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Governmment of Bombay Vs. Inchya Fernandez - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCrown Side Appeal No. 5 of 1944
Judge
Reported inAIR1945Bom277; (1945)47BOMLR363
AppellantGovernmment of Bombay
Respondentinchya Fernandez
DispositionAppeal dismissed
Excerpt:
criminal procedure code (act v of 1898), sections 411a and 307 - high) court-sessions trial-unanimous verdict of jury-order of judge based on verdict appeal from order-whether appeal court can go into evidence.;the general considerations on which a high court has to act in a case under section 411 a of the criminal procedure code, 1898, are practically the same as those under section 307 of the code.;where the high court has power, under section 307 of the criminal procedure code, 1898, to go into facts in trials by jury in the mofussil, it is the settled practice to give due weight to the verdict of the jury and to limit its interference to cases where the verdict appears to be manifestly wrong or unreasonable.;the above practice should be followed with greater reason in the case of.....divatia, j.1. this an appeal by the government of the province of bombay against the order of chagla j. acquitting the two accused on the unanimous verdict of not guilty by the jury. the charge against the accused was that on august 26, 1943, they committed the murder of one mahadeo khotu and aided and abetted each other in the commission of the said offence. the prosecution relied on the evidence of one eye-witness shankar and of three other persons to whom the deceased was alleged to have said that accused no. 1 had stabbed him. there was also the evidence of one santan to whom, it was alleged, accused no. 1 had confessed having stabbed the deceased on the night of the murder. the prosecution also relied on certain circumstances, viz. human blood stains having been found on the clothes.....
Judgment:

Divatia, J.

1. This an appeal by the Government of the Province of Bombay against the order of Chagla J. acquitting the two accused on the unanimous verdict of not guilty by the jury. The charge against the accused was that on August 26, 1943, they committed the murder of one Mahadeo Khotu and aided and abetted each other in the commission of the said offence. The prosecution relied on the evidence of one eye-witness Shankar and of three other persons to whom the deceased was alleged to have said that accused No. 1 had stabbed him. There was also the evidence of one Santan to whom, it was alleged, accused No. 1 had confessed having stabbed the deceased on the night of the murder. The prosecution also relied on certain circumstances, viz. human blood stains having been found on the clothes of the two accused, the knife with which the crime was alleged to have been committed being found by the police on account of a statement alleged to have been made by accused No. 1, and a pair of shoes alleged to belong to accused No. 2 being found near the scene of offence on account of a statement alleged to have been made by him to the Police.

2. The learned Judge in his charge to the jury summed up the evidence and pointed out the important discrepancies in the depositions of witnesses. The jury returned a unanimous verdict of not guilty, and the learned Judge, being bound by that verdict, acquitted the two accused. He, however, gave a certificate that it was a fit case for appeal on an application made by the Government. The appeal having been thereafter admitted, it now comes for final hearing.

3. The prosecution does not allege that there has been misdirection or non-direction by the learned Judge in his charge. The point pressed is that the evidence led by the prosecution ought to have been believed by the jury and a verdict of guilty ought to have been returned thereon.

4. Mr. Daphtary on behalf of the prosecution has urged that this Court is not only entitled but it is bound to re-appreciate the evidence ignoring the unanimous verdict of the jury. As this is the first case under the new Section 411A of the Criminal Procedure Code, 1898, in which the Court is asked to re-appreciate the evidence when the jury has returned a unanimous verdict of not guilty, it is necessary to consider the principle on which the Court has to act in approaching the evidence. If such a case as this had come by way of appeal from the mofussil, it is clear that this Court would have the power to hear the appeal on a matter of law only under Section 418, Sub-section (1), of the Criminal Procedure Code, and to reverse the verdict under Section 423, Sub-section (2), only if there was misdirection in the charge or misunderstanding by the jury of the law laid down by the Judge. But strangely enough, the Indian Legislature has thought it fit recently to endow the High Courts with larger powers of interference with the verdicts of juries in their own sessions trials than with the verdicts of juries in their subordinate Courts. The new Section 411A empowers the High Courts to hear appeals even against orders of acquittals on matters of fact as well as of law notwithstanding anything contained in Section 418 or Section 423(2) of the Criminal Procedure Code or in the Letters Patent. What reasons led the Legislature to give such wider power over the verdicts of High Court juries than those of mofussil juries it is difficult to comprehend. But it is clear that wide powers of interference are given in the case of all orders ranging from orders of conviction based on divided verdicts to those of acquittal based on unanimous verdicts. But although the power of interference given is very wide, it does not, in my opinion, necessarily follow that this Court is bound to exercise it indiscriminately in every case. Mr. Daphtary has urged that we have got to reappreciate the evidence and set aside the order of acquittal if we believe the witnesses whom the jury has disbelieved and without taking into consideration the fact that the witnesses did not appear to the jury as reliable. In support of his contention he has relied on certain observations made by Chagla J. in Gmpat Jivaji v. Emperor (1944) Criminal Appeal No.7 of 1944, to which my two learned brothers were parties. That was an appeal from an order of conviction made by Macklin J. agreeing with the majority verdict of the jury. With regard to the effect of the new legislation Chagla J. observed :

