King Emperor vs Punit Chain and others

Jwala Prasad, J.—This is a reference u/s 307 of the Code of Criminal Procedure by the Sessions Judge of Patna recommending that Punit and Ramkhelawan be convicted of an offence u/s 302, I. P. C. read with Section 34, I. P. C. and u/s 148, I. P. C. and that Sita Ram and Inder be convicted of an offence u/s 147, I. P. C.

The above named four persons along with 17 others were tried by the learned Sessions Judge of Patna with the aid of a Jury consisting of 5 gentlemen on the charge of having murdered one Kokil Mahto. The Jury returned a divided verdict, three of the jurors returned a verdict of not guilty and two a verdict of guilty.

The learned Sessions Judge accepted the verdict of the majority of the Jury with respect to the 17 accused persons, and disagreeing with the verdict of the majority with respect to the aforesaid four persons has referred their case to us u/s 307 of the Code of Criminal Procedure. The reason for the reference has been given by the learned Sessions Judge in his letter No. 329 XI, dated the 24th of February 1922, to this Court. He says-

"The evidence appears to me conclusive to establish the charges of rioting and to prove that the four men, Punit, Ram Khelawan, Sita Ram and Inder, were members of the body of rioters, that the two former were armed with bhalas, that Sita Ram and Inder carried lathis and that either Punit or Ram Khelawan in furtherance of an intention which was common to both of them, caused the fatal wound in the chest of Kokil. My charge to the jury will show the details of the evidence against each of these four men.

"I rely particularly on the evidence of Saudagar, Mussamat Subhagia, Mussamat Makhni, Ram Prasad Lohar, constable Ram Bilas Singh, and Dahaur, I can find no reason why Mussamat Subhagia or Mussamat Makni or Ram Prasad Lohar or constable Ram Bilas Singh or Dahaur should perjure themselves, and their de-meanour in the witness box was quite satisfactory. The evidence itself shows no grounds at all for considering their testimony to be inspired by any evil motives.

"As against all the four men with whom this reference is concerned there is a, further fact that they were all arrested near the scene that night and also the fact that Sita Ram was found wearing a woman''s garb."

It may incidentally be mentioned here that the charge to the jury, the verdict of the jury and the judgment of the Court all took place on the 21st of February 1922, as the order sheet and the verdict of the jury and the judgment show, but the charge to the jury bears the date 23rd February 1922 under the signature of the learned Sessions Judge.

No doubt, the jury was charged on the 21st and apparently a typed copy was placed before the learned Sessions Judge for his signature on the 23rd. It should have appeared on this copy when the Jury was actually charged.

In the letter of reference it would appear from the summary of the reasons quoted above that the learned Sessions Judge has not really discussed the evidence in the case for and against the accused persons in order to justify the conclusion that the charge against the aforesaid four accused persons was established. He, However, refers to his charge to the Jury for details of the evidence against each of the aforesaid four persons.

Now in the charge to the Jury the evidence on the record has been summarised very fully by the learned Sessions Judge. He has referred to the various circumstances which appeared in the evidence to be against the witnesses in question. As to Musammat Subhagia and Musammat Makhni, the learned Sessions Judge has stated in the charge to the Jury that they were not mentioned in the first information, and he also refers to the explanation offered on behalf of the prosecution of their not having been so mentioned. He said that as soon as they saw the attack upon Kokil they went inside and shut the door, and therefore, they had no opportunity of seeing Saudagar who must have arrived at a later stage.

The learned Sessions Judge also points out that these two witnesses were not examined even by the Sub-Inspector till the evening of next day, the 8th of October and this is sought to be explained by the fact that the Sub-Inspector was too busy. The further attack upon the evidence of these witnesses is stated in the charge to be that they were subordinates of Kokil and consequently were under his influence. Certain discrepancies in their evidence were also pointed out.

Now against Ram Prasad the learned Sessions Judge pointed out that he was not examined by the Sub-Inspector till the night of the 9th of October, that is, the third day from the day of the occurrence. He was also not mentioned in the first information.

Dahaur was not mentioned in the first information. Besides, he was at the time of the occurrence far down the lane to the south of Kokil''s and Punit''s house, and it is more than doubtful whether by the time that, he says, he came to the scene of occurrence, after having heard the cries, the accused were still assaulting the deceased.

