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ACKNOWLEDGEMENT

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Reaz-Ud-Din Shaikh and Ors vs. Emperor on 29 January, 1910

Calcutta High Court

Bench: Chatterjee, Teunon, Sharf-Ud-Din

Appellants : Eman-ud-din.,Tajar-ud-din, Reaj-ud-din, Eman-ud-din , Tajar-ud-din

Respondent: Emperor

Cases Referred: Queen-Empress v. Jabanulla and Satish Chandra Das Bose v. Queen

Reported in : 6Ind.Cas.251

Case Note:
Indian Penal Code (Act XLV of 1860), Sections 299, 300, 302,149 - Murder--Culpable homicide--Jury--
Misdirection--Imperfect statement of elements constituting offence--Failure to direct that every man is
presumed to intend natural consequences of his act.

Introduction- In this case the fight was in consequence of some land dispute. The injuries caused were
not premeditated; the Magistrate was justified in not framing a charge under Section 302. In this case the
Sessions Judge explained to the Jury the difference between murder and culpable homicide and the jury
found the offence under Section 304 only as proved; Section 149 etc., were explained to the Jury and they
did not find any offence under Sections 304/149 proved. I do not think there is any error of law in the
charge and the sentences are light. The main objective to study that case to understand the penal
provisions related to murder and culpable homicide. In the case difference between murder and culpable
homicide not amounts to murder was well explained by the high court of Calcutta. The charges were
framed against the accused under sec 324,300,302,149 of ipc were interpreted by different opinion
between two judges Chatterjee and Munro, JJ.And they didn’t find any offence under sec 304 and 149,by
reason that under sec 304 only proved offences were included.

Jurisdiction- The case was referred under section 429 1of the Code of Criminal Procedure 1898,
found no motive for the accused to commit the offence. In appeal to this Court by the State, it
was contended that as the difference between the two Judges of the Division Bench was confined
to the nature of the offence only, the third Judge to whom the case was referred in are under
section 429 of the Code of Criminal Procedure, had no power to acquit the accused by upsetting
the concurrent finding of two Judges.

1 Nothing in section 426 or section 427 shall be held to excuse any person from any part of the punishment to which
he is liable upon his former or subsequent conviction
When an award of imprisonment in default of payment of a fine is annexed to substantive sentence of imprisonment
and the person undergoing the sentence is after its execution to undergo a further substantive sentence or further
substantive sentences of imprisonment effect shall not be given to the award of imprisonment in default of payment
of the fine until the person has undergone the further sentence or sentences
 3

Facts of case-One Ramzanullah who possessed a holding measuring some 22 1/2 bighas died
leaving a son Chotay, and three daughters, and of the daughters one, now deceased, was married
to appellant Reaj-ud-din and has left by him two children.
After the death of Ramzanullah, the holding was sold in execution of a rent decree and was
purchased by the landlord who obtained possession and remained in possession for three years.
1. Chotay and his surviving sisters borrowed Rs. 400 from the deceased Moiz-ud-din and
his brother Momtaz-ud-din paid off the landlord's dues and had the auction sale2.
2. The two mortgagees were in peaceful possession of the 2 plots from the beginning of
1315
3. On 12th July of 1909, they with their brother Reaj-ud-din (now deceased) and ploughmen
Mehr-ud-din and Abu Baker were working on one of the plots.
4. The appellants Tajar-ud-din and Rman-ud-din and some 7 or 8 others came up to the
spot.
5. The three appellants were armed with daos and their companions with lathis.
6. The three brothers claimed 1/5 share inherited by the children of appellant Reaz-ud-din
and said that they could not permit the ploughing and sowing to continue.
7. Eman-ud-din wounded Momtaz-ud-din, Taraj-nd-din wounded Abu Baker, and Reaj-ud-
din wounded first Mehr-ud-din, next Moiz-ud-din and then Reaz-ud-din--the last named
in some 4 places. Moiz-ud-din died of his injuries on the 15th July and Reaz-ud-din on
the 15th August.

