Patna High Court
Emperor vs Rafi Mian on 21 June, 1932
Equivalent citations: 139IND. CAS.885, AIR 1932 PATNA 246
JUDGMENT Courtney-Terrell, C.J.
1. This is a reference under Section 307 of the Code of Criminal Procedure by the Sessions Judge of Patna, relating to the verdict of the Jury in the case of three persons, namely Rafi Mian, Nasir Mian and Walayat Mian.
2. These three persons together with three others, namely, Didaran Mian, Siddiq Mian and Ismail Mian were tried for the murder of one Meghu Mian. The last three were acquitted by the Jury and the Sessions Judge accepted the verdict. The first three were also acquitted bat the Sessions Judge disagreed with the verdict and thought it necssaary to refer the matter to this Court in the interets of justice. In view of the arguments which have been addressed to us some explanation of the law relating to Jury trials is required. Under Section 307 of the Code of Criminal Procedure, if the Judge disagrees with the verdict of the Jurors and is clearly of opinion that it is necessary for the ends of justice to submit the case to the High Court, he shall submit the case accordingly, recording the grounds of his opinion, and when the verdict is one of acquittal, stating the offence which he considers to have been committed. Now it has long been held that the Sessions Judge should not so refer a case unless his dissent from the opinion of the Jury is such a complete dissent as to lead the Judge to consider it necessary, for the ends of justice, to submit the case to the High Court, and where such complete dissent is not recorded the verdict of the Jury must stand. This was Said down by Sir M.R. Westropp, C.J. and Mr. Justice Helvill in Imperatrix v. Bhawani bin Panduji and Sakharam bin Khundaji 2 B. 525. That was a case of conviction by the Jury and the Sassions Judge disagreed with the verdict of the majority. He stated that as it is entirely a case depending on the appreciation of the evidence and the habits and customs of the natives, and as they must be more familiar with the motives which actuate these people, and what they would be likely to do, than a foreigner, the court refused to send up the case under Section 263 of the Act of 1872. The High Court refused to interfere with the decision.
3. Similarly in the case of Ramdas Rai v. King-Emperor 117 Ind. Cas. 173 : 10 P.L.T. 409 : 8 Pat. 344 : 30 Cr. L.J. 721 : A.I.R. 1929 Pat. 313; (1929) Cr. Cas. 99 the Sessions Judge in the case of a verdict of conviction had recorded his opionion as follows:
I do not agree with the vedict. In my opinion none of the dacoits wan recognised at the time and all the prisoners should be acquitted. At the same time the Verdict of the majority is a reasonable verdict on the evidence and 1 accept it without hesitation,
4. On an appeal by the convicted persons it was argued that the court should have referred the case under Section 307 of the Code of Criminal Procedure, and Macpherson, J. said:
It has been frequently laid down that the High Court will not interfere with the verdict of the Jury if the verdict has turned merely upon the appreciation of oral evidence capable of being viewed either way but only where the evidence is so coercive that it is impossible to draw a 'conclusion except the one adverse to the verdict. The observaitons of the learned Sessions Judge can only mean that though he himself took a view unfavourable to the prosecution, nevertheless the view taken by the Jury, though opposed to his own view, was one which could in his opinion reasonably be taken on the evidence.
5. The wording of the learned Judge's judgment is possibly open to misconstruction. The question to be decided in that case was whether the Sessions Judge had been right in refusing to refer the case and the decision was, if I may respectfully say so, entirely right upon that issue. It is on the requirement of the law for this emphatic dissent on the part of the Sessions Judge that the strength of the verdict of a Jury really rests. But if the dissent is expressed the special sanctity of a verdict disappears and it has no greater force than the decision of any other tribunal of fact. It has, however, been suggested that the words of Macpherson, J. and similar words which have been used in other cases including, I regret to say, some of my own decisions imply that even where the Sessions Judge has in fact recorded his complete dissent from the verdict of the Jury in a reference under Section 307 the verdict of the Jury cannot be attacked unless it can be shown to have been "perveiss" or so manifestly erroneous that no reasonable man could have come to such a decision. This is an erroneous view and is based upon certain judgments which were delivered before the amendment in the year 1816 which resulted in the section as it at present stands. Such decisions are no longer of any force. Subsection (3) of Section 307 as it now stands is as follows:
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 as might have been passed by the Court of Session.
