Emperor vs Bhagwat Sahu and others

Fazl Ali, J.—This is a reference under S. 307, Criminal P.C., made by the Assistant Sessions Judge of Monghyr in a case in which seven persons were tried before the learned Judge and a jury on the charge of having committed an offence under S. 396, I.P.C. When the trial was concluded the jurors by a majority of four to one returned a verdict of not guilty, but as in the opinion of the Assistant Sessions Judge the evidence adduced in the case was sufficient to prove the guilt of the accused and their complicity in the crime with which they were charged, he forwarded the record of this case to this Court expressing his disagreement with the verdict of the jury.

It is not disputed that there is overwhelming evidence in the case to prove that there was a serious dacoity in the house of one Arab Ali in village Sahuria in the district of Monghyr on the night of 21st August 1934 and in the course of the dacoity Arab AH himself sustained injuries which resulted in his death. The only important question thus which the jury had to decide was whether the accused persons or any of them had taken part in the dacoity. Now in the first information report which was lodged on 22nd August 1934 at 2 p.m. by one Saidan Ali, a cousin of Arab Ali, the names of the dacoits were not mentioned and it was distinctly stated that the informant bad recognized no one and that he suspected no one. The Police Sub-Inspector however promptly took up the investigation of the case and after receiving some information from a spy whom he had employed he arrested these accused persons one after another. It may be mentioned that the accused persons are residents of village Goura and certain other contiguous villages which are about 20 miles away from village Sahuria where the dacoity was committed. All these accused persons with the exception of Bhagwat, Jharulla and Bengali were arrested on 30th August. Bhagwat was arrested on 19th September and Bengali on 28th September. Jharulla surrendered in Court on 24th October.

At the instance of the investigating officer a test identification was held by a Deputy Magistrate in jail on 30th September 1934 when all the accused persons except Jharulla were put up for identification. Jharulla was put up for identification on 2nd November 1934. The witnesses who took part in these identification proceedings were P.Ws. 2, 3, 4, 10, 11, 12 and 29 and every one of the accused persons was identified by some or other of these witnesses. As the case against the accused persons rests mainly on the evidence of these witnesses, the question to be determined by us is whether the jurors were justified in rejecting their evidence and not attaching value to the result to the test identification proceedings. Now in his letter of reference the learned Assistant Sessions Judge himself is prepared to eliminate the evidence of P.Ws. 4, 10, 11 and 29 so far as it relates to the identification of certain accused persons. This is due to the fact that these witnesses have stated in their evidence that they had known those accused persons even before the dacoity and yet they made no attempt to name them during the earlier stages of the police investigation. For example, P.W. 4, the second wife of Arab Ali, knew accused Bhagwat, Jhumma Shah and Misso Shah before the dacoity; but she did not disclose their names to the first informant when he left the village to lodge the information or to the investigating officer till she was examined for the third time some 14 or 15 days after the dacoity. Similarly the accused Seraj Khan was known to P. Ws. 10 and 11 from before the dacoity, but he was not named by them before the Sub-Inspector though they identified him at the test identification.

The case against the accused persons therefore rests practically upon the evidence of P.Ws. 2, 3 and 12. It appears that all these witnesses at the test identification proceedings identified not only the accused persons but also one or more persons who were not even suspected of being concerned in the dacoity. P.Ws. 1 and 12 for example identified one wrong person each and P.W. 3 identified two wrong persons. In my opinion this was a circumstance which the jurors were justified in taking into consideration in judging their evidence.

Apart from this, the evidence given by these witnesses in Court practically amounts to this that they had never seen the accused persons before the night of the dacoity: but they were able to identify them at the test identification because they had seen them for a few seconds in the light of the torches carried by the dacoits when the dacoity was being committed. P.W. 2 is a neighbour of Arab Ali and his statement is that being aroused from sleep he got up and proceeded towards the house of Arab Ali and after he had walked some distance, he saw five or seven dacoits at the house of Arab Ali with the aid of the light thrown from the torches carried by the dacoits. At the test identification this witness not only identified some of the accused but also stated that one of them Seraj Khan had a torch in his hand. P.W. 3 is also a neighbour of Arab Ali and his statement is similar to that made by P.W. 2. At the test identification he stated that he saw a torch in the hand of Misso Shah. P.W. 12 states in his evidence that on hearing the alarm he picked up a lathi and ran to his deori in the lane and he saw not only ten or twelve persons standing at the doori of Saidan Ali but some men standing at his door also. At the test identification he stated that he had seen torches in the hands of some of the dacoits and lathis in the hands of others.

