Emperor vs Lal Mohammad

Wort, J.—This is a reference u/s 307, Criminal P.C., by the learned Sessions Judge of Shahabad.

A preliminary objection is taken by the learned Government Pleader on the ground that the reference is not competent for the reason that, as the letter of reference indicates, the learned Judge was merely of a different opinion on the evidence from that of the jury who tried the case. It is argued that the mere fact that the Judge disagrees with the view taken by the jury of the evidence does not make it a matter for a reference u/s 307 of the Code. It is unnecessary perhaps for me to state the principles which have been discussed in many cases, and it will be sufficient for me to say that it is not in every case in which the verdict of the jury is one which does not commend itself to the Sessions Judge that he is entitled to refer the case to the High Court. The cases of the different High Courts perhaps do not agree in every detail in their decisions, but substantially the principle applicable in cases u/s 307 is that whore the verdict is a verdict which would not be come to by a reasonable man then a reference u/s 307 is competent. Perhaps I have stated the extreme principle, but there is abundant authority for the proposition which I have stated.

However, in cases whore, as in this case, the jury has convicted and the learned Sessions Judge is of the opinion that the accused should be acquitted, it is perhaps easier to apply the principles than in a case where the jury have acquitted and the Sessions Judge would convict the accused. It is quite clear in the first place that where there is no evidence against the accused person, then it is the manifest duty of the trial Judge to refer the matter to the High Court. That, of course, is perhaps an extreme case and as I have stated one in which there is no difficulty in applying the true principle.

Now the facts of this case in that connexion are those that there is substantially only one witness of the prosecution in this case that is to say, if that witness is disbelieved then the prosecution must inevitably fail. If she is to be believed, then the verdict of the jury in this case convicting the accused is justified. I ought to mention perhaps at this stage chat there was a jury of five of whom four wore Hindus and one was a Mahomedan. There was a verdict of the jury which was not unanimous, four being in favour of conviction and one of acquittal. Exactly which of these jurors held those views does not appear. The accused person is a Mahomedan.

Now, the learned Sessions Judge in his letter of reference states the reasons why the evidence of Mt. Chandan Kuer, who was the victim of the crime if such was committed and who is the only witness for the prosecution on the main part of the case, should not be believed. Now, in the first place it appears that she made a statement on oath to Mr. Gomes. That, statement is wholly in consistent with the evidence which she gave in Court. Her explanation of it is that she was induced, if not threatened, by the accused and thus she came to make the statement which she did before Mr. Gomes which if true would show that the accused was quite innocent of the offence of abduction with which he is charged in this case. The statement by her before the Court, as I have stated, is wholly inconsistent with her former statement. In Court she alleges that the accused Lai Mohammad induced her on 11th March of this year to leave Arrah and go with him on the representation that he was about to take her to her daughter who was living at Amritsar. For the purpose of this judgment it is unnecessary for me to state in detail the facts of the ''case, but what did in fact happen was that she left Arrah with the accused: that fact cannot be denied. She eventually arrived at Patna City where she stayed for some weeks. She also stayed under the protection of the accused person at Buxar. In her evidence she claims to have protested on leaving Arrah and in fact on the journey to Patna she complained to the accused person that whereas she thought she was going to Amritsar, that is, in westerly direction, she was in fact travelling in easterly direction. She stated that the accused explained to her that the better way to get to Amritsar was through Patna by the Punjab Mail.

Now, I mention those facts in connexion with the statement by the learned Judge in the letter of reference that the witness was not to be believed. He comes to the conclusion that the evidence is inconsistent for the reasons stated in his letter of reference, with the suggestion of an intrigue between the accused person and Mt. Chandan Kuer. Now of that quite clearly there is no evidence. There may be suspicion of it and it seems to me that one of the grounds, the most substantial for that suspicion, is the fact which I think must be admitted on all hands that Mt. Chandan Kuer left Arrah with the accused person admittedly after a conversation which lasted only a few minutes and incidentally a conversation which was the first that Mt. Chandan Kuer had ever had with the accused in the course of her life. This was a circumstance which led the learned Judge to believe that the story which she told before the the Sessions Judge and the jury is not to be believed.

I come back to the point at which I started, namely, whether having regard to these circumstances the argument put forward by the Crown that this reference is not sustainable is good or not. What is the position when, as in this case, there is in the opinion of the Judge no evidence upon which the accused can be convicted? The learned Judge not only from the evidence but I should suppose from the demeanour of the witness herself in the box holds that she is a woman who is not to be believed. It is true that in his summing up to the jury he has pointed out in a very emphatic manner that in bio opinion this woman is not a witness of truth, and in fact in spite of that direction the jury have convicted the accused person by a majority as I have already stated.

Now one case has been referred, to in this connexion: Queen-Empress v. Guruvadu [1890] 13 Mad. 343. In that case the jury had found the prisoners guilty of theft. The learned Acting Sessions Judge in that case was of the opinion that although he did not think the evidence justified the conviction it was not incumbent upon him to refer the case to the High Court as there may be more probably an appeal. The learned Judges who decided that case stated that u/s 307 discretion is left to the Judge to refer the case to the High Court, for it is only when he disagrees with the verdict of the jury:

so completely that, ho considers it necessary for the ends of justice to submit the case to the High Court,

that he should do so. The Court adds:

This discretion should, however, always be exorcised when the Judge thinks that the verdict is not supported by the evidence. It is the only way in which the miscarriage of justice by a preverse verdict of a jury, which is of too frequent occurrence, can be remedied by the High Court.

I have quoted that case having regard to the statement made regarding it in the case of Ramdas Rai v. Emperor AIR 1929 313. I very respectfully disagree with the learned Judge who decided this case in making the observation which he made in the judgment beyond the necessity of the case. The principle which was laid down (and this part of the judgment is not quoted in the case of Ramdas Rai) by the Madras High Court was that where the Judge disagrees with the verdict of the jury:

so completely that he considers it necessary for the ends of justice to submit the case to the High Court,

he should do so. The point, therefore, is: at what state of the evidence is the Judge justified in saying that in the interest of justice the matter should be referred to the High Court? It is open to this Court to say that the reference is competent -when the Sessions Judge, as in this case, states that the only witness upon which ''the prosecution must rely in order to succeed is not a witness-to be relied upon. In my judgment it is impossible to say that in a case of this kind, where the learned Judge has the advantage, which this Court has not, namely, of observing the demeanour of the witness and at the same time hearing her evidence and comes to the conclusion that it is not to be believed, a reference in those circumstances is incompetent. I repeat that in circumstances of that kind it is impossible to uphold that view. The view which I have expressed indicates that this case is quite different from a case where the learned Judge! merely takes a view of the evidence as a whole different from the view which the jury are supposed to have taken in the matter. It is, in my judgment, almost impossible where, as in this case, the sole witness has made two conflicting statements to come to a conclusion whether the first statement or the second statement is a true one. Where there is a conviction in those circumstances, in my judgment, the verdict of the jury is one which can hardly be sustained.

Having regard to my view as to the competency of this reference it seems unnecessary for me to add anything as regards the opinion of the jury and the evidence in the case. I have already expressed my view of the opinion stated by the learned Judge. I will satisfy myself by stating that this case when once it is found that the reference is competent is to be dealt with by the Court in the same manner as an appeal and that I must state that the evidence upon which the prosecution relied in this case did not justify the conviction which has been recorded by the jury.

In these circumstances the reference is accepted, and he accused is acquitted.