1. This is an appeal by 1st accused in 8. C. No. 41 of 1935, in the Sessions Court of Coimbatore. The appellant was convicted of an offence punishable under Section 392, Indian Penal Code, namely robbery, as a result of unanimous verdict of the jury. He was sentenced to rigorous imprisonment for two years by the learned Sessions Judge.
2. Five other accused were charged with the appellant under Section 120-B read with Section 384, Indian Penal Code, and the appellant was also charged with accused Nos. 1 to 4 and the 6th accused with extortion (s. 384, Indian Penal Code) and with the same accused with dacoity (s. 395, Indian Penal Code). The appellant was acquitted on the other charges by the learned Sessions Judge and all the other accused were acquitted on all the charges. Briefly put, the prosecution case was that the zemindar of Ramapatnam was engaged in an illicit amour with the appellant's wife, Satyabhama. She wrote to him passionate letters and he replied in terms that left no doubt as to his relations with her. On December 28, 1934, the appellant, having come into possession of the letters written by the zemindar to his wife who was the 5th accused in the case being charged with the other accused of being engaged in the conspiracy to extort money from the zemindar, decoyed the letter to his estate in the Nilgiris, ostensibly to settle the sale of his Shandypet to a prospective purchaser but really in order that he might confront him there with the proof of his relations with his Wife, the 5th accused. The zemindar spent the night of the 28th at the appellant's estate at Benhope and whilst he was asleep his loaded revolver was taken by the appellant from under his pillow. Next morning the zemindar was taken for a walk round the estate and to a place some distance away from the main road. Armed coolies had been posted there and on arrival at the spot the zemindar was suddenly confronted by the appellant with an accusation that he had been intimate with his wife and was shown the letters written by him to Satyabhtma. The 1st accused played the part of an outraged husband and pulling out the zemindars revolver from his pocket threatened to shoot him then and there. The 2nd accused who was present pleaded with the 1st accused to spare the zemindar's life and then led the 1st accused away pretending to induce accused No. 1 to spare the zemindar if the latter would pay substantial compensation. After some discussion, in which accused No. 2 acted as the mediator between the zemindar and accused No. 1 Rs. 25,000 was fixed as the amount of compensation.
3. The case for the Crown is that the zemindar had no choice in the matter and that he thought his life was at stake as he was surrounded and beset by the friends of accused No. 1 and by armed employees of accused No. 1. The place was a lonely one and he had no friend present except his own cousin. ,He was, therefore, forced to agree to execute promissory notes in favour of accused No. 1 for the amount before stated. The case for the Crown is that accused No. 1 had made all arrangements beforehand and a cooly brought a case in which were writing materials. Accused No. 2 wrote two promissory notes for Rs. 25,0C0 which the zemindar signed, as compensation. Whilst these documents were being executed, accused No. 1 sent accused No. 4 to Coimbatore in his car. Accused No. 1 had previously warned three money-lending firms in Coimbatore that the zemindar would require a loan of Rs. 30,000 towards the end of December. The three money-lenders who were friends of accused No. 1 had agreed to lend that sum to the zemindar and to send the money when accused sent for it. The amount required from the money-lenders on December 29, was Rs. 27,000. During this time the zemindar was kept a prisoner in the house. On the arrival of money, promissory notes were executed by the zemindar in favour of the money-lenders and the money brought was paid over to accused No. 1. Between December 29 and January 10, the zemindar was negotiating for the return of his love letters by accused No. 1 and raising loans to re-pay the bankers who had lent him the money on December 29. The accused No. 1 was insisting on the moneylenders being paid before he parted with the zemindar's love letters. On January 10 the Police stepped in although the zemindar had not complained to the Police of being robbed, and as the result of the intervention of the Police, the appellant and the other accused were charged with the criminal offences. The defence raised on behalf of the appellant was that the Inspector of Police made a criminal offence of an immoral story by introducing the revolver, armed coolies, etc., and that what the appellant did was merely to demand Rs. 25,000, the estimated value to him of Satyabhama, his wife. His defence was that the zemindar arranged to come to Benhope on the night of December 28, in order to settle negotiations for the sale of Shandypet to one G.D. Naidu, of Coimbatore, and for that purpose the appellant was to meet the zemindar at Ben-hope with G. D. Naidu. That evening, however, he discovered before he left Coimbatore that the zemindar had grossly abused his friendship with him and was carrying, on a guilty relationship with Satyabhama, his second wife. On arrival at Benhope he waited for the zemindar and that same night taxed him with his misconduct and told him that he was in possession of certain love letters which he had written to Satyabhama.
