1. Four accused were placed before the learned Additional Sessions Judge, Greater Bombay, for trial for offences under Section 148 Penal Code, and under Section 325 read with Section 149, I. P. C., and under Section 302 read with Section 149, I. P. C.
The case was tried before the learned Sessions Judge with the aid of a special jury. The special jury brought in a unanimous verdict of not guilty against all the four accused. The learned Judge accepted the verdict of the jury and acquitted- all the accused, The State of Bombay has preferred an appeal to this Court against the order of acquittal passed by the learned Sessions Judge.
2. As we propose to direct a retrial in this case, we do not desire to make any observations which might prejudice the accused at the retrial for the offences with which they were charged before the learned Additional Sessions Judge and have been acquitted.
3. The charge against the four accused was that on 6-9-1954 they and One Shankar Ram-chandra formed an unlawful assembly and in prosecution of the common object of that unlawful assembly, viz,, to cause hurt to Kotya Shivram Javlekar and Ramchandra Kashinath, committed the offence of rioting and thereby committed an offence punishable under Section 147, Penal Code and that as at the time of the commission of the offence of rioting the first accused was armed with a sword the second accused was armed with knife the third accused was armed with an axe and the fourth accused was armed with a bamboo slick they committed an offence punishable under Section 148, I. P. C.
4. The accused further were charged that they and the said Shankar Ramchandra Jadhav, were members of an unlawful assembly and in prosecution of the common object of that unlawful assembly they voluntarily caused grievous hurt to Kotya Shivmm Javlekar and thereby committed an offence under Section 325, Penal Code and read with Section 149 of the said Code.
The accused were further charged with being members of an unlawful assembly the common object of which was to cause hurt to Kotya Shivram Javlekar and Ramchand Kashinath and with having in prosecution of that common object caused the death of Ramchandra Kashinath and thereby having committed an offence under Section 302 read with Section 149. I. P. C.
5. At the trial the prosecution relied upon the testimony of three witnesses who claimed to have been eye-witnesses to the commission of the offences for which the accused were charged. These three witnesses are Sadashiv, Kotya and Pandharinath.
Each of these three witnesses deposed that he was an eye-witness to the injury caused to Ramchandra. Kotya also spoke of the injury caused to him by the members of the unlawful assembly and Sadasln'v and Pandharinath corroborated his statement.
6. Now the learned Sessions Judge in his charge to the jury attempted to analyse the grounds in the light of which the evidence of eye witnesses should be weighed and considered and ultimately accepted or rejected. He told them it was for the jury to consider whether the witnesses who claimed to be eye witnesses were partisan witnesses.
He also told them that it was for the jury to consider whether consistency in matters of details was a guarantee of truth or it indicated that the witnesses had been tutored. He then asked the jury to consider whether the story as given by the witnesses before the Court was consistent with the first information given with regard to the commission of the offence.
He also asked the jury to consider the character of the witnesses and asked them to weigh the evidence after considering whether the witnesses were respectable, whether they were straightforward, whether other more respectable witnesses could have been called and had not been called and whether there were discrepancies in the testimony of the witnesses.
He also asked the jury to consider whether the story in view of the situation deposed to by the witnesses and otherwise found on evidence was probable or improbable. He then asked the jury to consider the evidence of the witnesses in the light of a variety of circumstances and he ultimately summarised in para 38 of his charge to the jury by stating.
'Therefore what you have to see in this case is first of all whether the witnesses in the light of the probabilities are respectable witnesses, whether they have given a straightforward account of what they saw, and whether they are suppressing any material facts and if any material facts are really suppressed whether it would be safe to accept that part alone which they give out suppressing the rest and without taking into account the circumstances that influenced the people in that locality for not coining forward, may be out of fear, and without taking that particular aspect into consideration you have to judge the whole evidence as it is presented to you to arrive at your conclusion whether that evidence is acceptable to you.'
7. On behalf of the state it is urged in support of the appeal that several statements made by the learned Judge to the jury are obscure and it is difficult to understand the purport or even the trend of the observations made by the learned Judge.
If was also urged that the learned Judge told the jury at several places that before the evidence of the witnesses for the prosecution could be accepted they must be witnesses who were respectable and straightforward and that they must be incapable of telling an untruth.
