In Re: Sakhichand Kumar and Another

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

There were, seven accused and they were charged under Sections 149-302, 149-325, and 149-323. It is to be noted that these sections relate to injuries on different persons and they are in no sense alternative charges. The occurrence took place on 11th June 1927. The trial was with a jury. The jury acquitted five of the accused of all charges but convicted by a majority Sakhichand, under Sections 325-149 and Basawan under Sections 323-149. The-jury acquitted these two accused of the other charge under Sections 302-149.

The case presents a number of difficulties which are not decreased by the fact that it is impossible to say from the letter of reference what is the opinion of the Sessions Judge. The opinion of the jury which can be gathered from their verdict is clear, whether in our judgment that opinion is right or wrong. That opinion is to the effect that the case of the prosecution was not made out as regards some of the accused and it is also not made out as regards the charges under Sections 302-149 against Sakhichand and Basawan. In my judgment the letter of reference is inadequate.

It has been stated more than once by the High Court that the Judge when referring the case under this section should set out in some detail his own opinion regarding the evidence and morel; particularly to state which part of the evidence in his opinion would entitle the Court in the interest of justice to convict); the accused upon the charges referred. Here the learned Sessions Judge states in his letter that the reasons for the reference are indicated in the charge. This in my opinion, to say the least of it, is not helpful. The charge to the jury is what it, should be, an analytical survey of the evidence adduced in the case, with cogent criticizes of the case of the prosecution and the defence. It would be impossible from that charge to state with any certainty whether the learned Sessions Judge was of the opinion, that the accused should be convicted or not. It is clear that the conviction under Sections 325 and 323 might stand, if the evidence justified them, and a further conviction if the evidence justified it, might be recorded under Sections 302-149. But on the face of the letter of reference it might be supposed that there was a confusion in the mind of the learned Sessions Judge as it seems as if he had treated the latter charges as alternative. The letter of reference and the judgment are not happily worded. This, might be the reason that there is the apparent confusion which I have indicated. It may very well be that in the mind of the learned Sessions Judge there is no-such confusion. But the most important, point is the one I have already mentioned, the absence of any adequate statement in the opinion of the learned Sessions Judge.

It may well be that the Judge found himself in a difficulty having regard to what actually happened, the jury having convicted the accused under Sections 325 and 323. He might have thought that although he agreed with that part of the verdict he was not entitled to record a conviction on the charge but should refer the matter which he has referred. He certainly ought not to record a conviction but could have agreed with the verdict of the jury and referred the matter which comes before us.

On the other hand from the reading of the letter of reference and the judgment it may be that he thought the conviction of the jury was a conviction of alternative or minor charge instead of the major charge. This may be gathered from his statement that having so far accepted the prosecution case the jury should have convicted both these persons under Sections 302-149. However, by no means does it necessarily follow that if the jury accepts the evidence as regards one charge they must necessarily or logically accept the evidence on the other charge. This reason which I have stated is not an (adequate reason for referring the case to this Court. This reason which the learned Sessions Judge gives might equally be a reason for refusing to accept the verdict of conviction of these two accused persons, as, if they refused to accept the evidence of a part of the case they might equally and logically refuse to accept the evidence of the other.

In my judgment, therefore, the reference in its present form does not comply with Section 307, Criminal P.C. and I direct the papers to be returned to the learned Sessions Judge for him to dispose of the case according to law and if he should think fit in the circumstances, to refer the matter in proper form to this Court.

I should, add that if the learned Sessions Judge proposes to refer the matter to the Court he should clearly state in the letter of reference the material portion of the evidence he believes to be true and what his reasons are for arriving at his conclusions.

Macpherson, J.

I agree to the order proposed.

Seven persons were committed to the Patna Sessions on a charge u/s 302-149, I.P.C. with reference to the deaths of Mt. Khairatan and Ishaq and on a charge u/s 325-149 in respect of grievous hurt caused to Chandu Mian. At the Sessions a further charge u/s 324-149 in respect of hurt to Satan Mian by means of a sharp pointed weapon was added. The jury (by a varying majority) found five accused not guilty, Sabhichand Kumhar guilty u/s 325-149 and Basawan Gope guilty u/s 323-149. Unfortunately the provisions of Section 303, Criminal P.C. escaped notice and neither did the jury return a verdict on each charge nor did the Judge ascertain from them to what charge their verdict of guilty related. The result is that it is not clear whether the verdict in respect of Sakhichand Kumhar relates to the charge u/s 325-149 in respect of the, injuries to Chaudu Mian or to the charge u/s 302-149 in respect of the death of Khairatan or the death of Ishaq or both, or to which of the three charges the verdict in respect of Bisawan Grupe relates.

In his judgment the learned Sessions Judge stated that the verdict of the majority in respect of five persons acquitted is accepted, and proceeded

In the case of Sakhichand Kumhar and Basawan Gope the verdict is not accepted and their case is referred to the High Court u/s 307, Criminal P.C. for altering the conviction to one u/s 302-149, I.P.C.

It is of course manifest that acceptance of the verdict of a jury does not imply agreement with it, but merely that the Judge does not think the case is one for action u/s 302.

In his letter of reference the learned Judge simply refers the case of these two persons u/s 307 with the following observations:

The reasons for the reference are indicated in the charge. I am of opinion that, having so far accepted the prosecution case, the jury should have convicted both these persons u/s 302-149 with which they are charged instead of under Sections 325-149 and 323-149.

In my opinion there has not been a sufficient compliance with the provisions of Section 307, Criminal P.C. It may perhaps be assumed from the fact that he has made a reference that the learned Judge disagrees with the verdict of the jurors at least on the charge under Sections 302-149 and also that he is clearly of opinion that it is necessary for the ends of justice to submit the case in respect of Sakhichand and Basawan to this Court, though it would have been better to say so distinctly. But it is difficult to say that he has recorded the grounds of his opinion. The charge which is said to indicate the reasons for the reference is largely in the interrogative (a method often deprecated especially when employed immoderately) and it also is colourless and lacks emphasis. That is of course not necessarily dispraise of a charge but such a charge will not ordinarily show why the Judge is of opinion that it is necessary for the ends of justice to refer the case. In fact intensive study is required before one can discern what appear to be indications of an opinion that Sakhichand and Basawan Gope should be convicted u/s 302-114 and apparently on the other charges as well. And though such indications appear to exist though reconditely one cannot feel sure especially in view of the terms of the letter of reference which are either unduly restrained or might by themselves even be construed as designed to convey not a personal opinion of the guilt of the two accused but a view that irrespective of his opinion the verdict is not logical. The difficulty is enhanced by the word ''altered'' in the judgment and the recommendation to convict u/s 302 instead of under Sections 325 and 323 (in each case with Section 149) in the circumstances to which allusion has bee a made, and it appears possible that the learned Sessions Judge did not take account of the charges under Sections 325 and 324. It seems hardly probable that in his view the verdict of guilty on the specific charge u/s 325-149 is wrong. Necessarily the form of the reference must vary in each particular case, but at least the learned Judge''s opinion of the requirements of the ends of justice and the identity of the charge or charges which he considers to have been proved should be absolutely clear, and in the grounds for his opinion, to which the High Court is enjoined to give due weight, he should deal in appropriate detail with the evidence setting out the substance of the portions on which he relies and the considerations which constrain him to differ from the verdict of the jury. In this regard reference may be made to Emperor v. Dyamanaik Annappaniak [1904] 6 Bom. L.R. 519, Emperor v. Irya Doddappa Katagi [1904] 6 Bom. L.R. 599 and Emperor Vs. Chandra Krishna, .