RAMZANULLAH (now deceased)

Possessed 22’ ½ Bighas land

son/Chotay Chotay and her surviving sister borrowed

Rs 400 from deceased Moiz-ud-din and
his brother Momtaz-ud-din and give him
leaving 3/daughter possession as mortgagees of 18 bighas

1/deceased
daughter
Two mortgagees are peaceful

By-Reaj-ud-din (now
decreased) Momtaz,
Moiz, ploughmen
Wife of Reaj-ud-din (appellant)
(Abu baker and
With their brothers—Tajar-ud-din, Rman –ud-din, 7-8 others went to the spot Mehr were working
on plot.
2
A sale by auction is a public sale where various intending buyers offer bids for the goods and try to outbid each
other.
 4

Claimed for 1/5 share inherited by their children.

Disputed started

Eman-ud-din wounded – Momtaz-ud-din

Taraj-ud-din wounded- Abu Baker

Reaj-ud-din wounded first Mehr-ud-din, next Moiz-ud-din and then Reaj-ud-din

Moiz-ud-din and Reaj-ud-din both were died due to injuries caused by appellant (Reaj-ud-din)

Procedural History
There are three appellants in the case Eman-ud-din, Tajar-ud-din and Reaj-ud-din. There were
five accused in the trial the three appellants above-reamed and Alim-ud-din and Nehal-ud-din.
These two latter have been acquitted by the Judge and Jury while the remaining three (the
present appellants) have been convicted and sentenced as follows: Reaj-ud-din has been
convicted under the latter, portion of Section 304, Indian Penal Code, and also under Section
326, Indian Penal Code, and sentenced to transportation for 10 years Under the latter portion of
Section 304, Indian Penal Code, no separate sentence having been passed under Section 326,
Indian Penal Code: Eman-ud-din and Tajar-ud-din have been convicted under Section 324,
Indian Penal Code and each sentenced to rigorous imprisonment for three years3.
The charges framed by learned session judge against the five accused were as follows: Reaj-ad-
Din was charged under Sections 148, 304 and 326, Indian Penal Code, Eman-ud-din was charged
under Sections 148, 304/149 and 324, Indian Penal Code, Tajar-ud-din was charged under
Sections 148, 304/149, Indian Penal Code, Alim-ud-din was charged under Sections 147,
304/149 and 323, Indian Penal Code Nehal-ud-din was charged under Sections 147

Issues

 Whether in the first instance a rule should not be issued under Section 4394, Criminal
Procedure Code?
 Whether the appellants were justified, and indeed suggest that they were justified in
going armed with deadly weapons in order to oust the mortgagees, and enforce their own
real or imagined claims?
 Whether the act of Reaj-ud-din as disclosed in the evidence amounts to murder or
culpable homicide not amounting to murder?

