Alphonso Ligori Pais vs State

Shah, J.—As in this case we propose to direct a re-trial of the accused, we will mention such of the acts as are absolutely necessary to explain our order.

The accused Alphonso Ligori Pais was tried before the Additional Sessions Judge for Greater Bombay with the aid of a common Jury on three charges. The first charge was that on or about 17-1-1055, the accused voluntarily caused grievous hurt to one Prabhakar Dhondu by means of a dangerous weapon to wit, a knife and thereby committed an offence u/s 326, I. P. C.

The second charge was that the accused at the same time and place voluntarily caused grievous hurt to one Gunvant Punaji by means of a dangerous weapon to wit, a knife and thereby committed an offence punishable u/s 326, I. P. C. and the third charge was that the accused at the same time and place voluntarily caused grievous hurt to one Dhondu Sadashiv by means of a dangerous weapon to wit, a knife and thereby committed an offence punishable u/s 326, I. P. C.

At the trial, it appears to have been suggested that the defence of the accused was that he had acted in exercise of the right of self-defence and had caused injuries to Prabhakar Dhondu, Gunvant Punaji and Dondhu Sadashiv. In his statement before the Court, the accused stated that he had at the time of affray snatched a knife in the hand of one Sharma and when he heard the persons who had assembled with sticks and brooms saying ''finish finish'', he tried to escape.

He further stated that he felt that his life was in danger and that he moved the knife snatched by him from the hands of Sharma forward and backward. The suggestion of the accused was that, while the knife was being moved backward and forward, it might possibly have injured one or more of the persons who had assembled there with intent to beat him.

The learned Sessions Judge in his charge to the jury explained the ingredients of Section 326, I. P. C. He told the jury that in order to make out a charge u/s 326, I. P. C., four things were necessary. The ''first was that the accused must have caused grievous hurt to the victim. The second was that the grievous hurt must have been caused voluntarily.

The third was that it was caused by an instrument of shooting, stabbing etc., and the fourth was that it must not have been under grave and sudden provocation. He then told the Jury "that is the exception which has been provided for in S. 335, Penal Code". The learned Judge then proceeded to deal with the various ingredients and in para 14 he told the jury that the grievous hurt penalised u/s 326, I. P. C. must not have been caused under grave and sudden provocation.

He then pointed out to the jury that it was not urged on behalf of the accused that he had caused the hurt under any grave or sudden provocation. The learned Judge then proceeded to read put Section 335, I. P. C. and in para 15 of his charge to the jury, he told them.

"That offence u/s 335 is an offence of a lesser degree and in a trial by jury although the accused may not have been charged with the offence of a lesser degree, if for any reason you feel that there was grave and sudden provocation, though that has not been pleaded here, and if you are satisfied about the other ingredients then of course it is open to you to bring the verdict u/s 335, Penal Code".

In para 16, the learned Judge proceeded to tell the jury about provocations which may be regarded as a grave and sudden. The learned Judge then dealt with the extent of the right of self-defence which an accused person has. In the course of the rest of his charge to the jury the learned Judge set out the evidence of the prosecution, set out the defence of the accused and referred to the plea of the accused suggesting that the injuries may have been caused accidentally or in exercise of the right of self-defence. Then in para 56 of his charge, he told the jury

"You will have to take into account all the discrepancies which have been pointed out to you and which may be there and you have to take into account the theory or the defence of the accused that he did all this in self defence. Of course, about the other question, there cannot be any difficulty that it is at the hand of the accused that these persons must have received these injuries. About that there will not be any difficulty in this case. The only question is whether the accused was exercising his right of private defence and in the course of that these persons were injured or whether these persons were deliberately stabbed by the accused".

He then asked the jury to consider their verdict.

The jury brought in a verdict unanimously of not guilty on all the three heads of the charge for the offence u/s 326, I. P. C. The learned Judge, after recording the verdict of the jury on the first head of the charge, proceeded to ask the jury their verdict about ''the lesser charge u/s 335, I. P. C.''. The jury with regard to the first head of the charge stated that they were unanimous in holding that the accused was not guilty of that charge also.

With regard to the second head of the charge, the foreman stated that they were divided 6 to 3 on the lesser charge u/s 335 and that the majority were of the view that the accused was guilty of that charge. Similarly, on the third head of the charge, the jury were of the view unanimously that the accused was guilty of the lesser charge u/s 335, I. P. C.

The learned Judge told the accused that he accepted the verdict of the jury and he acquitted the accused u/s 326, I. P. C. on all the three charges. He also told the Jury that he accepted the verdict for the offence u/s 335, I. P. C. on the second and the third heads, and he convicted the accused on each of the two heads and sentenced him to suffer rigorous imprisonment for 18 months on each of those two charges, and directed that the sentences do run concurrently.

The accused preferred an appeal against the order of conviction and sentence and at the time when the appeal was admitted a notice of. enhancement was ordered to issue. Now, a bare perusal of the charge and the verdict of the jury are sufficient to convince the Court that the jury were completely confused as to what they had to decide.

The learned Sessions Judge rightly pointed out to the jury that there was .no plea raised by the accused that he had caused injury to the three persons whose names are set out in the charge under grave and sudden provocation; nor was there any evidence on the record of the case which would justify such a plea being raised on behalf of the accused. The defence of the accused was that he has caused injuries to three persons in exercise of his right of self-defence.

As we have pointed out earlier, the learned-Judge did put to the jury that defence. Thereafter, when the jury brought in a verdict or not. guilty u/s 326, I.P.C., it is difficult to see why the learned Judge should have proceeded to ask the jury what the verdict of the jury for what he calls the lesser charge u/s 335, I. P. C. was.

Evidently, no such charge was framed against the accused and there was not even a suggestion on behalf of the accused that ne pleaded mat he had caused injury under grave and sudden provocation. But the jury still brought in a verdict of guilty so far as the second head of the charge is concerned by a majority of 6 to 3 and the third head of the charge is concerned unanimously for what is called the lesser charge u/s 335, I. P. C.

If analysis is permitted of the verdict of the jury, it appears that the jury were satisfied that the accused did cause injuries to Gunvant Punaji and Dhondu Sadashiv and the injuries caused to those two persons were caused because he had received grave and sudden provocation.

That would suggest that the jury were not satisfied that at least so far as these two persons are concerned, the accused had caused injuries in exercise of the right of self defence. So far as the first head of the charge is concerned, the jury have brought in a unanimous verdict of not guilty both for the offence u/s 326, I. P. C. and for the offence u/s 335, I. P. C.

But, if the verdict of the jury proceeded upon a complete misapprehension of what they had to decide so far as the second and the third heads of the charge were concerned, it would be impossible to sustain the verdict even on the first charge on the assumption that the jury at least ''cause'' (qua?) that charge had understood what they had to decide and had properly decided the case of the prosecution in the light of the plea raised by the accused.

In our view the verdict of the Jury is perverse and manifestly erroneous and must be regarded as vitiated on account of a complete misunderstanding of the ingredients to be established for proving an offence u/s 326, I. P. C. and u/s 335 of the Code.

in the circumstances, we must set aside the entire verdict of the jury and direct a re-trial of the accused on all the three heads of the charges before a fresh jury. As there has been an order of acquittal in respect of the charge u/s 326, I. P. C., in exercise of the revisional jurisdiction of this Court, we direct that that order of acquittal also be set aside on all the three heads of the charge against the accused. Re-trial ordered.