Emperor vs Ramkripal Choudhary and Others

Dalziel, J.—This is a reference u/s 307, Criminal P.C. from the learned Additional Sessions Judge, Darbhanga, against the unanimous verdict of a jury convicting three persons, namely, Ramkripal Choudhary, Munilal Choudhary and Mahabir Choudhary, u/s 486, I.P.C. These three men were tried along with thirteen others in a case arising out of a complaint by one Panchkauri Choudhari which was briefly to the effect that after a quarrel between his wife and another woman the wife of one Ramraji Jha, this Ramraji came with sixteen others, including Ramkripal, Munilal and Mahabir, and after pursuing the complainant''s wife into the angan of their house and beating her and the complainant himself and his servant named Balelwa, they proceeded to loot his house. Finally, it was alleged that Ramkripal, Munilal and Mahabir set fire to a hut and two brick built rooms with straw roofs belonging to the complainant.

The case was sent for enquiry to the Sub-Inspector who found only the charge of assault to be made out and reported accordingly; but the Magistrate held/that there was a prima facie case u/s 395 and also u/s 436 and committed all the accused to take their trial in the Court of Session. Charges were also framed u/s 323, against some of the accused and u/s 147, against all.

In Darbhanga, where the case was tried, the charge u/s 436 is triable by a jury while the remaining charges are triable with the aid of assessors. The five jurors, who sat to hear the case, came to the unanimous verdict of guilty against Ramkirpal, Munilal and Mahabir u/s 436, and they also, as assessors, were unanimously of the opinion that the charges under Sections 147 and 323 were established but not that u/s 395. The Judge, on the other hand, considered that none of the charges was proved, and, while acquitting all the accused on the other charges, he referred the case of Ramkripal, Munilal and Mahabir to this Court with a recommendation that in disagreement with the verdict of the jury they should be acquitted of the charge u/s 436, I.P.C.

The controversy which previously existed regarding the functions of the High Courts in dealing with reference u/s 307, Criminal P.C. has very recently been set at rest by the judgment of their Lordships of the Privy Council in AIR 1946 151 (Privy Council) . The rule for the guidance of the High Courts in this matter has been laid down in the following passage from the judgment of his Lordship Sir John Beaumont:

In their Lordships'' view the paramount consideration in the High Court must be whether the ends of justice require that the verdict of the jury should be set aside. In general, if the evidence is such that it can properly support a verdict either of guilty or not guilty according to the view taken of it by the trial Court, and if the jury took one view of the evidence and the Judge thinks that they should have taken the other, the view of the jury must prevail, since they are the judges of fact, In such a case a reference is not justified, and it is only by accepting their view that the High Court can give due weight to the opinion of the jury. If, however, the High Court considers that upon the evidence no reasonable body of men could have reached the conclusion arrived at by the jury, then the reference was justified and the ends of justice require that the verdict be disregarded.

In the present case the grounds on which the learned Additional Sessions Judge recommends that the verdict of the jury should be dissented from may be summed up as follows:

(1) That only interested witnesses have bean examined;

(2) That the evidence of the Sub-Inspector about what he found on the spot belies the prosecution case;

(3) That the story of arson is unlikely;

(4) That there was delay in lodging the complaint; and

(5) That the witnesses, and particularly one witness, made discrepant statements to the police.