It is urged that if such a test is laid down before the jury it is likely to be misled into believing that before a criminal charge can be held established against an accused person the evidence must be of persons of accepted respectability, the evidence must be given in a straightforward manner and that the witnesses must be proved to be incapable of telling an untruth.
It was urged that an observation of that nature in the charge to the jury amounted to clear misdirection. In our view the contention raised on behalf of the state that the charge to the jury was vitiated & that it must have affected the appreciation by the Jury of the evidence led before them must be accepted.
We may only indicate that some of the observations made by the learned Judge to the Jury sun-port the submission made on behalf of the Slate.
8. in para 28 of his charge, to the jury the learned Judge observed in considering how evidence of witnesses has to be weighed: 'Therefore where particularly the evidence is of eye witnesses it will have to be subjected to a very close scrutiny in order to find out first of all whether the witnesses are interested, secondly whether the witnesses are respectable at least to such an extent as to inspire reliance upon the testimony of such persons and thirdly whether that evidence is consistent with the rest of the probabilities.'
9. it is evident that according to the learned Sessions Judge not only the evidence of witnesses must be subjected to a very close scrutiny to ascertain whether the witnesses are interested witnesses but in assessing the weight to be given to the evidence of witnesses the jury must before it accepts their evidence find that the witnesses are 'respectable'.
What the test of this respectability which is required to be established by the prosecution before the evidence of witnesses can be accepted by the jury has however not been mentioned by the learned judge either in para 28 of his charge to the jury or elsewhere in his long charge.
10. He has again in para 29 stated: 'Gentlemen, this makes it necessary for you to examine what exactly is the situation whether the witnesses can be regarded as of that type of respectable witnesses incapable of speaking falsehoods on whether their evidence is impelled by motives otherwise than the truth of the events.'
11. The meaning of this observation made by the learned Judge is obscure. Again the test suggested by the learned Judge that before evidence of witnesses can be accepted it must be proved to be the evidence of witnesses of respectable witnesses incapable of speaking falsehoods have no basis whatever.
If before a charge in respect of a criminal offence can be held established against an accused person, the prosecution must examine witnesses not only who are respectable but 'incapable of speaking falsehoods,' we dare say it will be impossible to bring home a charge of guilt to any accused person in any criminal trial.
It need hardly be emphasised that it is for the prosecution to establish its case by evidence which is clear, cogent and reliable and the case must be established beyond reasonable doubt but the criminal jurisprudence of this country does not require that where the evidence of eye witnesses is led by the prosecution the evidence must be of 'respectable witnesses incapable of speaking falsehoods.'
12. The learned Judge then observed in para 31
'As I told you, you have to decide first about the respectability of the witnesses which can give some guarantee about the fact that they would Speak the truth. Now as I told you, you have to decide whether there is sufficient respectability about the witnesses and unless they inspire confidence in you, you have to decide how much you will rely upon them.'
13. Here again the learned Judge is suggesting that the witnesses for the prosecution mustsatisfy the initial test of 'respectability' before thejury can consider the evidence of those witnessesas reliable.'
14. He has then stated in para 31.
'side by side it is necessary for you to refer to the scene of offence and to find out whether it is a case where better evidence was or was not available for while considering the position and respectability of the witnesses it will also be necessary for you to consider whether other and better evidence could or could not be available; and if better evidence could be available, why that evidence is not brought forward.'
15. That observation of the learned Judge would have been unexceptionable if he had not referred to the respectability of the witnesses who were to be examined by the prosecution in support of its case.
16. In paragraph 32 of his charge to the jury the learned Judge has observed. 'Yet what you find is that most of the people in the locality have not been called and those that have been called and who could be regarded as respectable do not speak much as for instance Kamat the owner of the hotel in front of which the attack took place.'
Whether Kamat, a person who satisfied the test of respectability laid down by the learned Judge, did or did not speak much in support of the prosecution case had not very great relevance. What the jury bad to consider was whether the evidence led before them was evidence which was acceptable to them.
17. The learned Judge has then stated in para 33:
'Therefore while the reasons adduced by the learned Public Prosecutor may be true, they may pain you and everyone else; what you have to do is merely on that account if the evidence that is brought forward does not inspire confidence in you you will not bo entitled to accept that evidence if it does not convince you merely because straightforward and respectable people are not coming forward to depose.
