1. These are two applications for issue of certificates under Article 134(1)(c) of the Constitution of India to the effect that the cases are fit ones for appeal to the Supreme Court. The two applications are on behalf of two accused persons who were jointly tried in the Court of Session by the Sessions Judge, U. A. D. with the help of Jury. The jury returned a verdict of guilty under Section 304, Part I, read with Section 34, I. P. C. against both the accused persons. The learned Judge, however, differed with the jury as to the verdict of guilty against accused Kandura and he accordingly made a reference under Section 307 (1), Criminal P. C. to the High Court.
The learned Judge expressed his view in the following words:
'In view of the facts and circumstances stated above, I am of opinion that the verdict of the jury finding accused Kandura Sut guilty under Section 304, Part I, I. P. C. read with Section 34, I. P. C., cannot be sustained and should be reversed. I am also of opinion that the verdict of the jury with regard to accused Gedeng finding him guilty under Section 304, Part I, I.P.C. read with Section 34, I.P.C. cannot be sustained and should be modified. I would recommend that the guilty verdict of the Jury with regard to accused Kandura be set aside and that accused Kandura be acquitted of the charge of murder under Sections 302/34, I. P. C. I would further recommend that the guilty verdict of the Jury under Section 304, Part I, I. P. C. read with Section 34, I.P.C. as against accused Gedeng be modified and he be convicted of culpable homicide not amounting to murder under Section 304, Part I, I.P.C. and that their Lordships may be pleased to award him such sentence as their Lordships may deem fit to pass in the matter.'
This was Criminal Jury Reference No. 3 of 1951 of this Court. (State v. Gedeng Sut, AIR 1953 Assam 28 (A)). Gedeng Sut filed an appeal against the reference of the verdict of guilty returned by the Jury and that was Criminal Appeal No. 21 of 1952 of this Court, and the appeal and the Criminal Reference were heard together and the Division Bench of this Court consisting of the outgoing Chief Justice and myself passed two judgments, one in the Reference case and the other in the appeal. In the Reference, the Court discussed about the merits of the case and the competence of the reference and held that the evidence on record would justify the conviction of accused Kandura under Section 326, I. P. C. and of Gedeng Sut under Section 304,. Part I, I. P. C. Kandura Sut was accordingly convicted under Section 326, I. P. C. and sentenced to rigorous imprisonment for two years. Gedeng Sut was sentenced to four years rigorous imprisonment under Section 304, Part I, I. P. C. and his appeal was dismissed. As a matter of fact, it was doubtful whether an appeal would have lain on behalf of Gedeng Sut inasmuch as there-was no conviction, but he might have been heard in connection with the reference. However, the matter not being pointed at that stage, we disposed of both the appeal and the reference by two independent judgments as stated above though the two matters were heard as-analogous ones.
2. In this matter, the main contention raised on behalf of the two petitioners is that the learned Sessions Judge did not follow a correct procedure in the matter of charging the jury twice after they had once returned a comprehensive verdict. What happened is that after the jury had returned a verdict in the following words 'We have found Gedeng and Kandura guilty under Section 304, Part I, I. P. C., we have found Fedua and Saniram not guilty of the charge', the learned Judge asked the foreman, a further question,--'Have you found accused Gedeng and Kandura guilty under Section 304, Part I, I. P. C, because of different blows given by each of them or under that section read with Section 34, I. P. C.' The Foreman answered,--'We have found them guilty under Section 304, Part I, I. P. C. read with Section 34, I. P. C. and we have also held that they have exceeded the right of private defence.'
The learned Judge thereupon addressed the jury afresh on the implication of Section 34, I. P. C. and they were told that in a case of right of private defence of body, the offence committed while exceeding the said right cannot be said to have been committed in furtherance of the common intention of all. The Jury were asked to retire and to reconsider their verdict and after a lapse of seventeen minutes, the jury returned a verdict of guilty against both Gedeng and Kandura under Section 304, Part I, I. P. C. read with Section 34, I. P. C. and when asked by the Judge as to what they thought of the plea of the right of private defence of Gedeng's body, the jury replied that these two accused had no right of private defence of their bodies and that they assaulted the deceased on grave and sudden provocation and they further said that the previous statement as to the right of private defence was wrong. The learned Judge was of the opinion that Section 34, I. P. C. had no application to the facts of this case and no case was made' out against Kandura whereas Gedeng could have been convicted under Section 304, I. P. C. Part I. In connection with the reference under Section 307, Criminal P. C., this Court went into the facts of the case, considered the evidence and convicted the accused Gedeng and Kandura under Sections 304 and 326, I. P. C., respectively as already stated.