The jury in the Bombay High Court has been placed in a worse position than that of the jury in the mofussil. No sanctity is attached to their verdict ; and speaking for myself, I feel that the trial by a jury in the High Court under the law as it exists today has been reduced to a mockery.

5. In discussing the power of this Court under the new section it was observed by the learned Judge :

If we are a Court of Appeal on facts, then we have to consider not whether the verdict of the jury was unreasonable or perverse or whether on the evidence led before the Court in our opinion the verdict was justified but we must approach the case as we would approach a conviction by a Magistrate when he gives an appealable sentence or in the case of a conviction by a Judge in the mofussil tried by assessors.

6. I am not sure whether the learned Judge in making those remarks intended to express a definite opinion that no weight at all should be attached by the Appeal Court to the verdict of the jury even though it be unanimous. He probably wanted to emphasise the wide nature of the power father than to say that no limit should be placed for its exercise. Nor, in my opinion, was it necessary on the facts of that case and the view which the Court took on the evidence to lay down any general rule governing all cases. It was held that the circumstances proved by the only important witness in the case were not incompatible with the innocence of the accused and that therefore the case against the accused was not proved with that certainty which was necessary to justify a verdict of guilty. On that view it was held that the conviction could not be sustained. Where, however, a verdict is based mostly on appreciation of oral evidence as in the present case, the position would be different and the appellate Court should, in my opinion, be slow to interfere when the jury has unanimously disbelieved the witnesses whose testimony is not beyond criticism.

7. As regards the analogy of an appeal against conviction by a Sessions Judge acting with assessors, we have a recent decision of their Lordships of the Privy Council in Sheo Swarup v. The King Emperor , where a distinction is drawn between' the power possessed by the Court and the exercise of that power on well recognised principles. That was a case where the Sessions Judge acting with assessors acquitted the accused and the High Court had reversed that decision and convicted them on appeal. Their Lordships referred to the diversity of opinion of the High Courts as to whether the High Court had power to reverse an order of acquittal on a matter of fact except in cases in which the Court had obstinately blundered and had in some way so conducted or misconducted itself as to produce a glaring miscarriage of justice. In setting at rest this difference of opinion their Lordships observed (p. 404) :

Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1.) the views of the trial judge as to the credibility of the witnesses ; (2.) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3.) the right of the accused to the benefit of any doubt ; (4.) the slowness of an appellate Court in disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses.

8. If that is the correct method of approach in an appeal against the order of a Sessions Judge acting with assessors, it should, in my opinion, be applied with greater reason to an appeal under Section 411A against an order of acquittal based on the verdict of the jury the members of which are constituted as judges on the credibility of witnesses and whose finding of fact is given in the form of a verdict which if unanimous is still binding on the trial Judge.

