Debabrata Mookerjee, J.
1. This is an appeal by the State Government from an order of acquittal based upon a jury's verdict. The trial was held by an Additional Sessions Judge, 24-Parganas sitting with a jury who by a bare majority (5:4) found In favour of the respondents Ram Ajodhya Singh and Sitaram Singh who had been charged for the murder of a man named Chandraket Singh. The learned Judge accepted the verdict and acquitted the respondents. Hence this appeal.
2. After the appeal was admitted, the usual notices were directed to be issued and the respondents were ordered to be rearrested and released on bail. Respondent Ram Ajodhya Singh was served and has appeared through counsel to appose the appeal; but respondent Sitaram Singh could not be served despite the issue of proclamation and attachment failing execution of a warrant of arrest against him. He continued to be unserved when this Court directed the appeal against respondent Ram Ajodhya Singh to be made ready and heard, even if the notice of appeal and other processes on the other respondent remained unserved and unexecuted. We have, accordingly, before us the appeal against respondent Ram Ajodhya Singh alone. References to respondent Sitaram Singh cannot be avoided without truncating the case as a whole and making it nearly unintelligible, seeing that the appeal against Ram Ajodhya undoubtedly involves consideration of facts affecting Sitaram Singh. But our conclusions will not affect consideration of the appeal against Sitaram Singh if and when it comes to be heard.
3. Premises No. 93/3, Circular Garden Reach Road is a bustee in which there are a large number of tenements. The huts are reached by a narrow passage or Gulli which runs north to south and connects the Circular Garden Reach Road which runs east to west. The deceased Chandraket Singh was a lessee in respect of six rooms, two of which he kept in his own occupation where he lived with his wife and daughter. He had set up a straw-cutter electrically operated in one of the rooms, but the straw business could not be looked after by himself on account of a disability which had supervened. About two years before the date of occurrence he lost use of both hands which obliged him to make some arrangement about the straw cutting business with one Bhagwan Singh (P. W. 1) who came to occupy one of the rooms and to conduct the business on payment of a stipulated monthly sum to the deceased. Two rooms one on either side of the Gulli were sublet, to one Bis-wanath Gossain (P. W. 9). The room facing west was being used as a tea-shop by Biswanatb. Further down south another room was lot to a tailor. There were electric lights in the shop where Bhagwan carried the straw business as well as in the rooms in the occupation of the deceased. In front of the straw shop there used to be kept a cot on which the deceased would often rest.
4. The tea-shop on the Gulli facing west run by Biswanath was the eause of trouble; it was said to interfere with the free use of the narrow Gulli by the respondents. Earthen pots thrown on the Gulli as left-overs would frequently incommode them.
5. Respondent Ram Ajodhya Singh as well as his brother Sitaram Singh occupied one of the rooms in the bustee towards the far end in the north reached by the Gulli to which we have referred. It had a ledge in front and to the contiguous north there was a boundary wall several feet high, the other side being flanked by the Port Commissioners' godowns. Respondent Ram Ajodhya Singh was a money lender who lived at the place with his brother and two boys. They had no female inmates living with them. Both of them were exasperated by reason of the newly set-up tea shop to the west of the Gulli which they had to use to get in and out of their room in the bustee.
