Patna High Court
The State vs Ramprasad Singh And Ors. on 1 April, 1953
Equivalent citations: AIR1953PAT354, 1953(1)BLJR333, AIR 1953 PATNA 354
JUDGMENT Das, J.
1. This is a reference made by the Additional Sessions Judge of Gaya under the provisions of Section 307, Criminal P. C.
2. The learned Additional Sessions Judge tried the four accused persons, Ramprasad Singh, Bachu Singh, Sitaram Hajam and Sidhu Ojha, on various charges. Three of the charges, namely, that under Section 326 read with Section 34, Penal Code, against three of the accused persons, the charge under Section 324, Penal Code, against Bachu Singh for causing hurt to one Munni Ram, and the charge under Section 323, Penal Code, against Ramprasad Singh, were tried by the learned Additional Sessions Judge with the aid of assessors. The remaining charge under Section 460, Penal Code, was tried by a jury, the assessors acting as the jury in respect of the charge under Section 460, Penal Code. The jury returned a unanimous verdict of guilty against all the four accused persons on the charge under Section 460, Penal Code. On the other charges the assessors were of the opinion that the accused persons were guilty of the charges brought against them. By his judgment dated 31-3-1952, the learned Additional Sessions Judge disagreed with the assessors in respect of the charges under Ss. 326/34, 324 and 323, Penal Code, and he recorded an order of acquittal on those charges. With regard to the charge under Section 460, Penal Code, the learned Additional Sessions Judge expressed his disagreement with the unanimous verdict of the jury and made a reference to the High Court under the provisions of Section 307, Criminal P. C. In his letter of reference the learned Additional Sessions Judge has stated:
"My opinion, therefore, is that the jurors give a verdict entirely against the weight of the evidence and their verdict of guilty is not only perverse but is one which no reasonable body of men could have arrived at............It will result in miscarriage of justice if the verdict of the jurors on the charge under Section 460, Penal Code, is allowed to stand. The case is accordingly referred to the Hon'ble High Court for dnal orders."
The learned Additional Sessions Judge has given two main reasons in support of the reference; the first reason is that, in the view of the learned Judge, Jadubansi Lal, one of the injured persons who subsequently died, could not have made a consistent and coherent statement to the Sub-Inspector of Police as was alleged to have been made in his 'fardbayan'; and the learned Judge further doubted if Munni Ram, Bimla Devi and Dakho Kuer, three other injured persons, had given out the names of the accused persons, either to the villagers who arrived soon after the occurrence or to the Sub-Inspector of Police near the bed of a river called Sakri; the second reason given by the learned Additional Sessions Judge is that the jury disregarded a direction in law given by him. The direction given by the learned Judge was in these terms:
"So, even if you hold that the accused persons did take part in the assault and had entered the house at about midnight, you can only hold them guilty under Section 448, Penal Code, for committing house trespass."
The learned Judge says that in spite of this direction, the jury have returned a verdict of guilty on the charge under Section 460, Penal Code.
3. Before I proceed to consider the evidence in this case in the light of the submissions made to us on behalf of the accused persons, it is necessary to state briefly the respective cases of the parties. ' The prosecution case was the following. Jadubansi Lal, now deceased, was the full brother of one Surajbansi (P. W. 6). There were two ladies in the house which these two brothers occupied: ' one was Dakho Kuer, mother of the two brothers, and the other was Bimla Devi, the wife of Surajbansi Lal. The two brothers were joint and lived in a house in village Dariyapur within the jurisdiction of Warisaliganj Police Station. Dariyapur was at a distance of about two or three miles from Warisaliganj. In October, 1950, Surajbansi Lal was elected a 'mukhia' of the Gram Pancha-yat constituted under the provisions of the Bihar Panchayat Raj Act, 1947. The four accused persons are residents of the same village but of a different 'tola' known as the Pachhiyari Tola. Eachu Singh and Ramprasad Singh, two of the accused persons, are full brothers, being sons of one Mahabir Singh. In April 1951, Mahabir Singh wanted to erect a brick-kiln at the 'darwaza' of one Chamari Singh. The latter filed a petition before the Gram Panchayat. As 'mukhia' of the Gram Panchayat, Surajbansi Lal served a notice on Mahabir Singh not to erect a kiln. Mahabir Singh disregarded the notice and commenced building the kiln. Surajbansi Lal then informed the local police at Warisaliganj and Mahabir Singh was restrained from erecting the kiln. It is stated that Mahabir Singh disregarded the direction of the local police and continued the construction of the kiln. A case under Section 188, Penal Code, was then started against him.