3. Mr. Barua who appears on behalf of both the petitioners contends that while considering the reference the Court failed to take into consideration the illegality in the procedure namely, as to the fact that the jury were charged twice by the learned Sessions Judge in contravention of the procedure laid down by the Criminal Procedure Code and in support of his contention, he relied on the decision of the Madras High Court reported in--'Sundaram Aiyar v. Emperor', AIR 1931 Mad 775 (B).
This decision was based on--'Emperor v. Kondiba Dhondiba Powar', 28 Bom 412 (C). Even in that case, though the procedure followed was considered to be irregular the conviction was not interfered with as in the opinion of the learned Judges, the irregularity in procedure did not lead to a miscarriage of justice. We have no reason to question the legality of the principle enunciated in the cases relied on by Mr. Barua but as a matter of fact, in the opinion of the Division Bench which heard the reference, over and above this so-called defect not being pointed out, the conviction of the accused persons was held to be justified on the evidence on record. Even assuming that the procedure followed by the Sessions Judge was wrong, even then this Court could have gone into the evidence and come to its own finding. Mr. Barua contended that this Court did not go into the evidence for the purpose of ascertaining the truth of the prosecution version, but rejected the reference on the view that the jury's verdict was not perverse. This contention is not countenanced by the following lines which I quote from the judgment of the Division Bench:
'The evidence of P. W. 1 shows that there was a scuffle between Gedeng & the deceased in the earlier part of the incident--scuffle in which Gedeng received a beating. Gedeng retired, a sorry but an angry man, and brought four other persons with him. This is a very natural sequence, and unless this sequence can be regarded as an unreasonable sequence, we do not think that the learned Sessions Judge was right in merely pointing out certain omissions here and certain discrepancies there and inviting us to hold that the Jury's verdict was so unreasonable that no body of reasonable men could have come to such a verdict. The evidence of P. Ws. 2, 3, and 4 is substantially the same as that of P. W. 1, and we can find nothing in their evidence to warrant the conclusion that the verdict of the Jury was unreasonable.'
Lower down in the same judgment, we find dealing with the case of Kandura as follows:
'As the learned Judge himself points out, if the case were considered without the question of the applicability of Section 34, I. P. C., the question of the individual liability of Kandura would probably arise. We think the question clearly arose, for, the evidence of the prosecution establishes beyond all reasonable doubt that Kandura struck the deceased with a dao, a sharp cutting instrument. We accordingly convict the accused Kandura under Section 326, I. P. C. and sentence him to undergo R. I. for two years.'
It is therefore, clear that the Division Bench considered the case of the individual accused in the light of the evidence on record and it is not that the Court refused to interfere solely on the ground that the Jury's verdict was not perverse.
4. The next point for consideration is whether the case comes under Section 134 (1) (c) of the Constitution of India by virtue of any exceptional or special circumstances involved in this case. In--'Chowthmal Sharma v. Hiralal Patni', AIR 1951 Assam 38 (D) the view of this Court as to the issue of certificate under Section 134 (1) (c) has been clearly elucidated and in the words of my learned brother Ram Labhaya J.:
'the test or the standard which would guide the High Courts, in determining whether a certificate under Article 134(1) Clause (c) should be granted or not ought to be the same which the Supreme Court may apply in exercising, its discretion when asked to grant special leave.'
My learned brother relied on the decision of the Supreme Court reported in--'Pritam Singh v. The State', AIR 1950 SC 169 (E) and quoted the following lines from the judgment of Fazl Ali J.:
'Generally speaking, Supreme Court will not grant special leave to appeal in criminal cases, unless it is shown that exceptional and special circumstances exist, that substantial and grave injustice has been done and that the case in question presents features of sufficient gravity to warrant a review of the decision appealed against.'
5. Laying down above tests, we do not find any circumstances justifying issue of certificate for appeal to the Supreme Court on behalf of any of the accused petitioners. The petitions are therefore, dismissed and the same order will cover both the petitions.
Ram Labhaya, Ag. C.J.
6. I agree.