3
B.M.Gandhi. Indian Panel Code (2013 Ed.).
4
Special powers of High Court or Court of Session regarding bail .
 5

Laws involved

 Sec304 of ipc- Punishment for culpable homicide not amounting to murder-

Whoever commits culpable homicide not amounting to murder shall be punished with
1[imprisonment for life], or imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine, if the act by which the death is caused
is done with the intention of causing death, or of causing such bodily injury as is likely to
cause death, or with imprisonment of either description for a term which may extend to
ten years, or with fine, or with both, if the act is done with the knowledge that it is likely
to cause death, but without any intention to cause death, or to cause such bodily injury as
is likely to cause death.
 Sec 326 of ipc-Voluntarily causing grievous hurt by dangerous weapons or means-
Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt
by means of any instrument for shooting, stabbing or cutting, or any instrument which,
used as a weapon of offence, is likely to cause death, or by means of fire or any heated
substance, or by means of any poison or any corrosive substance, or by means of any
explosive substance, or by means of any substance which it is deleterious to the human
body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall
be punished with 1[imprisonment for life], or with imprisonment of either description for
a term which may extend to ten years, and shall also be liable to fine.
 Sec 324 of ipc- Voluntarily causing hurt by dangerous weapons or means- Whoever,
except in the case provided for by section 334, voluntarily causes hurt by means of any
instrument for shooting, stabbing or cutting, or any instrument which, used as weapon of
offence, is likely to cause death, or by means of fire or any heated substance, or by means
of any poison or any corrosive substance, or by means of any explosive substance or by
means of any substance which it is deleterious to the human body to inhale, to swallow,
or to receive into the blood, or by means of any animal, shall be punished with
imprisonment of either description for a term which may extend to three years, or with
fine, or with both.
 Sec 148 of ipc- Rioting armed with deadly weapon Whoever is guilty of rioting, being
armed with a deadly weapon or with anything which, used as a weapon of offence, is
likely to cause death, shall be punished with imprisonment of either description for a term
which may extend to three years, or with fine, or with both.
 Sec 149 of ipc- Every member of unlawful assembly guilty of offence committed in
prosecution of common object.-If an offence is committed by any member of an
unlawful assembly in prosecution of the common object of that assembly, or such as the
members of that assembly knew to be likely to be committed in prosecution of that
object, every person who, at the time of the committing of that offence, is a member of
the same assembly, is guilty of that offence.
 Sec 323 of ipc- Punishment for voluntarily causing hurt- Whoever, except in the case
provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment
of either description for a term which may extend to one year, or with fine which may
extend to one thousand rupees, or with both
 Sec 300 of ipc- Murder Except in the cases hereinafter excepted, culpable homicide is
murder, if the act by which the death is caused is done with the intention of causing
death, or—
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(Secondly) —If it is done with the intention of causing such bodily injury as the offender knows
to be likely to cause the death of the person to whom the harm is caused, or—
(Thirdly) —If it is done with the intention of causing bodily injury to any person and the bodily
injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or—
(Fourthly) —If the person committing the act knows that it is so imminently dangerous that it
must, in all probability, cause death or such bodily injury as is likely to cause death, and commits
such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception 4.—culpable homicide is not murder if it is committed without premeditation in a
sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken
undue advantage or acted in a cruel or unusual manner. Explanation.—It is immaterial in such
cases which party offers the provocation or commits the first assault.
Exception 5.—culpable homicide is not murder when the person whose death is caused, being
above the age of eighteen years, suffers death or takes the risk of death with his own consent.
Illustration A, by instigation, voluntarily causes, Z, a person under eighteen years of age to
commit suicide. Here, on account of Z’s youth, he was incapable of giving consent to his own
death; A has therefore abetted murder.
 Sec 302 of ipc- Punishment for murder. Whoever commits murder shall be punished
with death, or 1[imprisonment for life], and shall also be liable to fine.
 Sec 109 of ipc- Punishment of abetment if the act abetted is committed in
consequence and where no express provision is made for its punishment-
Punishment of abetment if the act abetted is committed in consequence and where no
express provision is made for its punishment.—Whoever abets any offence shall, if the
act abetted is committed in consequence of the abetment, and no express provision is
made by this Code for the punishment of such abetment, be punished with the
punishment provided for the offence. Explanation.—An act or offence is said to be
committed in consequence of abetment, when it is committed in consequence of the
instigation, or in pursuance of the conspiracy, or with the aid which constitutes the
abetment.
 Sec 249 of Cr.P.C-Saving
 Nothing in section 426 or section 427 shall be held to excuse any person from any part of
the punishment to which he is liable upon his former or subsequent conviction
 When an award of imprisonment in default of payment of a fine is annexed to substantive
sentence of imprisonment and the person undergoing the sentence is after its execution to
undergo a further substantive sentence or further substantive sentences of imprisonment
effect shall not be given to the award of imprisonment in default of payment of the fine
until the person has undergone the further sentence or sentences.

