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Venkatachala Goundan and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Reported inAIR1932Mad21; 136Ind.Cas.33
AppellantVenkatachala Goundan and ors.
RespondentEmperor
Cases ReferredVeerappa Goundan v. Emperor A.I.R.
Excerpt:
.....maravers have been convicted of dacoity despite the strenuous efforts of the judge to secure their acquittal, i have had myself to reject appeal after appeal on the ground that no questions of law were involved, although i felt that the verdicts were clearly wrong and that the judges ought to have made references under section 307. 5. in this instance, the sessions judge is of opinion that the verdict is plainly unjust and i think that, on the evidence, he is right. the public prosecutor concedes that there are some curious features about the ease and that the best that can be said of it is that it is on the borderline. 16, who is very obviously on bad terms with all the accused, makes several things perfectly clear. 16 as the man who could name all the accused goundens as well as..........or unreasonable or altogether against the weight of evidence is correct. if it was correct the jury's verdict will be set aside but if it was not, the verdict will stand, even if it be one which the court if it had to decide the case for itself in the first instance will not arrive at. in short, the jury's verdict will be given by the high court the same weight (the 'due weight'spoken of in section 307) which the trying judge should have given to it, and the judge's opinion will be given by the high court the weight (the 'due weight'spoken of in section 307) which it should have as that of the presiding officer of the court to whom is entrusted the duty of seeing that justice does not suffer by the forms of law. in other words the high court will give to each branch of the court the.....
Judgment:

Waller, J.

1. This is a reference under Section 307, Criminal P.C. Fifteen persons were charged before the Sessions Judge, Trichinopoly, with dacoity. The jury acquitted one of them and convicted the rest. The Judge thought that acceptance of their verdict would involve a grave miscarriage of justice and has recommended that it be set aside. A Full Bench of this Court has in Veerappa Goundan v. Emperor A.I.R. 1928 Mad. 1186, held that the jury is primarily the tribunal to find the facts and that it is not for the High Court to interfere with the verdict of a jury unless it is unreasonable. Mr. Ethiraj has pressed us most urgently not to put too narrow a construction on this ruling. It is not, of course, for us to criticize it, but I think it advisable to correct two statements made in the course of the judgment of the learned Chief Justice. The first is that the rule laid down in Solomon v. Bitton [1881] 8 Q.B.D. 176

is enshrined in an even more definite form in the Indian statute, so far as appeals are concerned.

2. It is not. Solomon v. Bitton [1881] 8 Q.B.D. 176 was a case of an application for a new trial on the ground that the verdict was against the weight of evidence. In India, there is no appeal on the facts, but only on points of law. The second is that the Calcutta High Court has inclined preponderantly to what may be described as the English view. That is no longer correct. The latest Calcutta case on the point is Emperor v. Ramchandra Roy : AIR1928Cal732 , Cuming, J., observed that the decisions

seemed to vary from the extreme view that the High Court should be very reluctant to interfere with a verdict of a jury to the view that the High Court in dealing with these references is to be guided by the plain words of the Code

and then went on to say:

Speaking for myself, I have always thought that I am upon far firmer ground, if I adhere to the strict words of the Code and do not attempt to interpret the Code in the light of the practice in other countries where the law and conditions are different.

3. That is, of course, the proper method of construction, as their Lordships of the Judicial Committee have pointed out more than once, to interpret the language of the statute as it stands, uninfluenced by considerations of what the law may be elsewhere.

