Murray Coutts Trotter, Kt., C.J.
1. The Code of Criminal Procedure, 1898, is quite definite as to the position of the verdict of a jury in the case of an appeal from the verdict of a jury which is dealt with in Chapter XXXI. By Section 418 it is enacted that
An appeal may lie on a matter of fact as well as a matter of law, except where the trial was by jury, in which case the appeal shall lie on a matter of law only.
And the same view is emphasized by Section 423 (2):
Nothing herein contained shall authorize the Court to alter or reverse 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.
2. The inference is that the draftsman of the Indian Statute was familiar with the English Law as Laid down in Solomon v. Bitton10 and so far as concerned appeals meant to enact that state of things for India. It may be useful to examine that decision in reference to the state of the law as it then stood. Before the Judicature Act, applications for a new trial on the ground that the verdict of the jury was against the weight of the evidence came before a tribunal whose decision was final unless an appeal was taken to the House of Lords, and that tribunal almost invariably had as one of its members the Judge who had presided at the trial. If he was 'dissatisfied with the verdict of the jury,' i.e., did not agree with it, he communicated that to his brother Judges and it is obvious from the reports of the day that that view of the trial Judge carried great weight with the Judges who sat with him. In 1881, when Solomon v. Bitton10 was decided, the position was that applications for a new trial came in the first instance before a Divisional Court, one of whose members might be the trial Judge, who could express dissatisfaction with the verdict of the jury and communicate that opinion to his colleagues. But an appeal lay to the newly constituted Court of Appeal, which ex hypothesi could not have the trial Judge as one of its members--except of course by the accident of an intervening promotion. Solomon v. Bitton (1881) L.R. 8 Q.B.D. 176 was tried by Lindley, J., as he then was; the jury returned a verdict for the plaintiff, and the application for a new' trial came before a Divisional Court of three Judges, of whom Lindley, J., was one. He expressed himself as dissatisfied with the verdict; and on that among other grounds a new trial was ordered. The plaintiff appealed against that decision to the Court of Appeal, and the case came before Jessel, M.R., Brett and Cotton, L. JJ., none of whom had had any connection with the trial. They Lald down the rule in these words at p. 177:
The rule on which a new trial should be granted on the ground that the Verdict was unsatisfactory as being against the weight of evidence, ought not to depend on the question whether the learned Judge who tried the action was or not dissatisfied with the verdict, or whether he would have come to the same conclusion as the jury, but whether the verdict was such as reasonable men ought to have come to.
3. That pronouncement, made 48 years ago, has never been questioned in England, and is enshrined in an even more definite form in the Indian Statute, so far as appeals are concerned. Later judicial pronouncements have usually preferred the negative to the positive way of putting it, having regard to the fact that the onus lies upon the party who contends that the verdict of the jury should be set aside; and the task Laid upon him is commonly defined as being to show 'that the verdict was such as no reasonable men could have come to.' Up to 1909 the English authorities of course relate to verdicts in civil cases. Appeals on the facts are now possible in England in criminal cases at the instance of the accused subject to certain safeguards. It is enacted by Section 3 of 7 Edw. VII c. 23:
A person convicted on indictment may appeal under this Act to the Court of Criminal Appeal... (b) with the leave of the Court of Criminal Appeal or upon the certificate of the Judge who tried him that it is a fit case for appeal against his conviction on any ground of appeal which involves a question of fact alone....
4. The English decisions on this section are thus summarised in the last edition of Archbold at page 337 and I have satisfied myself that the summary is accurate.
5. Verdict against the weight of evidence. - In order to succeed on this ground it is necessary to show that the verdict is unreasonable or cannot be supported having regard to the evidence. It is not sufficient to show merely that the case against the appellant was a very weak one; nor is it enough that the members of the Court of Criminal Appeal feel some doubt as to the correctness of the verdict ... nor that the Judge of the Court of trial has given a certificate on that ground.
6. But the Indian Act has provided for another contingency than that of appeal. It gives power to the Sessions Judge to send up a case suo motu to the High Court in certain circumstances. Those circumstances are defined in Section 307 (1) and are that the Judge should (a) disagree with the verdict of the jurors or the majority of the jurors, and (b) be clearly of opinion that it is necessary for the ends of justice to submit the case. That seems to indicate that something more should be in the Judge's mind than a mere disagreement with the jury, or a mere feeling that he would himself have come to a different conclusion. That something more must be a conclusion that the verdict was one which reasonable men could not have arrived at on the evidence before them.
7. That being the duty of the Sessions Judge we have to look at Sub-section (3) to ascertain what is the duty of the High Court The duty is there defined as follows:
It (i.e., the High Court) shall, after considering the entire evidence and after giving due weight to the opinions of the Sessions Judge and the jury, acquit or convict the accused.
8. The wording of the sub-section is most unfortunate; it appears on the face of it to leave open the very question which has now arisen for our decision, and to leave us without real guidance upon it. Are we to take it that when the Sessions Judge submits such a case to the High Court, the whole matter is re-opened and that we are to try the case as if there had been no trial at the Sessions at all, or are we to have regard to the principle that the verdict of a jury shall not be upset unless in the opinion of the High Court it is unreasonable and involves a miscarriage of justice? A Bench of this Court consisting of Sir Walter Schwabe, C. J. and Wallace, J., took the former view following some earlier authorities in this Court. The Calcutta High Court has preponderantly inclined to the latter view. On a direction 'to give due weight to the opinions of the Sessions Judge and the jury' when those opinions are in conflict, it is easy to urge that, as they cancel one another, the High Court must go into the matter de novo; and the use of an imponderable adjective like 'due' deprives us of an assistance which I feel that the Statute should have given us.
9. As has already been said, it must be supposed that the submission by the Judge involves that in his opinion the verdict of the jury was perverse or unreasonable or altogether against the weight of the evidence whichever phrase be preferred. When the case comes up to the High Court, it seems to us that we can and should, without shirking any duty imposed upon us by the statute, confine ourselves to the question 'Was the Judge's view of the verdict justified by the evidence?' and if we think it was not, to confirm the verdict of the jury. The jury is clearly made primarily the tribunal to find the facts; and when they have found them in one direction or the other, it is not for us to interfere unless the verdict is unreasonable. Assuming that Sessions Judges do not act under Section 307 unless that is their view of the verdict in question (and they clearly ought not to act unless it is their view), we think that the duty of the High Court is discharged when it expresses its agreement or disagreement with that view of the Sessions Judge. In this case we think that the Divisional Bench was quite entitled to take the view (as it obviously did) that there was no sufficient. material before it to conclude that the learned Sessions Judge was justified in so regarding this verdict and we remit the case to the Divisional Bench with this expression of our opinion.
[On receipt of the opinion of the Full Bench the reference came on for hearing before Phillips and Madhavan Nair, JJ.]
10. In Accordance with the Opinion of the Full Bench it is necessary for us to consider the evidence not so much with a view to forming our own opinion on the facts disclosed but to seeing whether the verdict of the jury was such as could be come to by a reasonable man. We have been taken through the evidence and it is unnecessary now to discuss it in detail for we are satisfied that there was evidence upon which the jury could base their verdict. The contention that it is illegal to convict a man on the evidence of only one witness cannot be supported. It must entirely depend on the Circumstances of each case and certainly there is no proposition of law which justifies such a theory. We must, therefore, reject the reference of the Assistant Sessions Judge and convict the accused 1, 2, 4, 5, 6, 8 and 9 and sentence them each to three years's rigourous imprisionment under Section 395, Indian Penal Code.