9. There are three other sections in the Criminal Procedure Code which give the High Court the power to go into facts even in a case tried by a jury, viz. Section 307, where a Judge disagreeing with the jury makes a reference to the High Court, Section 374 where there is an order of sentence of death and the case comes up for confirmation to the High Court and Section 449 which gives a right of appeal on fact as well as law in cases falling under ch. 33 of the Code. In my opinion, the provisions of Section 307 afford a useful analogy to those of the new Section 411A. Section 307 empowers the Court to consider the entire evidence and to exercise any of the powers which it may exercise on an appeal under Section 423. Those powers include the power of reversal of the findings made by the trial Court on evidence. So also under section 411A an appeal lies on a matter of fact as well as on a matter of law. Section 307 enables the Judge, who disagrees with the verdict of the jury, to submit the case if it is necessary for the ends of justice. Section 411A provides for a certificate of the trying Judge that it is a fit case for an appeal. It is true that the words 'after giving due weight to the opinions of the Sessions Judge and the jury' in Section 307 do not occur in Section 411A. But 'the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge', which is an important consideration and to which proper weight is to be attached as observed in Sheo Swarup v. The King Emperor necessarily implies that due weight must be given to the opinion of those who were judges of fact at the trial. In my opinion, therefore, the general considerations on which the appellate Court has to act under Section 411A are practically the same as those under Section 307. Our High Court has consistently held that it should interfere in a case under Section 307 only when the verdict of the jury is manifestly wrong or unreasonable. As early as 1875 in Reg. v. Khanderav Bajirav I.L.R (1875) Bom. 10 this Court laid down the principle on which it would interfere in such a reference under Section 263 of the then Code of Criminal Procedure corresponding to Section 307 of the present Code. Section 263, as quoted in the judgment, was as follows:

The High Court shall deal with the case as submitted as it would deal with an appeal, but it may acquit or convict the accused person on the facts, as well as law, without reference to the particular charges as to which the Court of Session may have disagreed with the verdict, and if it convict him, shall pass such sentence as might have been passed by the Court of Session.

10. It will appear that the powers under this section were somewhat wider than those under Section 307, and still, after pointing out the difference between the Indian and the English law, it was observed (p. 13) :

Notwithstanding this difference, however, and the more onerous duties devolving in consequence on the High Courts in India, we still desire to be guided, as far as may be, by the analogies of the English law. It is a well recognised principle that the Courts in England will not set aside the verdict of a jury, unless it be perverse and patently wrong, or may have been induced by an error of the Judge. We adhere generally to this principle, notwithstanding our large discretionary powers, first, on the constitutional ground of taking as little as possible out of the hands to which it has been primarily assigned by the legislature, and secondly, because any undue interference may tend to diminish the sense of responsibility which it is desirable that a jury should cherish.

11. I have quoted this passage particularly because it was contended before us that although Section 3 of the Criminal Appeal Act (1907) of England relating to appeals against the order of conviction has been reproduced verbatim in the new Section 411A of. the Criminal Procedure Code, Section 4 of the English Act which restricts the power of interference to cases of unreasonable verdicts and miscarriage of justice has not been incorporated in our Code. It is urged that it is therefore a reasonable inference that the Legislature intended that the power of the Appeal Court under Section 411A was to be unfettered and was to be exercised irrespective of the nature of the jury's verdict. In my opinion no such inference can be drawn. The reason for not inserting the provisions of Section 4 of the English Act in our Code probably is that the settled practice of our Courts to act on the principles laid down in Reg. v. Khanderav Bajirao and a number of other cases was well known to the legislature and it was, therefore, not considered necessary to borrow the provisions of that section. The same general principle as was laid down in Reg. v. Khanderav Bajirav was applied in Queen Empress v. Mania Dayal I.L.R (1886) Bom. 497 and Queen-Empress v. Dada Ana I.L.R (1889) Bom. 452. In Queen-Empress v. Devji Govindji I.L.R (1895) Bom. 215 it was observed by Jardine J. (p. 218) :

Before approaching the merits I refer again to Dada Anna's case and to Queen-Empress v. Mania, as showing the settled practice of this Court not to interfere with the verdict of a jury unless it is shown to be clearly and manifestly wrong. These are the words in Queenr-Empress VI. Mania, which Sargeant, C. J., adopted in Dada Anna's case. I sat in both, and it is well known that in my opinion, in which Mr. Justice Ranade has in sundry cases concurred, a verdict, whether correct or not, ought to be considered a proper and not a perverse verdict, if it is one which reasonable men might find.