On the day of the occurrence which was the subject-matter of the present case, the case under Section 188, Penal Code, Was pending. On the night between the 7th and 8th August, 1951, Jadubansi Lal was sleeping on the outer verandah of the house. Surajbansi Lal was away at Warisaliganj that night. He is a Homoeopath and had-a dispensary at Warisaliganj where he slept that night. Munni Ram, (P. W. 7) was also sleeping on the outer verandah. The two ladies were sleeping inside the house. At about midnight it is stated that the accused persons came. to the house of Jadubansi Lal. Ramprassd, it was stated, was armed with a 'lathi'; the other three accused persons were armed with a 'pharse' each. They assaulted Jadubansi. Munni Ram, who remonstrated and went near Jadubansi to save him, was hit by Bachu Singh with his 'pharse'. Three of the accused persons, it is stated, went into the house and enquired, of the mother Defcho Kuer as to where Surajbansi was. Dakho Kuer said that Surajbansi was not in the house. The accused persons, it is stated, then asked for the Key, and the old lady said that she did not have the key with her. The three accused persons Eachu Singh, Sidhu Ojha and Sitaram Hajam, then assaulted the two ladles, namely, Dakho Kuer and Bimla Devi. After this assault the accused persons went away. No article was stolen from the house. The two ladies came out to the verandah and found that Jadubansi and Munni Ram were also assaulted, Jadubansi more severely than Munni Ram. A number of villagers had come on the hulla raised, and the prosecution case was that the names of the assailants were mentioned to them by Jadubansi Lal, Dakho Kuer and Munni Ram. One Lukhari Dusadh Chaukidar (P. W. 8), who was on round, also came to the place of hulla. He saw the injured persons and heard the names of the assailants. The injured persons were then put on 'khatias' or 'khatolis' and with a party of men they proceeded towards Warisaliganj where there were a dispensary as well as the 'thana'.
On the way the party met the Sub-Inspector of Police (P. w. 9) who said that he was patrolling with an armed force that night and met the party of the injured when he was passing through the dry bed of river Sakri at about 1.30 A.M. The Sub-Inspector said that he questioned Jadubansi, and step by step he recorded the answers given in a 'fardbayan'. He also recorded the statements of the other three injured persons and prepared injury reports. He asked Lukhari Dusadh Chaukidar to take the injured to Wari-saliganj Dispensary and the 'fardbayan' to the Police Station. Thereafter, the Sub-Inspector of Police examined certain other persons and then at about 2.30 A.M. he reached the house of Jadubansi Lal in village Dariyapur. He held an investigation and arrested three of the accused persons, Ramprasad Singh, Sitaram Hajam and Sidhu Ojha, in their house in the Pachhiyari Tola at about 6 A.M. With the three arrested accused persons he came back to Warisaliganj Police Station at about noon. The injured persons were examined at Warisaliganj Dispensary by the doctor in charge, Bindeshwari Prasad Sharma, between the hours 3 A.M. to about 5 A.M. on 8-8-1951. Munni Ram had two injuries; Bimla Devi had as many as seven injuries; Dakho Kuer had four injuries; and Jadubansi Lal had as many as fifteen injuries, including several compound fractures of the skull. The condition of Jadubansi Lal was grave at the time and the doctor said that he was collapsing. The injured persons remained in Warisaliganj Dispensary, and some fourteen days later, on 22-8-1951, Jadubansi Lal died at about 8 P.M. A 'post mortem' examination was held on the dead body of Jadubansi Lal on 23-8-1951, by the doctor in charge of the Nawada Hospital. Besides certain external injuries which this doctor found, some of which were healed, the doctor found on dissection as follows:
"On dissection, the skull bone was found cut across the whole length of injury No. 1 and the skull under injury No. 2 was found fractured. There was no injury to the brain. The heart was full of blood. The lungs, liver, spleen and kidneys were intensely congested. The bladder was empty. The stomach contained about 4 oz of fluid looking like rice water. A portion of small intestine was twisted. About 3 ft. af small intestine was congested and at spots presented the appearance of starting gangrene. The large intestine was empty. It appears that She deceased died due to this obstruction of tine small intestine. All the above injuries were ante mortem.......... Death of the deceased, in my opinion, was caused by intestinal obstruction After investigation the local police submitted a charge-sheet against the accused persons under rariaus sections of the Indian Penal Cade, including culpable homicide not amounting to murder under Section 304, and attempt to murder under Section 307, Penal Code. The learned Magistrate who enquired into the case committed the four accused persons on charges under Sections 326, 324, 323 and 469, Penal Code. The result of the trial before the learned Additional Sessions Judge I have already stated at the beginning of this judgment.
