Aghore Dutta and Others vs Emperor

Kulwarat Sahay, J.—This is an application in revision filed by nine persons who were convicted by the Deputy Magistrate of Bhagalpur of an offence u/s 147, I.P.C. and sentenced to three months'' rigorous imprisonment and to pay a fine of Rs. 30 each, or in default to undergo a further term of one month''s rigorous imprisonment. There was an appeal against this conviction before the Sessions Judge of Bhagalpur and the learned Judge dismissed the appeal and made a direction that out of the fine, if realized, Rs. 75 will be paid to the complainant as compensation u/s 545, Criminal P.C.

This application came for hearing in the first instance before Wort, J. and it was argued before him by Mr. Manuk for the petitioners that the judgment of the learned Sessions Judge was not in accordance with law, and reliance was placed upon the decisions of this Court in Sheo Narayan Raut v. Emperor [1917] 18 Cr. L.J. 994 and Darogi Chamar v. Emperor [1919] 20 CriL.J. 645. Wort, J. has referred this case to a Division Bench for consideration of the question whether decisions in appeals in criminal cases like the one before us can be said to be "not in accordance with law" inasmuch as there is no decision of a Division Bench of this Court on this point. Wort, J. further referred to the observations of White, J., in Protap Chunder Mukerji v. Empress 1882] 11 C.L.R. 25 where that learned Judge observed as follows:

I admit that the sound rule to apply in trying a criminal appeal where questions of disputed facts are in issue, is to consider whether the conviction is right and that in this respect a criminal appeal differs from a civil one. There the Court must be convinced before reversing a finding of fact by the lower Court that the finding is wrong,

and expressed the opinion that if these observations were taken literally they would mean that a criminal appeal is a rehearing which, in his Lordship''s opinion, it was not.

The law on the subject is contained in Section 424, Criminal P.C. This section provides that the rules contained in Ch. 2S as to the judgment of a criminal Court of original jurisdiction shall apply so far as may be practicable to the judgment of an appellate Court, other than a High Court. The rule in Ch. 26 is contained in Section 367 which, among other matters, provides that the judgment shall contain the point or point for determination, the decision thereon and the reasons for the decision.

This rule is based on sound principles and has to be observed by every Court of criminal appeal, other than the High Court, as provided by Section 424. Whether a criminal appeal is a rehearing of the case or not is a question which has to be determined on reference to the provisions regarding appeals contained in the Criminal Procedure Code. Section 418 of the Code provides that an appeal may lie on a matter of fact as well as on matter of law, except where the trial was by jury in which case the appeal shall lie on a matter of aw only. Therefore when the Code provides for an appeal on a matter of fact, it is always open to the appellant to contend that the evidence on behalf of the prosecution is not sufficient to support the conviction; and in such a case it is the duty of the Court of appeal to examine the evidence in order to come to a finding of its own as to whether the evidence is sufficient to support the conviction. It is no doubt true that in considering the oral evidence the Court of appeal will attach weight to the opinion expressed by the trial Court as regards the credibility of witnesses and to consider the reasons given by the trial Court for coming to the finding of fact to which it may have come; but that Court is not relieved from the duty of coming to a finding of its own on the question whether the evidence is sufficient to warrant a conviction. The Indian law is different in this respect from the English law and we are governed by the provisions contained in the Criminal Procedure Code. Although therefore an appeal is not a rehearing of the case, yet when an issue on a disputed question of fact is raised the law is different in criminal cases from that in civil cases. It has been held that even in revision cases the High Court has in a proper case to examine the evidence in order to see whether the conviction is based on sufficient evidence. I am therefore of opinion that the judgment of the Court of appeal in a criminal case must comply with the provisions of Section 367, and if the provisions of that section be not substantially complied with, the aggrieved person can justly take exception to the judgment and ask for its reversal.

