Akhlakali Hayatalli Vs. The State of
Bombay  INSC 80 (9 December 1953)
BHAGWATI, NATWARLAL H.
CITATION: 1954 AIR 173 1954 SCR 435
CITATOR INFO :
RF 1957 SC 373 (6) R 1962 SC 605 (14)
Criminal Procedure Code (V of 1898 as
amended), s. 307- Reference to High Court-Proper approach-Jury-Sole Judges of
facts-Provided verdict could be arrived at by reasonable body of men.
The proper method of approach in the matters
of references under s. 307 of the Criminal Procedure Code as finally settled is
that the High Court will only interfere with the verdict of the jury if it
finds the verdict perverse in the sense of being unreasonable, manifestly wrong
or against the weight of evidence.
If the facts and circumstances of the case
are such that a reasonable body of men could arrive at one conclusion or the
-other, it is not competent to the Sessions Judge or the High Court to
substitute their verdict in place of the verdict which has been given by the
jury. The jury are the sole judges of the facts and it is the right of the
accused to have the benefit of the verdict of the jury. Even if the Sessions
Judge or the High Court would, if left to themselves, have arrived at a
different verdict, it is not competent to the Sessions Judge to make a
reference nor to the High ,Court to accept the same and substitute their own
verdict for the -verdict of the jury provided the verdict was such as could be
arrived at by a reasonable body of men on the facts and circumstances of the
Ramanugrah Singh v. Emperor (A. 1. R. 1946 P.
C. 151) referred to.
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 76 of 1953.
Appeal by special leave against the Judgment
and -Order dated the 16th June, 1952, of the High Court of judicature at Bombay
in Criminal Jury Reference No. 58 of 1952.
436 H. J. Umrigar for the appellant.
Porus A. Mehta for the respondent.
1953. December 9. The Judgment of the Court
was delivered by BHAGWATI J.-This is an appeal by special leave from a judgment
of the High Court of judicature at Bombay accepting the reference made by the
Additional Sessions Judge, Greater Bombay, under section 307 of the Criminal
Procedure Code, and convicting the appellant of an offence under section 326 of
the Indian Penal Code and sentencing him to four years rigorous imprisonment.
The case of the prosecution was that at or
about 10-30 or 11 p.m. on the 25th August, 1951, the complainant Abdul Satar
was going towards Dhobi Galli through the Bibijan Street. At the junction of
the Chakla Street with Bibijan Street, he was attacked by the appellant. The
appellant first attempted to strike him on his right shoulder, but Abdul Satar
caught hold of his hand. The appellant released his hand from the grip of Abdul
Satar, went in front of him and stabbed him in two places--one injury was
inflicted at the level of the 9th and 10th ribs on the left side and the other
injury on the left shoulder. The appellant then ran away and was pursued by
several people. Babu Adam saw him at the corner, of the Chakla Street and the
Masjid Bunder Road and joined the pursuit. Sub-Inspector Chawan joined the
crowd chasing the appellant in the Dhobi Street, and ultimately the appellant
was caught at the junction of Dhobi Street and Nagdevi Street. The appellant
was then taken to the police station. He was taken by the police officers to
the place where the attack took place and a panchnama of the scene of the
offence was made at five minutes past one on the 26th August, 1951. The appellant
and the police officers returned to the police station and at 1-30 a.m., that
is within half an hour, another panchnama was made in respect of the clothes
which the appellant was wearing.
According to that panchnama there were blood
stains 437 on the right arm pit, on the front of the and on 'the right thigh.
There were also 'blood on the right; side collar and on the back of the shirt
The defence put up by the appellant was he was a fruit broker and, after
collecting his dues from the Crawford market at 11 p.m.,to he came to the
corner of Dhobi Street, when he heard the shouts,"chor, chor" and -
he also then shouted "chor, chor" and ran after the person who was
running away in order to catch him. When he reached the junction of Nagdevi
Cross Street, he fell down and the person who, was running ahead of him rushed
into a gutter.
