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In Re: Shambhulal Jivandas - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Appeal No. 27 of 1998
Judge
Reported in(1908)10BOMLR565
AppellantIn Re: Shambhulal Jivandas
Excerpt:
criminal procedure code (act v of 1809), section 423-charge to jury-misdirection in the charge-heads of charge.;the high court is not authorised by section 423 of the criminal procedure code, to alter or reverse the verdict of the jury unless it is of opinion that that verdict is erroneous owing to a misdirection by the judge. if it comes to that opinion, then it has the power to reverse the verdict; but that power ought not to be lightly exercised. it is manifestly the intention of the legislature that the power of interference conferred on the high court should be exercised on occasions.;the expression 'heads of charge' in section 367 of the criminal procedure code, must be construed reasonably, and must be held to include such statement on the part of the sessions judge as will etiable..........than is this case.3. to ascertain whether there was misdirection to the jury, we must look to the judge's charge, of which the heads are recorded under section 367, criminal procedure code. it is true that these are only the heads of the charge, not a verbatim reproduction of what was said; but this consideration does not advance matters much here. for, first, as was ruled in kasim sheikh's (1875) 23 w.r. 32 case the expression 'heads of the charge' must be construed reasonably, and must be held to include such statement on the part of the sessions judge as will enable the appellate court to decide whether the evidence has been properly laid before the jury or whether there has been any misdirection in the charge. and. secondly, the charge is not objected to merely on the ground of.....
Judgment:

Batchelor, J.

1. This is an appeal by the Government of Bombay against the acquittal of Shambhulal Jivandas, who with four others, was tried by the Assistant Sessions Judge of Thana with a jury. The charges against the accused Shambhu were that he had on 7th May 1906 caused to be forged a sale deed in the names of three men Gangia, Balia and Gopalia, sons of Zipria ; that he had caused the accused Nos. 3 and 4 falsely to sign the said deed as attesting witnesses; and that on 24th May he caused the false sale deed to be registered by the Sub-Registrar of Dahanu by means of personation effected through his mehta, the fifth accused. The jury acquitted all the accused, except the fifth accused, whom they found guilty, under Section 82 (c) of the Registration Act read with Section 109 of the Indian Penal Code, of abetment of false personation in the proceedings before the Sub-Registrar. The Sessions Judge, accepting the verdict of the jury, convicted the fifth accused of the offence stated and acquitted the other accused.

2. It is not suggested that the jury misunderstood any point of law, and therefore under Section 423, Criminal Procedure Code, we are not authorised to alter or reverse the verdict of the jury unless we are of opinion that that verdict is erroneous owing to a misdirection by the judge. If we are of that opinion, then admittedly we have the power to reverse the verdict. But I fully agree with the learned Counsel for the respondent that that is a power which ought not to be lightly exercised, and for my own part I am most reluctant to disturb a unanimous verdict of acquittal. On the other hand, it was manifestly the intention of the legislature that the power of interference conferred on us should be exercised on occasions, and I can hardly imagine a stronger or clearer case for its exercise than is this case.

3. To ascertain whether there was misdirection to the jury, we must look to the Judge's charge, of which the heads are recorded under Section 367, Criminal Procedure Code. It is true that these are only the heads of the charge, not a verbatim reproduction of what was said; but this consideration does not advance matters much here. For, first, as was ruled in Kasim Sheikh's (1875) 23 W.R. 32 case the expression 'heads of the charge' must be construed reasonably, and must be held to include such statement on the part of the Sessions Judge as will enable the appellate Court to decide whether the evidence has been properly laid before the jury or whether there has been any misdirection in the charge. And. secondly, the charge is not objected to merely on the ground of brevity. While therefore, I am quite prepared to believe that the points noticed in the written record of the change were expanded and developed in the oral statement, I cannot concede that faults apparent from the recorded heads of the charge had in fact no existence. And it must be remembered that the written 'heads' are in fact the only record we have of the Judge's address, and we must per force base our decision upon that record.