Whether a judgment of a Court of appeal substantially complies with the provisions of Section 367 or not is a question which cannot be answered without reference to the facts of each particular ease. If the case be a simple case in which no intricate questions of fact are involved or where the evidence is clear, strict compliance of the rule contained in Section 367 as regards the absence of detailed reasons for coming to a decision will not be taken to be a noncompliance with the provisions of the law: but where the facts are intricate and the evidence is contradictory it is incumbent on the Court of appeal to set out the points for decision, the decision, and the reasons for the decision with sufficient clearness in order to enable this Court, in case of an application in revision being filed, to satisfy itself that the matter has been properly considered by the Court of appeal. Where however the Court of appeal merely refers to the decision of the trial Court and says that nothing has been urged in appeal which affects the reasons given by the trial Court for the conviction, as was done in the case of Sheo Narayan Raut v. Emperor [1917] 18 Cr. L.J. 994, such a decision is clearly not in accordance with law inasmuch as it offends against Section 367 of the Code. But, if on a perusal of the judgment of the Court of appeal this Court is satisfied that the appellate Court did consider the evidence and came to an independent finding of its own, it will not interfere with the decision in appeal merely because the reasons are not set out in detail. As I have said, it is not possible to lay down a hard and fast rule on the question and the decision of the question whether a judgment is in accordance with law or not would depend on the facts of each case.

Before I deal with the facts of the present case, I may mention that an objection was taken by Mr. Gupta on behalf of the Crown that what was referred to us was only the question whether the judgment under revision was or was not in accordance with law, and as regards the decision of the case itself it was contended that the matter had been finally disposed of by Wort, J. that the revision application should be dismissed. I am unable to accept this contention. What has been referred to us is the whole case and not only the question of law raised therein. There is no provision in the Code or in the rules of this Court under which a reference can he made by a single Judge to a Division Bench for the expression of an opinion on a point of law only. It must therefore be held that what has been referred to us is the case itself and we have to finally dispose of it.

As regards the merits of the case, the facts are shortly these: Disputes have been going on for some time between Rai Bahadur Sukhraj Rai and his son Rai Kumar Singh. The complainant Ram Prakash Lal is the tahsildar of Rai Kumar Babu and the accused persons were all servants of Rai Bahadur Sukhraj Rai. The prosecution case is that on 11th July 1930, the nine petitioners along with several others came armed with lathis to the cutcherry of Rai Kumar Babu at Jageshwarpur. The complainant Ramprakash Lal was sitting in the cutcherry when the petitioners abused him as to why he had impounded the buffaloes of one Indra Babu who was the nephew and tahsildar of Rai Bahadur Sukhraj Rai. Ramprakash replied that as the buffaloes had grazed the kharh of his malik he got them impounded. Thereupon Aghore Dutt and Budhan Jha two of the petitioners ordered their men, the other accused persons, to beat Ramprakash. There was thus an assault upon Ramprakash as the consequence whereof he received certain injuries. He was dragged out from the cutcherry and again beaten. Several persons who were sitting in the cutcherry ran to his rescue, and Kamla Singh, a peon, was also struck. A hulla was raised and several villagers turned up when the accused persons ran away. Ramprakash was taken to the police station at Colgong and first information was lodged there. The usual police investigation followed and the accused persons were sent up for trial and convicted and sentenced as stated above. Their conviction was affirmed on appeal by Mr. Luby, the Sessions Judge of Bhagalpur.

The first point taken is that the judgment of the Sessions Judge is not in accordance with law. The judgment sets out the points for determination and the decision thereon. What is contended on behalf of the petitioners is that the reasons for the decision are not set out and this has reference only to one of the points raised in the appeal before the Sessions Judge. The Sessions Judge says in his judgment that four points were argued before him: (1) that no motive for the assault has been established, (2) that the evidence adduced for the prosecution is unreliable, (3) that the evidence of the defence witnesses who came to prove an alibi for Aghore Dutt and Budhan Jha should have been believed, and (4) that the sentences are too severe. The only point upon which it is alleged that the judgment is not in accordance with law is as regards the second point, viz., that the evidence adduced for the prosecution was unreliable. The learned Sessions Judge deals with this point thus:

Ramprakash''s complaint was supported in Court by a large number of witnesses. The Magistrate who had the advantage of seeing and hearing the witnesses face to face was satisfied that Ram Prakash Narain and his supporters were telling the truth. As no important discrepancies in their depositions have been pointed out to me, I see no reason for doubting the accuracy of the Magistrate''s finding.

