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PETITIONER:

AKHLAKALI HAYATALLI

Vs.

RESPONDENT:

THE STATE OF BOMBAY.

DATE OF JUDGMENT:

09/12/1953

BENCH:

BHAGWATI, NATWARLAL H.

BENCH:

BHAGWATI, NATWARLAL H.

MUKHERJEA, B.K.

CITATION:

1954 AIR 173 1954 SCR 435

CITATOR INFO :

RF 1957 SC 373 (6)

R 1962 SC 605 (14)

ACT:

Criminal Procedure Code (V of 1898 as amended), s. 307-

Reference to High Court-Proper approach-Jury-Sole Judges of

facts-Provided verdict could be arrived at by reasonable

body of men.

HEADNOTE:

The proper method of approach in the matters of

references under s. 307 of the Criminal Procedure Code as

finally settled is that the High Court will only interfere

with the verdict of the jury if it finds the verdict

perverse in the sense of being unreasonable, manifestly

wrong or against the weight of evidence.

If the facts and circumstances of the case are such that a

reasonable body of men could arrive at one conclusion or the

-other, it is not competent to the Sessions Judge or the

High Court to substitute their verdict in place of the

verdict which has been given by the jury. The jury are the

sole judges of the facts and it is the right of the accused

to have the benefit of the verdict of the jury. Even if the

Sessions Judge or the High Court would, if left to

themselves, have arrived at a different verdict, it is not

competent to the Sessions Judge to make a reference nor to

the High ,Court to accept the same and substitute their own

verdict for the -verdict of the jury provided the verdict

was such as could be arrived at by a reasonable body of men

on the facts and circumstances of the case.

Ramanugrah Singh v. Emperor (A. 1. R. 1946 P. C. 151)

referred to.

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 76

of 1953.

Appeal by special leave against the Judgment and -Order

dated the 16th June, 1952, of the High Court of judicature

at Bombay in Criminal Jury Reference No. 58 of 1952.

436

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H. J. Umrigar for the appellant.

Porus A. Mehta for the respondent.

1953. December 9. The Judgment of the Court was

delivered by

BHAGWATI J.-This is an appeal by special leave from a

judgment of the High Court of judicature at Bombay accepting

the reference made by the Additional Sessions Judge, Greater

Bombay, under section 307 of the Criminal Procedure Code,

and convicting the appellant of an offence under section 326

of the Indian Penal Code and sentencing him to four years

rigorous imprisonment.

The case of the prosecution was that at or about 10-30

or 11 p.m. on the 25th August, 1951, the complainant Abdul

Satar was going towards Dhobi Galli through the Bibijan

Street. At the junction of the Chakla Street with Bibijan

Street, he was attacked by the appellant. The appellant

first attempted to strike him on his right shoulder, but

Abdul Satar caught hold of his hand. The appellant released

his hand from the grip of Abdul Satar, went in front of him

and stabbed him in two places--one injury was inflicted at

the level of the 9th and 10th ribs on the left side and the

other injury on the left shoulder. The appellant then ran

away and was pursued by several people. Babu Adam saw him

at the corner, of the Chakla Street and the Masjid Bunder

Road and joined the pursuit. Sub-Inspector Chawan joined

the crowd chasing the appellant in the Dhobi Street, and

ultimately the appellant was caught at the junction of Dhobi

Street and Nagdevi Street. The appellant was then taken to

the police station. He was taken by the police officers to

the place where the attack took place and a panchnama of the

scene of the offence was made at five minutes past one on

the 26th August, 1951. The appellant and the police

officers returned to the police station and at 1-30 a.m.,

that is within half an hour, another panchnama was made in

respect of the clothes which the appellant was wearing.

According to that panchnama there were blood stains

437

on the right arm pit, on the front of the and on 'the right

thigh. There were also 'blood on the right; side collar and

on the back of the shirt

The defence put up by the appellant was he was a fruit

broker and, after collecting his dues from the Crawford

market at 11 p.m.,to he came to the corner of Dhobi Street,

when he heard the shouts,"chor, chor" and - he also then

shouted "chor, chor" and ran after the person who was

running away in order to catch him. When he reached the

junction of Nagdevi Cross Street, he fell down and the

person who, was running ahead of him rushed into a gutter.