4. The defence of the accused persons was that they had been falsely implicated on account of enmity. It was alleged that no fardbayan was given by Jadubansi Lal who was not in a condition to make any statement. It was suggested that the prosecution case of the injured persons having named their assailants to the villagers con after the occurrence or having made statements to the Sub-Inspector of Police near the bed of river Sakri was totally false. Some suggestion was also made that Jadubansi Lal was a man of and character and had liaison with some women of a lower caste and he might have been assaulted by some other persons who were aggrieved 'on account of the bad character of Jadubansi Lal.
5. It may be stated at the very outset that the occurrence itself namely, the assault on Jadu-bansi Lal, Munni Bam and the two ladies was not seriously disputed. The allegation as to the place of assault, namely, the house of Jadubansi Lal, was also not contested. The entire contest in this case centred round the question whether the four accused persons entered the house and committed the assault on the inmates: the prosecution case was that they entered the house and were the assailants; the defence suggestion was that they did not enter the house nor were they the assailants and the accused persons have been falsely implicated. On this important question the jury took one view of the facts and the Judge cook another view. This, in substance, is the controversy which has presented itself to us.
6. Learned counsel for the accused persons has urged three substantial points before us. Firstly, he has contended that on the evidence in the record only one view can be reasonably taken, namely, the view taken by the Judge. Secondly, he has contended that the jury disregarded a direction in law given by the Judge and in any view of the facts the verdict of guilty under Section 460, Penal Code, cannot be sustained. Thirdly, he has contended that the alleged fardbayan of Jadubansi Lal was not admissible in evidence and the learned Judge should not have admitted the statement made in the fard 'beyan' into evidence and should have directed the jury not to pay any attention to those statements. It is admitted that the verdict of the jury is vitiated on account of the improper admission of evidence.
7. With regard to the first point urged by the learned counsel for the accused persons, the legal position is now well settled. I need only refer to the decision in -- 'Ramanugrah Singh v. Emperor', AIR 1946 PC 151 (A); that decision was followed by this Court in -- 'Emperor v. Ramkri-pal', AIR 1947 Pat 398 (B), -- 'The King v.' Bal-deo, AIR 1951 Pat 470 (C) and -- 'The State v. Ganesh Sahi', AIR 1952 Pat 1 (D). In -- 'AIR1946 PC 151 (A), their Lordships said:
"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 the Judge thinks that they should have taken the o'her, 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. 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 be disregarded."
8. As I pointed out in -- 'AIR ' 1947 Pat 398 (B)', the test laid down is that "no reasonable body of men could have reached the conclusion arrived at by the jury"; but the application of the test will depend on the facts of each case and involve the consideration of the entire evidence after giving due weight to the opinion of the Judge and the verdict of the jury. In a case where two views of the evidence can be taken, it is obvious that the view taken by the jury cannot be said to be a view which no body of reasonable men could have taken. In -- 'AIR 1952 Pat 1 (D)' another Division Bench of this Court has expressed the same view. Ahmad, J. observed in that case:
"No doubt the ends of justice as laid down in the section itself is the determining factor in making a reference but the rule of 'the ends of justice" is to be applied on the principle of reasonableness on the part of the jury. If the opinion given by the jury is not reasonable in the sense as stated above, the law will take it as "inconsistent" with ends of justice, and will take away the finality given under the section to the opinion of the jury leaving the Judge free to submit the case to the High Court to be dealt with according to law."