6. The prosecution case is that on the 21st of April, 1960 at about 8.30 p. m. respondent Ram Ajodhya Singh complained of the inconvenience felt and demanded demolition of the tea-shop. He threatened that in case the deceased did not demolish the room he would do it himself. This quarrel with Ram Ajodhya Singh continued for some little time, but at the intervention of Bhagwan Singh (P. W. 1) the parties separated; Chandraket proceeded to his cousin's place at 94/2, Circular Garden Reach Road at a distance of about 80 oubits, and from there to Mohammad Safi who was the owner of bustee. At about 9.30 p. m. respondent Sitaram Singh was seen standing at the mouth of the Gulli where it meets the Circular Garden Reach Road. As soon as the deceased reached the place Sitaram threatened by saying that he would demolish the shop himself and 'finish him'; and despite the intervention of Bhagwan Singh who attempted to varify, (paotfy?) Sitaram itarted giving the deceased Chandraket fists and blows, threw his arms round Chandraket and pressed his head down. Just then respondent Ram Ajodhya rushed from inside the Gull, dagger in hand, and dealt two blows on the deceased. Sitaram and Ram Ajodhya then ran away towards the east chased by three persons Bhagban Singh, Chandrama Singh and Ram Ashray Singh. Ram Ajodhya brandished the dagger and baffled the chasers. They came back to the entrance of the Gulli; but meanwhile, the injured Chandraket had tottered to the cot in front of the straw shop and fell down on the cot. The deceased's wife and daughter as well as another named Dharamnath came up to the place quickly followed by Bhagban Singh, Chandrama Singh and Ram Ashray Singh. The deceased stated that he had been stabbed by Ram Ajodhya Singh and feared that he would not live. Soon thereafter the injured was transferred to another cot and taken to the Dock Hospital which was at a distance of about 250 yards from the place. The doctor in attendance declared the injured dead. He took the necessary details from Bhagwan Singh and Chandrama Singh who had brought the deceased to the hospital, heard an account from them as to what had happened and thereafter sent a telephonie message to the South Division Port Police which was recorded at about 11.10 p. m. Shortly thereafter, a police officer arrived at the hospital, held an inquest, and took statements of Bhagwan Singh, Chandrama Singh and of the doctor in attendance at the Emergency Department. Investigation continued in course of which the respondents were looked for but were not found until the 2nd May when Ram Ajodhya Singh surrendered in Court. During the investigation blood-stains were collected from amongst other things, the cot, the shirt and the lungi which the deceased had upon him at the time of the incident, were seized. Eventually a charge-sheet was submitted. Respondent Sitaram Singh having absconded the inquiry proceeded against Ram Ajodhya Singh alone. He was, thereafter, committed to take his trial; but before the trial commenced, the other accused Sitaram Singh surrendered and there was another inquiry in consequence of which he too was committed for trial. Accordingly, the two respondents were tried at one trial before the learned Judge sitting with a jury.
7. The respondents were charged under Section 302/34 of the Indian Penal Code with having murdered Chandraket Singh. To the charge framed they pleaded not guilty and the defence generally was that they had been falsely implicated. Respondent Ram Ajodhya Singh denied having been seen carrying a dagger in hand, denied having stabbed Chandraket and stated that on the night in question there was a hue and cry in the bustee in course of which the deceased was injured. It was suggested that the deceased who used to deal in stolen articles, happened to have fallen out with his partners in crime one or other of whom had stabbed him. Respondent Ram Ajodhya was attracted to the place and he was suspected of having something to do with the assault on the deceased and was accordingly attacked by Bhagawan Singh, his brother Rajgrihi and his employee Chandrika Singh. He had suffered a knife injury which was inflicted by Chandrika Singh and he informed the police about the incident at about 11 p.m. It is unnecessary to notice the specific defence of the respondent Sitavam Singh who is not before us.
8. As indicated above, the jury found the respondents not guilty and the trial judge in agreement with the verdict, acquitted them.
9. On behalf of the State it has been argued that the verdict has been vitiated by several misdirections which have caused a failure of justice. In the grounds of appeal complaint was made that the trial Judge misdirected the jury in several ways but at the hearing the argument was confined to two misdirections, which were said to have vitiated the jury's verdict. One of these two grounds related to the rejection by the trial Judge of a certain statement made by the doctor in charge of the Emergency Department of the Dock Hospital. The statement was made by the doctor when the police officer visited the hospital on receipt of the telephonic information that a stabbing had occurred at 93, Circular Garden Reach Road. It was contended on behalf of the State that investigation had not in fact commenced when the police officer concerned reached the Dock Hospital and took the statement of the doctor in attendance; that was a statemen in writing which contained details of the incident together with the names of the alleged assailants. It was contended that the statement should not have been excluded but treated as first Information in the case. It appears from the evidence of the police officer concerned that investigation had in fact started, and the police had on reeeipt of an information of the commission of cognizable offence, arrived at the hospital where in course of Investigation, the statement made by the doctor which was ruled out by the trial Judge, had been made. We have acquainted ourselves with the relevant evidence on the point and are satisfied that the trial judge was entirely right in holding that the statement of the doctor could not properly be treated as the first Information report in the case. There is, therefore, no substance in the first contention.
