PETITIONER:
MOSEB KAKA CHOWDHRY alias MOSEB CHOWDHRY AND ANOTHER
Vs.
RESPONDENT:
THE STATE OF WEST BENGAL.
DATE OF JUDGMENT:
18/04/1956
BENCH:
JAGANNADHADAS, B.
SINHA, BHUVNESHWAR P.
CITATION:
1956 AIR 536 1956 SCR 372
ACT
Jury trial-Verdict of Jury-When Sessions Judge to accept and
to give reasons for accepting it-S. 307 Cr. P.C.-
Examination under s. 342 Cr. P.C. perfunctory-Prejudice-New
point,
HEADNOTE
A Sessions Judge, even if he disagrees with the verdict of
the Jury, must normally give effect to that verdict unless
he is clearly of opinion that no reasonable body of men
could have given the verdict which the Jury did.
Ramnugrah Singh v. King-Emperor, ([1946] L.R. 73 I.A. 174),
relied on.
A Sessions Judge need not record his reasons for accepting
the verdict of the Jury. In a case where a Judge in his
charge to the Jury, has clearly and definitely expressed
himself for acquittal, it would be desirable though not
imperative, that he should give his reasons why he changed
his view and accepted the verdict of the Jury finding the
accused guilty.
Even where the examination of the accused under s. 342
Cr.P.C. is perfunctory the judgment cannot be set aside
unless clear prejudice is shown.
Tara Singh’s case, ([1951] S.C.R. 729), referred to.
K.C. Mathew and Others v. The State of Travanore-Cochin,
([1955] 2 S.C.R. 1057), relied on.
Prejudice cannot be presumed from the fact that the trial is
by a jury though that is a circumstance which may be taken
into consideration.
An argument which would, if accepted, necessitate a retrial,
ought to be put forward at the earliest stage and at any
rate before the High Court in appeal and cannot be
entertained for the first time in an appeal on special
leave.
JUDGMENT
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 15 of
1955.
Appeal by special leave from the judgment and order dated
the 24th March, 1953 of the Calcutta High Court in Criminal
Appeal No. 94 of 1952 arising out of the Judgment and order
dated the 22nd April 1952
373
of the Court of Sessions Judge, Murshidabad in Sessions
Trial No. 1 of 1952.
Jai Gopal Sethi, (C. F. Ali and P. K. Ghosh, with him) for
the appellants.
B.Sen, (I. N. Shroff, for P. K. Bose, with them) for the
respondent.
1956. April 18. The Judgment of the Court was delivered by
JAGANNADHADAS J.-This is an appeal by special leave against
the judgment of the High Court of Calcutta confirming the
conviction and sentence of each of the two appellants before
us, by the Sessions Judge of Murshidabad. The appellants
were tried on a charge under section 302/34 of the Indian
Penal Code by the Sessions Judge with a jury. The jury
returned a unanimous verdict of guilty against each under
the first part of section 304 read with section 34 of the
Indian Penal Code. The learned Judge accepted the verdict
and convicted them accordingly and sentenced each of the
appellants to rigorous imprisonment for ten years.
In order to appreciate the points raised before us, it is
desirable to give a brief account of the prosecution case.
The two appellants jointly made a murderous assault on one
Saurindra Gopal Roy at about 6-30 p.m. on the 3rd November,
1951. There was, owing to litigation, previous enmity
between the deceased and the appellants. All of them
belonged to a village called Mirzapur which is within the
police station Beldanga, district Murshidabad. The deceased
along with two friends of his, of the same village, examined
as P.Ws. 1 and 2, attended a foot-ball match that evening at
Beldanga. The match was over by 5 p.m. and all the three of
them were returning together to their village. In the
course of the return they were passing at about 6-30 p.m.
through a field, nearly half a mile away from the village.
The two appellants each having a lathi and a Hashua (sickle)
in his hand, emerged from a bush nearby and rushed towards
the deceased and his companions. P.W. 1
49
374
was first struck with a lathi and thereupon both P.Ws. 1 and
2 moved away to a distance. The appellants assaulted the
deceased and inflicted on him a number of serious injuries.
The two companions of the deceased, P.Ws. 1 and 2, ran
towards the village and shouted for help whereupon a number
of people from the village came and collected at the spot.
Information was also carried to the son as well as to the
brother of the deceased. They also came on the scene. The
brother, by name Radhashyam, proceeded at once to the
Beldanga police station and lodged the first information
report at about 7-30 p.m. The police officer came to the
scene and recorded a statement from the deceased who was
then still alive. He was thereafter taken to the hospital
at Beldanga. At the hospital the Medical Officer also took
a statement from him (Ex. 4). He died some time thereafter.