4. The zemindar admitted that he had been engaged in an illicit intrigue with her and asked him not to give publicity to the fact or resort to proceedings in Court and stated that if he agreed to that he would think the matter over that night and propose an arrangement for compromising the affair the following morning. Next morning, after a discussion, the zemindar agreed to pay him Rs. 25,000 as compensation for the injury. The figure of Rs. 25,000 was arrived at on the basis of restoring to the appellant the money he had spent on Satyabhama in the shape of properties, presents and jewels. Shortly before this, the zemindar who was in need of money had asked the appellant to arrange for a loan of Rs. 30,000 with certain bankers at Coimbatore which loan was to be availed of in the event of the negotiations for the sale of Shandypet falling through. As G.D. Naidu did not turn up that night as promised, it was impossible to consider the question of further negotiations towards the sale. The zemindar suggested that out of the money so arranged by way of loan he would pay Rs. 25,000 to the appellant, and in order to complete the compromise asked the appellant to send some one to Coimbatore to obtain funds from the bankers. The zamindar asked him to obtain Rs. 27,000 and accordingly a messenger was sent to Coimbatore for that purpose. In consideration of this payment the zemindar insisted and the appellant agreed to hand over all the letters that had passed between the zemindar and Satyabhama stipulating at the same time that that would be done on the appellant's return to Coimbatore as most of the letters were there. The appellant denied any threat to shoot the zemindar or that he at any time was in possession of the zemindars revolver or caused him to be intimidated by his coolies or confined him in his bungalow in any manner.
5. The learned Sessions Judge took a definite view of the case as his charge to the jury shows. That charge was very strongly favourable to the defence and extremely hostile to the case for the Crown. Indeed he expressed his own opinion very strongly against the zemindar's evidence, his story and the case for the Crown, and left the jury in no doubt whatever about his views of the case. We may pause here and say that a trial Judge is entitled to express his opinion to a jury freely and emphatically when it seems to him to be necessary to do so provided that he warns the jury that his opinion is in no way binding upon them and that it is the jury's opinion on the facts of the case alone which matters. This warning the learned Sessions Judge frequently gave to the jury. The jury, however, as they were quite entitled to do, accepted the zemindars evidence and unanimously found the appellant guilty of robbery. The learned Sessions Judge accepted the verdict. Accused No. 1 now appeals and as he has been convicted by a jury, the provisions of Section 423 of the Code of Criminal Procedure apply to this case. Therefore, the Appellate Court by reason of Sub-section (2) is not authorised to alter or reverse the verdict of the 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.
6. The Appellate Court accordingly cannot go into the facts of the case except to see whether there has been any misdirection by the Judge. Mr. Grant for the appellant has found himself in an exceedingly difficult position in view of the fact that the learned Sessions Judge's charge to the jury was so ' entirely favourable to the appellant as he has from the first frankly admitted. He however, contended that the Appellate Court is entitled to go into the facts of the case and reverse the findings of the jury because a criminal revision case has been filed by the Crown for enhancement of sentence calling upon the High Court to exercise is powers of revision under Section 439, Criminal Procedure Code. By virtue of Sub-section (2) of that section no order under tie section shall be made to the prejudice of the accused Unless he has had an opportunity of being heard either personally or by Pleader in his own defence and Sub-section (6) such convicted person in showing cause shall be entitled also to show cause against his conviction. Under Sub-section (1) the High Court may in its discretion exercise any of the powers conferred on a Court of Appeal by, inter alia, Section 423 of the Code. Mr. Grant argued that because of the opening words of Sub-section (6) namely 'Notwithstanding anything contained in this section' which includes Section 423, a convicted person is entitled in showing cause against his conviction to go into the facts of the case even though he has been convicted as a result of the verdict of a jury. Sub-section (2), Section 423, is imperative and Mr. Grant's contention, therefore, is that by implication Sub-section (6) of Section 439, Criminal Procedure Code, overrides the express terms of the former section. We find it impossible to accept such an extreme contention and, had it been intended by the legislature to override the provisions of an earlier section, such an intention would have been expressly stated.