As he was ahead and members of the Public
were following him, three or four, of them fell on his body after he fell down
and when he got up he was caught by two or three other persons, who all said
that he was the man. Sub-Inspector Chawan was one of these persons. Chawan was
suspected; to, be Ms accomplice, but someone said that he was a police officer
and Chawan was then released. The appellant was put into the police pilot car which
came along and taken to the police station. He was then taken to the, scene of
the offence and a panchnama was drawn there. He was again brought to, the
police 'station thereafter and was made to sit in the charge room. As he was
feeling very hot, he removed his shirt and kept it by his side. In the,
meanwhile, a police constable came there and gave him a blow on his nose
saying, "Do you think this is your father's residence that I you removed
your shirt? He thereupon started bleeding from his nose, and due to that
bleeding his shirt and trousers were, stained with blood. The same constable
then asked him to put on the clothes and took him to his officer. He produced
the appellant before D. 1.
Kakatkar who there noticed his clothes. The
panchas were called and a panchnama was drawn up in which the blood stains on
the shirt and trousers were noted.
The appellant was tried by the Additional
Sessions judge and a common jury. The prosecution called the evidence of the-
complainant Abdul Satar, Babu Adam and Sub-Inspector, Chawan. Evidence was led
Of an identification parade which was held in the 6-93 S.P.India/59 438
hospital where Abdul Satar was taken from the scene of the offence and it was
proved that Abdul Satar identified the appellant at that identification parade.
Evidence was also led of the panch witness who deposed to the panchnama noting
the blood stains on the shirt and the trousers of the appellant.
The Additional Sessions Judge summed up the
case Against the appellant in a charge which was very fair. The charge was not'
attacked before the High Court nor before us as containing any misdirections or
non-directions to the jury such as to vitiate the verdict. The jury after' due
deliberation could not be unanimous and pronounced a verdict of not guilty
against the appellant by a majority of six to three. The Additional Sessions
Judge did not accept the verdict of the ,majority. He disagreed with the
verdict and thought that it was necessary for the ends of justice to submit the
case to the High Court and accordingly by an order of reference dated the 22nd
April, 1952, submitted the case to the High Court under section 307 of the
Criminal Procedure Code.
It is significant to note that prior to the
enactment ,of Bombay Act VI of 1952, sections 305 and 306 of the Criminal
Procedure Code were applicable to the Court of Sessions for Greater Bombay. It
was intended as stated in the objects of the Bill to provide for a case of
,disagreement with a unanimous verdict of the jury and enable the Sessions Judge
for Greater Bombay to make a reference under section 307 of the Criminal
Procedure Code even in the case of a unanimous verdict with which he disagreed.
In making the amendment however by the Bombay Act VI of 1952 the Legislature
took away the powers of the Sessions judge "of Greater Bombay to discharge
the jury and ,order a retrial of the accused by another jury even in the case
of a majority verdict so much so that even in a verdict of five to four which
was not till then an effective verdict the case would have to be submitted to
the' High Court under section 307 of the Criminal Procedure Code.
439 The High Court heard the reference and
came to the conclusion after discussing the evidence on the record that, no
other conclusion was possible for a reasonable person except that the appellant
was the assailant of Abdul Satar.
The High Court accordingly convicted the
appellant of the offence under section 326 of the Indian Penal Code and
sentenced him as above. The appellant obtained special leave to appeal from
this court on the 4th February, 1953, and hence this appeal.
There were various circumstances brought out
in the evidence of the prosecution witnesses Which were particularly relied
upon by the defence. The prosecution frankly admitted that it had failed to
prove any motive for the commission of the offence by the appellant. Abdul
Satar had not stated anywhere before he gave evidence in the Sessions Court
that he had any conversation with the appellant as to why the latter was
inflicting the injuries on him. He however stated for the first time in the
Sessions Court that he' asked the appellant as to why he was stabbing him and
the appellant replied that he was doing it at the instance of a friend of his.