Mr. A.N. Sahay has relied on some observations by Meredith, A. C. J. in -- 'AIR 1951 Pat 470 (C)', which were somewhat critical of the Privy Council decision. In my opinion, those observations were obiter. His Lordship proceeded on the basis that the Privy Council decision was then binding on this Court. That decision has been accepted Mid followed by this Court in a number of later decisions and it is clear to me that so long as Section 307, Criminal P. C., is in the terms in which it stands at present, there is no escape from the position that where on the evidence two views can be reasonably taken, the ends of justice require that the view of the jury must prevail. Section 307 must be considered in the setting of other sections in the same Code; as for example, Section 299, Criminal P. C., which provides that it is the duty of the jury to decide which view of the facts is true and then to return the verdict which under such view ought, according to the direction of the Judge, to be returned. The Code makes the jury the final tribunal for deciding facts. It is true that Sub-section (3) of S- 307. Criminal P. C., which deals with the power of the High Court, says that the High Court after considering the entire evidence shall give due weight to the opinions of the Sessions Judge and the jury. The section 'does not, however, say that the opinion of the jury on a question of fact loses its sanctity, because the Judge has expressed a complete dissent. In a case where two opinions can be reasonably held on the evidence in the record, the opinion of the jury is given due weight only by its acceptance; because the opinion of the jury, if it is reasonable, is the opinion of the final tribunal for deciding facts.
9. I now proceed to consider the evidence in the case. Mr. A. N. Sahay has placed before us the entire evidence in the record. In the forefront of his argument he has placed two grounds, in support of his contention that no reasonable body of men could have taken the view which the jury took in this case. These two grounds I may characterise as (a) the time factor, and (b) the physical condition of Jadubansi Lal and the other injured persons after they had received the injuries. On these two grounds Mr. A. N. Sahay has contended that the prosecution case that the injured persons named the accused persons soon after the assault and near the bed of river Sakri should be totally discarded. (After discussion of the evidence on these two grounds the judgment proceeds:) Having given my earnest consideration to the evidence in the case, I am unable to accept the contention that the physical condition of 'Jadubansi or of the other injured persons was such that they could not be in a position to speak. In my opinion, the jury took a more reasonable view of the matter. In any case, it is impossible to say that the view which the jury took on the evidence in the record was a view which no reasonable body of men could have taken.
10. Turning now to the contention that the 'fardbayan' or the statements made by Jadubansi Lal were not admissible in evidence it appears that Section 32(1), Evidence Act makes statements, written or verbal, of relevant facts made by a person who is dead admissible when the statements are made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. The argument of learned counsel for the accused per-sons is tha according to the medical evidence in the case Jadubausi did not die of any of the injuries caused to him; according to that evidence he died of intestinal obstruction. It is contended that the statements made by Jadubansi Lal do not relate to the cause of death, nor did the cause of Jadubansi's death come into question in the present case. This argument cannot be brushed aside as entirely unsubstantial. It is unfortunate that the doctor who held the post mortem examination was not asked any question if the injuries which Jadubansi had sustained were directly or indirectly responsible for his death; or whether they had in any way caused or accelerated the condition in which intestinal obstruction took place. The doctor found that a portion of small intestine was twisted; about 3 feet of small in-testing were congested and at spots presented the appearance of incipient gangrene. According to his opinion, Jadubansi Lal died of obstruction of small intestine. His evidence does not throw any light on the question if the injuries caused to Jadubansi resulted in a condition which either caused or aggravated intestinal obstruction. Speaking for myself, I think the cause of Jadubansi Lal's death was in question in the present case; the local police had submitted a charge sheet for offences including the offence of culpable homicide, and though the learned committing Magistrate did not frame any charge under Section 304 or under Section 303, Penal Code, the question as to the cause of Jadn bansi's death was a question which required consideration in the case. It may be that on a final consideration of the evidence the cause of death Is found to be not connected with the injuries-caused; but the test is not what the final finding in the case is but whether the cause of the death of the person making the statements 'comes late question' in this case. I have underlined thereinto ' ') the words which I think furnish the test for the relevancy of the statements. The other condition laid down by Sub-section (1) of Section 32 is I think, fulfilled; that condition is that the statements made by Jadubansi Lal related to some of the circumstances of the transaction which resulted in his death. The expression "any of the circumstances of the transaction which resulted, in his death" is, in my opinion, wider in scope than the expression "the cause of his death"; is other words, Sub-section (1) of Section 32 refers to two kinds of statements-- (1) when the statement is made by a person as to the cause of his death, or when the statement is made by a, person as to any of the circumstances of the transaction which resulted in his death. The words 'resulted in his death" do not in my opinion mean "caused his death". If I am correct in my view of Section 32(1) Evidence Act, then the statements of Jadubansi-lal were admissible in this case.
