30 January 1956
Supreme Court







DATE OF JUDGMENT: 30/01/1956


ACT: Reference-jury  trial-judge  disagreeing with  the  verdict- Procedure-Duty of counsel-High Court-If can accept  majority verdict  without  considering  the  entire  evidence-Supreme Court  If  should  adopt  the  Procedure--Code  of  Criminal Procedure (Act V of 1898), as amended by Act XXVI of 1955 s. 307.

HEADNOTE: The  appellants were charged under ss., 435 and 436  of  the Indian  Penal Code and were tried by a jury, who returned  a majority  verdict of guilty.  The Assistant  Sessions  judge disagreed with the said verdict and made a reference to  the High Court. At  the  hearing  of  the  reference  the  counsel  for  the appellants  only contended that the charge to the  jury  was defective, and did not place the entire evidence before  the judges,  who  only  considered the  objections’  urged,  and nothing more, and held the 35 274 reference to be incompetent and found the appellants  guilty and convicted them. Held,  that  in  a reference under s. 307  of  the  Code  of Criminal Procedure it was the duty of counsel to place,  and -it was incumbent on the High Court to consider, the  entire evidence and the charge as framed and placed before the jury and  to come to its own conclusion, after giving due  weight to  the  opinion of the trial judge and the verdict  of  the jury,  and to acquit or convict the accused of the  offences of which the jury could have convicted or acquitted him.  It was  wrong  of  the’ High Court  to  pass  judgment  without considering the entire evidence. It  is  not  proper  for the  Supreme  Court  to  adopt  the procedure  of considering the entire evidence and come to  a conclusion which according to the provisions of s.307(3)  of the  Code of Criminal Procedure the High Court  should  have done. Akhlakali  Hayatalli v. The State of Bombay,  (1954)  S.C.R. 435  and Ramanugrah Singh v. The Emperor, A.I.R.  T946  P.C. 151, referred to.

JUDGMENT: CRIMINAL   APPELLATE  JURISDICTION: Criminal Appeal No.  104 of 1955. Appeal  by special leave from the judgment and order’  dated September 9, 1953, of the Patna High Court in Jury Reference



No. I of 1952 arising out of the ReferencE made on  February 16,  1952,  by  the Assistant  Sessions  Judge,  2nd  Court, Chapra, in connection with Sessions Trial No. 81 of 1951. S.   P. Verma, for the appellants Nos. 2 and 3. B.   K. Saran and R. C. Prasad, for the respondent. 1957.  January 30.  The Judgment of the Court was  delivered by BHAGWATI  J.-The  appellants  Nos.  2 and  3,  who  are  the surviving  appellants  after the death of  appellant  No.  1 during the pendency of this appeal, were charged with having committed offences under ss. 435 and 436 of the Indian Penal Code  and were tried by the Second Assistant Sessions  Judge of Saran, Chapra, with the aid of a jury.  The jury returned a  majority  verdict that both of them were  guilty  of  the offences under those sections.  The Assistant Sessions Judge disagreed with the said verdict and made a reference to  the High Court of Judicature at Patna,                             275 under  s. 307 of the Code of Criminal Procedure.   The  said reference was heard by a Division Bench of that High  Court. The   learned  judges  of  the  High  Court  overruled   the contentions  which were urged before them in regard  to  the charge to the jury being defective and further held that the reference  was, in the circumstances, not competent.   They, however, without anything more accepted the majority verdict and held the appellants guilty of the offences under ss. 435 and  436 of the Indian Penal Code and sentenced them to  six months’ rigorous imprisonment each.  The appellants obtained from  this Court special leave to appeal under Art.  136  of the Constitution and hence this appeal. The facts leading up to this appeal may be shortly stated as follows:-There was a dispute between the parties as to title to  plot No. 1100 of village Rampur, Tengrahi.  One  Kailash Rai  claimed to be the owner of -that plot and also  claimed to  be  in possession of a Palani standing in a  portion  of that  plot  as also of a Punjaul, i.e., a  haystack  in  its vicinity.   There had been proceedings under s. 144  of  the Code of Criminal Procedure in regard to this area leading up to  a title ,suit being T.S. No. 58/8 of 1948 /50  filed  by Kailash Rai against the appellants in regard to the same.  A decree  had been pawed on December 16, 1950, in  that  title suit  dismissing  the claim of Kailash Rai.  An  appeal  had been  filed  by  Kailash Rai against that  decree  and  that appeal was pending at the date of the occurrence.  On  March 4, 1951, Kailash Rai was sitting in the Palani and at  about 3  to  4 p.m. a mob consisting of about 100 to  125  persons including the appellants all armed with lathes, bhallas  and pharsas  came to the Palani and began to demolish the  same. Kailash  Rai remonstrated and the deceased appellant No.  1, ordered that the Palai should be set on fire.  The appellant No.  2 thereupon set fire to the Palani with a  match  stick and the appellant No. 3 set fire to the Punjaul.  The  first information   report  of  this  occurrence  was  lodged   at Gopalganj  Police  Station at 8 p.m. the  same  night.   The officer  in charge of Gopalganj Police Station  investigated the case and 276 challaned   the   appellants  charging  them   with   having committed,  offences  under ss. 435 and 436  of  the  Indian Penal Code. The  Committing  Court  found a prima facie  case  made  out against  the  appellants and sent them up for trial  by  the Assistant  Sessions Judge, Second Court, Chapra,  who  tried them  by  a jury.  The jury returned a majority  verdict  of guilty  against  the  appellants.   The  Assistant  Sessions