P.Ws. 1 and 2, the companions of the deceased, were the only
eye-witnesses to the murderous assault. The prosecution
relied also on certain statements said to have been made by
the deceased after the assault. The deceased is said to
have stated to P.W. 7 one of the villagers who first came on
the scene, after hearing the shouts of P. Ws. 1 and 2, that
the two appellants were his assailants. A little later,
when his son and his brother, P.W. 3 came there, he is also
said to have stated to P.W. 3 that the two appellants were
the assailants. Accordingly the first information report
gave the names of the two appellants as the assailants.
Similar statements are said to have been made by the
deceased to the police officer when he came on the spot and
later to the Medical Officer when he was taken to the
hospital. The evidence, therefore, in support of the
prosecution case was mainly, that of the two eye-witnesses,
P.Ws. 1 and 2, and of the four dying declarations, two of
them oral and two written. There was considerable scope for
criticism about the evidence of the two eye-witnesses. The
evidence relating to the dying declarations was also open to
attack in view of the nature of the injuries inflicted on
the deceased. These included incised wounds on the
occipital region and an incised wound
375
in the brain from out of which a piece of metal was removed
on dissection. This, as was urged, indicated the likelihood
of the deceased having lost his consciousness almost
immediately and hence the improbability of any statements by
the deceased. But the medical evidence on this point was
indecisive. There can be no doubt however that the
reliability of the prosecution evidence was open to serious
challenge in many respects.
But learned counsel for the appellants has not been able to
raise either before the High Court or before us any
objection to the verdict, on the ground of misdirection or
non-direction, of a material nature, in the charge to the
jury by the Sessions Judge.’On the other band, the charge
brought out every point in favour of the appellants and
against the prosecution evidence. It erred, if at all. in
that the learned Judge involved himself in a great deal of
elaboration. The only flaw in the charge which, learned
counsel for the appellants could attempt to make out, was
that the exposition therein of the legal concept underlying
section 34 of the Indian Penal Code was obscure and that it
would not have been correctly appreciated by the jurors. It
may be that this could have been expressed in more lucid
terms. But we are unable to find that there was any
misdirection or non-direction therein. Nor do we see any
reason to think that the jury has been misled. Thus there
was no real attack either in the High Court or here as
against the learned Judge’s charge to the jury.
Accordingly, the only points urged before us are the
following.
1.The circumstances of the case and the nature of the
charge to the jury made it incumbent on the learned Judge to
disagree with the jury and to refer the case to the High
Court under section 307 of the Code of Criminal Procedure.
2.In the alternative, the learned Sessions Judge having
expressed himself in his charge to the jury, definitely for
acquittal, he should not have accepted its verdict, though
unanimous, without giving satisfactory reasons for such
acceptance.
3. The learned Judge having, in his charge speci-
376
fically cautioned the jury against communal prejudice in the
following terms "your deliberations and verdict should not
be influenced by any communal considerations,", should have
refused to accept the verdict as having been vitiated by
communal bias.It
may be stated that all the jurors were Hindus and that the
accused were both Muhammadans.The suggestion is that in view
of the fact that thescene Of occurrence was near the
border between West and East Bengal, it should have been
appreciated that communal bias was, at the time, almost
inevitable.
4.There has been virtually no examination of the accused by
the Sessions Judge under section 342 of the Code of Criminal
Procedure and the trial has been vitiated thereby.
In advancing the first two of the above contentions learned
counsel for the appellants assumes and asserts that the
Sessions Judge in his charge to the jury was unequivocally
of the opinion that there was no reliable evidence on which
the conviction could be based and that the appellants should
be acquitted. On this assumption, he urges that, when in
the circumstances the jury gave a unanimous verdict of
guilty, his obvious duty was either to express his dis-
agreement with the verdict of the jury and refer the whole
case for the consideration of the High Court under section
307 of the Code of Criminal Procedure, or, at the least, to
have placed on record his reasons why in spite of his clear
opinion against the prosecution case, he did not consider it
necessary to disagree from the verdict of the jury. In
order to substantiate this point of view, learned counsel
took us through various portions of the charge to the jury
and we have ourselves perused carefully the entirety of it.
As already stated, the learned Judge undoubtedly pointed out
in his charge all the weaknesses of the prosecution evidence
in great detail. It is also likely that be was inclined for
an acquittal. But we are not satisfied that he came to a
definite and positive conclusion that there should be
acquittal. While pointing out the weakness of the
prosecution evidence with a leaning against its reliability
he has not specifically
377
rejected every important item of the prosecution evidence.