11. I must, however, concede that the point urged by learned counsel for the accused persons is not entirely free from difficulty, and I most therefore, consider the case also from another point of view. Under Sub-section (3) of Section 307, Criminal P. C., the High Court may exercise any of the powers which it may exercise on an appeal. It is now settled by the decision in -- 'Abdul Rahim v. Emperor', AIR 1946 PC 82 (E), that where in admissible evidence has been admitted in a trial' by jury, the High Court on appeal may, after excluding such evidence, maintain a conviction, pro-vided the admissible evidence remaining is in: the opinion of the Court sufficient clearly to re tablish the guilt of the accused. The High Court' is not bound to order retrial in such cases, "The same view was also pronounced in -- 'Narayam Swami v. Emperor', AIR 1939 PC 47 (P), where a reference was made to Section 537, Criminal P. C. If I may say so with respect, the legal position tun been very succinctly explained by Lokur J. in --'Savlimiya Miyabhai v. Emperor', AIR 1944 Bom 338 (G). His Lordship observed:
"Ordinarily when the verdict of the jury is set aside on the ground that it is vitiated by the erroneous admission of inadmissible evidence which has caused a failure of justice, the appellate Court should go into the evidence on its merits, and if the evidence which is legally admissible, is by itself sufficient to justify a. conviction, then it can and should uphold the conviction. On the other hand, even after the evidence, which is inadmissible, is made admissible and brought on record at the re-trial the evidence is considered insufficient, to warrant the conviction, then the accused should be acquitted, and should not be subjected to the needless ordeal of a re-trial. But if the appellate Court feels a reasonable doubt as to what the verdict o"f the jury might be after the defect which vitiated its verdict is removed, or when it is thought that much depends upon the impression made upon the jury by the witnesses and the accused in their statements then the proper course would be to order a re-trial."
12. It is appropriate to emphasise at this stage that there is no appeal against the order of acquittal recorded by the learned Additional Sessions Judge on the charges under Sections 326, 323 and 324, Penal Code. Therefore, we are not now directly concerned with those charges. We are concerned with the charge under Section 460, Penal Code, and such other offence of which the jury could have convicted the accused persons on the charge under Section 460, Penal Code. It is clear to me that the learned Additional Sessions Judge gave a wrong direction in law when he told the jury that even on the view that the accused persona had entered the house of Jadubansi Lal and assaulted the inmates thereof the only offence of which they could be found guilty was one under Section 448, Penal Code. The learned Additional Sessions Judge appears to have missed the provisions of. Sections 451 ani 452, Penal Code. I have not the slightest doubt in my mind that even excluding all the statements of Jadubansi Lal, there is enough evidence on the record to sustain a conviction of the accused persons of the offence under Section 452, Penal Code. Dakho Kuer (P. W. 2) and Munni Ram (P. W. 7) prove beyond any reasonable doubt that the four accused persons committed house trespass, three of them armed with 'pharas' and one armed with a lathi. Dakho Kuer identified only three of the accused persons; she did not identify Ramprasad. Ramprasa-3 was, however, identified by Munni Ram. The evidence of these two witnesses is corroborated by that of Shyarna Kahar (P. W. 1) and Jato Singh (P. W. 4). Lukhari Dusadh Chaukidar (P. W. 8) also corroborated Dakho Kuer and Munni Ram.
