect of it, if the evidence is such as to establish a charge that might have been made and that is what happened in that case. We do not think that this decision is of any assistance to the learned Advocate in the facts of the present case, for, this decision is also an authority for the proposition that section 237 is only applicable where section 236 applies and section 236 only applies where, upon the facts proved, it is not certain as to what particular offence, has been committed, and in such cases the accused may be charged in the alternative without having com mitted one or more of such offences. Section 236 cannot apply where there is doubt on the facts themselves but, in the present case, there could be no question of any' kind of doubt at all. Indeed, there was none even in the mind of the prosecution itself when it came forward with the accusation that the appellant Fakku Mia was in no way connected with the offence under section 396, and hence, it is impossible to uphold the contention of the learned Advocate for the State that the appellant Fakku Mia and the others could have been tried together although the appellant Fakku Mia was only charged under sections 120‑B/302 and not under section 396 of the P. P. C.
The facts in the case of Khagendra Nath Chaudhuri and another were that they had conspired to manufacture or keep firearms in contravention of the provisions of the Indian Arms Act as also were individually in possession and control of certain firearms in contravention of section 14 of the Indian Arms Act. On these allegations, it is clear that the accused were in that case charged with a conspiracy to manufacture and keep firearms in contravention of the provisions of the law as also for being in unlawful possession of such arms clearly by reason of the fact that the possession of such arms was by itself an overt act upon which the conspiracy was sought to be established and from that point of view the decision in the case of Khagendra Nath Chowdhuri does not lay down any different principle to that laid down by their Lordships of the Judicial Committee in Babulal Chaukhni's case. It is clear that persons may be jointly tried when they are charged with a conspiracy as also for overt acts committed by, one or the other of them individually in pursuance of the conspiracy.
In the case of Muhammad Meera Sahib, Horwill, J., sitting singly, held that if during the course of rioting the object of which was to secure the release of a certain person. who had been arrested, one of the accused committed theft, then, although the theft was not one of the common objects of the assembly, it was an offence committed in the course of the transaction in which all the other offences were committed and the charge of the theft could be properly joined with the other charges. This decision was given on the 19th of August 1942, after the decision in Babulal Choukhani's case, but Horwill, J., does not appear to have made any reference to the said case and, apart from quoting the provisions of clause (d) of section 239 of the Code of Criminal Procedure and holding that the acts were committed in the course of the same transaction, no other reason is also given.
It was true that under clause (d) of section 239 of the Code of Criminal Procedure persons accused of different offences committed in the course of the same transaction may be charged and tried together, but difficulty often arises in determining in a particular case as to whether the offences do or do not arise in the course of the. same transaction. The words "the same transaction" have not been defined in the Code of Criminal Procedure, nor, indeed, are they capable of any precise definition. Whether an offence can be said to have been committed in the same transaction as another offence must necessarily append upon the facts and circumstance of each case. But so far as it can be gathered from the trend of the decisions, the usual criteria applied for the purpose of determining whether two offences arise or do not arise out of the same transaction are usually questions relating the proximity of time, the unity or proximity of place, the" continuity of action and the community of purpose. It cannot be said .that the existence of any single one of these criteria is by itself sufficient, .nor can it be said that the criteria mentioned above are cumulative. Whilst in a given set of facts or circumstances the ‑ existence of one or the other of the above, criteria may, be sufficient, in another set of facts and circum stances the same would not be sufficient. In the present case, however, it may well be urged that there exist the proximity of time, the proximity of place and also continuity of action but the: only thing that is lacking is community of purpose. They allegations of the prosecution, however, leave no room for doubt that the murder in this case was committed and was complete before; the looting commenced. It may well be that in those circum‑ B stances there was no common design or purpose of looting but, having gained access into the house, murdered the deceased and tied up the hands of other male inmates behind their backs, some of the miscreants may well have considered it a fit opportunity also to enrich themselves by looting the valuable properties of the deceased. From this point of view, it could not, in our opinion, be said that the two offences formed part of the same transaction. In our view, even where a conspiracy is alleged, it does not necessarily follow that because one kind of conspiracy is alleged all manner of acts or offences committed by one or other of the conspirators, whether they be in pursuance of the conspiracy alleged or not, can be tried together under section 239, clause (d), of the Code of Criminal Procedure as acts done in the course of the same transaction merely by reason of the accident of their having been committed consecutively or immediately after the crime for which the conspiracy came into being. The offence of conspiracy, being a substantive offence in itself, commences at the point of time when the conspirators first get together and form the design and continues up to the point of time when the object of the conspiracy has been achieved. It cannot, therefore, in our opinion, be said that after the object of the conspiracy has been achieved, the conspiracy still continues and persons, even though they might have been the original conspirators, might be roped in and tried together for individual acts committed outside the scope of the conspiracy itself. We are, for these reasons, in respectful agreement with the decision of Ellis and Ispahani, JJ. in the case of The Crown v. Abdul Kuddus and we hold that that case is directly applicable in the facts of the present case also. We are, therefore, clearly of the view that in the present case the joint trial was not justified either under clause (d) of section 239 or section 236 of the Code of Criminal Procedure.