It was only in some places that he stated categorically that
he would not accept a particular item of evidence and would
advise the jurors to reject it. In other places, while
pointing out the infirmities of the evidence, he was not so
categorical and positive, as to what his own opinion on that
item of evidence was. For instance, out of the two eye-
witnesses, P.Ws. 1 and 2, the learned Judge said, so far as
P.W. 2 is concerned, as follows:
"Personally speaking I am not satisfied with the evidence of
recognition of the accused persons as the assailants of
Sourindra Gopal furnished by P.W. 2, Satyapada. You will be
advised, gentlemen, not to rely upon the evidence of P.W.
2".
As regards the evidence of the other eye-witness, P.W. 1,
however he summed it up as follows:
"You should take a comprehensive view of all matters and
then decide whether you should act upon the evidence of
recognition of the accused persons as the assailants of
Sourindra furnished by P.W. 1, Bhupati".
There was similar difference in the expression of his
opinions with reference to the evidence of the dying
declarations of the deceased. It may be recalled that the
evidence of the oral dying declarations is of statements to
P.W. 7, Phani, and P.W. 3, Radhashyam. The evidence of
statement to P.W. 7 was given by a number of witnesses, viz.
P.Ws. 6, 7, 8, 9, 10, 11) 12 and 13. Out of these so far as
the evidence of P. W. 9 is concerned, the learned Judge
specifically stated as follows:
"I should tell you that you should not believe P.W. 9 when
he stated on being questioned by Phani, Sourindra mentioned
Moseb and Sattar as his assailants".
But he did not rule out the evidence of the others on this
item in the same manner. Then again, when he dealt with the
question whether the slip of paper, Ex. 4, is genuine the
learned Judge noticed that the said paper was shown to have
been taken from the medical officer P.W. 17 into the
possession of the In-
378
vestigating Officer, P.W. 35, about a month later and
commented on it as follows:
"Personally speaking I see no reasonable explanation as to
why the I.O. should not have seized Ex. 4 from P.W. 17
immediately after it was recorded, if it was recorded on 3rd
November, 1951, and sent it to the Magistrate forthwith".
All the same, the learned Judge also remarked thus:
"You will consider very seriously whether you have any
reason to disbelieve the evidence of P. Ws. 17, 32 and 33".
P.Ws. 32 and 33 are witnesses who spoke to the statement of
the deceased said to have been taken by the Doctor, P. W.
17. Taking the charge to the jury, therefore,
comprehensively we are unable to find that the learned Judge
rejected the prosecution evidence and arrived at a clear and
categorical conclusion in his own mind that the appellants
were not guilty. We are, therefore, unable to accept the
assumption of learned counsel for the appellants that the
Judge agreed with the unanimous verdict of the jury against
his own personal conviction, as to the guilt of the accused.
It appears to us, therefore, that there is no foundation, as
a fact, for the argument that the learned Judge should have
made a reference to the High Court under section 307 of the
Code of Criminal Procedure or that, in any case, he should
have placed on record his reasons for agreeing with the
verdict of the jury notwithstanding his own personal opinion
to the contrary.
Assuming however that the charge to the jury in this case
can be read as being indicative of a definite opinion
reached by the Sessions Judge in favour of the appellants,
it does not follow that merely on that account he is obliged
to make a reference under section 307 of the Code of
Criminal Procedure. What is required under that section is
not merely disagreement with the verdict of the jury but the
additional factor that the learned Sessions Judge "is
clearly of opinion that it is necessary for the ends of
justice to submit the case to the High Court". It is now
well-settled, since the decision of the Privy Council in
379
Ramnugrah Singh v. King-Emperor(1) that under section 307 of
the Code of Criminal Procedure a Session,, Judge, even if he
disagrees with the verdict of the jury must normally give
effect to that verdict unless he is prepared to hold the
further and clear opinion "that no reasonable body of men
could have given the verdict which the jury did". We are
certainly not prepared to say that the present case
satisfies that test or that the charge to the jury indicated
any such clear conclusion. Indeed it is to be noticed that
on intimation by the jury of its unanimous verdict, the
learned Judge has recorded that he "agreed with and accepted
the verdict". We have no doubt that it was perfectly
competent for him to do so. Learned counsel urges that this
acceptance is a judicial act and that having regard to the
whole tenor of the Judge’s charge to the jury, he was at
least under a duty to himself and to the appellate court to
record his reasons for acceptance of the verdict of the
jury. We are unable to agree with this contention. It may
be that in a case where a Judge in his charge to the jury
has clearly and definitely expressed himself for acquittal,
it would be very desirable, though not imperative, that he
should give his reasons why be changed his view and accepted
the verdict of the jury. But we can find no basis for any
such contention in this case.