6. In the case of Emperor v. Lyall 29 C. 123 at p. 133 : 6 C.W.N. 253 dealing with the argument that the verdict of the Jury must be shown to be perverse or clearly or manifestly wrong, Prinsep and Stephen, JJ. said:
It seems to us that we are now bound to consider the entire evidence in the case, and we are then required to give due weight to the opinions of the Sessions Judge and the Jury and not to rely only on the verdict of the Jury. Without considering the evidence the High Court would not be in a proper position to give due weight to such opinions. It is not necessary for the prosecution to show that the opinions of the Jury are perverse or clearly and manifestly wrong, as was held in the cases cited to us which were decided before the law was amended in 1896 and expressed as it now stands.
7. In the case of Emperor v. Sri Narain Prasad 11 C.W.N. 715 at p. 718 : 5 Cr. L.J. 484 a case in which the Sessions Judge of Patna had referred an acquittal by the Jury under Section 307, Rampini and Gapta, JJ. said:
We may mention that this is a reference under Section 307 of the Code of Criminal Procedure and that although we are bound in dealing with if to give due weight to the opinion of the Sessions Judge and the verdict of the Jury, we are entitled to make up our minds for ourselves on the question of the guilt or otherwise of the accused. After hearing the evidence we have no doubt whatever that the story of the prosecution is perfectly true and we feel no doubt that the accused has been guilty of cheating and of using a forged document as genuine.
8. In Emperor v. Abdul Rahman 2 Ind. Cas. 593 : 9 C.L.J. 432 Holmwood and Ryves, JJ. said:
It was next contended that, as it was open to the Jury, on their view of the evidence, to acquit the accused and that their verdict cannot fairly be called perverse, we should not set it aside. The provisions of Section 307 of the Criminal Procedure Code, however, are very clear. On a reference under that section this Court has all the powers of an Appellate Court and it is our duty, after considering the entire evidence and giving due weight to the opinion of the Sessions Judge and the Jury, to form our own opinion. If authority is required for this proposition, vide the case of Emperor v. Lyall 29 C. 123 at p. 133 : 6 C.W.N. 253.
9. In the case of Crown v. Bimal Prasad 88 Ind. Cas. 857 : 6 Lah. 98 : A.I.E. 1925 Lah 401 : 26 Cr. L.J. 124 a verdict of acquittal wa3 referred by the Sessions Judge and the court dealt with a large number of authorities upon this point. Scott-Smith and Martineau, JJ, referring to cases decided before the amendment of the Code said:
We think that the authorities which lay down that the High Court will not interfere in a case referred under Section 307 unless it is shown that the verdict of the Jury is wholly unreasonable or perverse, lose much of their force and really have very little application. We consider that it is our duty in the present case to consider all the evidence and to give judgment after considering it as well as the opinions of the Sessions Judge and the Jury.
10. In Emperor v. Ram Chandra Roy 111 Ind. Cas. 327 : 55 C. 879 at p. 885 : 29 Cr. L.J. 823 : A.I.R. 1928 Cal. 732 : 10 A.I. Cr. Rule 456 which was a reference by the Sessions Judge on a unanimous verdict of acquittal by the Jury Mr. Justice Cuming with whose opinion Mr. Justice Gregory agreed, said:
Mr. Bose who has appeared for the three accused persons has first argued that before we can interfere with the Jury's verdict, we must be convinced that this verdict is perverse or patently wrong and that we should not interfere with the Jury's verdict unless it is manifestly or patently wrong. The point of view from which reference under Section 307 should be considered by the High Court has been the subject of numerous judicial decisions. They seem to vary from the extreme view that the High Court should be very reluctant to interfere with a verdict of a Jury to the view that the High Court in dealing with these references is to be guided by the plain words of the Code. Speaking for myself, I have always thought I am upon far firmer ground if I adhere to the strict words of the Code and do not attempt to interpret the Code in the light of the practice in other countries where law and conditions are different. Here the Code is clearly explicit. The High Court shall after considering the entire evidence and after giving due weight to the opinions of the Sessions Judge and of the Jury, acquit or convict the accused. The Code would not seem to put the opinion of the Jury on any higher plane than the opinion of the Judge; both should be given due weight. There is no suggestion that more weight should be given to the opinion of the Jury than that of the Judge. Speaking for myself, I should, as a general rule, be inclined to attach more weight to the opinion of the learned Sessions Judge. He equally with Jury had heard the witnesses and has been able to observe their demeanour. He has been trained to weigh and appreciate evidence and further he must give reasons for his opinion. The Jury are a body of laymen unaccustomed to weigh or appreciate evidence who give no reason for their opinion. Obviously, an opinion supported by reasons is likely to carry more weight than an opinion entirely unsupported by reasons.