4. Now what is the rule that has been propounded in Veerappa Goundan v, Emperor A.I.R. 1928 Mad. 1186. It is this. On the assumption (which is, I may remark, entirely justified) that Sessions Judges will not make references unless they think that the verdicts are manifestly wrong, the duty of the High Court, in dealing with such a reference, is confined to considering whether the opinion of the Judge is supported by the evidence. To the rule so stated no exception can be taken, but I venture to express a hope that some of the observations in the judgment will not be construed in such a manner as to limit the discretion of the High Court in disposing of these references. All Judges of mufassil experience realize how important it is that the High Court should not allow itself to be influenced by a sort of conventional respect for the verdict of a jury. The weaknesses and peculiarities of jurors and assessors are notorious. They will acquit or find extenuating circumstances in the clearest cases of murder; in cases of dacoity, they are far too ready to convict. It is scarcely too much to gay that a Maraver charged with dacoity before a Tinnevelly jury has a very slender chance of being acquitted. Another reference has just been argued before us from that district, in which a large number of Maravers have been convicted of dacoity despite the strenuous efforts of the Judge to secure their acquittal, I have had myself to reject appeal after appeal on the ground that no questions of law were involved, although I felt that the verdicts were clearly wrong and that the Judges ought to have made references under Section 307.

5. In this instance, the Sessions Judge is of opinion that the verdict is plainly unjust and I think that, on the evidence, he is right. The Public Prosecutor concedes that there are some curious features about the ease and that the best that can be said of it is that it is on the borderline. Briefly the facts alleged are these. The first two accused owed P. W. 18 a considerable sum of money. He sued them and got a decree on a compromise by which the balance of that sum was to be paid in two equal annual instalments; the first of which became payable on 4th August 1930. An offer was made by the debtors to give two pairs of bullocks and a cart in part payment and to deposit the balance in cash. P. W. 10. P. W. 18's son, accordingly went to the village on 9th August accompanied by P. Ws. 11 to 15, The bullocks were inspected by P. Ws. 11 and 12, who said that they were not worth as much as the debtors thought. They were at once assaulted and the other witnesses tried to escape. They were overtaken however and brought back. Pen, ink and paper were produced and accused 1 ordered P. W. 10 to write out a receipt. P. W. 10 refused, whereupon accused 1 drew a sword and threatened to cut him. P. W. 10 then wrote a receipt for the whole sum due minus a certain rebate and accused 1 took it. An alarm was raised and the accused made off. The receipt in question is Ex. E and it is dated 24th July.

6. It is in a perfectly clear and steady hand and certainly was not written under the circumstances alleged by P. W. 10. His story is, in this respect, quite preposterous. His hand was, he says, so shaky as the result of the treatment he had received that he was, at first, unable to write properly. When, however accused 1 threatened to cut him, his hand recovered its steadiness and he was able to write. If his nerve was so shaken by a slight assault, a threat to murder him would scarcely have restored it. This goes to the root of the case. If it is obvious that the receipt could not have been written under the circumstances alleged, the whole story goes. It is certain that something happened and possible that no money passed and that the receipt was got hold of by unfair means. As the Sessions Judge observes, there is no smoke without a fire and it was probably on that ground that the jury convicted. The manner in which the accused, most of whom were unknown to the witnesses, were identified was farcical. The identification was made in the presence of a police officer alone after nightfall by the aid of a hurricane lantern. The names of the accused had been supplied by P.W 16 and it is impossible to attach any value to an identification so conducted. The presence of P. W. 16 is one of the most suspicious features in the case. Among the accused are several Pallars.

7. The prosecution case appears to have been that four of them were in accused 1's service and the rest were brought in for the purpose of helping him. The evidence of P. W. 16, who is very obviously on bad terms with all the accused, makes several things perfectly clear. One is that none, of the Pallars was in the service of accused 1; another that, if any Pallars were present, they would not have been helping the Goundens, but opposing them. Some time ago the wife of P. W. 16's first cousin P. W. 17 eloped with a Pallan. She was outcasted and the Goundens dismissed all the Pallars who were working for them, That being so, it is most unlikely that any Pallar would have come to help accused 1. When P. W. 10 made his complaint to the police, he mentioned P. W. 16 as the man who could name all the accused Goundens as well as Pallars. Apparently he had arranged with the witness that ho should give evidence against his 'enemies the Goundens and implicate the Pallars whom he and P. W. 17 hated. It seems to me practically certain that the Pallar accused have been falsely implicated. Wish that finding goes another large part of the story. It is unnecessary to say any more. It is quite likely that something improper has been done in relation to Ex. E, but I do not believe the story of extortion told by P. W. 10 and his witnesses. I would accept the reference, set aside the verdict and acquit the accused.

