JUDGMENT

Maclean, C.J. - This case comes before us under the certificate of the Officiating Advocate-General. The Prisoner Khudiram was indicted at the last August Criminal Sessions for an offence punishable under sec. 304 of the Indian Penal Code. He was also indicted for another offence punishable under sec. 326 of the Indian Penal Code. The case was tried in the usual manner, and the Judge summed up the case to the jury; and, the jury found a verdict of "not guilty" as regards the charge under sec. 304; and, a unanimous verdict of "guilty but not voluntarily" on the charge under sec. 326. The learned Judge did not ask the jury to explain this verdict under sec. 326, but discharged them : and after some discussion and consideration of the matter treated the prisoner as having been convicted of a charge under sec. 338 of the Indian Penal Code and sentenced him to one year's rigorous imprisonment. The officiating Advocate-General then gave his certificate under sec. 26 of the Letters Patent 1865. It is now urged for the prisoner that the unanimous verdict of "guilty but not voluntarily "was in effect a verdict of "not guilty." This is the first question we have to decide.

2. To constitute an offence under sec. 326, the act must have been done "voluntarily"--that is of the very essence of the offence. It is unnecessary to-day to go into the question of what voluntarily means: we understand its meaning was very fully explained to the jury.

3. In my opinion, a verdict such as this "guilty but not voluntarily" having regard to the language of sec. 326 of the Indian Penal Code is in substance and effect a verdict of " not guilty."

4. But it is said that the Judge was justified in sentencing the prisoner as he did for an offence under sec. 338. It is noteworthy that the prisoner was not charged with any offence either under sec. 336 or under sec. 338 : and the jury did not find him guilty of any offence under either of these sections.

5. It is further suggested that the Crown may call in aid the provisions of secs. 237 and 238 of the Criminal Procedure Code. Those sections have no application to the present case : those sections can only apply when there has been a conviction : but here there was no conviction by the jury of any offence under sec. 338 or any other section : and, consequently, there being no conviction, there could be no sentence. The verdict under sec. 326 being tantamount to a verdict of not guilty and there being no other charge and no conviction for any offence under any section of the Penal Code-- the prisoner ought to have been discharged and must now be discharged. The conviction must be quashed.

Ghose, J.

6. I agree in the judgment of the learned Chief Justice.

Harington, J.

7. I agree. "Causing grievous hurt" is an offence under sec. 326, if it is done voluntarily, Here the jury found that it had not been done voluntarily and thus acquitted the prisoner, on the charge under sec. 326. "Causing grievous hurt" is also an offence under sec. 338, if it is caused " by doing any act so rashly or negligently as to endanger human life or the personal safety of others." The jury have not found that the prisoner "did any act so rashly or negligently as to endanger human life or the personal safety of others;" and till they found those facts against the prisoner he could not be convicted under sec. 338.

8. For these reasons I agree in the judgment that has been delivered.

Bodilly, J.

9. I agree with the learned Chief Justice.

Caspersz, J.

10. I cannot silently acquiesce in the judgment which has just been delivered, although I agree that the accused Khudiram Dass is entitled to be acquitted. The issue before the jury, as put by the learned Counsel for the accused, and as explained and elaborated to the jury by myself, the presiding Judge, was whether the accused was guilty in respect of voluntary acts or in respect of merely rash or negligent acts. It may be gathered from the minutes of the proceedings in the Sessions Court, and it i