As he was ahead and members of the Public were following

him, three or four, of them fell on his body after he fell

down and when he got up he was caught by two or three other

persons, who all said that he was the man. Sub-Inspector

Chawan was one of these persons. Chawan was suspected; to,

be Ms accomplice, but someone said that he was a police

officer and Chawan was then released. The appellant was put

into the police pilot car which came along and taken to the

police station. He was then taken to the, scene of the

offence and a panchnama was drawn there. He was again

brought to, the police 'station thereafter and was made to

sit in the charge room. As he was feeling very hot, he

removed his shirt and kept it by his side. In the,

meanwhile, a police constable came there and gave him a blow

on his nose saying, "Do you think this is your father's

residence that I you removed your shirt? He thereupon

started bleeding from his nose, and due to that bleeding his

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shirt and trousers were, stained with blood. The same

constable then asked him to put on the clothes and took him

to his officer. He produced the appellant before D. 1.

Kakatkar who there noticed his clothes. The panchas were

called and a panchnama was drawn up in which the blood

stains on the shirt and trousers were noted.

The appellant was tried by the Additional Sessions judge

and a common jury. The prosecution called the evidence of

the- complainant Abdul Satar, Babu Adam and Sub-Inspector,

Chawan. Evidence was led Of an identification parade which

was held in the

6-93 S.P.India/59

438

hospital where Abdul Satar was taken from the scene of the

offence and it was proved that Abdul Satar identified the

appellant at that identification parade. Evidence was also

led of the panch witness who deposed to the panchnama noting

the blood stains on the shirt and the trousers of the

appellant.

The Additional Sessions Judge summed up the case Against

the appellant in a charge which was very fair. The charge

was not' attacked before the High Court nor before us as

containing any misdirections or non-directions to the jury

such as to vitiate the verdict. The jury after' due

deliberation could not be unanimous and pronounced a verdict

of not guilty against the appellant by a majority of six to

three. The Additional Sessions Judge did not accept the

verdict of the ,majority. He disagreed with the verdict and

thought that it was necessary for the ends of justice to

submit the case to the High Court and accordingly by an

order of reference dated the 22nd April, 1952, submitted the

case to the High Court under section 307 of the Criminal

Procedure Code.

It is significant to note that prior to the enactment ,of

Bombay Act VI of 1952, sections 305 and 306 of the Criminal

Procedure Code were applicable to the Court of Sessions for

Greater Bombay. It was intended as stated in the objects of

the Bill to provide for a case of ,disagreement with a

unanimous verdict of the jury and enable the Sessions Judge

for Greater Bombay to make a reference under section 307 of

the Criminal Procedure Code even in the case of a unanimous

verdict with which he disagreed. In making the amendment

however by the Bombay Act VI of 1952 the Legislature took

away the powers of the Sessions judge "of Greater Bombay to

discharge the jury and ,order a retrial of the accused by

another jury even in the case of a majority verdict so much

so that even in a verdict of five to four which was not till

then an effective verdict the case would have to be

submitted to the' High Court under section 307 of the

Criminal Procedure Code.

439

The High Court heard the reference and came to the

conclusion after discussing the evidence on the record that,

no other conclusion was possible for a reasonable person

except that the appellant was the assailant of Abdul Satar.

The High Court accordingly convicted the appellant of the

offence under section 326 of the Indian Penal Code and

sentenced him as above. The appellant obtained special

leave to appeal from this court on the 4th February, 1953,

and hence this appeal.

