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PETITIONER: AKHLAKALI HAYATALLI

       Vs.

RESPONDENT: THE STATE OF BOMBAY.

DATE OF JUDGMENT: 09/12/1953

BENCH: BHAGWATI, NATWARLAL H. BENCH: BHAGWATI, NATWARLAL H. MUKHERJEA, B.K.

CITATION:  1954 AIR  173            1954 SCR  435  CITATOR INFO :  RF         1957 SC 373  (6)  R          1962 SC 605  (14)

ACT:     Criminal  Procedure Code (V of 1898 as amended), s.  307-  Reference to High Court-Proper approach-Jury-Sole Judges  of  facts-Provided  verdict  could be arrived at  by  reasonable  body of men.

HEADNOTE:    The  proper  method  of  approach  in  the  matters   of references  under s. 307 of the Criminal Procedure  Code  as finally  settled 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,  manifestly wrong or against the weight of evidence.  If the facts and circumstances of the case are such that a reasonable body of men could arrive at one conclusion or the -other,  it  is not competent to the Sessions Judge  or  the High  Court  to  substitute their verdict in  place  of  the verdict which has been given by the jury.  The jury are  the sole judges of the facts and it is the right of the  accused to have the benefit of the verdict of the jury.  Even if the Sessions  Judge  or  the  High  Court  would,  if  left   to themselves,  have arrived at a different verdict, it is  not competent  to the Sessions Judge to make a reference nor  to the High ,Court to accept the same and substitute their  own verdict  for the -verdict of the jury provided  the  verdict was such as could be arrived at by a reasonable body of  men on the facts and circumstances of the case.  Ramanugrah  Singh  v. Emperor (A. 1. R. 1946  P.  C.  151) referred to.

JUDGMENT:   CRIMINAL APPELLATE  JURISDICTION : Criminal Appeal No.  76 of 1953.   Appeal  by special leave against the Judgment  and  -Order dated  the 16th June, 1952, of the High Court of  judicature at Bombay in Criminal Jury Reference No. 58 of 1952. 436

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H. J. Umrigar for the appellant. Porus A. Mehta for the respondent.    1953.   December  9.  The  Judgment  of  the  Court   was delivered by    BHAGWATI  J.-This  is an appeal by special  leave  from  a judgment of the High Court of judicature at Bombay accepting the reference made by the Additional Sessions Judge, Greater Bombay,  under section 307 of the Criminal  Procedure  Code, and convicting the appellant of an offence under section 326 of  the Indian Penal Code and sentencing him to  four  years rigorous imprisonment.     The  case of the prosecution was that at or about  10-30 or  11 p.m. on the 25th August, 1951, the complainant  Abdul Satar  was  going towards Dhobi Galli  through  the  Bibijan Street.   At the junction of the Chakla Street with  Bibijan Street,  he  was attacked by the appellant.   The  appellant first  attempted  to strike him on his right  shoulder,  but Abdul Satar caught hold of his hand.  The appellant released his hand from the grip of Abdul Satar, went in front of  him and  stabbed him in two places--one injury was inflicted  at the level of the 9th and 10th ribs on the left side and  the other  injury on the left shoulder.  The appellant then  ran away  and was pursued by several people.  Babu Adam saw  him at  the corner, of the Chakla Street and the  Masjid  Bunder Road  and joined the pursuit.  Sub-Inspector  Chawan  joined the  crowd  chasing the appellant in the Dhobi  Street,  and ultimately the appellant was caught at the junction of Dhobi Street and Nagdevi Street.  The appellant was then taken  to the police station.  He was taken by the police officers  to the place where the attack took place and a panchnama of the scene  of the offence was made at five minutes past  one  on the  26th  August,  1951.   The  appellant  and  the  police officers  returned to the police station and at  1-30  a.m., that  is within half an hour, another panchnama was made  in respect  of  the clothes which the  appellant  was  wearing. According to that panchnama there were blood stains 437 on the right arm pit, on the front of the and on ’the  right thigh.  There were also ’blood on the right; side collar and on the back of the shirt   The  defence  put up by the appellant was he was  a  fruit broker  and,  after collecting his dues  from  the  Crawford market at 11 p.m.,to he came to the corner of Dhobi  Street, when  he  heard the shouts,"chor, chor" and - he  also  then shouted  "chor,  chor"  and ran after  the  person  who  was running  away  in order to catch him.  When he  reached  the junction  of  Nagdevi  Cross Street, he fell  down  and  the person  who, was running ahead of him rushed into a  gutter. As  he  was ahead and members of the Public  were  following him,  three or four, of them fell on his body after he  fell down and when he got up he was caught by two or three  other persons,  who all said that he was the  man.   Sub-Inspector Chawan was one of these persons.  Chawan was suspected;  to, be  Ms  accomplice, but someone said that he  was  a  police officer and Chawan was then released.  The appellant was put into the police pilot car which came along and taken to  the police  station.   He was then taken to the,  scene  of  the offence  and  a  panchnama was drawn there.   He  was  again brought  to, the police ’station thereafter and was made  to sit  in  the charge room.  As he was feeling  very  hot,  he removed  his  shirt  and  kept it  by  his  side.   In  the, meanwhile, a police constable came there and gave him a blow on  his  nose saying, "Do you think this  is  your  father’s residence  that  I  you removed your  shirt?   He  thereupon started bleeding from his nose, and due to that bleeding his

