1. This is a reference under Section 307 of the Criminal Procedure Code by the Assistant Sessions Judge of Madura in a jury case before him. The offence charged was dacoity, six persons being accused. The jury returned an unanimous verdict of gulty against accused 1 to 3 and a majority verdict of 3 to 2 guilty against accused 4 to 6. With the latter verdict the Assistant Sessions Judge disagrees on the ground that the verdict is unreasonable and perverse, and he states further that, if that verdict is set aside, it implies that accused 4 to 6 were not present, whence it would follow that only three persons took part in the so-called dacoity and therefore the conviction of accused 1 to 3 must be reduced to that for an offence of robbery.
2. We have been taken through the evidence and the charge. As regards the latter I am of opinion that both the prosecution and the defence have much to complain of, as the charge is very defective in many points. It does not, for example, in the summary of the evidence point out that P.W. 3, one of the eye-witnesses, said that the accused 2 and 3 took part in the dacoity, or that P.W. 4, another eye-witness, said that accused 1, 2, 4 and 5 took part, or that P.W. 5, another eye-witness, said that accused 1 to 6 took part. The charge reiterates in many places that accused 4, 5 and 6 have lands. That was merely a statement made in evidence by P.W. 6 and the Assistant Sessions Judge had no right to put it to the jury as his finding of fact. It was for the jury to say whether they believed the statement or not. Again, the Assistant Sessions Judge in his charge seems to suffer under a curious obsession that it is necessary for dacoits to have known their victims previously and to have had some personal grievance against them before they would commit dacoity and he throws on the prosecution the duty of proving that accused 4 to 6 had some personal grievance against the dacoited witnesses to induce them to dacoit them 'and that accused 1 to 3 had some 'common cause' with accused 4 to 6 against the victims. The obvious answer is that a sufficient motive to commit dacoity is the prospect of loot and that dacoits are not in the habit of refraining from attacking a person with whom they are not acquainted. On the other hand, the charge does not emphasize on behalf of the sixth accused what should have been specifically mentioned, namely, that no identification parade was held to test the ability of the eyewitnesses to identify him, and that therefore they had not seen him since the date of the dacoity until they saw him in the dock in the committing Court several months later. The jury should certainly have been cautioned to consider deeply whether they were satisfied that the eye-witnesses had carried away such a clear recollection of the sixth accused as to be able to swear to his identity so long after the offence. A similar caution would have been wise in the case of accused 4 and 5 also, since the parade at which they were said to have been identified was nearly a month after the offence.
3. In other circumstances, for example, if we had been hearing an appeal against the conviction we should have had to consider whether these and other defects in the charge do not amount to serious misdirections vitiating the verdict; but as the law in this Presidency stands at present, as concluded by the Full Bench ruling in Veerappa Goundan In re : (1928)55MLJ591 , it appears to me that we are precluded from going into any matter of misdirection or interfering in any way with the result of this trial unless we are satisfied that the jury's verdict on the evidence is unreasonable. The Full Bench in Veerappa Goundan In re : (1928)55MLJ591 says : 'The duty of the High Court is discharged in a reference by a Sessions Judge' when it expresses its agreement or disagreement with the view of the Sessions Judge 'that the verdict was one which reasonable men could not have arrived at on the evidence before them,' and again 'it is not for us to interfere unless the verdict is unreasonable.'
4. I feel constrained to point out that on a reference under Section 307 it is the High Court which records the conviction and passes the sentence, and the accused has therefore no right of appeal as from a Sessions Judge to the High Court. The reference in fact takes away the right of appeal he would otherwise have to the High Court. The decision of the Full Bench which precludes the High Court from interfering, even to order a retrial, except when it regards the verdict as unreasonable, therefore, precludes this Court from considering whether there was in fact misdirections vitiating the verdict, although if there had been no reference, the accused would have been able to come up on appeal and plead such misdirections. I would respectfully suggest that the view of the Full Bench may require some reconsideration in the light of this difficulty.
5. I do not however regard it as necessary to move in this case for reconsideration of the Full Bench decision in spite of the misdirections as there is a quantity of evidence against 4, 5 and 6. Five eye-witnesses have identified each of these. P.Ws. 4, 5 and 6 knew them before P.W. 3 stated that accused 4 and 5 hit them and P.W. 4 states that the sixth accused hit him. Having regard to the evidence I am unable to say that the view expressed in the verdict of the jury was perverse or such that no reasonable men could take.
6. I must, therefore, decline to interfere or accept the reference. My learned brother agrees. The verdict of the jury must, therefore, be accepted. We, therefore, convict accused 4 to 6 of the offence of dacoity and sentence all the accused to rigorous imprisonment for five years (each).
Pakenham Walsh, J.
7. I concur in the judgment of my learned brother. I should like to add that even if it should be considered that we are wrong in holding that the Full Bench decision precludes us from ordering a retrial on the ground of misdirection, the difficulty created by the Full Bench ruling is not overcome. It is the accused who is in the best position by way of appeal to point out misdirections to the jury or mistakes of law and to deprive him of his right and leave it for the High Court to discover whether real errors exist is not to substitute any adequate safeguard for the right of appeal taken away.
8. On the Full Bench decision the only remedy would appear to be an alteration of the Code giving the accused a right of appeal when the verdict of jury is against him and the Judge has made a reference. There appears to be no reason why accused should not be given a right of appeal under these circumstances. If he has been found guilty by a jury on a misdirection or other error of law and that conviction is to stand unless the jury's decision is found unreasonable he has clearly suffered injustice. It is inequitable that if the Sessions Judge's effort in his favour fails the accused should be in a worse position than if no reference at all bad been made.