7. In our view a convicted person in showing cause against his conviction under Sub-section (6). Section 439, of the Code has only the same right as he has when he comes before the Court by way of an appeal under Section 423. The same view has been taken in the only reported case in which, the same point was considered, namely Khodabux Haji v. Emperor, : AIR1934Cal105 . It was there argued that the words 'notwithstanding anything contained in this section' obliterated the plain language of Sub-section (1), of Section 439, in which is incorporated amongst others Section 423. The Calcutta High Court, however, declined and in our opinion quite rightly) to accept that argument and held that in all cases where the question of enhancement of sentence is before the Court the position is just the same as if the matter had come before the Court by way of appeal or revision at the instance of the convicted person himself. It is indeed difficult to find any reason why the position should be otherwise merely because an enhancement of sentence is sought for; and, as we have already said, the words ''notwithstanding anything contained in this section' cannot by implication override the express and imperative provisions of an earlier section. We are, therefore, against the appellant's contention upon this point.
8. The appellant accordingly now seeks to show that by reason of certain matters to which we will refer, his case was not properly put before the Jury by the learned Sessions Judge. He complains firstly that four witnesses for the Crown, namely P. Ws. Nos. 17, 18, 19 and 23, were held to be hostile by the learned Sessions Judge and allowed to be cross-examined by the Public Prosecutor and that there were not sufficient grounds or at any rate wrong reasons were assigned for treating these witnesses as hostile. Prosecution Witness No. 17 is a person of some standing and his evidence was that the zamindar and his manager came to him and told him about the settlement of the matter by the payment of Rs. 25,000 to the appellant and that the appellant had promised to return the love letters at Coimbatore but had failed to do so and that the letters were wanted back lest the appellant might use them again, and that they had come to him to ask for his assistance in recovering them. According to the witness the zemindar did not complain to him that the money had been extorted from him. He then described the assistance given by him to the appellant. When permission to cross-examine the witness was sought by the Public Prosecutor, the following note was made by the learned Sessions Judge:
Permission was granted on the ground that the witness's answer to certain questions is in direct conflict with evidence of other prosecution witnesses, e.g., the zemindar, Prosecution Witness No. 1.
9. In our view, that is not and can never be a reason for allowing a witness to be treated as hostile. But it is frankly conceded by Mr. Grant that the subsequent cross-examination elicited nothing unfavourable to the defence. On the contrary it seems to us that the evidence was favourable. Prosecution Witness No. 18 was also a mediator who was asked to get the letters for the zemindar and he described his efforts. The learned Sessions Judge allowed the witness to be cross-examined on the ground 'that he is reluctant to give evidence against accused No. 1 or to disclose full facts' and it is possible that he may have exhibited a reluctance by the way in which he gave his evidence. But with regard to him also, it is admitted that he stated nothing injurious to the appellant. On the contrary he helped his case. Prosecution Witness No. 19 also was a mediator. He was cross-examined and stated nothing in cross-examination damaging to the appellant's case. Prosecution Witness No. 23 was also cross-examined by the Public Prosecutor with the Court's permission for the reason that 'witness knows more of this case than he is willing to state.' His cross-examination also elicited nothing unfavourable to the appellant. Mr. Grant however contends that the evidence of these witnesses was of vital importance to the defence because they stated that the zemindar did not complain to them of any extortion by threats; and his complaint is that because these witnesses were held to be hostile at the evidence stage of the trial, a bad impression must thereby have been formed of them by the Jury and that the learned Sessions Judge should have explained the matter to the Jury and told them that they might still believe those witnesses. Unfortunately this contention overlooks the fact that the learned Sessions Judge did do so, Indeed he went a good deal further and in para. 30 of his charge he relies upon the panchayatdars evidence in opposition to that of the zemindar and in para. 31 upon this point he says:
Do you believe that the panahyatdars (the witnesses already referred to) would have had anything to do with this matter if the zemindar had told them, he had been robbed at the point of a revolver, remember that the zemindar himself admits he did not in so many words ask the panchayatdars to relieve him of his liability to pay Rs. 27,000.