Abdul Satar then stated that he was on inimical terms with one Sulaiman and it
was at the instance of Sulaiman that the appellant inflicted the injuries on
his person. This was characterised by the defence as a pure after-thought in
order to supply a motive for the commission of the offence by the appellant and
it was urged that if Abdul Satar was capable of inventing a story for supplying
the motive for the commission of the offence by the appellant he -could not
certainly be relied upon even in the identification of the appellant by him.
The weapon of offence was also not found upon
the person of the appellant and in spite of a search being made for the same
was not discovered by the police either at or near the scene of the offence.
Neither Babu Adam nor Sub-Inspector Chawan deposed to having seen the knife in
the hands of the appellant. It was only Mohamed Safi, a witness who was dropped
by the prosecution and was examined by the defence, 440 but treated as a
hostile witness even by the defence, who stated that he saw a knife in the
hands of the appellant.
If Babu Adam's evidence was to be accepted
Mohamed Safi was not telling the truth and if Mohamed Safi's evidence was: to
be accepted Babu Adam was -not telling the truth. Tins conflict of evidence was
therefore, rightly commented upon by the defence.
The identification parade also was challenged
as not proper because it was alleged that mostly ward boys were mixed up with
the appellant when the identification parade was held. No questions were
addressed in the cross- examination of prosecution witnesses in regard to this
aspect of the case and the Additional Sessions Judge observed to the jury that
in the absence of such cross- examination, not mulch reliance could be placed
on this criticism of the identification parade. It may be noted, in passing
that even the High observed that "the parade was not as satisfactory as we
expect parades to, be in such cases further observed that the, only effect of
that fact would be to, put them upon guard with regard to the -evidence of
Abdul Satar and they should not proceed to act upon that evidence unless it was
The blood stains on the shirt and the
trousers of the ;appellant were 'not observed in the first instance by either
Babu Adam or Sub-Inspector Chawan and it was only when the second panchnama was
made at about 1-30 a.m. on the 26th August, 1951,, after the appellant was
brought back to the police station from the scene of the offence that these
blood stains were noticed and were noted in the panchnama.
The existence of these blood stains was urged
as corroborative of the testimony of Abdul Satar in so far as he stated that
the appellant caused the injuries on his person. The defence story of the
police constable - having dealt a blow on the nose of the appellant which led
to, the bleeding of the nose and the blood; stains on the shirt and the
trousers of the appellant was sought to be, negatived by pointing out the
improbability- of the police constable having, acted in that manner within, 441
the very precincts of the police station The prosecution theory might possibly
have explained the blood stains in the right -arm pit, in -front of the shirt
as well as the trousers But, the blood stains on the back of the shirt could
not be easily explained. The blood on the back of the shirt could certainly be
explained by the defence theory and that was a circumstance which was relied
upon by the defence as maring the defence version probable.
These were the circumstances which were
before the jury when they, deliberated upon the question of the criminality of
the appellant, and the only question which, we have to consider is whether the
verdict which they arrived at by a majority of six to three was such as no
reasonable body of men could arrive at on the record of the case The proper
method of approach in the matter of, references under section 307 of the
Criminal Procedure Code was laid down by the Privy 'council in Ramanugrah Singh
v. Emperor(1), where the Privy Council resolved the conflict ,of authorities
which was till then prevalent: in India and accepted,the view that the High
Court will only interfere with the verdict of the jury if it finds the verdict
"perverse in the sense of being unreasonable", "manifestly
wrong" or "as against' the weight of evidence". The observations
of their Lordships of the Privy Council on the principle underlying section 307
of the Criminal Procedure Code may be aptly quoted here :- "Under
sub-section (1), two conditions, are required to justify a reference. The
first,, that the Judge must disagree with the verdict of the jury, calls for no
comment, since it is obviously the foundation for any Preference.