Bearing in mind the criterion that has been laid down by the Privy Council in the judgment cited above, we have to see whether no reasonable body of men could have reached the conclusion that the accused were guilty u/s 436, I.P.C. It is true that all the eyewitnesses are to some extent interested as they are the complainant Panchkauri himself, his wife Mahasundari, his cousin Dinanath Choudhary, his servant Balelwa who was also assaulted, and one Babuji, a brother of Balelwa. As regards Dinanath, however, it may be remarked that although he is the cousin of the complainant, there is some evidence that he is not invariably on good terms with him. The complainant himself in cross-examination speaks of Dinanath as having colluded with the other side in one case and as having had several disputes with him, and Dinanath himself says that there were several cases between them. The allegation from the side of the prosecution was that other more independent witnesses had been gained over. There are evidently two factions in the village and it may have been difficult to obtain really independent evidence. The case of the prosecution has of course to be proved by the evidence adduced in Court; but I do not think that it can be held that in this case if the jury after hearing the complainant and his witnesses considered the story of arson to be proved by the statements of the witnesses, it was an entirely unreasonable view: Admittedly the hut and two rooms were burnt and two rival versions were given as to how they were burnt, the prosecution alleging that these three accused did it, while the defence asserted that the complainant set fire to his own house in order to implicate them falsely. The defence version was very briefly set forth in a written statement without any details and no evidence adduced to support it. It was also part of the defence case that in actual fact no occurrence took place at the house of the complainant but there had been a disturbance earlier on the same morning on a plot of land which was in dispute between the parties, and it was further alleged that there had been another incident subsequently on the same day at about 2 P.M. when Ramkripal and Munilal had been assaulted near Laheriasarai Dak Bungalow. It does not seem to be impossible that both the incidents alleged by the defence did take place as well as that alleged by the complainant in this case at his own house, the time of which is said to have been about noon. The fact that the complainant''s wife received injuries affords some corroboration of the prosecution story as it is unlikely that a woman should have taken part in either of the incidents alleged by the defence, and indeed this does not seem to have been suggested. On the contrary, the suggestion was that the complainant had himself beaten his wife in order to manufacture injuries. The jury had to consider these points and decide whether the arson story was true. There was certainly evidence on record on which they could come to such a finding,

The points (2) to (4) enumerated above as put forward by the learned Additional Sessions Judge do not appear to be at all conclusive. As regards the Sub-Inspector''s evidence, the argument seems to be that he did act find any burnt grain on the spot when he inspected it 5 days after the occurrence, although one of the rooms was said to be used for storing grain. As regards unlikelihood of the story, it is first remarked: that it is improbable that the complainant and his servant Balelwa should not have interfered to stop the house being set on fire, especially as the latter had, according to the complainant''s story, a garasa in his hand. The garasa is said to have been seized by Balelwa from one of the rioters and wielded in self-defence. It is strongly urged in support of this reference before us that this is a false story introduced simply for the purpose of explaining the injuries inflicted on the other side. I am inclined to agree with this, but it would be quite possible to hold that this is an embellishment of the complainant''s story, whereas the allegations of assault and of getting fire to the house are true. Another ground on which we are invited to hold that the story of arson is impossible is that one of the accused persons, namely Ramraji, has a house with straw roof only a few feet away from the hut and rooms which were burnt, and, therefore, the accused persons are not likely to have put this house in danger by setting fire to the hut and rooms. If, however, they acted in the excitement of the moment, they are not likely to have considered this point. Moreover, there is also a certain unlikelihood in the complainant himself setting fire to his own house and burning down completely one hut and the roof of two rooms as well as endangering the rest of his house.

As regards the delay in filing the complaint, the complainant''s story is the the first went to the police station but did not find anybody there and when he went later he found the Assistant Sub-Inspector who refused to take any action. He then went to the Sub-divisional Officer''s residence and was told to come and file complaint the next day, which he did. It is evident that the complainant for some reason or other did not trust the police and it is quite probable that his story of going to the police station is not true but that he went to the Sub-divisional Officer because he preferred the case to be investigated by a Magistrate. He filed several petitions to the Court to have it taken out of the hands of the police and a magisterial enquiry held, but these were refused. I do not think that the delay in this case was such as to render it unreasonable to hold that the case was substantially true.

As regards discrepancies between the-statements of witnesses before the Sub-Inspector and in Court, the evidence of Babuji has, I think, to be discredited, because although deposing as an eye-witness in Court he appears to shave told the Sub-Inspector that he came about 5 P.M. after the house had been burnt. But the main controversy in this matter centres round the evidence of the witness Balelwa. What appears in evidence is that Balelwa was asked in cross-examination whether he had told the Sub-Inspector that Panchkauri himself set fire to his house and he emphatically denied this as "absolutely false." The Sub-Inspector when questioned about the statement made by this witness to him said:

There is no note that he named Munilal Ramkripal and Mahabir as the persons who set fire to Panchkauri''s house. He rather said that Panchkauri himself set fire to his house.

It was evidently contended from the prosecution side that the Sub-Inspector was falsely attributing such a statement to Balelwa, who is not likely to have entirely discredited his master''s case in this way. The learned Additional Sessions Judge, in considering this point remarks that Balelwa is an illiterate rustic and there is nothing surprising if he stated the truth before the investigating officer when he was away from his master. Here again, the question is essentially whether the jury could not reasonably take the view that Balelwa''s denial of having made this statement is to be believed rather than the Sub-Inspector''s evidence. In my opinion, such a view cannot be described as unreasonable.