10. This seems to us to be a strong indication to the jury that the evidence of those witnesses should be accepted in preference to that of the zemindar- Another complaint made by Mr. Grant is that according to the evidence a well-known Vakil in Coimbatore was consulted by the zemindar with the object of getting back the love letters. This witness was not called by the prosecution. Mr. Grant contends that the fact that he was not called by the prosecution to say whether the zemindar told him that the promissory notes were got because of threat with the pistol raises the inference that he was not told and that the learned Sessions Judge should have referred to this in his charge to the jury. The first comment to be nude about this is that a Judge is not bound to mention every point the defence put forward. What he has to do is to put the defence fairly before the jury and furthermore the absence of this person from the witness-box does not seem at the time to have been regarded by the defence as at all important. If they had chosen, the defence could have invited the Court to call the witness as a Court witness. No such invitation was given. We do not think it necessary to refer to one or two other matters put forward by Mr. Grant because they are of very minor importance indeed. We are quite unable to find anything in the learned Judge's charge to the jury in the least degree unfavourable to the appellant. On the contrary, it was, as we have already stated, an exceedingly strong address on the appellant's behalf. Examining the charge to the jury, there is no sort of criticism adverse to it that can possibly be made by the defence. On the other hand, we are bound to say that it is possible for the Crown to criticise it a great deal. We refer here particularly to what the learned Sessions Judge says about the events which happened before December 28. In para. 29 he says in dealing with the money-lenders whom he describes as grasping, greedy and unscrupulous, a criticism which appears to us to be quite irrelevant, as follows:
About December 21, probably soon after the zemindar's interview with G. D. Naidu at the accused No. 1's house, accused No. 1 approached three money-lenders.... These three money-lenders are friends of accused No. 1. They are mutual friends. They are also directors of each other's concerns. Accused No. 1. told them that the zemindar wanted to borrow Rs. 30,000 to buy an estate on the hills and would probably want the money towards the end of the month. They asked no questions. In true money-lender's spirit they at once agreed to lend Rs. 30,000 to the zemindar. The. security was rather better than such money-lenders usually get. Zemindars are rare victims. This zemindar had only recently take. over his estate and was not yet hopelessly involved in debt. The 1st accused told them he would send for the money when it was required. On the 29th, accused No. 1 sent his driver from Benhope with a chit to them to send Rs. 27,000 to Benhope. They hastened to comply. One can only infer that accused No. 1 had seen them on the 28th evening before he set out for Benhope. How much he told them it is impossible to say.
11. The story about the zemindar requiring to borrow money to buy an estate on the hills appears to be quite untrue. These facts seem to us to show that as early as December 21, the appellant had planned to get this large sum of money from the zemindar and if as the learned Sessions Judge thinks the appellant saw the moneylenders on the evening of the 28th before he set out for Benhope, it is obvious that he intended the money to be paid at Benhope. It is most probable also that on December 21, he must have had in his possession the love letters and that he intended to use the love letters for that purpose. This of course does not go the whole way in support of the prosecution case, namely, the use of the revolver, but it certainly is very strong support indeed for the case for the prosecution that the appellant intended at least to extort the money from the zemindar and the appellant was not the outraged husband seeking for compensation only. This aspect of the case is not even faintly put before the jury.
12. On the contrary it is almost completely obscured by a violent attack upon the money-lenders. In another matter it seems to us that some qualification might have been added to his observations by the learned Sessions Judge. That is where he deals with the subsequent conduct of the zemindar. He did not complain of any criminal act such as the use of the revolver and the armed coolies. We have to consider what it was that the zemindar was principally concerned about at that time. His pressing need was to get back the evidence of his illicit intrigue with Satyabhama, namely his love letters. Whilst those remained in the possession of the appellant, he was in danger of exposure or still further demands upon his pocket. His object was to keep the matter secret although he had to make certain disclosures to the panchayatdars whose aid he wanted in the matter. Is it likely that a man desirous of keeping such a matter secret would make a criminal charge against a person who had extorted the money? That would be the very best way of making the matter public to all. It is the knowledge that blackmailed persons are unwilling to expense themselves to such publicity that' renders blackmail easier of performance. The fact that the zemindar did not complain of criminal conduct is put very heavily against him by the learned Sessions Judge without the qualification to which we have already, referred; and it is quite possible that the jury whose foreman is described as a person of considerable intelligence may have thought these matters to which we have referred of some importance. We must also refer to another matter. This appears in para. 20 of the learned Sessions Judge's charge to the jury:
On his own showing accused No. 1's behaviour was morally most reprehensible. He was prepared to make money out of his wife's dishonour (it may be she is only bis mistress, but if she is his wife his conduct is not better but worse).
13. The fact that the woman may only have been the mistress and not the wife has a very important bearing on the charge of extortion, which of course was not one to be tried by the jury but by the learned Sessions Judge, and in view of the appellant's defence if the woman was only his mistress, there was no defence at all to the charge of extortion. In our view this appeal cannot succeed and must be dismissed. With regard to the enhancement of sentence, we can see no reason for increasing it. The criminal revision case must, therefore, also be dismissed.