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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. 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

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      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

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      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.

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      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

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      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.

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      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

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      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.