12. Similarly it was laid down in Emperor v. Walker : (1924)26BOMLR610 , Emperor v. Bai Lali : (1932)34BOMLR896 , and Emperor v. Dagadu (1932) 35 Bom. L.R. 183, that under Section 307 the High Court can interfere only when the verdict is manifestly wrong. The Calcutta High Court has adopted the same principle in Emperor v. Swarnamoyee Biswas I.L.R (1913) Cal. 621, Emperor v. Dhananjoy Raha I.L.R (1923) Cal. 347, Emperor v. Nagar Ali I.L.R (1928) Cal. 132, and Emperor v. Nibharesh Manda : AIR1938Cal295 . So also the Madras High Court has held to the same effect in the full bench decision in Veerappa Goundan, In re I.L.R (1928) Mad. 956. It is not necessary to multiply cases on this point, but I will refer to one recent full bench decision of the Nagpur High Court in Dattatraya Sadashiv v. Emperor . In that case after a comparison of the Indian as well as the English law it was observed that the Court should not proceed to dispose of a criminal case contrary to the opinion of a jury unless in the opinion of the Court the conclusion on fact is clear and beyond any reasonable doubt. It was observed (p. 30):

If the Court is not absolutely certain that the jury's opinion is wrong but is of opinion that it is wrong the proper course is to accept that opinion or possibly in certain circumstances to order a new trial. If the Court inclines to an opinion that the jury is wrong but has no decided opinion one way or the other the right course is to accept the jury's opinion.

13. Even in the case of a confirmation of death sentence, where the High Court is not bound by the verdict of the jury, the Calcutta High Court has observed in Binayen-dra Chandra Pande v. Emperor I.L.R (1936) Cal. 929, that the Court must attach greatest possible weight to the verdict of the jury1 if it answers a reasonable test.

14. As regards appeals under Section 449, which gives the Appellate Court the same power as Section 411A, it has been held by the Nagpur High Court in james Dowdall v. Emperor A.I.R [1936] Nag. 103 that the power is to be exercised in accordance with the well recognised, principles laid down in Sheo Swarup v. The King-Emperor and that the correct way of approaching the appeal is to assume that the findings of fact by the jury are correct and reasonable.

15. I find that the view which I have taken here has also been taken only last week by Macklin and Sen JJ. while summarily dismissing Crown side criminal appeal in Moray an Ratnaji v. King Emperor (1944) Crown Side Appeal No.11 of 1944 against an order of conviction in the Sessions trial in this Court. Macklin J. has held that the rule of practice that the High Court will never invoke its wide powers under Section 307 for the purpose of reversing the verdict of a jury unless the verdict is not only wrong but manifestly unreasonable is equally binding on.Courts acting under the new Section 411A. Sen J. says that there is no good ground for thinking that the Legislature intended, in enacting the new section, to ignore or minimise the importance attached to a trial by jury in the High Court under the Code.

16. A review of these authorities points clearly to the conclusion that even where the High Court has power to go into facts in trials by jury in the mofussil, it is the settled practice to give due weight to the verdict of the jury and to limit its interference to cases where it appears to be manifestly wrong or unreasonable. This practice should be followed with greater reason in the case of verdicts of juries in the High Court itself where the jurors are expected to be more intelligent and experienced in the ways of the world) and have also the benefit of the summing up of the case by a Judge of the High Court. Simply because such extraordinary power has been given to the High Court for the first time, it does not necessarily follow that the Legislature intended that it should be exercised in every case in disregard of the well recognised principles applying to all trials by jury. I am unable to say that because no provision corresponding to Section 4 of the English Act is reproduced in our Code, the Legislature wanted the High Courts to depart from the settled practice of respecting juries' verdicts so long as they are not clearly unreasonable. Even after the amended law the jury remains the sole arbiter of facts of the trial and the Judge is still bound by the unanimous verdict of the jury. So long as that is so, the Appeal Court ought to give due weight to its verdict. Where the presiding Judge gives a certificate of appeal due regard must of course be given to his, implied opinion that the verdict is wrong. But even then the test for interference remains the same as in a case under Section 307 where the Judge disagrees with the verdict and submits the case to the High Court for the ends of justice. The new powers with which the High Courts are invested are, in my opinion, to be exercised with the double object of preventing failure of justice in trials by jury and at the same time preventing such trials themselves from being reduced to a mockery.

17. It is in accordance with these principles that the evidence in this case has to be approached. His Lordship having done so, concluded as follows :

18. In my opinion, the unanimous verdict of not guilty by the jury on this evidence cannot be regarded as manifestly wrong or unreasonable, and this Court should not, therefore, set aside the order of acquittal. The appeal is dismissed.

Lokur, J.