In this case that evidence which has been brought forward must be intrinsically examined to see whether it inspires confidence and reliance in such a manner as to show that the witnesses are both respectable or people of good character are not partisan witnesses and whatever they depose to is consistent with the facts and the probabilities of the case.'
Here also the learned Judge appears to be insisting upon the satisfaction of the test of respectability and good character by witnesses for the prosecution,
18. Then in para. 38, which is open to great objection the learned Sessions Judge has stated: 'It is for the prosecution to establish by evidence which leaves no doubt in your minds about the truth of what is stated by them.' Stopping here for a moment if the learned Judge intended to convey to tlie jury that the evidence for the prosecution must leave 110 doubt in the minds of the jury about the truth of what was stated by them that statement was definitely misleading.
We are prepared to assume however in view of what the learned Judge has stated in a previous paragraph that the doubt must be a reasonable doubt and not a doubt of vaccillating mind.
19. The learned Judge then proceeded to state in that paragraph.
'As I told you, it may be that straightforward or respectable witnesses of that locality are not coming forward which is a very unfortunate thing. But as I told you merely because straightforward and respectable witnesses are not coining forth, thelack could be substituted by other evidence if that other evidence itself does not inspire confidence'.
We are unable to understand what was intended to be conveyed by the learned Judge to the jury by this observation. Mr. Chandrachud, who appears on behalf of the accused was also not able to enlighten us as to what was intended to be conveyed oy the learned Judge by that statement. The sentence appears to be incomplete and the purport thereof if not inconsistent is indefinite.
20. Then he proceeded to observe:
'Therefore, unless you come to the conclusion that the witnesses are themselves respectable and straightforward it would not be safe to rely upon the evidence of such witnesses especially if they are partisan witnesses.
I might tell you here that mere interested ness of a witness does not disqualify him. But where a witness is interested and where he is unable to give a good past of himself or if his testimony discloses some amount of partisanship or even if his testimony consists of any parts so as to indicate that certain facts are suppressed -- and deliberately suppressed -- and it it is not possible to find out what part is true and what part can be excluded then the rule of prudence is that the whole of that evidence is not safe to rely.'
Here again the observations made by the learned Judge appear to be somewhat inconsistent and do not give any clear guidance to the jury.
21. We may observe that the learned Sessions Judge in his charge to the jury appears to have used language even in considering the evidence of witnesses which is often involved and of which the purport is indefinite and obscure.
The learned Judge also does not appear to have entered upon any analysis of the evidence of the witnesses for the prosecution. In charge which runs into as many as 44 closely typed pages he has summed up the evidence of the eye witnesses in only two paragraphs whereas the rest of the charge is on generalisations and the tests which in his Opinion must be applied by the jury in weighing the evidence.
Instead of proceeding in that manner if the learned Judge had marsnalled the evidence and had pointed out to the jury what the effect of the evidence of the witnesses was, that criticism was made by the defence against the evidence and what in his view could be reasonably stated in favour of or against the evidence of those witnesses the charge would have been a better charge and would not have mislead the jury.
In this case in view of the observations made by the learned Judge indicating that before evidence of eye witnesses can be accepted they must be straightforward and respectable witnesses incapable of telling an untruth, we are of the view that the charge was vitiated by misdirection on a material point and jt must have affected the verdict of the jury.
22. On the view taken by us two courses are open to us. We may consider the evidence for ourselves and come to a conclusion whether the evidence given by the witnesses is reliable or not or we may direct a retrial of the accused before a fresh jury.
In the present case the prosecution rests entirely upon the value to be attached to the evidence of three witnesses who claimed to be the eye witnesses to the commission of the offence by the four accused before the Court, it would be difficult for us by merely reading the evidence to ascertain whether demeanour of the witnesses and the manner in which the testimony was given, inspired confidence.
We think therefore that this is a proper case in which the verdict of the jury should be set asideand a retrial directed before a fresh jury. We accordingly allow the appeal and set aside the order of acquittal passed by the learned Sessions Judge and direct that the four accused be retried before a special jury.
23. Appeal allowed.