11. I may now deal with other cases decided since 1896 which have from time to time been used to support the argument that the verdict of the Jury cannot be interfered with unless it is perverse or manifestly unreasonable. The first of these is Emperor v. Ali Haider 86 Ind. Cas. 712 : 4 P.L.T. 425 : A.I.R. 1923 Pat. 474 : 26 Cr. L.J. 852 decided by Mallick and Bucknill, JJ. The facts are expressly left unreported. Mr. Justice Mullick said:
There is sufficient evidence to prove the guilt, of the accused and the verdict of the Jury is one which no reasonable man could have given. If the verdict had turned merely upon the appreciation of oral evidence capable of being viewed either way, but as to which we were inclined to take a different view from that of the Jury, it is clear that we could not have interfered.
12. These words are a mere reference to the law which governs the hearing of all appeals upon questions of fact. In taking up the attitude recommended by the learned Judge towards the verdict of the Jury the court is doing no more than obeying the directions contained in the Statute itself to exercise the powers which it could exercise on appeal.
13. In Emperor v. Zahir Haider Bilgrami 97 Ind. Cas. 17 : 7 P.L.T. 367 : 27 Cr. L.J. 1041 : A.I.R. 1926 Pat. 566 the same learned Judge dealing with the case in which the Bench came to the conclusion that the inference drawn fay the Jury was manifestly inconsistent with the documentary evidence and the conduct of the parties stated his opinion of the law in words which I think went beyond the necessities of the case before him and with which I am unable entirely to agree. He said;
It is true that where one of two inferences is possible upon the evidence, the court of reference will not interfere with the finding of the Jury even though the court is of opinion that it would have drawn the other inference if it had been a Court of Appeal.
14. As I have said this was a case in which in fact the court did interfere with the verdict and there is no record that any case save that decided by the same Judge in Emperor v. Ali Haider 86 Ind. Cas. 712 : 4 P.L.T. 425 : A.I.R. 1923 Pat. 474 : 26 Cr. L.J. 852 was cited to the court. In my opinion the limitations upon a Court of Appeal dealing with a judgment of fact by a lower tribunal are as severe in the case of an appeal as they are in the esse of a reference and the learned Judge was not correct in suggesting that a Court of Appeal would have been justified in reversing a finding of fact with greater freedom than that to be exercised a court of reference.
15. The more correct point of view was expressed by Mr. Justice Richardson in Emperor v. Jamaldi Fakir 81 Ind. Cas. 712 : 28 C.W.N. 536 at p. 539 : 25 Cr. L.J. 1000 : 51 C. 160 : A.I.R. 1924 Cal. 701. He was drawing a distinction between Section 423 and 307 and he said:
It may well be that if he had accepted the verdict and the five accused had appealed, the appeal, regard being had to Section 423(2) of the Code, would have been unsuccessful. But the learned Judge has not accepted the verdict of the Jury. On the contrary his opinion is that the verdict is erroneous and should be set aside, and the matter comes before us not under Section 423 but under Section 307 of the Code. Now Section 307 lays down that, in dealing with a case submitted thereunder, the High Court 'may exercise any of the powers which it may exercise on an appeal' and, that '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 the accused of any offence of which the Jury could have convicted him upon the charge framed and placed before it.' Our duty accordingly is to consider the evidence on the record as it stands, to weigh the respective opinions of the Sessions Judge and the Jury, and then to form our own conclusion. It still remains that the verdict of the Jury is first in the field and the Code, Section 299 makes it primarily the function 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' and 'to decide all questions which according to law are to be deemed questions of fact.' On general principles, therefore, it appears to me that when the process which Section 307 directs has been carried out, and the opinions of the Judge and Jury have been measured, in the result the verdict of the Jury should stand unless the evidence and the opinion of the Judge show clearly that it is wrong and that in the interests of justice it ought to be reversed.