19. I agree. This is an appeal by the Government of the Province of Bombay against the acquittal of the two accused persons who were tried by Mr. Justice Chagla and a special jury at the Fifth Criminal Sessions of 1943, on an indictment charging them with murder and abetment thereof. The jury returned a unanimous verdict that the accused were not guilty. After acquitting the accused, the learned Judge, on the application of counsel for the Government of the Province of Bombay, granted a certificate under Section 411A of the Criminal Procedure Code that it was a fit case for appeal.

20. With that certificate the Government of the Province of Bombay has filed this appeal under Section 411A which has been newly added to the Code of Criminal Procedure by India Act No. XXVI of 1943. As this is the first appeal against an acquittal in the High Court Sessions, it is necessary to consider the scope of the appeal, the powers conferred on the appellate Court by the newly added Section 411A, and the principles governing the exercise of those powers. Before Act XXVI of 1943 was passed, there was no right of appeal against a conviction or an acquittal by a Judge and jury in a trial before the High Court, except on a certificate granted by the Advocate General under Clause 26 of the Letters Patent that there was, in his opinion, an error in the decision of a point or points of law. But now Section 411A gives a right of appeal against both a conviction and an acquittal in a trial before a High Court. Subsection (1) of Section 411A, which deals with the right to appeal against a conviction is modelled on Section 3 of the English Criminal Appeal Act, 1907, (7 Edw., VII, c. 23), and closely follows its language. The English Act, however, gives no right of appeal against an acquittal, whereas Sub-section (2) of Section 411A confers upon the Provincial Government the same right to appeal against an acquittal as Sub-section (1) confers upon an accused person to appeal against his conviction, both on a' matter of fact and on a matter of law. In India also Section 407 of the Criminal Procedure Code of 1861 prohibited an appeal from an acquittal even by a criminal Court in the mofussil and the right of such an appeal received statutory recognition for the first time in the Code of 1872. Section 417 of the Code of 1898 expressly excluded from that right an acquittal by a High Court. But now Sub-sections (1) and (2) of Section 411A have placed the right of appeal from a conviction and from an acquittal in a trial in a High Court Sessions on the same footing. Another notable departure from the English law is the omission of the limitation on the powers of the appellate Court imposed by Section 4 of the English Criminal Appeal Act, 1907. That section provides that the Courts of criminal appeal shall allow the appeal only if they think that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the Court should be set aside on the ground of a wrong decision of any question of law or that on any ground there was a miscarriage of justice. In India too a similar, nay, even a greater sanctity is attached to a verdict of the mofussil jury. Under Section 418 of the Criminal Procedure Code, an appeal lies on a matter of fact as well as a matter of law, but in the case of a trial by jury (except where a sentence of death is passed), an appeal lies on a matter of law only. Section 423 provides for the powers of the appellate Court in disposing of the appeal, and Sub-section (2) restricts those powers by prohibiting the Court from altering or reversing the verdict of a jury, unless it is of opinion that such verdict is erroneous owing to a misdirection by the Judge, or to a misunderstanding on the part of the jury of the law as laid down by him. But the newly added Section 411A purports to confer much wider powers on the appellate Court and provides in its first two Sub-sections as follows:

(1) Without prejudice to the provisions of Section 449 any person convicted on a trial held by a High Court in the exercise of its original criminal jurisdiction may, notwithstanding anything contained in Section 418 or Section 423, Sub-section (2), or in the Letters Patent of any High Court, appeal to the High Court-

(a) against the conviction on any ground of appeal which involves a matter of law only;

(b) with the leave of the appellate Court, or upon the certificate of the judge who tried the case that it is a fit case for appeal, against the conviction on any ground of appeal which involves a matter of fact only, or a matter of mixed law and fact, or any other ground which appears to the appellate Court to be a sufficient ground of appeal; and

(c) with the leave of the appellate Court, against the sentence passed unless the sentence is one fixed by law.

(2) Notwithstanding anything contained in Section 417, the Provincial Government may direct the Public Prosecutor to present an appeal to the High Court from any order of acquittal passed by the High Court in the exercise of its original criminal jurisdiction, and such appeal may, notwithstanding anything contained in section 418, or Section 423, Sub-section (2), or in the Letters Patent of any High Court, but subject to the restrictions imposed by Clause (b) and clause (c) of Sub-section (1) of this section on an appeal against a conviction, lie on a matter of fact as well as a matter of law.

