G. Mehrotra, J.
1. This is an appeal against an order of the Sessions Judge, Lower Assam Districts, dated 15-3-57, convicting the appellant under Section 436. I. P. Code, and sentencing him to three years' rigorous imprisonment. The appellant was tried by the Sessions Judge with the aid of a jury, and although in his charge to the jury the Sessions Judge indicated that he was not prepared to accept the evidence against the appellant and that the case was not established against him, yet he did not think it desirable to differ with the verdict of the jury and refer the case to this Court. He, therefore, agreed with the verdict of the jury and convicted the appellant.
2. The prosecution case is that on 5-1-54, the appellant committed mischief by setting fire to a certain room which belonged to the complainant Rupram Das but was in the use of the accused for the purpose of his homeopathic pharmacy. The appellant had taken the room on rent from the complaint. The room formed Part of a two-roomed house owned by the complainant; the western room was in the occupation of the appellant while the eastern room was rented out to one Haripada Gope. Haripada and his brother, Hiralal, used to run a tea stall in the said room. In the same compound, the complainant used to live in a separate house.
In the said compound, at a corner, there was a plot at the junction of Boloram Jhukan Road and the Assam Trunk Road. The residential house of the complainant faces towards Boloram Phukan Road, while the rented house faces towards the Assam Trunk Road. The room had been taken by the appellant on a monthly rent of Rs. 30/-. The appellant is a refugee from East Pakistan and had taken some loan from the Rehabilitation Finance Administration. The complainant's case was that as the appellant was in arrears of rent, he demanded the rents from the appellant on the evening of 4-1-54, whereupon there was some altercation, and at about 2. A. M. that very night, while the complainant was asleep in his own house, his tenant, Haripada Gope, roused him from sleep and told him that the accused's pharmacy was on fire.
The complainant came out and found that flames were coming out and spreading over the whole building. Many people of the neighbourhood, assembled there, including one Bisweswar Sarma (P. W. 5). The chowkidar of the Ford Company was called, and the fire was extinguished. One rickshaw-puller called Janki Singh then broke open the door of the pharmacy and it was founds that there was no furniture in the room. Next day, at about 10 A. M., first information report was lodged by the complainant at the thana. That a fire broke out on the date in question in the pharmacy of the appellant, is not disputed. The contention of the prosecution was that due to the fact that the appellant had been in arrears of rent and there had been an altercation the evening before between the appellant and the complainant, the appellant removed all the furniture, and with a view to injure the property of the complainant, he set fire to his own pharmacy.
It was also suggested by the prosecution that the appellant had taken Rs. 5500/- on loan from the Rehabilitation Department, one of the conditions whereof being that his stock-in-trade should be insured against fire; and the appellant had, therefore, got his pharmacy insured accordingly. As the appellant had no business, there was no likelihood of his being able to pay up the Government loan unless he could get money from the Insurance Company. He, therefore, purposely set fire to the pharmacy to get money from the Insurance Company. The prosecution rests entirely on circumstantial evidence. There is- no eye-witness to the occurrence, as is natural in such cases.
The prosecution has produced one Subodh Chandra Sharma (P. W. 10) who seated that at about 11 P.M. while he was returning from the Music Conference, he saw a truck loaded with two almirahs in front of the appellant's pharmacy, and also two persons carrying a table from the pharmacy to the truck. The other evidence relied upon by the prosecution is that of Upendra Nath Sarma (P. W. 7) who stated that at about 1 A.M. in the night, he along with one Bandhuram Kalita, happened to pass by that way and saw smoke coming out of the pharmacy. The appellant was then seen locking the door of his pharmacy. Soon after the appellant left the place on a bicycle.
The Judge in his charge has pointed out to
the jury the circumstances which belie the complainant's statement that there was any altercation
in the previous evening. The inmates of the ad
joining room, Haripada Gope and his brother Hiralal, did not see any altercation, as alleged. As
regards the statement of Subodh Sarma (P. W. 10),
the Sessions Judge in his charge pointed out to the
jury the circumstances which went to belie his
testimony. The pharmacy of the appellant did not
fall directly in the way of the witness when he
happened to be going back from the Music Conference to his home, and has been pointed out by the
Sessions Judge in his charge to the jury, it was
unlikely that in a wintry night, the witness, with
out any reason, would take the longer route to
reach his home, and not the direct and the shorter
Upendranath Sarma (P. W. 7) states that he saw the appellant in the night at about 1 A. M. locking the door of the pharmacy. He also states that he was returning home from the Music Conference, and reaching the crossing where the present Machkhowa station of the Assam State Transport is situate, he first turned to the left and thereafter again turning to the right, took the Assam Trunk Road. According to his own statement, without proceeding through the Assam Trunk Road, he could have proceeded direct and reached his house after crossing the railway line. He, however, states that this would have been a longer route and that there was another route to his house by a lane which runs by the side of the Ford Company.
The Judge pointed out to the jury that the shortest route for the witness would have been to cross the railway line and reach direct his house, and that it was not likely for him to have taken the route which he stated he had taken and thus saw the accused locking the door of the pharmacy. Both Upendra Sarma (P. W. 7) and Subodh Sarma (P. W. 10) are chance witnesses. The suggestion of the defence was that both these witnesses were procured by one Kalicharan Moherer who is a pleader's clerk. As has been pointed out by the Sessions Judge in his charge to the Jury, this suggestion is borne out by the fact that the investigating officer (P.W. 11) admitted that Kalicharan took a good deal of interest in the case and was advising the complainant.