Having come to this conclusion, the next question that arises is should we on that account interfere and hold that the entire trial has been vitiated. Of course, the learned Advocate appearing for the State has contended that even a misjoinder of such a nature is only an illegality which is curable under section 537 of the Code of Criminal Procedure except in those cases where there has been serious prejudice to the accused persons. Mr. Roy has pointed out to us that their Lordships of the Judicial Committee in the case of Babulal Chaukhani proceeded upon the assumption that it had been taken as settled law on all sides in the proceedings before their Lordships that the infringe ment of section 239, clause (d), would, if made out; constitute an illegality as distinguished from an irregularity and that the con viction would require to be quashed:
In the present case, even if it is necessary that there must in addition be prejudice to the appellants, we are satisfied that there has been such prejudice in so far as a mass. of evidence has been admitted which was relevant only for the purpose of the charge of conspiracy and would in no way have been admissible in respect of the offence under section 396 only. Such evidence, as has been admitted under section 10 of the Evidence Act, is clearly evidence of one conspirator against another conspirator which could not have been in any way admissible on a straight charge under section 396 of the P. P. C. Similarly, in the present case, all the evidence admitted under section 8 of, the Evidence Act, as purporting to show the conduct of the deceased, would also not have been admissible in the present case in respect of the charge under section 396. It is clear, therefore, that the appellants have been prejudiced in the present case.
We might mention here that the learned Advocates for the appellants have also strenuously argued that the evidence admitted under sections 8 and 10 of the Evidence Act were not admissible in any event. With regard to the evidence of P.' Ws. 34 and 35, which the learned Additional Sessions Judge has admitted under section 10 of the Evidence Act, the learned Advocate for the State has supported such admission as being justified under the said section but we have to point out that here the evidence was that one Munsurali claimed that he and one Bikramali, C. W. 1, had been hired by the appellant Fakku Mia to murder the deceased Hashemah Khan for a consideration of Rs. 1000. This Munsurali was neither made an accused in the case nor was he called as a witness. What Munsurali, therefore, stated to P. W. 34 would, if not admissible under section 10 of the Evidence Act, have been clearly inadmissible on the ground of hearsay.
It is true that under section 10 of the Evidence Act statements of conspirators are admissible in evidence against the other con spirators for the purpose of proving the existence of the conspiracy or showing that any such person was a party to it. In the present case, the prosecution, however, did not allege that either the said Munsurali or the said Bikramali were conspirators in this case. In fact, according to the prosecution, Court witness No. 1 Bikram Ali, a person, who had already confessed to some 200/300 dacoities and had been serving out imprisonment in jail, had been set up by the accused to implicate himself and persons other than the appellants in the present case in order to shield the appellants. Indeed, the evidence of the said Bikram Ali was that he, along with others, not including any one of the appellants, had committed the dacoity and murdered the deceased on that night There was nothing in the evidence of the said Bikram Ali to show that he had been hired by the appellant Fakku Mia to murder the deceased Hashem Ali Khan. In such circumstances, it is difficult to appreciate how this evidence became admissible under section 10 of the Evidence Act when there was no conspiracy alleged between Munsurali, Bikramali and Fakku Mia or any one of the other appellants. To treat Munsur Ali as a conspirator with the appellants in the present case was not, in our opinion, justified. Even if there might have been some other conspiracy,) that would not make the evidence of a conspirator in that' conspiracy admissible against another group of conspirators who had entered into a different conspiracy for some other purpose.
With regard to the objection that the evidence .of P. Ws. 21 and 41 were not admissible under section 8 of the Evidence Act, we must, however, say that we do not see any substance in this connection. In so far as those statements of the deceased, which were deposed to by these two witnesses, were connected with the conduct of the deceased in going to the house of P. W. 41 and asking for shelter there, they were, in our opinion, admissible under the said section 8 of the Evidence Act as being conduct influenced by a fact in issue, namely, the conspiracy to murder him.
Apart from these arguments, the other arguments advanced on behalf of the appellants all related to the credibility of the witnesses examined by the prosecution. A large number of reasons were advanced and we were elaborately taken through each and every discrepancy in the evidence and were asked to hold that this evidence should not have been relied upon. In view of the order that we propose to make, we do not think it either necessary or advisable to express any view with regard to the evidence in the case. For the reasons which we have already given above with regard to the illegality of the joint trial we are unable to maintain the convictions of the appellants before us.
The appeals are, therefore, allowed, the convictions and sentences of the appellants are set aside but we direct that the appellants be retried separately in respect of each of the offences charged. During the pendency of the re‑trial, the appellants will, however, continue to remain in custody.
Before we part with this case, we must make it clear that should we, in this judgment, have expressed any opinion with regard to any question of fact in this case, the same should not be taken to be binding at the re‑trial, a& we have already pointed out that we do not wish to say anything with regard to the facts of the case either one way or the other.
The records should be sent down as soon as possible and the re‑trial should be held as expeditiously as possible.
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