4. Now I do not propose to subject the charge to any exhaustive analysis ; for none is needed. On its face the charge is throughout disjointed, incoherent, even ungrammatical. Though the Judge himself says that the jury were probably puzzled by the long addresses made to them by the respective pleaders his charge, so far from tending to enlightenment is confused and confusing. A few minor points, selected apparently at haphazard, are noticed in a superficial and perfunctory manner, the jury being left without any practical guidance even upon these matters. But of the real merits and essential features of the case-what the prosecution alleged against respondent-what his defence was-how the evidence bore in favour of one side or the other -as to all this the charge is confused and defective. Many passages defy any reasonable construction, and of some others it was found impossible to say whether they were statements which the Judge was making or statements which he was combating. The learned Government Pleader has argued that the jury would have been in a better position to come at a true verdict, if there had been no summing up at all, and I must regretfully express my opinion that the argument is fully established. I have said that I will not criticise the charge in detail. But, in order that the above strictures may not lack illustration, I will notice the sentence with which the charge opens. That sentence is: 'Practically the prosecution case is mainly and strongly directed against accused 5.' Now that is not so ; and to tell the jury that it was so was to begin by seriously misleading them and misdirecting them. The prosecution case was that accused 5 was the mere tool or instrument of his master, the present respondent; and it was against the present respondent that the case was mainly and strongly directed. For the whole case, stated shortly, was that it was he who had procured the fabrication and registration of this sale-deed for his own purposes, and had used the other accused as instruments in carrying out his fraud-yet the charge contains but two or three allusions to the respondent who is treated rather as some minor actor than as the central figure in the story alleged on behalf of the Crown. No distinction is drawn between the separate and independent charges relating to the events of the 7th May and those relating to the events of the 24th May, though it was of the first importance to emphasise this distinction.

5. But I need not multiply words. I have said enough to show that this charge is not such as an appellate Court can accept, and that it contains many gross misdirections, as the word 'misdirection' has been construed in Taja Pramanic v. Queen-Empress ILR (1898) Cal, 711 and Queen-Empress v. Balya Somya ILR (1890) 15 Bom. 369, which authorities we follow here.

6. That being so, we were compelled to open up the whole case de novo and to enter upon a consideration of the evidence, in order that we might see whether the verdict was erroneous owing to the misdirections by the Judge. This question must, I think, be answered in the affirmative. It will suffice to notice the main grounds upon which this conclusion is based. Iwaive the charges as to the preparation of the document on the 7th May: it is not necessary to press them, and there are certain technical difficulties of proof, of which the respondent is entitled to the benefit. But the charge of abetment of false personation (Section 82 (c) & (d), Registration Act) before the Sub-Registrar on the 24th May appears to me to be established against the respondent upon overwhelming evidence.

7. It is conclusively proved-and the fact was not contested before us-that the finger prints of the alleged executants of the deed-namely the three sons of Zipria-are not the marks of these men, and are the marks of witnessess Exs. 17, 18 and 19, as these witnesses admit. No doubt these witnesses are accomplices, but here is a material point on which they are completely corroborated by unimpeachable evidence. Nor does the matter rest there, for the corroboration extends even to the detail as to which witness personated which executant. Why, then, should these witnesses be disbelieved when they say that their personation was at the respondent's instigation I can see no reason. But I can see many reasons why they should be believed. They are corroborated aliunde; the respondent is their landlord or sawkar: who would be in a position to compel them to this fraud ; there is no suggestion that they participated in the crime to advance any interest of their own.; the only interest to be advanced was that of the respondent in whose favour the deed purported to be executed; and we are shown no reason why these poor Kolis should conspire against the respondent, a well-to-do Bania. These and similar considerations seem to me to supply complete proof of the respondent's guilt, and the verdict of the jury is in the teeth of all the evidence. In this connection it is significant that the jury convicted the fifth accused of false personation before the Sub-Registrar. The Judge, accepting the verdict, has sentenced this accused to two years' simple imprisonment, and in so doing has observed that he takes into consideration the fact that this accused ' was only a servant and did not act independently.' What this means I cannot understand unless it means, what isobviously the fact, that the fifth accused's fraud was perpetrated fry order of his master, the respondent. It would seem, therefore, that the Judge himself- and presumably the jury also-would have reached the same conclusion as we have reached if they had followed out their own convictions.