13. That there was enmity between Surajbansi Lal on one side and Mahabir Singh, father of two of the accused person.? on the other is admitted. The enmity was a recent enmity over the construction of a brick-kiln. The suggestion of the defence that Jadubansi Lal was a man of bad character and might have been assaulted by some other persons does not require detailed consideration. The suggestion was not accepted by the prosecution witnesses and no evidence was given to prove it. It is improbable that the ladies of the house would be attacked and assaulted if the intention was to assault Jadubansi for his alleged bad character. The evidence given in the case shows that the accused persons had entered the house of the two brothers, Surajbansi Lal and Jadubansilal, armed with deadly weapons, for the purpose of assaulting Surajbansilal. That is why they enquired from the mother of Surajbansilal as to where he was. In the circumstances of the case, there is not the slightest doubt that house trespass was committed by the accused persons who had made preparation for causing hurt to Surajbansilal and other inmates of the house. If Surajbansilal were found ia the house that night, he would have been the main target of the attack. The evidence in the record fully establishes the offence under Section 452, Penal Code, against the accused persons.
14. Mr. A.N. Sahay has contended before us that it is not open to us to convict the accused persons of the offence under Section 452, Penal Code, when the charge in respect of which the jury returned their verdict of guilty was under Section 460, Penal Code. He does not dispute that the direction given by the learned Additional Sessions Judge was incorrect in law. His point is that under Sub-section (3) of Section 307, Criminal P. C., this Court can convict the accused persons upon the charge framed and placed before the jury. Learned counsel states that the charge framed and placed before the jury was under Section 460, Penal Code, and under the direction, of the Judge, the jury could have convicted the accused persons of the offence under Section 448, Penal Code. His contention is that on a proper construction of Sub-section (3) of Section 307, Criminal P. C., we can also convict the accused persons of the offence under Section 448, Penal Code, but of no other offence. In my opinion,! this contention is wholly without substance. There is no doubt that the offence under Section 452, Penal Code, is a minor offence within the meaning of Section 238, Criminal P. C., and the jury, if properly directed by the learned Additional Sessions Judge, could have convicted the accused persons of the offence under Section 452, Penal Code, on the charge framed and placed before them; therefore, it is open to this Court to convict the accused persons of the offence under Section 452, Penal Code. If authority be needed for this view, such authority will be found in the decision of -- 'Queen-Empress v. Sitanath', 22 Gal 1005 (H), where the accused persons were tried by a jury on charges under Sections 366 and 377, Penal Code; the Judge made a reference to the High Court under Section 307, Criminal P. C., and the High Court found the accused persons guilty of the offence under Section 365, Penal Code. As in that case, so also in the present case, no prejudice has been caused to the accused persons by the failure to frame a charge under Section 452, Penal Code. Baoierjee J. observed in that case:
"I think that it is competent to this Court in dealing with the case under Section 307, Criminal P. C., to convict the accused of an offence under Section 365, Penal code, although he was not charged with any such offence, but was charged with an offence punishable under Section 366."
The same view was expressed in two earlier decisions of the Calcutta High Court: -- 'The Empress v. Harai Mirdha', 3 Cal 1.89 (I) and -- 'The Government of Bengal v. Mahaadi', 5 Cal 871 (J).
15. For the reasons given above, I do not accept the reference made by the learned Additional Sessions Judge and the reference is discharged. We find the four accused persons guilty of the offence under Section 452, Penal Code, and sentence each of them to undergo rigorous imprisonment for a year and six months.
Sinha, J.
16. I agree. I am, however, of the opinion that, on the facts and in the cir cumstances of the present case, it is not necessary to hold that the fardbeyan was admissible in evi dence under the provisions of Section 32, Evidence Act because, in my judgment, even after discarding the for being the residue of the evidence is sufficient for the conviction of the accused, under Section 452, Penal Code, and I do not think that even if the fardbeyan was inadmissible in evidence and was not placed before the jury, the verdict of the jury could have been affected.