21. Since Sub-section (2) of Section 423 is expressly declared inapplicable to appeals under Section 411A, it follows that once the leave of the appellate Court or the certificate of the Judge who tried the case is obtained, the appellate' Court has all the powers mentioned in Sub-section (1) of Section 423, as if it was dealing with an appeal from the judgment of a Sessions Judge in a case tried with the aid of assessors. In a recent case, Ganpat Jivaji v. Emperor (1944) 47 Bom. L.R. 365. decided by a bench of three Judges (of whom I was one) which was an appeal against a conviction in a High Court Sessions, Chagla j. pointed out that Section 411A gave such wide powers to the appellate Court that no sanctity was attached to the verdict of the jury and that the jury in the Bombay High Court was placed in a worse position than the jury in the mofussil.

22. There is no doubt that such would be the extraordinary result on a strict interpretation of the words of Section 411A. But I do not think that such a result could have been intended by the Legislature. The reason why some such statutory limitation on the powers of the appellate Court as that contained in Section 4 of the English Criminal Appeal Act, 1907, was not added to Section 411A is to be found in the well established practice of all the High Courts in India as well as the Judicial Committee of the Privy Council in regard to the exercise of the apparently unlimited powers conferred upon them. Thus when a Sessions Judge differs from the jury's verdict and refers the case to the High Court under Section 307 of the Criminal Procedure Code, the powers of the High Court under Sub-section (3) of that section are as wide as the powers which it has in dealing with an appeal from the decision in a trial with the aid of assessors. Yet the High Court will not interfere unless satisfied that the verdict of the jury is perverse, that is to say manifestly unreasonable. As observed by Beaumont C. J. in Emperor v. Bai Lali : (1932)34BOMLR896 the High Court will not interfere with the verdict of a jury merely because on a perusal of the evidence, the Judges think that they would have come to a different conclusion from that at which the jury arrived. It is well settled that where two views are possible on the evidence and the jury has taken one of such views, the High Court will not interfere with the verdict even though it may have itself preferred to take the other view. This salutary rule of practice must be held to extend also to appeals under Section 411A of the Criminal Procedure Code. In Sheo Swamp v. The King Emperor the Privy Council, in dealing with an appeal against an acquittal, pointed out that although Sections 417, 418 and 423 of the Criminal Procedure Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded and to reach the conclusion that upon that evidence the order of acquittal should be revised, yet in exercising that power the High Court should and will act in accordance with rules and principles well known and recognised in the administration of justice. These considerations equally apply to appeals under Section 411A of the Criminal Procedure Code, and they must not be lost sight of even at the stage of the granting of a certificate or leave to appeal on facts. In other words, such leave or certificate should be granted only when it is thought that had the verdict been given by a mofussil jury, it would have been a fit case for a successful reference to the High Court under Section 307 of the Code, and not merely because on the evidence it is possible to take a view different from that taken by the jury.

23. These considerations apply with greater force to an appeal from an acquittal. Although Section 411A draws no distinction between an appeal from a conviction and an appeal from an acquittal, at least two additional reasons for the disinclination of the appellate Court to interfere with the verdict of the jury in an appeal from an acquittal are pointed out by the 'Privy Council in Sheo Swarup's case, namely, the presumption of innocence in favour of the accused, strengthened by the fact that he has been acquitted at his trial by the Judge and the jury, and the right of the accused to the benefit of any doubt about his guilt arising from that acquittal.

24. In the present case as the jury were unanimous in their opinion, the learned Judge was, under Section 305(1) of the Code, bound to give judgment in accordance with that opinion. But since) he gave a certificate to appeal on facts under Section 411A(2), it may be assumed that he was reluctant to accept the verdict of the jury and had the trial been in the mofussil, he would have referred the case to the High Court under Section 307. Hence in hearing this appeal we should apply the well settled principles that govern the disposal of a reference under Section 307.

25. One other point to be noted is that when hearing an appeal against the judgment of a Magistrate or of a Sessions Judge aided by assessors, the appellate Court knows the reasons for the decision, and is able to see, after going through the evidence, how far those reasons are sound and justify the decision arrived at. But in the case of a judgment based on a verdict, neither the jury nor the Judge gives any reasons, and hence the appellate Court has to imagine the reasons that must have actuated the verdict, and should not interfere with it unless that verdict is perverse or manifestly wrong or unreasonable or definitely contrary to evidence or unsupported by any evidence.