This fact is not mentioned in the charge to the Jury. Ram Bilas Singh, the last witness referred to by the learned Sessions Judge, is said to have heard the hulla when he was proceeding down the lane from the north. He must then at the time be about 300 feet from the place of occurrence. His evidence in the Court of Sessions as to the number of men he actually saw striking and the length of time within which he heard the hulla is discrepant as compared with his evidence before the Committing Magistrate. He, of course, recognized Punit only.

On behalf of the defence it has been urged that apart from the aforesaid criticisms of the evidence of the witnesses relied upon by the learned Sessions Judge in the order of reference, it was inherently impossible for the witnesses to have recognized the assailants. Saudagar, son of the deceased says that he and the deceased were taking their evening meals together, and that the deceased had left the place while Saudagar was still at his meals; sometime after he heard a hulla and then came out of his house and proceeded towards the place of occurrence.

Now, the place of occurrence from his house is about 150 feet. The assault was a sudden one. The assailants apparently were in ambush waiting for the victim to pass along the lane. The suggestion is, therefore, reasonable that there was hardly time for Saudagar to have arrived at the scene after hearing the cries and to have witnessed the assailants still assaulting the deceased. The evidence of the two Musammais, Makhni and Subhagia, has also been shown to us, and it has bee, contended that according to these witnesses the assailants quietly assaulted the deceased and there was no hulla at all. The moon had gone down and it was starlit night. The lane is a narrow one and the lantern shown at point 7 in the police map was at a distance of 150 feet.

The defence Counsel, therefore, urges with some force that there was not sufficient light to enable the witnesses to come from the distance alleged by them and to have identified the assailants. The learned Assistant Government Advocate has referred us to the evidence of a number of witnesses who are said to have been referred to in the charge to the Jury as having been connected with the dewas. The fact that the dewas was going on an point No. 14 marked in the Police map, where these witnesses are said to have collected at the time of occurrence, does not appear to have been mentioned in the first information.

Besides, in view of the criticisms stared in the charge, the learned Sessions Judge himself does not seem to rely upon the witnesses connected with the dewas. Therefore, these witnesses must be altogether dispensed with in considering the present reference.

Now the learned Sessions Judge has not himself discussed the evidence in his letter of reference. He has simply said that the evidence of the witnesses mentioned above should be accepted. He ought to have given his reasons for accepting the evidence. He ought to have met all the objections raised by the defence against the evidence of the aforesaid witnesses; in other words, he ought to have given his reasons for the decision arrived at by him, that the evidence in the case establishes the guilt of the aforesaid four persons.

Now, this was obviously more necessary in the present case because the learned Sessions Judge has deviated from the well recognized principle, that in making a reference u/s 307 of the Code of Criminal Procedure disagreeing with the verdict of the Jury, the learned Sessions Judge should have asked for their reasons for the verdict.

It was still more necessary, as it was pointed out in the case of Emperor v. Musammat Zohra (1919) 1 P. L. T. 657 = 55 I. C. 294 = 21 Cr. L. J. 278, that when the Jury had differed and there was a division in the opinion of the Jury we have to consider not only the opinion of the majority but also of he minority of the Jury. Section 307, Clause (3) requires us to give "due weight to the opinion of the Sessions Judge and the Jury."

We have in the present case got the opinion of the Judge, but we have not got the reasons and the opinion of the Jury except the verdict of ''not guilty''. We have, therefore, to depend entirely upon the record in the case or upon the arguments advanced on behalf of the defence in order to find out whether the evidence relied upon by the learned Sessions Judge should or should not be accepted as proving the guilt of the accused.

Now, we have given broadly, without having gone into minute details, a summary of the criticisms that might have been present in the minds of the Jurors when they discarded the evidence on behalf of the prosecution and held that the case against the accused was not proved.

Whatever there might have been the explanations for the Police to record late the statement of the principal witnesses for the prosecution, the defence is entitled to ask that the evidence of those witnesses should be discarded, inasmuch as there was sufficient time and opportunity for their being tutored. Thus eliminated, there was only the evidence of Dahaur and Ram Bilas Singh against whom also there were reasons for holding that they did not come in proper tune to identify the assailants. Therefore, the verdict of the Jury in the present case cannot be said to have been a perverse one.