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shirt  and  trousers  were, stained with  blood.   The  same constable then asked him to put on the clothes and took  him to  his  officer.  He produced the appellant  before  D.  1. Kakatkar  who there noticed his clothes.  The  panchas  were called  and  a  panchnama was drawn up in  which  the  blood stains on the shirt and trousers were noted.    The appellant was tried by the Additional Sessions  judge and  a common jury.  The prosecution called the evidence  of the-  complainant Abdul Satar, Babu Adam and  Sub-Inspector, Chawan.  Evidence was led Of an identification parade  which was held in the 6-93 S.P.India/59 438 hospital  where Abdul Satar was taken from the scene of  the offence  and it was proved that Abdul Satar  identified  the appellant at that identification parade.  Evidence was  also led of the panch witness who deposed to the panchnama noting the  blood  stains  on the shirt and  the  trousers  of  the appellant.    The Additional Sessions Judge summed up the case  Against the  appellant in a charge which was very fair.  The  charge was  not’  attacked before the High Court nor before  us  as containing  any misdirections or non-directions to the  jury such  as  to  vitiate  the verdict.   The  jury  after’  due deliberation could not be unanimous and pronounced a verdict of not guilty against the appellant by a majority of six  to three.   The  Additional Sessions Judge did not  accept  the verdict of the ,majority.  He disagreed with the verdict and thought  that  it was necessary for the ends of  justice  to submit  the  case to the High Court and  accordingly  by  an order of reference dated the 22nd April, 1952, submitted the case  to  the High Court under section 307 of  the  Criminal Procedure Code.   It is significant to note that prior to the enactment  ,of Bombay Act VI of 1952, sections 305 and 306 of the  Criminal Procedure Code were applicable to the Court of Sessions  for Greater Bombay.  It was intended as stated in the objects of the  Bill  to  provide for a case of  ,disagreement  with  a unanimous verdict of the jury and enable the Sessions  Judge for Greater Bombay to make a reference under section 307  of the Criminal Procedure Code even in the case of a  unanimous verdict  with which he disagreed.  In making  the  amendment however  by the Bombay Act VI of 1952 the  Legislature  took away the powers of the Sessions judge "of Greater Bombay  to discharge  the jury and ,order a retrial of the  accused  by another jury even in the case of a majority verdict so  much so that even in a verdict of five to four which was not till then  an  effective  verdict  the  case  would  have  to  be submitted  to  the’  High Court under  section  307  of  the Criminal Procedure Code. 439    The  High  Court  heard the reference  and  came  to  the conclusion after discussing the evidence on the record that, no  other  conclusion was possible for a  reasonable  person except that the appellant  was the assailant of Abdul Satar. The  High Court accordingly convicted the appellant  of  the offence  under  section  326 of the Indian  Penal  Code  and sentenced  him  as above.  The  appellant  obtained  special leave  to appeal from this court on the 4th February,  1953, and hence this appeal.   There  were  various  circumstances  brought  out  in  the evidence   of   the   prosecution   witnesses   Which   were particularly  relied upon by the defence.   The  prosecution frankly admitted that it had failed to prove any motive  for the commission of the offence by the appellant.  Abdul Satar