16. A similar decision but not in my opinion so clearly expressed is found in Emperor v. Shera 108 Ind. Cas. 225 : 50 A. 625 : A.I.E. 1928 All. 207 : 29 Cr. L.J. 353.
17. The only cases of which I am aware which are definite decisions that the verdict of the Jury cannot be disturbed unless it is perversa or clearly and manifestly wrong are the two next mentioned. Firstly Emperor v. Panna Lal 81 Ind. Cas. 629 : 46 A. 265 : A.I.K. 1924 All, 411 : 25 Cr. L.J. 981 in which a Jury had acquitted a man of attempted rape. Cases of this kind have always to be scrutinised with great care and the evidence regarded with suspicion bat the facts as reported in that case show that the Jury were well within their function in disbelieving the evidence for the prosecution. In my opinion the learned Judges were really influenced by the facts of the case. Moreover there is a passage in the judgment which, in my opinion, clearly shows that the Judges were not presented with the correct argument. They said:
Under the provisions of Section 307 a High Court has very full powers to re-open all matters in connection with a verdict of acquittal of a Jury with which the Sessions Judge has disagreed and which he has referred to the court under the provisions of that section. But it does not follow that because powers have been given to the court, the court should feel justified in using these powers to the full. There have been two schools of thought, both before and after the amendment of the law which took place in 1896, as to the correct legal principles to be adopted in such circumstances. One school has considered that a High Court should not interfere with a verdict unless it is perverse and clearly and manifestly wrong. The other school has held the opinion that in such cases the High Court should re-open the matter abinitio and apply an independent mind to the evidence and form its own conclusions thereon. It cannot be suggested that the view taken by the first school is an improper one. The High Court may exercise on appeal, but it is perfectly within its rights in considering that in cases such as these, interference should only be permitted in cases of perversity or clear and manifest error and that where a Jury has arrived at a verdict which is not a perverse and not clearly and manifestly wrong, such verdict should not be interfered with although it is perfectly possible to form a not unreasonable opinion contrary to the opinion taken by the Jury.
18. It is not correct to say that the other school has held the opinion that in such cases the High Court should re-open the matter ab initio.
19. Such a suggestion would be directly opposed to the principle governing the hearing of all appeals on questions of fact. Even when an appeal is given on a question of fact the appeal is not a re-opening of the matter ab initio and the conditions under which an Indian Appellate Court has to deal with a case should make this clear. Not only has the Appellate Court not seen or heard the witnesses, but only a summary version of their evidence in a foreign language is available. The proceeding is an appeal and not a re-hearing. If the court had understood this it would not, I think, Lave been led to its conclusion in favour, of the equally erroneous alternative view. Moreover the learned Judges support; their opinion by reference to a judgment delivered in 1875 by Mr. Justice West in which an analogy has been drawn with the English Law as to; Jury trials. It has often been pointed out that there is no such analogy and the powers of the Jury are subjected to the very definite limitations laid down in the Criminal Procedure Code. See for example Romesh Chandra Banerjee v. Emperor 23 Ind. Cas. 985 : 41 C. 350 at p. 374 : A.I.E. 1914 Cal. 456 : 15 Cr. L.J. 385. A verdict of acquittal by an English Jury is (subject to the peculiar provisions of Section 3 of the English Criminal Appeal Act VII Ed. VII C. 23) absolutely inviolate and a verdict of conviction, provided that there has been no misdirection, is almost equally so, whereas the Indian Code of Criminal Procedure provides several instances in which the verdict of the Jury on issues of fact may be reviewed. The English Jury is a product of the common law; and the Indian Jury is a statutory creation upon whose powers very definite and statutory limitations are imposed and the verdict of an Indian Jury has no higher status than that conferred upon it by the statute to which it owes its own creation.