Judge,  however,  disagreed  with that verdict  and  made  a reference  to  the  High  Court stating  in  the  letter  of reference  that  on  the evidence recorded  before  him  the appellants  had  been in possession of the  Palani  and  the Punjaul but were dispossessed of the same some time prior to the  passing  of the decree in the title  suit  on  December 16,1950,  and were therefore justified in taking  steps  for recovery of possession thereof from Kailash Rai on March  4, 195 1, and if in that process the appellants set fire to the Palani  and the Punjaul they were only destroying their  own property  and were not guilty of the offence  of  committing mischief  by  fire  as  alleged  by  the  prosecution.   The Assistant Sessions Judge tried to analyse the working of the minds of the jury in arriving at the verdict which they  did and  though  he  agreed with the  alleged  finding  of  fact reached  by  the  jury in regard to the  possession  of  the Palani and the Punjaul, disagreed with the law as  allegedly applied  by  the  jury  and  therefore  disagreed  with  the majority verdict. When  the  reference was heard before the  High  Court,  the counsel  for the appellants only contended that  the  charge addressed  by the Assistant Sessions Judge to the  jury  was defective and he did not invite the High Court, as he should have done, to consider the entire evidence and to acquit  or convict  the  appellants of the offences of which  the  jury could have convicted them upon the charges framed and placed before  it, after giving due weight to the opinions  of  the learned  Sessions Judge and the jury as required by  a.  307 (3)  of  the Code of Criminal Procedure.   The  High  Court, therefore,  only  considered the objections which  had  been urged by the learned counsel for the appellants before it in regard to the charge being defective and                             277 overruled them, accepted the majority verdict, convicted the appellants and -sentenced them as above. We  are  of  opinion that in so doing  the  High  Court  was clearly in error and acted in violation of the provisions of s.  307 (3) of the Code of Criminal Procedure.  Section  307 (3) provides:- In  dealing  with the case so submitted the High  Court  may exercise  any  of  the powers which it may  exercise  on  an appeal, and subject thereto it shall, after considering  the entire evidence and after giving due weight to the  opinions of  the Sessions Judge and the jury, acquit or convict  such accused  of  any  offence  of  which  the  jury  could  have convicted  him upon the charge framed and placed before  it; and,  if it convicts him, may pass such sentence  a,%  might have been passed by the Court of Sessions." We  had  occasion to consider this  provision  in  Akhlakali Hayatalli v. The State of Bombay(1) where we approved of the following  observations  of  their Lordships  of  the  Privy Council in Ramanugrah Singh v. The Emperor(2): " 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  s. 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 the, judge thinks that they should have  taken the other, the view of the jury 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. It, however, (I) [1954] S.C.R. 435. 442. (2) A.I.R. 1946 P.C. 151, 154. 278 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  required  that  the   verdict   be disregarded." This  wag  pronounced  by us to be  the  correct  method  of approach in a reference under s. 307 of the Code of Criminal Procedure.   It  was incumbent on the High  Court  when  the reference  was heard by it to consider the  entire  evidence and come to its own conclusion whether the evidence was such that it could properly support the verdict of guilty against the  appellants.  If the High Court came to  the  conclusion that the evidence was such that it was possible for the jury to  take the view that it did even though the judge  thought that they should have taken another view the reference would not  have  been  justified and the High  Court  should  have accepted  the  opinion of the jury.  If the High  Court  was however of opinion upon the evidence that no reasonable body of  men could have reached the conclusion arrived at by  the jury  the reference would have been quite justified and  the ends  of  justice  required  that  the  verdict  should   be disregarded.   The High Court, however, only considered  the arguments in regard to the defect in the charge to the  jury addressed   before  it  by  the  learned  counsel  for   the appellants  and did not consider the entire  evidence  which was on the record before it.  In not having done so, we  are clearly of opinion that it violated the provisions of s. 307 (3) of the Code of Criminal Procedure. We are accordingly of opinion that the judgment of the  High Court  accepting  the majority verdict  and  convicting  the appellants and sentencing them as above without  considering the entire evidence was clearly wrong and the conviction  of the appellants and the sentences passed upon them should  be set aside. We were invited by learned counsel for the parties appearing before us to consider the entire evidence for ourselves  and come to the conclusion which, according to the provisions of s.  307  (3) of the Code of Criminal Procedure,  I  he  High Court should have done.  We do                             279 not  think  that  is the proper procedure to  adopt  and  we therefore  allow the- appeal, and remand this matter to  the High  Court to act in accordance with the provisions  of  s. 307 (3) of the Code of Criminal Procedure and deal with  the same  in accordance with law.  The appellants Will  continue on the same bail as before. Appeal allowed.