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had  not  stated  anywhere before he gave  evidence  in  the Sessions  Court  that  he  had  any  conversation  with  the appellant  as to why the latter was inflicting the  injuries on  him.   He  however  stated for the  first  time  in  the Sessions Court that he’ asked the appellant as to why he was stabbing him and the appellant replied that he was doing  it at the instance of a friend of his.  Abdul Satar then stated that  he was on inimical terms with one Sulaiman and it  was at the instance of Sulaiman that the appellant inflicted the injuries  on  his  person.  This was  characterised  by  the defence as a pure after-thought in order to supply a  motive for  the commission of the offence by the appellant  and  it was  urged  that if Abdul Satar was capable of  inventing  a story  for  supplying the motive for the commission  of  the offence  by the appellant he -could not certainly be  relied upon even in the identification of the appellant by him.     The weapon of offence was also not found upon the person of the appellant and in spite of a search being made for the same was not discovered by the police either at or near  the scene  of the offence.  Neither Babu Adam nor  Sub-Inspector Chawan deposed to having seen the knife in the hands of  the appellant.   It  was only Mohamed Safi, a  witness  who  was dropped by the prosecution and was examined by the defence, 440 but  treated as a hostile witness even by the  defence,  who stated  that he saw a knife in the hands of  the  appellant. If Babu Adam’s evidence was to be accepted Mohamed Safi  was not telling the truth and if Mohamed Safi’s evidence was: to be  accepted  Babu Adam was -not telling  the  truth.   Tins conflict  of evidence was therefore, rightly commented  upon by the defence.    The  identification  parade also was  challenged  as  not proper  because  it was alleged that mostly ward  boys  were mixed  up with the appellant when the identification  parade was  held.   No  questions  were  addressed  in  the  cross- examination  of  prosecution  witnesses in  regard  to  this aspect  of  the  case  and  the  Additional  Sessions  Judge observed  to  the jury that in the absence  of  such  cross- examination,  not  mulch reliance could be  placed  on  this criticism of the identification parade.  It may be noted, in passing that even the High observed that "the parade was not as  satisfactory as we expect parades to, be in  such  cases further observed that the, only effect of that fact would be to,  put  them upon guard with regard to  the  -evidence  of Abdul  Satar  and they should not proceed to act  upon  that evidence unless it was corroborated.    The  blood  stains on the shirt and the trousers  of  the ;appellant  were  ’not  observed in the  first  instance  by either  Babu  Adam or Sub-Inspector Chawan and it  was  only when the second panchnama was made at about 1-30 a.m. on the 26th August, 1951,, after the appellant was brought back  to the police station from the scene of the offence that  these blood  stains were noticed and were noted in the  panchnama. The   existence   of  these  blood  stains  was   urged   as corroborative  of the testimony of Abdul Satar in so far  as he  stated  that the appellant caused the  injuries  on  his person.  The defence story of the police constable -  having dealt a blow on the nose of the appellant which led to,  the bleeding of the nose and the blood; stains on the shirt  and the trousers of the appellant was sought to be, negatived by pointing  out  the improbability- of  the  police  constable having, acted in that manner within,                             441 the  very  precincts of the police station  The  prosecution theory might possibly have explained the blood stains in the