10. The other contention relates to the alleged misdirection on the question of dying declaration. It will be recalled that directly after being stabbed, the injured Ghandraket tottered back to the cot in front of the straw-shop and there in the presence of some of the witnesses including his wife and daughter, stated that he had been stabbed by the respondent Ram Ajodhya Singh and expressed the apprehension that he would not survive. This was an oral declaration about which evidence was given by as many as five witnesses, some of which were also eye-witnesses to the stabbing. While dealing with the evidence relating to the dying statement, the learned Judge observed as follows :
(sic) should know that there may be a conviction on the basis of a dying declaration but I should warn you that it is not safe to convict an accused person merely on a dying declaration without further corroboration in material particulars because it is not made on oath and its maker is not subject to cross-examination. This statement is made in the absence of the accused. The effect of the wound itself may dim his memory or weaken his intellectual power; the very suddenness of the attack may have rendered him mistaken in his identification of his assailant. You should also consider whether the deceased had sufficient opportunity to recogni.se his assailant, whether the person was previously known to the deceased or was a perfect stranger, the time, the state of light, the opportunity, the range and distance are also material facts which should be taken into consideration. In particular you should guard against the possibility of mistaken identity. You should also consider whether the statement of the declarant had the stamp of outside influence and had been made with the spirit of revenge. You are to be convinced that the deceased had good opportunity of knowing who is his assailant and that there was no possible reason for his falsely implicating the accused. Gentlemen, you should not act on the mere dying declaration without material corroboration from independent sources'
It has been contended on behalf of the State that the direction given was erroneous to a degree, since it amounted to an advice to the jury to refect the evidence of a dying declaration unless it was corroborated in material particulars. While it is true that the learned Judge was entirely right in drawing the jury's attention to the well-known infirmities of a dying statement as such, it seems to us that in view of the tenor of the whole passage, the learned Judge in effect, instructed the jury not to act upon the dying declaration unless they found that the declaration was corroborated in material particulars. It seems to us that the learned Judge mixed up the ground for scrutiny with the necessity for corroboration and the total effect of his advice to the jury was that they should not act upon the declaration unless they found that it was corroborated by evidence from Independent sources. This we think was a wrong direction which was bound to have misled the jury. The question as to how to treat a dying declaration has lately been the subject matter of a decision of the Supreme Court in the case Khushal Rao v. State of Bombay, : 1958CriLJ106 . In that case it was ruled that in a given case there may be necessity for corroboration, but there was no rule of law or even a rule of prudence which can be said to have ripened into a rule of law that a dying declaration unless corroborated by other independent evidence, is not fit to be acted upon and made the basis of conviction. It was observed by the Supreme Court that a dying statement should ordinarily be subjected to scrutiny; but once the statement passes the test of reliability and the court is satisfied that the declaration was a truthful version as to the circumstances of the death, there would be no further question of corroboration. It would be safer to set out the exact words in which the matter was dealt with by the Supreme Court.
'Hence, in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But once, the court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim there is no question of further corroboration. If, on the other hand, the court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the reported cases, but from the fact that the court, in a given case, has come to the conclusion that that particular dying declaration was net free from the infirmities referred to above or from such other infirmities as may be disclosed in evidence in that case.'
11. Judged by the test laid down, we think that the learned Judges seriously misdirected the jury by advising them in effect that they should not act merely on the dying declaration without material corroboration from independent sources. As we have said, the learned Judge was entirely right in drawing the jury's attention to the inherent infirmity of a dying statement; but he was required under the law to tell the jury that once they were satisfied as to the essential truth of the statement they would be quite entitled to convict on that statement alone and in such a case no question of corroboration would arise. We hold, therefore, that the verdict was vitiated by this misdirection which cannot but be seriously regarded since the dying declaration in this case, although an oral declaration, forms an important item of evidence against the respondent. We have, therefore, to consider the evidence for ourselves in order to see whether the misdirection has in fact occasioned a failure of justice.
12. The evidence in the case divides itself into two categories--the evidence of the eyewitnesses and the evidence of the dying statement, We have to consider these items and some to a decision whether the jury were right in their estimate of the evidence or whether the prosecution has been able to establish its case beyond all reasonable doubt against the respondent Ram Ajodhya Singh.
13. The eye-witnesses to the stabbing are Bhagwan Singh (P. W. 1), Ram Ashray Singh (P. W. 3) and Chandrama Singh (P. W. 5). The evidence showing the general background of the case has been deposed to by these and other witnesses.