Arguments on behalf of Appellants

1. The appellants acted in the exercise of the right of private defence but, even when
considered with the trifling injuries found on Tajar-ud-din and Reaz-ud-din, should not
have been taken.
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2. The omission to frame a charge under Section 302 of Indian Penal Code and the
withholding of such charge from the Jury can have proceeded only on one or other of two
assumptions, namely, either that the acts causing the deaths in question.
3. The element of knowledge was only present in the mind of the accused Reaz-ud-din, and
no intention to Murder, he would be guilty under Section 304 Clause (&)".
4. The accused Reaj-ud-din's wife clearly inherited l-5th share.The auction sale was set
aside, and with that the interest of the sisters revived. The shares were not divided by
metes and bounds.
5. The appellant Reaz-ud-din to the Sub-Inspector and, rightly or wrongly, admitted in
evidence there is no suggestion that Momtaz and his companions had any weapons other
than lathis.

Arguments on the behalf of Respondents

1. The three appellants were armed with dews and their Companions with lathis. The three
brothers claimed the shares (1-5th) inherited by Reaz-ud-din's children and said that they
could not permit the ploughing and sowing to continue.
2. The respondent argued that the person committing the act knows that it is so imminently
dangerous that it must in all probability cause death or such bodily injury as is likely to
cause death and commits such act without any excuse for incurring the risk of causing
death or such bodily injury as is likely to cause death.

ANALYSIS OF JUDGEMENT

 Whether in the first instance a rule should not be issued under Section 439, Criminal
Procedure Code?

Considered whether in the first instance a rule should not be issued under Section 439, Criminal
Procedure Code, calling upon the appellants to show cause why a re-trial under Section 302,
Indian Penal Code, and other section should not be ordered but on the authority of the cases
Queen-Empress v. Jabanulla5and Satish Chandra Das Bose v. Queen-Empress6, I am of opinion
that the proposed order for re-trial may be made forthwith under Section 423(1)(c) of the
Criminal Procedure Code.

For these reasons, I am of opinion that the proper order to make in this appeal is to reverse
the finding and sentence in the case of all the appellants and to direct that they be re-tried on
charges, in respect of the deaths of Moiz-ud-din and Eman-ud-din, under Section 322 and in
respect of the hurt caused to Mehr-ud-din under station 326, Indian Penal Code, (both
sections, in the case of Tajar-ud-din and Eman-ud-din, being read with Sections 34, 114, and
149 of the Code), with additional charges against all under Section 148, and in respect of the
hurt caused to Abu Baker and Momtaz, against Tajar-ud-did and Eman-ud-din, under Section
324, Indian Penal Code.

5
27 C. 172: 4 C.W.N. 166
6
23 C. 975
 8

 Whether the appellants were justified, and indeed suggest that they were justified in
going armed with deadly weapons in order to oust the mortgagees, and enforce their own
real or imagined claims?

It further appears to assume that the conduct of the mortgagees in ploughing and sowing the land
of which they had been placed in possession amounted to a criminal offence, and with no
explanation of the law regarding the right of private defence, and in apparent disregard of the
terms of Section 141 of the Penal Code, it went informing the Jury that it is for them to say
whether the appellants were justified, and indeed suggests that they were justified in going armed
with deadly weapons in order to oust the mortgagees, and enforce their own real or imagined
claims. In the next place, though the appellants examined no witnesses, and made no statements
in Court, and though in the statement or complaint made by the appellant Reaz-ud-din to the
Sub-Inspector and, rightly or wrongly, admitted in evidence there is no suggestion that Momtaz
and his companions had any weapons other than lathis, the Judge here
Assumes that the trifling cut on Reaz-ud-din's arm, which might have been fabricated at any
moment between the occurrence on the 12th and the medical examination on the 18th of July,
was received in the course of that occurrence and, further, resulted from the use by some member
of the complainant's party of some cutting weapon. Then on the basis of this cut, and without
placing before the jury any of the countervailing considerations, the Judge proceeds to suggest
that the present is or may be a case of what he terms a mutual or free fight or as I understand him
one of those cases in which, both parties having gone out by concert equally armed with deadly
weapons and equally bent on taking the offensive, deaths having been caused in the fight, the 5th
exception to Section 300 of the Penal Code has been held to be applicable. But even in a case of
the nature just indicated it does not follow, as the Judge here appears to suggest, that charges of
rioting against the several members of either party necessarily fail.