The investigating officer has further admitted that he examined prosecution witnesses Bandhuram, Upendra Sarma and Subodh Sarma at the house of Kalicharan on 6-1-54, and that on 7-1-54, he found some other witnesses ready at the house of Kalicharan has not been examined by the prosecution, and none of the witnesses--Subodh and Upendra Sarma--reported about this incident to anybody else. In the opinion of the Sessions Judge, therefore, the case was not established against the appellant. It is, however, correct that even though the Sessions Judge may not have been inclined to hold the accused guilty, and in the charge to the jury he indicated that the accused was entitled to acquittal in his opinion, still he could accept the verdict of the jury and need not have referred the case to the High Court.
Under Section 307 of the Criminal Procedure Code, if the Judge disagrees with the verdict of the jury and further thinks it necessary for the ends of justice to submit the case to the High Court, he may refer the case to this Court. The fact that he disagrees with the verdict of the jury, is, by itself, not sufficient for referring the case to this Court unless he further finds that it is necessary for the ends of justice to do so. He may, therefore, have accepted the verdict of the jury, although he himself was not inclined to agree with the jury and convict the appellant. It is, therefore, necessary to see whether there was any misdirection to the jury, or the trial was otherwise vitiated, in order to enable this Court to interfere on appeal.
3. It is contended by the counsel for the appellant that the trial in this case was illegal. During the course of the trial, an application was made by the counsel for the defence complaining against the misconduct of one of the jurors, Sri Hangshadhar Das. In the application, it was stated that the said juror demanded money for himself and for persuading his other colleague jurors, numbering four, and threatened that if the money was not paid, the appellant should expect an adverse verdict against him.
On that application, the juror concerned was examined in the chamber by the Sessions Judge in the presence of the Public Prosecutor and the defence advocate. The juror admitted that he had met Mr. Banerjee the counsel for the defence and had talked to him. After making that enquiry, the Sessions Judge found against the juror and, by his order dated 15-3-57, discharged the juror Hangshadhar Das and directed that the case should proceed with the remaining jurors. It was urged by the counsel for the appellant that the Sessions Judge had inherent jurisdiction to discharge the juror on finding that he had committed misconduct.
After the juror had been discharged on the ground of misconduct, the trial could not proceed with the remaining jurors. The jury should have been discharged and a fresh jury elected. The trial was thus vitiated. There appears to be considerable force in this contention. It is not necessary to refer to a large number of authorities wherein it has been held that the Court had inherent jurisdiction to discharge a juror on the finding that he has committed misconduct. Reliance has been placed by the counsel for the State on Section 282(1), Cr. P. Code, which runs as follows:
'282. (1). If, in the course of a trial by jury at any time before the return of the verdict,--
(a) any juror, for any sufficient cause, is prevented from attending the trial on any day, or
(b) if any juror absents himself and it is not practicable to enforce his attendance, or
(c) if it appears that any juror is unable to understand the language in which the evidence is given, or, when such evidence is interpreted, the language in which it is interpreted, the Court, in any case falling under Clause (a), may, either adjourn the trial or discharge the juror, and in any case falling under Clause (b) or Clause (c), shall discharge the juror; and in any case where any juror is so discharged, the jury shall be deemed to be reconstituted with the remaining furors as if the jury had consisted of such persons only from the commencement of the trial, and the trial shall proceed before the jury so reconstituted; and notwithstanding anything contained elsewhere in this Code, such trial shall not be, invalid by reason only of the fact that the number of persons originally constituting the jury has been reduced.'
It is contended that Clause (a) of Sub-section (1) of Section 282
is attracted in the present case, and as the juror
was prevented from attending the trial on account
of being discharged, the jury should be deemed
to have been reconstituted with the remaining
jurors as if the jury had consisted of such persons
only from the commencement of the trial, and the
trial should proceed before the jury so reconstituted. In my opinion, Section 282(1) does not apply to
the present case. Clause (a) of Sub-section (1) only applies to the cases where a juror continues as a
juror and is unable to attend the trial on the date
of trial. It does not apply to a case where the
jurer has been discharged on account of misconduct.
All the three clauses of Sub-section (1) of Section 282, Cr. P. Code, contemplate cases where the juror is either unable to attend or he is unable to understand the proceedings; but do not contemplate a case of discharge of a juror on account of misconduct. It is also clear from a perusal of Section 282 that in cases where the juror is absent or unable to understand the proceedings, the jury will be deemed to be reconstituted for the purposes of the trial, with the remaining jurors. This also indicates that but for the special circumstances enumerated in Section 282(1), in all other cases where the furor is discharged, the jury stands discharged, and a fresh jury is to be elected. In my opinion, therefore, the trial was illegal in the present case inasmuch as after the discharge of the juror on account of misconduct, a fresh jury was not elected.
The question, however, to be considered is: whether in these circumstances, the case should be sent back for retrial, or I should myself look into the evidence and dispose of the matter. Ordinarily, when a trial is held to be illegal, the proper course would be to send back the case for retrial. In the present case, from the trend of the charge to the jury, it is clear that Sessions Judge was not inclined to agree with the verdict of the jury, and I have myself examined the evidence and the circumstances pointed out by the Judge and, in my opinion, the case against the appellant, on the evidence on record, is very doubtful.
Under the present law, the retrial will be, with
out the aid of a jury, by the Judge alone. In this
view of the matter also, no useful purpose will be
served by sending the case back for retrial. It
should also be pointed out that the accused was
once discharged by the Magistrate and, on revision,
the case was directed to be committed to the
Court of Session, with the result that the accused
has been sufficiently harassed in the matter. Having regard to all these circumstances, I do not
think it to be a fit case for retrial. I accordingly
allow this appeal, set aside the conviction of the
appellant and the sentences passed against him.