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right  -arm  pit,  in -front of the shirt  as  well  as  the trousers  But,  the blood stains on the back  of  the  shirt could not be easily explained.  The blood on the back of the shirt could certainly be explained by the defence theory and that was a circumstance which was relied upon by the defence as maring the defence version probable.    These  were the circumstances which were before the  jury when they, deliberated upon the question of the  criminality of  the appellant, and the only question which, we  have  to consider  is whether the verdict which they arrived at by  a majority  of six to three was such as no reasonable body  of men  could  arrive at on the record of the case  The  proper method  of  approach  in the  matter  of,  references  under section 307 of the Criminal Procedure Code was laid down  by the Privy ’council in Ramanugrah Singh v. Emperor(1),  where the  Privy  Council resolved the  conflict  ,of  authorities which  was  till then prevalent: in India  and  accepted,the view  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", "manifestly  wrong"  or  "as against’ the weight of evidence".  The observations of their Lordships  of the Privy Council on the principle  underlying section  307  of the Criminal Procedure Code  may  be  aptly quoted here :-    "Under  sub-section (1), two conditions, are required  to justify  a  reference.   The first,,  that  the  Judge  must disagree with the verdict of the jury, calls for no comment, since  it  is obviously the foundation for  any  Preference. The second, ’that the judge must be "clearly of opinion that it  is  necessary for, the ’ends of justice  to  submit  the case"  is  important,  and  in  their  Lord,ships’   opinion provides  a key to the ’interpretation Of the section.   The legislature  no  doubt, realised that the  ’introduction  of trial  by  jury in the mofussil would be  experimental,  and might  lead  to miscarriages of justice through  jurors,  in their ignorance and inexperience,     (1)   (1946) A.I.R. 1946 P. C. 151. 442 returning  erroneous verdicts.  Their Lordships  think  that the  section was intended to guard against this danger,  and not  to  enable  the Sessions judge and the  High  Court  to deprive jurors, acting properly within their, powers, of the right  to  determine the facts con’ferred upon them  by  the Code.   If  the jury have reached the  conclusion  upon  the evidence  which a reasonable body of men might reach, it  is not  necessary  for the ends of justice  that  the  Sessions Judge should refer the case to the High Court merely because he  himself would have reached a different  conclusion  upon the  facts, since lie is not the tribunal to  determine  the facts.  He must go further than that and be of opinion  that the  verdict  is one which no reasonable body of  men  could have  reached  upon the evidence.  The powers  of  the  High Court  in dealing with the reference are contained  in  sub- section  (3).   It may exercise any of the powers  which  it might exercise -upon an appeal, and this includes the  power to call fresh evidence conferred by section 428.  The  court must  consider the whole case and give due weight to  ;  the opinions of the Sessions ’Judge and jury, and then acquit or convict   the  accused.   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 take one view of the  evidence  and,

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the judge thinks thatthey  should have taken the  other, the view of thejury  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 disregarded."                             443   We are of the opinion that this is the correct method,  of approach  in references under section 307 of the  Criminal,, Procedure Code.  If the facts and circumstances of the  case are such that a reasonable body of men could arrive at ’the" one  conclusion  or the other,- it is not competent  to  the Sessions Judge or the High Court to substitute their verdict in  place of the verdict which has been given by  the  jury. The  jury  are the sole judges of the facts and  it  is  the right  of the accused to have the benefit of the verdict  of the  jury.  Even if the Sessions Judge or the I  High  Court would  if  left to themselves have arrived  at  a  different verdict it is not competent to the Sessions Judge to make  a reference  nor  to  the High Court to accept  the  same  and substitute  their  own verdict for the verdict of  the  jury provided  the verdict was such as could be arrived at  by  a reasonable body of men on the facts and circumstances of the case.    Having regard to the position which we have set out above we  are  clearly  of the I opinion that  on  the  facts  and circumstances  of  the  ’case before us  there  were  enough materials  before  the jury which would enable the  jury  to come  to  one  conclusion or the other  in  regard  to  ’the criminality  of the appellant.  Six out of the nine,  jurors came to the conclusion that the appellant, was not guilty of the  offence with, which he was charged.  Three out  of  the nine  jurors  came  to  an opposite  conclusion  and  it  is impossible  in  the  circumstances of the  case  for  us  to characterise the one or the other of the conclusions reached by  the  members of the jury as -perverse in  the  sense  of being unreasonable or manifestly wrong or against the weight of  evidence.   The  verdict reached  by  the  majority  was certainly  a  verdict which upon the evidence  on  record  a reasonable body of men could have reached and in our opinion the ,reference was not competent.    The result therefore is that the appeal will be  allowed, the judgment of the High Court on, reference set aside,  the majority verdict of  the jury Pronouncing the appellant -not guilty of the offence with which he  was 444 charged accepted and the appellant acquitted and  discharged and forthwith set at                       Appeal allowed.      Agent for the respondent: G. H. Rajadhyaktha.