 Whether the act of Reaj-ud-din as disclosed in the evidence amounts to murder or

culpable homicide not amounting to murder?

In the Penal Code "culpable homicide" is used as the generic term and is exhaustively subdivided
into 2 species, viz., and culpable homicide amounting to minder and culpable homicide no
amounting to murder. It follows that all murder is culpable homicide but all culpable homicide is
not murder7. It will, therefore, be found that subject to the five exceptions to Section 300 Indian
Penal Code, every act that falls within one or more of the four Clauses of Section 300, Indian
Penal Code, is murder and also falls within the definition of culpable homicide in Section 299,
Indian Penal Code.
Every act that falls within any or more of the four Clauses of Section 300, Indian Penal Code, in
respect of which there co exists one or more of the sets of circumstances described in the five
exceptions to that section, is by that fact, taken out of Section 300, Indian Penal Code, but the act
notwithstanding continues to be within Section 299 and since it is not murder, it is culpable
Homicide not amounting to murder. Every act that falls within Section 299 and does not fall
within Section 300, since it is not murder, is culpable homicide not amounting to murder. The

7
Reaz-Ud-Din Shaikh and Ors. Vs Emperor on 29 January, 1910
 9

4th Clause to Section 300, Indian Penal Code, provides that the act would be a murder if the
person committing the act knows that it is so imminently dangerous that it must in all probability
cause death or such bodily injury as is likely to cause death and commits such act without any
excuse for incurring the risk of causing death or such bodily injury as is likely to cause death.
Illustration (c) under Section 300, is a clear exposition of law as laid down in Clause 4 of Section
300, Indian Penal Code. The conduct of all the accused in the present case either directly or by
implication comes under the 4th Clause of Section 300 and, therefore, the act committed would
be murder unless it can be shown that the accused had some excuse for incurring the risk. From
the evidence I do not find there was any excuse on the part of the accused to go to the place
armed with dangerous weapons for the purpose of disturbing the peaceful possession of the
mortgagees
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Conclusion

There has been a difference of opinion in this case between Chatterjee and Munro, JJ. It has been
referred to under Section 429, Criminal Procedure Code. In this case the fight was in
consequence of some land dispute. The injuries caused were not premeditated; the Magistrate
was, I think, justified in not framing a charge under Section 302. In any case the Sessions Judge
explained to the Jury the difference between murder and culpable homicide and the jury found
the offence under Section 304 only as proved, Section 149 etc. were explained to the Jury and
they did not find any offence under Sections 304/149 proved. I do not think there is any error of
law in the charge and I do not think that the sentences are light. I, therefore, dismiss the appeal.
Thus from the omission to frame charges under Section 302, Indian Penal Code, from the
omission to explain the law as contained in Sections 34, 107, 108 and 114, from the mis-
directions in explaining Section 149 and the distinction between the 1st and 2nd Clauses of
Section 304, and from the many other positive mis-directions upon questions both of fact and of
law all tending to minimize the offence committed, I am of opinion that the trial of this case has
been vitiated, that grave failure of justice has resulted, and that in the public interests it is
necessary to direct a re-trial.

Recommendation and Suggestions

 Quick and fast remedy must be provided by the civil courts where cases related to land
dispute.
 In criminal cases, essential elements of sections must be considered primary by judiciary
while giving any judgments.
 Liberal interpretations of murder and culpable homicide amounts to murder or culpable
homicide not amounts to murder must be given by courts in modern era.
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Bibliography

Books Referred
1. B.M.Gandhi. Indian Panel Code (2013 Ed.).
2. B.M.Gandhi. Indian Penal Code.
3. K.D. Gaur, Textbook on Indian Penal Code, Fifth Edition 2014
4. Ratanlal and Dhirajlal, Indian Penal Code, Thirty-Fifth Edition

Websites
1. SCC Online
2. https://indiankanoon.org/doc/1069430/
3. http://www.lawyerservices.in/Reaz-Ud-Din-Shaikh-Versus-Emperor-1910-01-29

OTHERS SOURCES
1. Manupatra
2. Indian Kanoon
3. Jstar