14-18. (After discussion of evidence of these witnesses his Lordship proceeded;) We have been pressed to hold that the prosecution miserably railed to produce independent and reliable evidence in the case. We have considered this aspect with care. The evidence shows that the bustee was tenanted by a large number of people; that most of the huts were occupied; there was a tea warehouse of the Port Commissioners close by where Darwans used to stay even during night. There was the Hyde Road Institute in the vicinity which would be visited by members even at night. There was a factory opposite the bustee where a large number of workers were employed. The place itself was the Port Commissioners' dock area and throughout the whole day and night workers would be seen passing and repassing that way. There is no doubt that it was a thickly populated area and we have been asked to draw an inference adverse to the prosecution since it failed to call any one except the three eyewitnesses who came either from the neighbourhood or from the bustee. In order to draw an inference adverse to the prosecution, it has to be established that there was competent evidence which was deliberately withheld. In this case there is nothing to show that anyone in the tea warehouse, in the Institute or in the factory or in the dock area was acquainted with the facts of the case and was yet not called out of an oblique motive. The mere fact that there were people close by would not be a sufficient ground for asking the court to draw an adverse inference. The presence of a large number of people near about may be presumed; but such presumption does not assist the conclusion that they or any of them had actually seen anything of the occurrence; and unless it is established that the persons not called were competent to prove an essential part of the narrative upon which the prosecution depended and whose evidence would be normally expected, it can never be said that an adverse inference arises. We decline to draw any such inference in the present case.
19-31. (After further discussion of the evidence his Lordship proceeded:) We have no doubt that these suggestions do not have the effect of falsifying the direct evidence of the eyewitnesses whom we believe or the evidence of the dying statement which we have not found any reason to reject. Even if we held that in the facts of this case, cor-roboration of the dying statement was required, it was provided by the evidence of the eyewitness.
32. We do not think it necessary to refer in detail to the find of the blood-marks on the top of the wall to the north of the accused Ram Ajodhya's room It has been amply established that directly after the incident for several days the accused Ram Ajodhya was not found present in his room. That by itself proves nothing but may be just relevant consideration when taken along with the evidence of the eyewitnesses who have clearly proved his complicity in the crime.
33. We have been reminded by counsel on behalf of Ram Ajodhya that this appeal seeks to set aside the verdict of the jury who had the advantage of seeing the witnesses and hearing them; consequently we should be very slow in disturbing that verdict unless there were compelling reasons to do so. The expression 'compelling reason' has lately been considered by the Supreme Court and its true import explained. In the case of Sanwal Singh v. State of Rajasthan, : 1961CriLJ766 , it was held that in an appeal against acquittal the appellate Court has full power to review the evidence upon which the order of acquittal is founded. The principles laid down in Shew Swarup v. Emperor 0043/1934 , were held to afford a correct guide for the appellate Court in disposing of such appeal and the different phraseology previously used in the judgments of the Supreme Court such as 'substantial and compelling reasons', 'good and sufficiently cogent reasons' and 'strong reasons' were not intended to cut down the powers of the appellate Court in an appeal against acquittal to review the entire evidence and to come to its own conclusion. In an order of acquittal based upon a jury's verdict we have no power to go behind the verdict unless misdirection is established. In this case we have held that misdirection did occur in the trial Judge's summing-up with the consequence that the bar of the verdict went and we felt able to enter into evidence. Once the barrier went, we become entitled to consider the evidence for ourselves and come to our own conclusion although our approach must be a cautious approach in view of the fact that the jury had an advantage which we do not possess, the advantage of seeing the witnesses and hearing their evidence. In the case of M.G. Agarwall v. State of Maharashtra, : 2SCR405 , the Supreme Court further explained that it was never intended that the words 'compelling reasons' were intended to curtail the powers of the appellate Court to review the entire evidence and to come to its own conclusion. It was laid down that if it appeared to the High Court on a review of the entire evidence that the conclusion reached by the Court below was not based upon a reasonable view, then that would constitute compelling reason for the Court to interfere with an order of acquittal. It was observed that the expression 'substantial and compelling reasons' should 'not be construed as a rigid formula; it is not even necessary for the Court to reach the conclusion that the order of acquittal is perverse. The true legal position is that the Appellate Court is required to consider whether the conclusion reached is reasonable on the evidence.
34. Judged by the test laid down by the Supreme Court we think that the jury's verdict to this case is unreasonable to a degree. We have, therefore, no hesitation to set it aside. The respondent Ram Ajodhya was charged with Sitaram under Section 302/34 of the Indian Penal Code. Earlier we have indicated that the case of Sitaram is not before us. So the view of the evidence we have expressed will affect the respondent Ram Ajodhya Singh alone. We have, accordingly to consider whether in the absence of Sitaram, the evidence justifies the conclusion that the respondent Ram Ajodhya could properly be convicted of murder even without the aid of Section 34 of the Indian Penal Code. To us it is perfectly plain that the charge of murder is clearly established against the accused Ram Ajodhya. We do not need to call in aid Sectiion 34 in this case. If the evidence is believed, which we have believed, the position is plain that it was the accused Ram Ajodhya who gave the two dagger thrusts which caused the man's death, independently of what Sitaram might or might not have done to facilitate the commission of the crime. It is not the case that Sitaram did anything more than held the deceased down. It was not even suggested that Sitaram actually gave a stab wound. If the evidence is believed against him, he might be said to have facilitated the murder but that is another matter with which we are not concerned in this appeal. The evidence is quite precise and definite that the respondent Ram Ajodhya gave the two blows, one of which was sufficient in the ordinary course of nature to cause death. We, accordingly, find the respondent Ram Ajodhya guilty under Section 302 of the Indian Penal Code and convict him thereunder.