The two further contentions that remain which are enumerated
above as 3 and 4, were not raised before the High Court. We
are reluctant to allow any such contentions to be raised on
special leave. The point relating to the possibility of the
verdict having been the result of bias has no serious basis.
It appears to us that the learned Sessions Judge had no
justification in this case for imagining the possibility of
such bias and giving a warning to the jury in this behalf.
This is not a case which arose out of any incident involving
communal tension. The likelihood of any such bias is not to
be assumed merely from the fact of the appellants being
Mubammadans and the jurors being Hindus. Nor is it right to
take it
(1) [1946] L.R. 73 I.A. 174.
380
for granted merely from the fact of proximity of the place
of trial to the border between West and East Bengal. On the
other hand, it is not without some relevance that when the
jury was empanelled at the commencement of the trial, there
was absolutely no such objection taken. Nor was the right
of challenge to the jurors exercised.
Learned counsel for the appellants has very strenuously
argued before us, the point relating to the inadequacy of
the examination of the appellants under section 342 of the
Code of Criminal Procedure. Now, it is true that the
examination in this case was absolutely perfunctory. The
only questions put to each of the accused in the Sessions
Court, and the answers thereto were the following:
"Q. You have heard the charges made and the evidence adduced
against you. Now say, what is your defence? What have you
got to say?
A. I am innocent.
Q. Will you say anything more?
A. No.
Q. Will you adduce any evidence in defence?
A. No."
There can be no doubt that this is very inadequate
compliance with the salutary provisions of section 342 of
the Code of Criminal Procedure. It is regrettable that
there has occurred in this case such a serious lacuna in
procedure notwithstanding repeated insistence of this Court
, in various decisions commencing Tara Singh’s case(1) on a
due and fair compliance with the terms of section 342 of the
Code of Criminal Procedure. But it is also well recognised
that a judgment is not to be set aside merely by reason of
inadequate compliance with section 342 of the Code of
Criminal Procedure. It is settled that clear prejudice must
be shown. This court has clarified the position, in
relation to cases where accused is represented by counsel at
the trial and in appeal. It is up to the accused or his
counsel in such cases to satisfy the Court that such
inadequate examination has resulted in miscarriage of
justice. This Court in its judgment
(1)[1951] S.C.R. 729.
381
in the latest case on this matter, viz. K. C. Mathew and
Others v. The State of Travancore-Cochin(1) (delivered on
the 15th December, 1955) has laid down that "if the counsel
was unable to say that his client had in fact been
prejudiced and if all that he could urge was that there was
a possibility of prejudice, that was not enough". Learned
counsel could not, before us, make out any clear prejudice.
All that learned counsel for the appellants urges is, that
this might be so in a case where the trial was with the
assessors and the Judge’s view on the evidence was the main
determining factor. But he contends that the same would not
be the case where the trial is with the aid of a jury.
Learned counsel urges that a full and clear questioning in a
jury trial does not serve the mere purpose of enabling the
accused to put forward his defence or offer his explanation,
which may be considered along with the entire evidence in
the case. The jury would, he suggests also, have the
opportunity of being impressed one way or the other by the
method and the manner of the accused, when giving the
explanation and answering the questions and that the same
might turn the scale. Learned counsel urges, therefore,
that the non-examination or inadequate examination under
section 342 of the Code of Criminal Procedure in a jury
trial must be presumed to cause prejudice and that a
conviction in a jury trial should be set aside and retrial
ordered, if there is no adequate examination under section
342 of the Code of Criminal Procedure. We are not prepared
to accept this contention as a matter of law. The question
of prejudice is ultimately one of inference from all the
facts and circumstances of each case. The fact of the trial
being with the jury may possibly also be an additional
circumstance for consideration in an appropriate case. But
we see no reason to think that in the present case this
would have made any difference. We are, therefore, not
Prepared to accept the argument of the learned counsel for
the appellants in this behalf. In any case, an argument of
this kind which would, if accepted,
(1)[1955] 2 S.C.R. 1057.
50
382
necessitate a retrial, is one that ought to be put forward
at the earliest stage and at any rate at the time of the
regular appeal in the High Court. This cannot be
entertained for the first time in an appeal on special
leave.
For all the above reasons this appeal is dismissed.