The second, 'that the judge must be
"clearly of opinion that it is necessary for, the 'ends of justice to
submit the case" is important, and in their Lord,ships' opinion provides a
key to the 'interpretation Of the section. The legislature no doubt, realised
that the 'introduction of trial by jury in the mofussil would be experimental,
and might lead to miscarriages of justice through jurors, in their ignorance and
inexperience, (1) (1946) A.I.R. 1946 P. C. 151.
442 returning erroneous verdicts. Their
Lordships think that the section was intended to guard against this danger, and
not to enable the Sessions judge and the High Court to deprive jurors, acting
properly within their, powers, of the right to determine the facts conferred
upon them by the Code. If the jury have reached the conclusion upon the
evidence which a reasonable body of men might reach, it is not necessary for
the ends of justice that the Sessions Judge should refer the case to the High
Court merely because he himself would have reached a different conclusion upon
the facts, since lie is not the tribunal to determine the facts. He must go
further than that and be of opinion that the verdict is one which no reasonable
body of men could have reached upon the evidence. The powers of the High Court
in dealing with the reference are contained in sub- section (3). It may
exercise any of the powers which it might exercise -upon an appeal, and this
includes the power to call fresh evidence conferred by section 428. The court
must consider the whole case and give due weight to ; the opinions of the
Sessions 'Judge and jury, and then acquit or convict the accused. In their
Lordships' view, the paramount consideration in the High Court must' be whether
the ends of justice -require that the verdict of the jury should be set aside.
In general, if the evidence is such that it can properly support a verdict
either of guilty or not guilty, according to the view taken of it by the trial
court, and if the jury take one view of the evidence and, the judge thinks that
they should have taken the other, the view of the jury must prevail, since
they, are the judges of fact. In such a case a reference is not justified, and
it is only by accepting their view that the High Court can give due weight to
the opinion of the jury. If, however, the High Court considers that upon the
evidence no reasonable body of men could have reached the conclusion arrived at
by, the jury, then the reference was justified and the ends of justice require
that the verdict disregarded." 443 We are of the opinion that this is the
correct method, of approach in references under section 307 of the Criminal,,
Procedure Code. If the facts and circumstances of the case are such that a
reasonable body of men could arrive at 'the" one conclusion or the other,-
it is not competent to the Sessions Judge or the High Court to substitute their
verdict in place of the verdict which has been given by the jury.
The jury are the sole judges of the facts and
it is the right of the accused to have the benefit of the verdict of the jury.
Even if the Sessions Judge or the I High Court would if left to themselves have
arrived at a different verdict it is not competent to the Sessions Judge to
make a reference nor to the High Court to accept the same and substitute their
own verdict for the verdict of the jury provided the verdict was such as could
be arrived at by a reasonable body of men on the facts and circumstances of the
Having regard to the position which we have
set out above we are clearly of the I opinion that on the facts and
circumstances of the 'case before us there were enough materials before the
jury which would enable the jury to come to one conclusion or the other in
regard to 'the criminality of the appellant. Six out of the nine, jurors came
to the conclusion that the appellant, was not guilty of the offence with, which
he was charged. Three out of the nine jurors came to an opposite conclusion and
it is impossible in the circumstances of the case for us to characterise the
one or the other of the conclusions reached by the members of the jury as
-perverse in the sense of being unreasonable or manifestly wrong or against the
weight of evidence. The verdict reached by the majority was certainly a verdict
which upon the evidence on record a reasonable body of men could have reached
and in our opinion the ,reference was not competent.
The result therefore is that the appeal will
be allowed, the judgment of the High Court on, reference set aside, the
majority verdict of the jury Pronouncing the appellant -not guilty of the
offence with which he was 444 charged accepted and the appellant acquitted and
discharged and forthwith set at Appeal allowed.
Agent for the respondent: G. H. Rajadhyaktha.