There were various circumstances brought out in the

evidence of the prosecution witnesses Which were

particularly relied upon by the defence. The prosecution

frankly admitted that it had failed to prove any motive for

the commission of the offence by the appellant. Abdul Satar

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had not stated anywhere before he gave evidence in the

Sessions Court that he had any conversation with the

appellant as to why the latter was inflicting the injuries

on him. He however stated for the first time in the

Sessions Court that he' asked the appellant as to why he was

stabbing him and the appellant replied that he was doing it

at the instance of a friend of his. Abdul Satar then stated

that he was on inimical terms with one Sulaiman and it was

at the instance of Sulaiman that the appellant inflicted the

injuries on his person. This was characterised by the

defence as a pure after-thought in order to supply a motive

for the commission of the offence by the appellant and it

was urged that if Abdul Satar was capable of inventing a

story for supplying the motive for the commission of the

offence by the appellant he -could not certainly be relied

upon even in the identification of the appellant by him.

The weapon of offence was also not found upon the person

of the appellant and in spite of a search being made for the

same was not discovered by the police either at or near the

scene of the offence. Neither Babu Adam nor Sub-Inspector

Chawan deposed to having seen the knife in the hands of the

appellant. It was only Mohamed Safi, a witness who was

dropped by the prosecution and was examined by the defence,

440

but treated as a hostile witness even by the defence, who

stated that he saw a knife in the hands of the appellant.

If Babu Adam's evidence was to be accepted Mohamed Safi was

not telling the truth and if Mohamed Safi's evidence was: to

be accepted Babu Adam was -not telling the truth. Tins

conflict of evidence was therefore, rightly commented upon

by the defence.

The identification parade also was challenged as not

proper because it was alleged that mostly ward boys were

mixed up with the appellant when the identification parade

was held. No questions were addressed in the cross-

examination of prosecution witnesses in regard to this

aspect of the case and the Additional Sessions Judge

observed to the jury that in the absence of such cross-

examination, not mulch reliance could be placed on this

criticism of the identification parade. It may be noted, in

passing that even the High observed that "the parade was not

as satisfactory as we expect parades to, be in such cases

further observed that the, only effect of that fact would be

to, put them upon guard with regard to the -evidence of

Abdul Satar and they should not proceed to act upon that

evidence unless it was corroborated.

The blood stains on the shirt and the trousers of the

;appellant were 'not observed in the first instance by

either Babu Adam or Sub-Inspector Chawan and it was only

when the second panchnama was made at about 1-30 a.m. on the

26th August, 1951,, after the appellant was brought back to

the police station from the scene of the offence that these

blood stains were noticed and were noted in the panchnama.

The existence of these blood stains was urged as

corroborative of the testimony of Abdul Satar in so far as

he stated that the appellant caused the injuries on his

person. The defence story of the police constable - having

dealt a blow on the nose of the appellant which led to, the

bleeding of the nose and the blood; stains on the shirt and

the trousers of the appellant was sought to be, negatived by

pointing out the improbability- of the police constable

having, acted in that manner within,

441

the very precincts of the police station The prosecution

theory might possibly have explained the blood stains in the

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right -arm pit, in -front of the shirt as well as the

trousers But, the blood stains on the back of the shirt

could not be easily explained. The blood on the back of the

shirt could certainly be explained by the defence theory and

that was a circumstance which was relied upon by the defence

as maring the defence version probable.

These were the circumstances which were before the jury

when they, deliberated upon the question of the criminality

of the appellant, and the only question which, we have to

consider is whether the verdict which they arrived at by a

majority of six to three was such as no reasonable body of

men could arrive at on the record of the case The proper

method of approach in the matter of, references under

section 307 of the Criminal Procedure Code was laid down by

the Privy 'council in Ramanugrah Singh v. Emperor(1), where

the Privy Council resolved the conflict ,of authorities

which was till then prevalent: in India and accepted,the

view that the High Court will only interfere with the

verdict of the jury if it finds the verdict "perverse in the

sense of being unreasonable", "manifestly wrong" or "as

against' the weight of evidence". The observations of their

Lordships of the Privy Council on the principle underlying

section 307 of the Criminal Procedure Code may be aptly

quoted here :-

"Under sub-section (1), two conditions, are required to

justify a reference. The first,, that the Judge must

disagree with the verdict of the jury, calls for no comment,

since it is obviously the foundation for any Preference.