The accused persons offered an alternative version of the occurrence alleging that Ramprakash was assaulted by somebody else and at another place. The witnesses who came to support that alternative version did not make a good impression on the Magistrate and he has given his reasons for disbelieving their evidence. His reasons seem to be good and sufficient and I do not propose to recapitulate them here.

Mr. Manuk contends that this is not a judgment contemplated by law, that it is not sufficient for a Court of appeal to say that the conviction was good because the Magistrate who had the witnesses before him was satisfied that they were telling the truth, and, farther, without dealing with the defence case it is not proper to dispose of it with a remark that the witnesses who came to support the defence version did not make a good impression on the Magistrate and the reasons given by the Magistrate for disbelieving their evidence seemed to be good and sufficient. The judgment as it stands is open to this comment. It is always desirable for a Judge of a Court of appeal to write a judgment which may indicate that he applied his own mind to the evidence and was not content with the fact that the witnesses had been believed by the trial Court. It is true that when there has been a conviction and an appeal has been preferred against it, the onus is upon the appellant to prove that the conviction was bad; but if the point taken in appeal is that the evidence for the prosecution was unreliable and insufficient to support the conviction, it is the duty of the Court of appeal to examine the evidence for itself so as to be satisfied that the evidence supported the conviction. In this particular case however I find on reading the judgment that she learned Sessions Judge did consider the evidence and come to a finding. He was no doubt very much influenced by the fact that the witnesses had been believed by the trial Court and he was entitled to take that fact into consideration but on reading his judgment as a whole I am satisfied that he did apply his mind to the whole evidence and come to the finding that the conviction was supported by the evidence. Although technically speaking, the judgment is defective, yet it is not such as to warrant a setting aside of the conviction.

The case of two of the petitioners however requires consideration: these are Aghore Dutt and Budhan Jha. They are the patwaris of Rai Bahadur Sukhraj Rai. Their plea was one of alibi and they sought; to prove that on the date of occurrence they were present at Bhagalpur. The learned Judge in dealing with their case says that if the evidence of the two lawyers examined on their behalf were to be accepted at its face value it would preclude the possibility of Aghore Dutt having taken part in a riot at Jageswarpur at 9 a.m., on 11th July. The learned Judge does not rely upon that evidence on the ground that the deposit ion of one of the lawyers who was an advocate showed that he had to refer to the record of an enhancement suit before he could say anything about the matter at issue. Now, the case of these two petitioners was that on 11th July 1930, they were present at Bhagalpur in connexion with an enhancement suit of their master against a tenant of his named Sheoshankar Misser. Babu Basanta Kumar Neogy was the advocate on behalf of the plaintiff and Babu Radhey Prasad Singh was the pleader for the defendant in that suit which was pending in the Munsif''s Court at Bhagalpur. Both these gentlemen stated in their deposition that these two petitioners were at Bhagalpur in connexion with the enhancement suit, They referred to the order sheet and to the haziri from the record of the enhancement suit in order to fix the date on which the case was taken up, but they had independent recollection of the fact of the presence of these two persons at Bhagalpur on that date. The mere fact that they had to look to the record of the enhancement suit in order to fix the date is not sufficient for holding that their evidence did not prove the alibi. We have referred to the evidence of these two witnesses and we are satisfied that these two witnesses and the other evidence adduced by these petitioners do prove their alibi. These two accused persons ought not to have been convicted. I would therefore set aside the conviction and sentence passed upon Aghore Dutt and Budhan Jha.

As regards the other petitioners, their conviction must stand. It has however been stated before us that all disputes between Rai Bahadur Sukhraj Rai and his son have now been settled and a compromise has been arrived at by which the properties have been divided between them. Under the circumstances and having regard to the nature of the injuries which were not severe, I am of opinion that the sentence of imprisonment passed upon them should be reduced to the period already undergone. The sentence of fine will stand.

The result is that the conviction and sentence passed upon Aghore Dutt and Budhan Jha are set aside, the conviction of the other petitioners is affirmed but the sentence of imprisonment passed upon them is reduced to the period already undergone, and the sentence of fine and the direction to pay compensation to the appellant will stand.

James, J.

I agree.