Emperor vs Dullu Kuer and Another

Meredith, J.—This is a reference u/s 307, Criminal P.C., by the learned Sessions Judge of Saran. Two persons, Dullu Kuer and Raohheya Teli, were tried before him with the aid of a jury: Dullu Kuer upon a charge u/s 457; Penal Code, and Rachheya Teli upon charges under Sections 457 and 380, Penal Code. The jury after retiring for twenty minutes, returned a unanimous verdict of not guilty in the case of both accused persons. The learned Sessions Judge was not prepared to accept this verdict, and remarked that he considered it perverse and unreasonable, and that he was clearly of Opinion that it was necessary for the ends of justice to submit the case in respect of both the accused persons to the Honble High Court. After the verdict of the jury in accordance with the provisions of Section 310, Criminal P.C., a previous conviction for an offence u/s 396, Penal Code, in the year 1931, upon which he bad been sentenced to undergo eight years'' rigorous imprisonment, was proved against the accused Dullu Kuer, and was admitted by him.

At the opening of this case, a preliminary point was taken by Mr. Chakravarty on behalf of the accused persons. He argued that the Court in hearing a reference against the verdict of a jury u/s 307, Criminal P.C., has only the same powers that it would have in hearing an appeal from the decision of a jury and therefore the Court cannot go into the evidence at all, having regard to the provisions of Section 423(2), Criminal P.C., unless it is first shown that there has been a misdirection, or that, the jury has misunderstood the law as laid down by the Judge. This argument is based on the wording of Section 307, Clause (3), which provides that:

In dealing with the case so submitted, the High Court may exercise any of the powers which it may exercise on an appeal, and subject thereto, it shall, after considering the entire evidence, and after giving due weight to the opinions of the Sessions Judge and the jury, acquit or convict the accused of any offence of which the jury could have convicted him upon the charge framed and placed before it, and, if it convicts him, may pass such sentence as might have been passed by the Court of Session.

It is urged that the use of the words "subject thereto" indicates that the direction to consider the entire evidence and so on only can have effect in a case where that could be done in exercise of the ordinary appellate powers, which are limited in the case of jury trials by the provisions of Section 423(2), Criminal P.C. This view, in my opinion, ignores the specific character of the directions laid down in the latter part of the clause, but I do not consider it necessary to examine this question in detail, because that has been already done by a Full Bench of the Allahabad High Court in Emperor Vs. Shera and Others, .

This precise point was the subject of the reference to the Full Bench, and after a full discussion of the matter the Full Bench decided that the Court in a reference u/s 307 was not limited in the way suggested, and was entitled to go into the evidence irrespective of whether there was any misdirection or misunder standing of the law or not. If I may say so with respect, the view taken in that case appears to me the sensible view of the Section and the reasoning entirely sound. There is nothing I could usefully add to it. Mr. Chakravarty drew our attention to a ruling of this High Court, Ramdas Rai v. Emperor AIR (1929) Pat 409, but this ruling does not really support the pro-position which he has attempted to put forward. It was not a case of a reference u/s 307, but a case where the Judge had refused to make a reference, and where the Court was merely hearing an appeal from the decision of the jury.

In such a case it was laid down very rightly that the Court would not consider the evidence in the absence of misdirection or misunderstanding of the law by the jury. The Court refused to treat the appeal as a reference by the Judge, merely because the Judge, though he had not made a reference, had observed that he disagreed with the verdict of the jury, and considered that the accused ought not to have been convicted. The implication was that had the Court found it advisable or possible to treat the matter as a reference, then it might have gone into the evidence and come to its own finding, but that was not the pase. The ruling therefore provides no support for Mr. Chakravarty''s contention. On the other hand, another ruling of this High? Court, Emperor v. Ran Mian AIR (1932) Pat 246, is directly against him. That is all that it is necessary to say with regard to this preliminary objection, which, cannot succeed.

His Lordship then discussed the facts and the evidence and proceeded.) It appears to me that the verdict of" the jury in this case was, having regard to the state of the evidence, a wholly unreasonable one, and I am somewhat at a loss to understand it. It is true that Ganesh admitted that he had once undergone four years'' rigorous imprisonment for dacoity, and Budhu Kuar admitted that he had been eight years in jail for an offence u/s 304, I.P.C., but, as the learned Judge rightly observed, this was merely a reason for treating the evidence of these witnesses with caution and seeking corroboration; it could be no reason for rejecting it altogether out of hand.

Actually there was ample corroboration. There is no reason at all for not believing the evidence of the various villagers. As I have noticed, the first information was lodged without any delay at all and the witnesses had gone to the thana, and were also examined then and there, so that there was no real opportunity for concocting a case. Moreover, the injuries found on the persons of the accused and Ganesh were entirely consistent with the prosecution story, while the defence version left the injuries upon Ganesh at least entirely unexplained.

The traces of trampling in Ganesh''s courtyard, which were found by the Assistant Sub-Inspector, also corroborated Ganesh''s story. In short, the evidence in the case was overwhelming and left no doubt at all that these two accused persons were actually caught red-handed while committing theft at night in the house of Ganesh.

In these circumstances I would accept this reference, set aside the verdict of acquittal of the jury, and convict Dullu Kuar u/s 457 read with Section 75, I.P.C., and Rachheya Teli under Sections 457 and 380, I.P.C. It is not alleged that Rachheya Teli has any previous conviction. The theft was a petty one, and in the circumstances I would sentence him under each Section to undergo one year''s rigorous imprisonment, these terms to run concurrently. I would sentence Dallu Kuar u/s 457/75, I.P.C., to undergo three years'' rigorous imprisonment.

Yarma, J.

I agree.