26. The learned Judge's charge to the jury in this case is fair and full, and contains no misdirection or nondirection. It is fairly conceded by the learned Counsel for the appellant that there is no point of law to be pressed in support of the appeal, and the only ground of attack on the unanimous verdict of the jury is that the evidence has not been properly appreciated. We have, therefore, to analyse the evidence, and see whether we should interfere with the verdict in view of the principles laid down above.

27. After discussing the evidence in detail His Lordship arrived at the following conclusion] : Hence, their unanimous verdict that the accused are not guilty cannot be regarded as either opposed to the evidence or manifestly wrong or unreasonable.

28. I, therefore, do not think that there is any reason to interfere with that verdict. I agree that the appeal must, therefore, be dismissed.

Weston, J.

29. I was a party to the first decision (Ganpat Jivaji v. Emperor (1944) 47 Bom. L.R. 365 in appeal under the amending Act (XXVI of 1943) introducing a right of appeal in criminal cases tried by a High Court exercising original jurisdiction, but decisions are authorities for their particular facts. In Ganpat Jivaji's case, although leave had been granted at the time of admission of the appeal to appeal on facts, the ultimate decision appeared to me to turn upon a point of non-direction amounting to misdirection in respect of the evidence of the one witness upon which the conviction depended. My own conclusion in that appeal would have been the same, if the appeal had been considered as one on a point of law only. I understood the general observations made by the learned Judge, who delivered the judgment, to be an expression of his personal opinion, and at the time I had not thought it necessary to form, nor had I formed an opinion on the general scope of appeals under the amended law. Since this first case, I have been party to the summary dismissal of one appeal with refusal of leave to appeal on facts, and to an order of retrial (a power not contained in the English Criminal Appeal Act) in a third appeal on grounds of misdirection. In the present appeal we have a further set of circumstances, for this is an appeal from an acquittal, where the verdict of the jury was unanimous, but the learned Judge has given a certificate for appeal on facts. It is because I find it assumed that I share responsibility for the general remarks made in Ganpat Jivaji's case that I am compelled to express myself more fully than otherwise I should have desired to do.

30. Much emphasis then and now has been laid on the omission in the amending Act No. XXVI of 1943 of certain provisions appearing in the English Criminal Appeal Act, 1907 7 Edw. 23, by which it is provided that the Court of Criminal Appeal shall allow the appeal only if they think that the verdict of jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the Court before whom the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that on any ground there was a miscarriage of justice. It has been argued that, as undoubtedly Act No. XXVI of 1943 has been copied from the English Act, the presumption should be that no such limitations can be applied when considering appeals under Section 411A. It is of course a mistake to think that the jury system in India is the same or nearly the same as that in England. It is in fact very different. The most obvious differences He in the number of persons constituting juries and in the fact that in this country the unanimous verdict of the jurors is not essential to a decision. Also the jury system is not applied in India in the same manner to all Courts. In trials before a High Court the jury consists of nine persons. In trials before a Court of Session the number may be such uneven number, not being less than five or more than nine, as the Local Government may direct, and I believe I am right in saying that in the jury districts of this Presidency the directions of Government in this respect are not identical. In a Sessions Court the Judge shall give judgment in accord with the verdict of the jurors or of the majority of the jurors, if he does not think it necessary to express disagreement with the verdict. In the High Court the Judge is bound by a unanimous verdict of jurors, and shall give judgment in accord with the verdict of a majority of jurors when he is in positive agreement with that verdict, but here the majority of the jurors must number not less than six. If a Sessions Judge disagrees with a verdict of jurors or of a majority of the jurors and is clearly of opinion that it is necessary in the ends of justice to submit the case to the High Court, he submits the case under Section 307 of the Code ; and, when dealing with the case so submitted, the High Court may exercise any of the powers which it may exercise on appeal, and shall consider the entire evidence, and acquit or convict the accused after giving due weight to the opinion of the Sessions Judge and of the jurors. Again, when a Court of Session has passed a sentence of death, the case must be submitted to the High Court, and the High Court then may confirm the sentence, or pass any other sentence warranted by law, or may annul the conviction, and convict the accused of any offence of which the Sessions Court might have convicted him, or order a new trial, or may acquit the accused. An appeal lies from a conviction by the Sessions Court where the trial is by jury, except in petty cases, but on a matter of law only ; but, when in such trial any person is sentenced to death, any other person convicted in the same trial with the person so sentenced may appeal on a matter of fact as well as on a matter of law. Under Section 449 of the' Criminal Procedure Code an appeal lies on a matter of fact as well as on a matter of law in cases tried under Ch. 33 of the Code with, in a Presidency town, the leave of the High Court, although the trial has been by jury. I myself was a Judge for some years of a Court, a Statutory High Court for the purposes of Ch. 23 of the Code of Criminal Procedure, but where a right of appeal on a matter of law existed, and where a sentence of death required confirmation under Section 376.