35. The offence was committed in 1960 and the respondent Ram Ajodhya has had to face a trial which did not conclude until July 1961. Thereafter there has been this appeal pending against him. Considering all the circumstances we think the ends of justice will be satisfied if we sentence him under Section 302 to imprisonment for life. We order accordingly.
36. The respondent Ram Ajodhya must surrender to his ball without delay and serve out the sentence now imposed on him.
D.N. Das Gupta, J.
37. I agree.
(Order, dated 10-5-1963 on an application for a certificate under Article 134(1)(c) of the Constitution prom the decision in Government Appeal No. 17 of 1961.)
Debabrata Mookerjee, J.
38. This is an application under Article 134(1)(c) of the Constitution tor a certificate that the questions intended to bo raised in the proposed appeal to the Supreme Court are fit for further consideration by that Court.
(After narrating the facts and the decision of the High Court His Lordship proceeded.)
39-47. In the proposed appeal to the Supreme Court two questions are intended to be raised: First, whether the view which this Court took of the dying statement in the case following the decision in Khushal Rao's case, : 1958CriLJ106 , was the correct and complete view on the subject of dying statements and whether the Bench was right in holding that the directions of the Trial Judge which followed an earlier decision of the Supreme Court in the case of Ram Nath v. State of Madhya Pradesh, : AIR1953SC420 were not correct. The other question relates to the power of this Court to review the facts implicit in a jury's verdict upon an appeal being brought against an order of acquittal.
48. On the question of the correctness of the Trial Judge's directions to the Jury as to the value of a dying statement we do not think it is necessary for us to consider the ground at any length. In Khushal Rao's case, : 1958CriLJ106 , the earlier decision of the Supreme Court in Ramnath's case, : AIR1953SC420 , was fully considered and after a comprehensive review of the law the Supreme Court came to the conclusion that the observation in Ramnath's case, : AIR1953SC420 , that it was settled law that it was not safe to convict an accused person merely on the evidence of a dying statement without corroboration was not called for. Indeed, in Khushal Rao's case Their Lordships held that the observation of the Court was in the nature of an obiter dictum. A cognate contention has been raised on the petitioner's behalf thai despite the detailed statement of the law in Khushal Rao's case, : 1958CriLJ106 , the inferior Courts in the country could not disregard the decision in Ramnath's case, : AIR1953SC420 . We need only to point out that where the Supreme Court has itself had an occasion to consider in a later case, its own earlier decision, no question of the binding character of such earlier decision can reasonably arise. We are bound to take the law as declared by the Supreme Court and we must hold that Khushal Rao's case being a direct decision on the point must be followed since it considers and explains the earlier decision on which the petitioner has relied. In the instant case the Trial Judge gave the Jury clear advice that they should not act on the declaration unless they found that it was materially corroborated by independent evidence. In our view he should have told the Jury that once they found that the dying statement had passed the known tests of reliability they were quite entitled to find the petitioner guilty. The Bench dealing with the petitioner's appeal held that even if corroboration was necessary, there was in the present case ample evidence to corroborate the dying statement.
49. The other question intended to be raised relates to the Court's power in an appeal from an order of acquittal based upon a Jury's verdict. This is not a new question in respect of which a certificate can properly be granted. There have been several decisions of tho Supreme Court laying down the tests to guide the Court considering an appeal from an order of acquittal on a Jury's verdict. It has been held that if on a consideration of the whole of the evidence the Court holds that the verdict of the Jury was not reasonable, that would be a sufficient ground for interference. In this case the Bench reviewed the evidence and came to the conclusion that the Jury's verdict could not be upheld since it could not be said that their opinion was based upon a reasonable view of the evidence. Both the questions are, therefore, completely covered by decisions of the Supreme Court, That being so, we cannot grant a certificate on this application which must, therefore, be dismissed.
D.N. Das Gupta, J.
50. I agree.