20. The second case is that of In re Veerappa Goundan 114 Ind. Cas. 353 : 51 M. 956 : A.I.R. 1928 Mad. 1186 : 28 L.W. 575 : 55 M.L.J. 591: (1929) M.W.N. 185 : 30 Cr. L.J. 317 and like the case last cited is one in which the two equally erroneous points of view were put before a Full Bench for a choice between them and the, court decided that as between trying the case de novo as though there had been no Sessions trial at all, and refusing to set aside anything but a perverse verdict the court should adopt the latter course. I am unable to agree with the decision. Moreover the false analogy with the Engligh system again seems to me to have misled the Madras Court.
21. I would sum up my opinion of the law on this question by stating that the duty of the High Court in a reference under a. 307 of the Code of Criminal Procedure, is to consider the whole of the evidence and the opinions of the Sessions Judge on the one hand and of the Jury on the other hand and thereupon, as directed by the statute, to exercise all the powers of the Court of Appeal, remembering that the duty of an Appellate Court, where; an appeal is given on questions of fact, is to throw upon those who seek to disturb the verdict of the Jury or other first tribunal of fact the onus of showing that that verdict is wrong. But if the party so seeking succeeds in demonstrating that the verdict is wrong the court Has full power to reverse the verdict Moreover whatever academic and abstract, view of the question of principle may be held, no sane Appellate Court will uphold a conviction which after considering the evidence and opinions it feels to be wrong however difficult it may be to express that feeling in words.
22. I now proceed to discuss the facts of this case on the assumption that verdict of the Jury must be considered as correct unless and until the Crown establish, that it is erroneous. Meghu Mian with whose death we are concerned lived with his wife Musammat Kabiran and his son Safir at village Jawahir Chak. He was a cultivator and a member of a Muhammadan family to which also belonged the six persons who were charged with this crime. The accused Rafi is married to the daughter of Meghu's brother Tauhid. The other accused persons are collateral descendants of an ancestor of the deceased Meghu, They all live in the same village and the deceased Meghu and the accused Nasir about ten years ago inherited and divided the property of, a common relative. The fields of these two men are adjacent and upon the dividing ridge between the fields there grew a patch of elephant grasp. The witnesses for the prosecution who profess to speak of the motive for the crime attribute it to a quarrel between the two men Meghu and Nasir as to the share of this grass. If this was indeed the motive it was a very slight one. That the grass was the subject of a dispute there can be no doubt; that it was the real motive for the murder is not at all so clear. In the course of the evidence it appeared that in January, 1931, there was a rioting case in the neighbourhood in which Meghu Mian had been a witness, who had identified a large number of persons accused in that case many of them being of influential standing. The case had roused a good deal of feeling and a mob had attempted to rescue the persons who were arrested by a Magistrate and a Deputy Superintendent of Police. The case had ended in an acquittal. It is quite likely that this incident is the real motive which has inspired someone in the back-ground who is not before the court to instigate the assassination of Meghu. Moreover the defence in an endeavour to show that persons other than the accused had a motive for the murder proved that Meghu being a prosecution witness in the rioting case had been threatened with assault and that the landlord was stirring up Meghu's relations to cut the ridges of bis fields. None of the persors accused in this case, however, are named either in the riot case or in the complaint I have mentioned. The matter of motive, therefore, remains a matter of speculation. That there was, however, a quarrel about the division of the elephant grass crop and that that quarrel took place on the morning of the day of occurrence is clear. Meghu Mian and Nasir with whom the quarrel about the elephant grass had taken place share a khalihan. It is at a short distance from the khet where the dispute had taken place earlier in the day. On the east side of the khalihan there are two houses, one of a witness Mogul Pasi and the other of a witness Budhun Mistri. It is approached by a lane from the north and a lane from the east and on the west and south it is bordered by khets. The house of the deceased Meghu lies some sixty paces to the north of this khalihan. The houses of the accused lie some little distance to the south but in the same basti.