31. It might be suggested that the action of the Legislature in borrowing from the English Criminal Appeal Act and in adding yet others to existing provisions dealing with appeals and references in jury cases is of some significance to show that some new principle is intended to apply to appeals when the trial has been in a High Court. But no new principle is expressed in the new Section 411A. In Sheo Swarup v. The King-Emperor the Privy Council, after pointing out that in the Code no distinction is drawn as regards the powers of the High Court in dealing with an appeal, between an appeal from an order of acquittal and an appeal from a conviction, observed (p. 404) :

But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1.) the views of the trial judge as to the credibility of the witnesses (2.) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial ; (3) the right of the accused to the benefit of any doubt ; and (4.) the slowness of an appellate Court in disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognised in the administration of justice.

32. It is true that this was not a case of jury trial, but their Lordships' observations are enough to shew the universal application of the principles stated. Sub-section (3) of Section 307 of the Code expressly requires the High Court to give due weight to the opinions of the Sessions Judge and the jury'. This Court in a series of decisions has held that on a reference under Section 307 the Court will not interfere with the ver-dict of a jury unless it is shown to be perverse, an expression which I understand! to have the meaning of the words of Section 4 of the English Criminal Appeal Act unreasonable or cannot be supported having regard to the evidence.' Earlier in Sheo Swamp's case their Lordships observed (p. 404):-

There is, in their opinion, no foundation for the view, apparently supported by the judgments of some Courts in India, that the High Court has no power or jurisdiction to reverse an order of acquittal on a matter of fact, except in cases in which the lower Court has 'obstinately blundered,' or has 'through incompetence, stupidity or perversity' reached such ' distorted conclusions as to produce a positive miscarriage of justice,' or has in some other way so conducted or misconducted itself as to produce a glaring miscarriage of justice, or has been tricked by the defence so as to produce a similar result.

33. This paragraph shews that the principles later set out in the opinion of the Board are not to be pressed beyond their plain meaning, and it may be that the Legislature had these principles in mind when it thought fit not to incorporate in Section 411A of the Code the material part of Section 4 of the English Criminal Appeal Act; for it may have desired to avoid imposing a rigid rule possibly going beyond those principles which would bind the discretion of the High Court in all cases. But however this may be, it is clear that the omission affords no support for the argument that the principles laid down in Shea Swarup's case in the first extract set out above should not apply to appeals under Section 411A. I notice that the Nagpur High Court in a case under Section 449 of the Code held that the powers under this section, unrestricted as they are, must be exercised in accordance with these observations ma3e by the Privy Council : James Dowdall v. Emperor A.I.R [1936] Nag. 103.

34. I only desire further to refer briefly to differences which are suggested to have been created by the new amendment between appeals from a Court of Session and appeals from a High Court. There are differences, but, when examined, they are not very substantial. The certificate given by a Judge under Section 411A is much the same in effect as a reference by a Sessions Judge under Section 307, although when granting a certificate a Judge does not appear to be required to give reasons for so doing. It is true that, in the absence of a reference under Section 307, the High Court cannot grant leave in the manner provided in Section 411A. On the other hand, when there has been a sentence of death by a Sessions Court, the accused so sentenced and also a co-accused convicted in the same trial have an unqualified right to have the facts of the case examined by the High Court. Under Section 411A a certificate of the Judge or leave of the Appeal Court is necessary in all cases, before appeal lies on facts. I do not know why these differences have been created, but I see no reason to draw far-reaching inferences from them.

35. After discussing the evidence His Lordship concluded : The jury saw the prosecution witnesses, and, on their demeanour, formed their opinion whether they could be relied upon. Giving due weight to the unanimous opinion of the jury, I am quite unable to hold that they were wrong. The accused is entitled to the benefit of doubt, and, in my opinion, this appeal should be dismissed.


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