Pandalai, J.

8. I think the verdict should be set aside and the accused acquitted on the ground that the story of dacoity told about the preparation and handing over of the receipt Ex. E is so unreasonable that no jury should have accepted it. An examination of the document shows that it was written in a firm hand in the writer's usual style with nothing to show that it was not prepared at leisure and at ease. No man of prudence will accept the story that it was prepared at midday while the writer was exposed to the sun in a field as a result of violence or threat of violence. But in my opinion the accused had only themselves to thank for the view the jury took of their conduct. They asked the jury to accept the view that the recaipt was prepared in the complainant's villages in Telungapatti on 24th July and obtained by accused 1 on payment to P. W. 10 Govindasami Chetty of Rs. 2 500 in cash. This was, if possible, still more absurd than the story of the dacoity. I believe myself that the receipt at Villaiparapatti the village of accused 1 on 9th August, P. W. 10 having been lured there on promise of payment and that it was obtained from P. W. 10 by the accused by some trickery and without paying money. P. W. 10 and his companions thus outwitted in a village where they could get no help, went away and sent for P. W. 10's father and as a result of consultation lodged a case of dacoity. We are not concerned with the effect of the receipt in the civil Court where the petition for satisfaction of the decree filed by the accused is pending. But I agree that the accused should be acquitted.

9. I guard myself against saying anything to cast doubt on the reasoning or result of the decision in Veerappa Goundan v. Emperori A.I.R. 1928 Mad. 1186 not only because it is binding on this Bench and I have to follow and apply it even if I did not agree with it, but also because I see no reason to doubt its soundness. Two propositions are involved in that decision. The first, which is assumed for the purpose of the decision, is that a reference should be made by a Sessions Judge Under Section 307 only in cases where in his view the verdict of the jury is perverse, unreasonable or altogether against the weight of evidence. The second, which is expressly decided, is that on a reference Under Section 307, High Court will not retry the case as if there had been'ho trial but will confine itself to the question whether the Judge's opinion of the verdict, i.e., that it was perverse or unreasonable or altogether against the weight of evidence is correct. If it was correct the jury's verdict will be set aside but if it was not, the verdict will stand, even if it be one which the Court if it had to decide the case for itself in the first instance will not arrive at. In short, the jury's verdict will be given by the High Court the same weight (the 'due weight'spoken of in Section 307) which the trying Judge should have given to it, and the Judge's opinion will be given by the High Court the weight (the 'due weight'spoken of in Section 307) which it should have as that of the presiding officer of the Court to whom is entrusted the duty of seeing that justice does not suffer by the forms of law. In other words the High Court will give to each branch of the Court the weight which is due to it when acting within its own function and will see that neither encroaches on the function of the other. The jury's verdict will be upheld within the possible differences of opinion of reasonable men on the same evidence but not beyond The Judge's disagreernent with the jury will bo affirmed only when it is based on the jury having given a verdict which, being perverse, unreasonable or against the, weight of the evidence, should not have been given. Understood in this way I can see nothing in Veerappa Goundan v. Emperor A.I.R. 1928 Mad. 1186 which does violence to the language of Section 307 nor anything which is either inconvenient or unsuitable to Indian conditions.

10. I understand my learned brother as not disapproving of the limit necessarily set on the powers of the Sessions Judge's reference by the requirement' that he ought not to refer a case unless he considers the verdict manifestly wrong nor on the powers of the High Court by the requirement that it is confined to considering whether the opinion of the Judge as to verdict being manifestly wrong, is supported by the evidence. If so, I respectfully think that the discretion of this Court in disposing of these references is by no means unlimited and that is all the Full Bench decision means. I agree to the order proposed.


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