8. As to the points urged by Mr. Branson as tending to support the verdict, I have examined them carefully, but do not find that there is anything of sufficient weight to shake the conclusion that the verdict was such as reasonable men could not come to on this evidence. There is adequate motive in the case of accused 3 and 4 to explain how they came to lend their assistance to the respondent. That the deed was left with the Registrar from 24th May to 7th July is not, I think, a circumstance that should excite surprise on the theory for the prosecution, and it is by no means clear that the notice which was issued to Gangia, and which ultimately led to the discovery of the fraud, was a matter which could have been anticipated. As to the stories about the extortion of thelease and the confinementof witnesses 17, 18 and 19 in Kathiawar, these accounts are, in my opinion, established beyond reasonable doubt, nor can I concede that they suffer from any natural improbability having regard to the pressure which a man of respondent's position and influence would be able to exercise over the witnesses in the proved circumstances ofthis case.

9. To sum up : we have a charge which for all real purposes is as bad as no charge at all, and we have an erroneous verdict plainly opposed to the weight of the evidence. This being so, and regard being had to all the circumstances of this case, I cannot resist the inference that the verdict was erroneous owing to the misdirection of the Judge. That verdict may, therefore, under Section 423, Criminal Procedure Code, and must, for the reasons stated, be reversed and set aside. This step being taken, there is no restriction on our powers to deal with the case in any of the ways provided in the section-see Taju Pramanik v. Queen-Empress ILR (1898) Cal 711-and it seems to me clear that we ought now to act upon our own conviction and not to remand for retrial a person of whose guilt We are fully satisfied upon the evidence recorded at his trial.

10. There for under Section 423, Criminal Procedure Code, we reverse the order of acquittal, and convivict the respondent Shambhulal Jivandas under Section 82 (c) and (d) of the Registration Act. The offence is serious in itself and in this case is stamped with special turpitude seeing that it was a gross case of a rich man's attempt to oppress and defraud the poor. We sentence Shambhulal to three years' rigorous imprisonment and a fine of Rs. 500 or, in default of paymeiit of the fine, to a further term of one year's rigorous imprisonment.

Heaton, J.

11. The verdict of the jury in this case is to me explicable in only one of two ways : either it is deliberately perverse; or it is due to a charge from the Judge so unintelligent or perfunctory that the jury were never able to realise the true merits of the case. The latter is, I regret to think, the true explanation. It is going very far to arrive at such a conclusion, when we have not before us the verbatim report of the charge, and have no more than a precis. But that precis is signed by the Judge and placed upon the record as sufficient to fulfil the requirements of the law, as to the heads of the charge to the jury. There are two aspects of this case which are clearly pre-eminent: the first is that the chief actor in the crime, as alleged and sought to be proved by the prosecution, was accused No. 1. The second is, that whether the deed dated 7th May, was or was not forged, its registration was subsequently secured by personation alleged to be induced by accused No. 1. The first of these pre-eminent aspects of the case is shown by the heads of the charge to have been actually obscured. There is not an indication that the second was clearly brought to the notice of the jury; or that they were shown that insufficiency in the evidence as to the actual making of the document, need not be a reason for finding that accused No. 1 was not guilty in respect of the registration by personation.

12. I fully share my learned colleague's reluctance to interfere with an acquittal unanimously arrived at by a jury. But I also fully agree with his conclusions that in rare cases interference is proper, and that this is one of those rare occasions. The case is one which we can and should now finally dispose of and I concur in the order proposed.


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