The second, 'that the judge must be "clearly of opinion that

it is necessary for, the 'ends of justice to submit the

case" is important, and in their Lord,ships' opinion

provides a key to the 'interpretation Of the section. The

legislature no doubt, realised that the 'introduction of

trial by jury in the mofussil would be experimental, and

might lead to miscarriages of justice through jurors, in

their ignorance and inexperience,

(1) (1946) A.I.R. 1946 P. C. 151.

442

returning erroneous verdicts. Their Lordships think that

the section was intended to guard against this danger, and

not to enable the Sessions judge and the High Court to

deprive jurors, acting properly within their, powers, of the

right to determine the facts con'ferred upon them by the

Code. If the jury have reached the conclusion upon the

evidence which a reasonable body of men might reach, it is

not necessary for the ends of justice that the Sessions

Judge should refer the case to the High Court merely because

he himself would have reached a different conclusion upon

the facts, since lie is not the tribunal to determine the

facts. He must go further than that and be of opinion that

the verdict is one which no reasonable body of men could

have reached upon the evidence. The powers of the High

Court in dealing with the reference are contained in sub-

section (3). It may exercise any of the powers which it

might exercise -upon an appeal, and this includes the power

to call fresh evidence conferred by section 428. The court

must consider the whole case and give due weight to ; the

opinions of the Sessions 'Judge and jury, and then acquit or

convict the accused. In their Lordships' view, the

paramount consideration in the High Court must' be whether

the ends of justice -require that the verdict of the jury

should be set aside. In general, if the evidence is such

that it can properly support a verdict either of guilty or

not guilty, according to the view taken of it by the trial

court, and if the jury take one view of the evidence and,

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the judge thinks thatthey should have taken the other,

the view of thejury must prevail, since they, are the

judges of fact. In such a case a reference is not justified,

and it is only by accepting their view that the High Court

can give due weight to the opinion of the jury. If,

however, the High Court considers that upon the evidence no

reasonable body of men could have reached the conclusion

arrived at by, the jury, then the reference was justified

and the ends of justice require that the verdict

disregarded."

443

We are of the opinion that this is the correct method, of

approach in references under section 307 of the Criminal,,

Procedure Code. If the facts and circumstances of the case

are such that a reasonable body of men could arrive at 'the"

one conclusion or the other,- it is not competent to the

Sessions Judge or the High Court to substitute their verdict

in place of the verdict which has been given by the jury.

The jury are the sole judges of the facts and it is the

right of the accused to have the benefit of the verdict of

the jury. Even if the Sessions Judge or the I High Court

would if left to themselves have arrived at a different

verdict it is not competent to the Sessions Judge to make a

reference nor to the High Court to accept the same and

substitute their own verdict for the verdict of the jury

provided the verdict was such as could be arrived at by a

reasonable body of men on the facts and circumstances of the

case.

Having regard to the position which we have set out above

we are clearly of the I opinion that on the facts and

circumstances of the 'case before us there were enough

materials before the jury which would enable the jury to

come to one conclusion or the other in regard to 'the

criminality of the appellant. Six out of the nine, jurors

came to the conclusion that the appellant, was not guilty of

the offence with, which he was charged. Three out of the

nine jurors came to an opposite conclusion and it is

impossible in the circumstances of the case for us to

characterise the one or the other of the conclusions reached

by the members of the jury as -perverse in the sense of

being unreasonable or manifestly wrong or against the weight

of evidence. The verdict reached by the majority was

certainly a verdict which upon the evidence on record a

reasonable body of men could have reached and in our opinion

the ,reference was not competent.

The result therefore is that the appeal will be allowed,

the judgment of the High Court on, reference set aside, the

majority verdict of the jury Pronouncing the appellant -not

guilty of the offence with which he was

444

charged accepted and the appellant acquitted and discharged

and forthwith set at

Appeal allowed.

Agent for the respondent: G. H. Rajadhyaktha.