Law:

Section:

(a) Criminal Procedure Code (V of 1898)----------S. 239 (d)-Sameness of transaction must be established by direct or circumstantial evidence-Whether joint trial allowed by law to be decided on consideration of accusation and not of evidence in case. Mst. Saphian and Dina, her paramour, were killed on the same night, the motive being the resentment of the three convicted persons who were relatives of Mst. Saphian. In the first information report it was stated that all the three persons reported against had at (about 9 or 10 p. m.) on the night caused injuries to Mst. Saphian and that Nur Din (one of the three) alone had at (about 3 or 4 a. m.) caused fatal injuries to Dina, the paramour of Mst. Saphian. The question -was raised in appeal that the joint trial of the three convicted persons for the two incidents, in the latter of which only Nur Din appellant was concerned, was not allowed by law and that the proceedings of the trial Court were illegal. Held, it cannot be doubted that the two assaults were actuated by the same motive nor is it unlikely that both of them were planned by all the three appellants but in order to come to the conclusion that the two incidents, which took place at different times, were part of the same transaction, the Court must have before it some evidence, direct or circumstantial, in support of it, which was lacking in the present case. Moreover the question whether or not a joint trial with respect to two distinct offences, on the ground that they were committed in the course of the same transaction, was allowed by law, is to be decided not on the consideration of the evidence produced in the case but on the accusation made by the prosecution. Babulal Chaukhani v. King Emperor (A I R 1938 P C 130). ref. The first information report about the two offences separa­ted them by about six hours and did not even hint that the second offence was committed by Nur Din as a result of a conspiracy between him and his two co-accused or as a result of abetment by them. Again in the report submitted by the police under section 173 of the Code of Criminal Procedure, it was clearly stated that the two incidents had taken place at the times mentioned…

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