1. In this case six appellants were tried on a charge under Section 201, I.P.C. before the Additional Sessions Judge of the 24-Pargannas sitting with a jury. The jury by a majority of 4 to 3 found them guilty and the learned Judge accepted the majority verdict of the jury and convicted the appellants and sentenced them to four years' rigorous imprisonment each. He stated in his order:
While this is a case in which there are certain doubtful factors I hesitate not to accept the majority verdict of the jury as this is the second time the accused have been tried by a special jury and a second time a verdict of guilty has been returned by the majority. It was essentially a case in which the jury must decide and I therefore accept their decision while not agreeing with it. I shall be glad if the accused get relief in the appellate Court.
2. Now, the general character of the case was this that one Chintamoni left his home to go to Maibibirhat and never returned. His dead body was found in a tank which may be called Nibaran's tank. There is evidence of a witness who says that he saw the accused with the body near a tank called Suren's tank. This witness is called Parameawar. He says that he confronted the six accused with the body of Chintamoni on the bank of the tank. They first of all told him to get away and then called him back and threatened him. There is evidence of two other witnesses, one called Adyait and another called Kansari, who were coming from a place called Dharmacharak at Panapukar, and as they crossed a bheri west of Nibaran's tank they say they saw these six accused with the dead body. They appear to have been dragging the dead body, but the witnesses' evidence as to seeing the actual dragging is not very definite.
3. The learned Judge put the case to the jury quite fairly, without laying undue stress either way. He left them to consider whether upon this evidence they were entitled to find that the accused were taking the dead body there. He left to them very fairly and properly the evidence on either side as to whether it was proved that Chintamoni had been murdered and whether it was possible that Chintamoni had been drowned by accident. He told them that unless they were satisfied as to the commission of the offence of murder they could not on a charge under Section 201 go any further.
4. If one looks to the charge as a whole one finds, and indeed Mr. Taluqdar for the appellants very fairly says and admits, that the charge is a fair one. It contains no error of law and cannot be said to be inadequate. It is noticeable that the learned Judge has called the attention of the jury to the fact that the important witnesses did not state what they had seen until after a substantial delay, that they have an explanation that they were threatened and that they were afraid, and that the case, therefore, was essentially a case which the jury had to determine on the facts. The learned Judge appears to have been of opinion that sitting as a juryman he would not have been prepared to act upon the evidence taken as a whole but would have given the prisoners the benefit of the doubt. Three of the jury took this view and four of the jury took the view that they were prepared to act upon the evidence, in particular, the definite evidence of these three men. Our right to interfere in such a matter is limited to a case where there has been misdirection on a point of law or where we are satisfied that the jury must have misunderstood the Judge's direction upon a point of law; and this case cannot be brought under either of these characters.
5. The question then arises as to the propriety of the order made by the learned Judge. His view is that it is a fair question for the jury. If he had been a juryman, he would have been in favour of a verdict of not guilty, but he said that he accepted the majority verdict of the jury, and while his reasons about this being a second trial may not have very much in them the position is that he accepted the majority verdict of the jury and did not refer the case. This is not a case in which it can be said that there was no evidence or only a scintilla of evidence against the accused to go before a jury. There is far more than that.
6. The question, therefore, arises whether it is right or possible for us to interfere with the action of the learned Judge under our revisional or appellate jurisdiction and to say that he ought to have referred the case, and to deal with the case upon the footing that the facts and the law are open to us. There seems to be some authority, though it is only an obiter dictum, in the case of Saroda Charan Mistri v. Emperor 0043/1925 : AIR1925Cal795 . That was a case where the Judge's order was particularly difficult to understand and in the end, the Court decided the case on the footing that there was a misunderstanding; on the part of the jury as to the law laid down by the learned Judge. On that footing the High Court was entitled to interfere, but it was said by my learned brother, Mr. Justice Mukherjee:
The learned Judge felt that the verdict of the jury was wrong, and if he accepted the verdict in its entirety he was unable to do justice to the accused. It follows therefore that the ends of justice demanded a reference to this Court, The conditions necessary for the application of Section 307, Criminal P.C., being clearly present the duty of the learned Judge was to make such a reference, and once the conditions are present that course is obligatory and is no longer a matter of discretion at all; it should be remembered that the word used is 'shall.' If under circumstances such as those that are in this, case the learned Judge fails to do what the law requires him to do and thus deprives this Court of an opportunity to deal with the case on its merits, he does something more than merely acting in the erroneous exercise of his discretion. He fails to exercise his jurisdiction and this failure operates to the prejudice either of the Crown or of the accused, and, speaking for myself, I am of opinion that it is well within our power under Section 439, Criminal P.C., to direct him to submit the case to us for our consideration under Section 307, Criminal P.C.
7. Now as to that I desire to say two things: First of all, that the rights of the Court of appeal ordinarily include all the rights of revision and a reference to Section 439, Criminal P.C. would show that a case which comes within Section 439 is merely a case in which the High Court is given the power to exercise any of the powers conferred on a Court of appeal.
8. The second thing I desire to say is this: that if one looks at Section 307, Criminal P.C., one finds, as the learned Judge has pointed out that the word used is 'shall' - 'he shall submit the case accordingly;' - but the conditions laid down in the first subsection are: if the Judge disagrees with the verdict of the jurors or of a majority of the jurors and is clearly of opinion that it is necessary for the ends of justice to submit the case to the High Court, it is only then that, it is said, he shall submit the case accordingly. Now, I am not of opinion that it is correct law to say that if the High Court thinks that the Judge ought to have been of opinion that it is necessary for the ends of justice to submit the case this Court can direct him so to do or can act as though he has, in fact, submitted the case. The conditions laid down are not merely that the Judge disagrees with the verdict of the jury, but also that the Judge is clearly of opinion that it is necessary for the ends of justice to submit the case. The Judge is either clearly of opinion or not clearly of opinion and according as he acts in that matter the consequences must be. It is quite impossible, in my judgment, to direct the learned Judge to be clearly of a certain opinion and the language used by the statute shows that the Judge's view on that point is to be final for that purpose; and I am not prepared, in a case such as this, to enquire into the question whether or not the learned Judge ought to have been of opinion that it was necessary for the ends of justice to submit the case.
9. This matter is a little complicated and some learned Sessions Judges seem to be a little unhappy as to the way in which they express themselves when acting under Sections 306 and 307. Section 306 says that when the Judge does not think it necessary to express disagreement with the verdict of the jurors he shall give judgment accordingly. That shows, as indeed is obvious, that it is no necessary part of the function of the Judge to have an opinion of his own about mere questions of fact and to assert it. His power only arises when having an opinion contrary to that of the jury he thinks that it is necessary for the ends of justice to submit the case to the High Court; and, in my judgment, this power should always be exercised with due regard to the fact that the constitutional tribunal to decide questions of tact is the jury and not the Judge.
10. It remains, however, that three jurymen and the Judge were not impressed with the reliability of the witnesses and four jurymen did accept their evidence. If, in these circumstances the executive authorities think fit to take action in the matter, I desire to say nothing that it would in any way fetter their hands. In my judgment it would be wrong on our part to interfere with the conviction or the sentences, and this appeal must be dismissed.
11. The appellants will surrender to their bail and serve out the remainder of their sentences.
C.C. Ghose, J.
12. I agree.