I have considered this point in the light of the evidence as set forth above, but before leaving it I feel it to be my duty to add some comments based on a perusal of the case diary. On referring to the statement recorded by the Sub-Inspector as having been made by Balelwa I find that he did not say that Panchakauri set fire to his own house. What he has been recorded as saying is that (speaking of the mob) "some were dragging boxes and looting property of complainant Panchkauri, and others were setting fire to his house." In justice to the Sub-Inspector, it should be pointed out that, as recorded in the station diary, the words "Panchkauri, and others were setting fire to his house" make up two complete lines which, if read very carelessly, might give the impression that the witness attributed to Panchkauri the action of setting fire to his house, although it will be been from the contest that this is not the statement. Even if this lenient view of the Sub-Inspector''s conduct is taken, he still remains guilty of gross irresponsibility in deposing as he did without properly reading the entry in the diary, and it is also most unsatisfactory that the learned Additional Sessions Judge himself did not detect the error. There has been some controversy between the Courts on the question how statements of witnesses which are used u/s 162, Criminal P.C. are to be proved, i.e. whether the actual entry in the diary is to be proved and exhibited or the statement is simply to be proved by the oral evidence of the Sub-Inspector; but there can be no question whatever that the actual statement of the deponent must be accurately brought on the record. In one case of this Court, in which the Bihar practice of proving statements by the oral evidence of a Sub-Inspector is upheld, Bihari Mahton v. Emperor AIR 1931 Pat. 152 it is clearly stated to be part of that practice that the police officer''s answers should always be checked with what is written in the diaries. This does not appear to have been done in the present case with most unfortunate results.

To sum up, the points urged against the view taken unanimously by the jury do not seem to be so strong as to lead to the conclusion that no reasonable body of men could have given such a verdict on the evidence, and I would accordingly reject the reference and would agreeing with the unanimous verdict of the jury finding the accused Ramkripal, Munilal and Mahabir Choudhary, guilty u/s 486, I.P.C., convict them under that section.

As regards sentence, arson is a serious offence, but having regard to the facts that in this case it was committed in the excitement of the moment, and probably, without premeditation, and that no property of any substantial value was destroyed, a sentence of six months'' rigorous imprisonment will meet the ends of justice, and this sentence is accordingly imposed on each of the three accused, Ramkripal, Munilal and Mahabir Choudhary.

Das, J.

I agree. On the construction of Section 307, Criminal P.C., Sub-section (3) of which indicates the powers of the High Court in dealing with a case submitted by the Sessions Judge under Sub-section (1), the view which has now found favour with their Lordships of the Judicial Committee is that the High Court will only interfere with the verdict of the jury if it finds the verdict "perverse, in the sense of being unreasonable" or "manifestly wrong", and the test laid down is that "no reasonable body of men could'' have reached the conclusion arrived at by the jury." The application of the test will depend on the facts of each case and involve the consideration of the entire evidence after giving due weight to the opinions of the Judge and the jury. In a case where two views of the evidence can be taken, it is obvious that the view taken by the jury cannot be said to be "perverse" or one which no body of reasonable men could have taken. Where the matter rests primarily on the believability of evidence, it may be difficult to draw the line between an "unreasonable view" and a "probable view," and the Judge may be tempted to think that a view other than his own is unreasonable; but the distinction between an "unreasonable view" and a "probable view" is an appreciable distinction and will in most cases, I think, depend on the nature compelling or otherwise, of the reasons for believing or disbelieving the evidence given, remembering always that the jury are the judges of fact.

Judged by the aforesaid standard, I am unable to say that the verdict of the jury is unreasonable" in this case. As to the point that the witnesses were biased, I would quote the following observations of their Lordships from the case referred to by my learned brother:

The charge that witnesses are biased always affords a legitimate ground of criticism of their evidence, and often for rejecting it in the absence of corroboration. It was essentially a matter for the jury to decide whether they would accept the evidence of interested witnesses.

As to the statement alleged to have been made by Balelwa to the investigating police officer, I agree with my learned brother that the learned Sessions Judge should have checked the statement actually made by the witness and noted in the diary, when the investigating police officer was cross-examined on the point. I regret to have to say that the learned Sessions Judge has shown carelessness in this matter, and his attention should be drawn to the observations made in Bihari Mahton v. Emperor AIR 1931 Pat. 152 and Emperor v. Najibuddin AIR 1933 Pat. 589.