Upon the evidence at the best it can be said that there was room for another opinion, an opinion differing from that of the Jury. But that is not the criterion upon which a reference u/s 307 of the Code of Criminal Procedure should be determined. True, on a reference the High Court is required to consider the entire evidence in the case, but that does not necessarily mean that the opinion of the Jury on the question of fact will be ignored. There must be something more than a mere estimate the evidence on the facts that should entitle us to upset the verdict of the Jury.

I do not think it is necessary in this case to discuss the various authorities placed before us on both sides. Each case was decided on its own merits : vide Emperor V. Swarnamoyee Biswas (1913) 41 Cal. 621 = 21 I. C. 900 = 14 Cr. L. J. 660, Queen v. Sham Bagdi (1873) 13 B.L.R. Ap. 19 = 20 W.R. Cr. 73, Emperor v. Lyall and others (1901) 29 Cal. 128 = 6 C.W.N. 258, Emperor v. Chellan and others (1905) 29 Mad. 91 = 3 Cr. L.J. 371, Emperor Vs. Annada Charan Thakur, , King Emperor. V. Salimudi Sardar (1912) 16 C.W.N. 107, Emperor v. Sheikh Neamotulla (1913) 17 C. W. N. 1077 = 21 I. C. 156 = 14 Cr. L.J. 556, Emperor v. Musammat Zohra and another (1919) 1 P. L. T. 657 = 55 I. C. 294 = Cr. L. J. 278, and Pareshram Deogharia and Others Vs. Maharaja Pratap Udai Nath Sahi Deo, .

Now, the meaning and scope of Section 307 was discussed by me in the case already referred to above, namely, Emperor v. Musammat Zohra and another (1919) 1 P. L. T. 657 = 55 I. C. 294 = Cr. L. J. 278, and I do not propose in this case to go into that discussion again, but I have not still come across a single case where the verdict of the Jury on a question of fact has been set aside without there being an astounding reason for it.

The case Emperor v. Sheikh Neamatulla (1913) 17 C. W. N. 1077 = 21 I. C. 156 = 14 Cr. L.J. 556, is an instance of the kind. There, the verdict of the Jury was set aside when there was an omission in the Sessions Judge''s charge to the Jury of a very material fact, namely, of incriminating articles in the shape of ornaments with blood stains found in the possession of the accused.

Under those circumstances his Lordship, Sir Lawrence Jenkins, C. J. held that a proper case was made out for differing from the opinion of the Jury and for convicting the accused. Therefore, whenever a verdict of a Jury is set aside it must be upon a very substantial ground, and not merely upon the ground that another view of the evidence might be taken.

In the present case the facts and the criticisms of the learned Judge were placed before the Jury in his charge, and the Jury upon a consideration of the evidence and the circumstances gave a decided and unambiguous verdict of ''not guilty''. We have also duly considered the entire evidence in the case and the opinion of both the Jury and the learned Sessions Judge and we have come to the conclusion that this is not a case in which we should interfere.

We cannot, therefore, accept the reference. The verdict of the Jury is accepted and the accused are acquitted.

Coutts, J.-

I agree that this reference must fail; but I am not certain that I would accept all the remarks which have been made by my learned brother. Section 307, Sub-clause (3) of the Criminal Procedure Code requires that the High Court 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 in many cases the High Court has convicted accused persons in respect of whom there has been an unanimous verdict of ''not guilty''. The case of Emperor v. Lyall and others (1901) 29 Cal. 128 = 6 C.W.N. 258 was such a case.

In that case it was contended on behalf of the accused that the High Court was bound to act in accordance with the unanimous verdict of the Jury unless it was shown to be perverse or clearly and manifestly wrong. It was held, however, that this was not so and that since the alteration of the section by the Act of 1898 the High Court was bound to consider the entire evidence of the case and to give due weight to the opinion of the Sessions Judge and of the Jury and not to rely solely on the verdict of the Jury. This is, in my opinion, the correct view of the law as it now stands.

The opinion of a jury is its verdict and not the reasons on which the verdict is based, but although when a case has been referred the High Court is bound to consider the entire evidence, the verdict of the Jury must not be lightly disregarded, due weight must be given to it and in referring a case under this section it is not sufficient for the Sessions Judge to say merely that he believes the evidence of witnesses on whose evidence the jury has returned a verdict of not guilty. He should give reasons for his opinion in sufficient detail to enable the court to appreciate it and to give due weight to it.