23. On that morning, that is to say, the 6th January last at 11 o'clock, the chaukidar Gangu who lives in the village at a distance of about 200 yards from the khalihan of Maghu Mian heard loud cues from this khalihan, He ran to the place and found Meghu lying on the ground with a serious wound in his body and unconscious. Meshu's wife Kabiran and his son Safir were attempting to give water to the dying man. They were in great distress lamenting and crying. The chaukidar asked Meghu's wife and son who had killed the deceased, She said he had been killed by five or six men and mentioned five or six names and said that the assailants had been armed with a spear and garassa and that it had arisen out of a dispute over elephant grass. Safir told him the same story. There was a lot of blood on the ground but no weapon was to be seen and the blood was at the place where the dying man lay. The chaukidar says that he saw no other persons and it appears that the inhabitants of the basti were for the most part working in the fields at the same time. He hurried off at once to the thana at Giriak 8 miles from the place of occurrence where he lodged the First Information Report at 315 p.m. before the writer Head Constable. In it he narrates the story which I have just described, and states:
On enquiry from Meghu Mian's wife and son I learnt that at about 11 o'clock in the day Nasir Mian, son of Enayat Mian, and Saddik Mian, son of Tauhid Mian, residents of the village together struck him (Meghu Mian) with a pharia and a garassa in consequence of which he being severely injured fell down. The dispute took place over cutting elephant grass.... The prosecution witnesses are the persons of that place who were present at the time of the assault as well as the wife and son of Meghu Mian.
24. The Writer Head Constable sent the chaukidar to Permanandpur four miles away from the thana to find the Sub-Inspector who was there busy on another case. There is no evidence as to what the chaukidar said to the Sub Inspector but the Sub-Inspector went at once to the place of occurrence arriving there at 7 o'clock in the evening. There he found that the body of Meghu bad been raised from the ground and placed on a chqrpai and subsequent medical examination shows that it bore the following wounds: Three wounds on the left arm two being punctured and one incised, a deep penetrating wound on the right side of the chest on the mid-axillary line penetrating the lung. The margins of the wound were clean out and it was evidently inflicted with a spear and there was a big bruise with a fracture of the sixth rib on the left side of the chest. In view of the fact that the names of only two assailants are mentioned by him in the First Information Report the chaukidar explains that he had hurried away quickly, that he had made a mistake in mentioning a pharsa and garassa instead of a spear and garassa and that on arriving at the Police Station he could only remember two of the names which had been given to him. The Sessions Judge has recorded that the witness was extraordinarily stupid and that it was difficult to get him to understand questions and to prevent him from answering without thinking. (After discussing the evidence his Lordship proceeded.) The accused persons have each denied all knowledge of the occurrence and have stated that they had been implicated out of grudge. The learned Sessions Judge had some ground for declining to disagree with the opinion of the Jury with regard to Ismail, Didaran and Siddiq. In the first place the evidence of all the witnesses indicates that they took no actual part in the assault. In the second place Didaran is an old man and suffers from cataract Ismail seems to suffer from some affection of the heart and there is some reason for thinking that he is incapable of great physical effort and Siddiq is lame and one of his arms is also affected. The evidence of Budhan is that these three persons had only small painas in their hands. But as to the accused Rafi, Nasir and Walayat the opinion of the Jury is clearly erroneous and I agree with the opinion of the learned Sessions Judge. I would, therefore, convict these three persons under Section 302 of the Indian Penal Code. With regard to Walayat who began the assault upon the deceased with a lathi blow the Judge says in his letter of reference that had the Jury convicted him of causing grievous hurt he would not have thought it necessary to express disagreement. As I have said, in my opinion, he should be convicted of murder having regard to the fact that he accompanied and assisted the two other men in dealing the fatal blow and moreover the blow delivered by him as his share was of a serious nature. That he was actively contributing to the murder I have no doubt. Nevertheless I think this is a case which may satisfactorily be met with the lesser sentence of transportation for life. I see no extenuating circumstances whatever in the case of Rafi Mian and Nasir Mian and I would sentence them to be hanged by the neck till they are dead.
Dhavle, J.
25. I agree.