In the case of the last two witnesses, some of the accused persons as soon as they were put up for test identification stated that they had been known to them from before the occurrence. However that may be, there is no doubt that the evidence in the ease is by no means very strong; and it seems remarkable that the prosecution witnesses should have been able to remember the features of the accused persons who were total strangers to them and whom they had seen only for a few seconds on the night of the dacoity when they must have been in a most agitated state of mind; and also that they should have been able to remember which of the accused carried torches. In my opinion the jurors cannot be blamed if they thought that it was not safe to rely on the evidence of these witnesses particularly as they had also made mistakes at the time of the test identification. The learned Assistant Sessions Judge himself does not say in his letter of reference that in the circumstances of the case the verdict of the jurors was perverse, and as has been pointed out by this Court in Emperor v. Sitalu Ahir, 1933 Pat 273 = 1933 Cr C 755 = 144 I C 246 = 34 Cr L J 731 = 14 P L T 217 in cases in which the verdict depends entirely upon the question of whether the witnesses are to be believed, considerable weight should Ordinarily be attached to the verdict of the jury whose function it is to decide such questions of fact, especially when there is no reason for supposing that the verdict is perverse.

In my opinion the verdict of the jury in the present case cannot be characterised as either perverse or unreasonable and I see no reason for setting aside that verdict. I would therefore discharge the reference, accept the verdict of the majority of the jurors and direct that the accused persons be acquitted and set at liberty. It may be stated here that as the learned Assistant Sessions Judge himself discovered after the verdict, the case should have been tried with the aid of assessors and was not triable by a jury and one of the questions argued before us was whether the provisions of S. 307, Criminal P.C., were applicable in such circumstances. S. 536 clearly states that if an offence triable by a jury is tried with the aid of assessors, the trial shall not on that ground only be invalid. There are also clear authorities to support the view taken in this case by the learned Assistant Sessions Judge that where by mistake an offence which lis triable with the aid of assessors is tried by jury, the Judge when he discovers the mistake may treat the trial as legal and refer the case to the High Court under S. 307, Criminal P.C., if he disagrees with the verdict of the jury. In King Emperor v. Jeyram Haribhai, (1899) 23 Bom 696 = 1 Bom L R 114 the facts were not dissimilar to those of the present case.

In that case the accused was tried by a jury on four charges and the jury returned a unanimous verdict of not guilty on all the charges. The Sessions Judge agreed with their verdict on three of the charges, but he differed from them as to the remaining charge which was that of criminal misappropriation. This offence was not triable by a Jury and should have been tried by the Sessions Judge with the aid of assessors. Notwithstanding this fact the Judge referred the case to the High Court under S. 307 and it was held by a Division Bench of the Bombay High Court that although the procedure of the Sessions Judge was irregular, the trial by jury must be accepted as legal and therefore the case was one that could be referred to the High Court under S. 307, Criminal P.C. A similar view was taken by a Division Bench of the Calcutta High Court in Surja Kurmi v. Queen-Empress, (1898) 25 Cal 555. In my view the reference is therefore quite competent and we can deal with the case on the supposition that the trial by jury was not illegal. It is however to be regretted that neither the learned Judge nor the Public Prosecutor took care to ascertain before the trial commenced whether the case was triable by a jury or was to be tried with the aid of assessors. I am also constrained to observe that the learned Sessions Judge should not have made over this case involving as it did the charge of dacoity with murder for trial to an Assistant Sessions Judge. It is obviously undesirable that the Assistant Sessions Judge should have to try an offence which he cannot adequately punish. In fact we were at first strongly inclined to order a retrial and it was only when we were convinced that no useful purpose would be served by ordering a retrial and the accused would be unnecessarily harassed if that course was adopted that we made up our mind to deal with the case on its merits.

Wort, J.

I agree.