Moseb Kaka Chowdhry Alias Moseb
Chowdhry & ANR Vs. The State of West Bengal  INSC 29 (18 April 1956)
SINHA, BHUVNESHWAR P.
CITATION: 1956 AIR 536 1956 SCR 372
Jury trial-Verdict of Jury-When Sessions
Judge to accept and to give reasons for accepting it-S. 307 Cr. P.C.-
Examination under s. 342 Cr. P.C. perfunctory-Prejudice-New point,
A Sessions Judge, even if he disagrees with
the verdict of the Jury, must normally give effect to that verdict unless he is
clearly of opinion that no reasonable body of men could have given the verdict
which the Jury did.
Ramnugrah Singh v. King-Emperor, ( L.R.
73 I.A. 174), relied on.
A Sessions Judge need not record his reasons
for accepting the verdict of the Jury. In a case where a Judge in his charge to
the Jury, has clearly and definitely expressed himself for acquittal, it would
be desirable though not imperative, that he should give his reasons why he
changed his view and accepted the verdict of the Jury finding the accused
Even where the examination of the accused
under s. 342 Cr.P.C. is perfunctory the judgment cannot be set aside unless
clear prejudice is shown.
Tara Singh's case, ( S.C.R. 729),
K.C. Mathew and Others v. The State of
Travanore-Cochin, ( 2 S.C.R. 1057), relied on.
Prejudice cannot be presumed from the fact
that the trial is by a jury though that is a circumstance which may be taken
An argument which would, if accepted,
necessitate a retrial, ought to be put forward at the earliest stage and at any
rate before the High Court in appeal and cannot be entertained for the first
time in an appeal on special leave.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 15 of 1955.
Appeal by special leave from the judgment and
order dated the 24th March, 1953 of the Calcutta High Court in Criminal Appeal
No. 94 of 1952 arising out of the Judgment and order dated the 22nd April 1952 373 of the Court of Sessions Judge, Murshidabad in Sessions Trial No. 1 of 1952.
Jai Gopal Sethi, (C. F. Ali and P. K. Ghosh,
with him) for the appellants.
B.Sen, (I. N. Shroff, for P. K. Bose, with
them) for the respondent.
1956. April 18. The Judgment of the Court was
delivered by JAGANNADHADAS J.-This is an appeal by special leave against the
judgment of the High Court of Calcutta confirming the conviction and sentence
of each of the two appellants before us, by the Sessions Judge of Murshidabad.
The appellants were tried on a charge under section 302/34 of the Indian Penal
Code by the Sessions Judge with a jury. The jury returned a unanimous verdict
of guilty against each under the first part of section 304 read with section 34
of the Indian Penal Code. The learned Judge accepted the verdict and convicted
them accordingly and sentenced each of the appellants to rigorous imprisonment
for ten years.
In order to appreciate the points raised
before us, it is desirable to give a brief account of the prosecution case.
The two appellants jointly made a murderous
assault on one Saurindra Gopal Roy at about 6-30 p.m. on the 3rd November,
1951. There was, owing to litigation, previous enmity between the deceased and
the appellants. All of them belonged to a village called Mirzapur which is
within the police station Beldanga, district Murshidabad. The deceased along
with two friends of his, of the same village, examined as P.Ws. 1 and 2,
attended a foot-ball match that evening at Beldanga. The match was over by 5
p.m. and all the three of them were returning together to their village. In the
course of the return they were passing at about 6-30 p.m.
through a field, nearly half a mile away from
The two appellants each having a lathi and a
Hashua (sickle) in his hand, emerged from a bush nearby and rushed towards the
deceased and his companions. P.W. 1 49 374 was first struck with a lathi and
thereupon both P.Ws. 1 and 2 moved away to a distance. The appellants assaulted
the deceased and inflicted on him a number of serious injuries.
The two companions of the deceased, P.Ws. 1
and 2, ran towards the village and shouted for help whereupon a number of
people from the village came and collected at the spot.
Information was also carried to the son as
well as to the brother of the deceased. They also came on the scene. The
brother, by name Radhashyam, proceeded at once to the Beldanga police station
and lodged the first information report at about 7-30 p.m. The police officer
came to the scene and recorded a statement from the deceased who was then still
alive. He was thereafter taken to the hospital at Beldanga. At the hospital the
Medical Officer also took a statement from him (Ex. 4). He died some time
P.Ws. 1 and 2, the companions of the
deceased, were the only eye-witnesses to the murderous assault. The prosecution
relied also on certain statements said to have been made by the deceased after
the assault. The deceased is said to have stated to P.W. 7 one of the villagers
who first came on the scene, after hearing the shouts of P. Ws. 1 and 2, that
the two appellants were his assailants. A little later, when his son and his
brother, P.W. 3 came there, he is also said to have stated to P.W. 3 that the
two appellants were the assailants. Accordingly the first information report
gave the names of the two appellants as the assailants.
Similar statements are said to have been made
by the deceased to the police officer when he came on the spot and later to the
Medical Officer when he was taken to the hospital. The evidence, therefore, in
support of the prosecution case was mainly, that of the two eye-witnesses,
P.Ws. 1 and 2, and of the four dying declarations, two of them oral and two
written. There was considerable scope for criticism about the evidence of the
two eye-witnesses. The evidence relating to the dying declarations was also
open to attack in view of the nature of the injuries inflicted on the deceased.
These included incised wounds on the occipital region and an incised wound 375
in the brain from out of which a piece of metal was removed on dissection.
This, as was urged, indicated the likelihood of the deceased having lost his
consciousness almost immediately and hence the improbability of any statements
by the deceased. But the medical evidence on this point was indecisive. There
can be no doubt however that the reliability of the prosecution evidence was
open to serious challenge in many respects.
But learned counsel for the appellants has
not been able to raise either before the High Court or before us any objection
to the verdict, on the ground of misdirection or non-direction, of a material
nature, in the charge to the jury by the Sessions Judge. 'On the other band,
the charge brought out every point in favour of the appellants and against the
prosecution evidence. It erred, if at all. in that the learned Judge involved
himself in a great deal of elaboration. The only flaw in the charge which,
learned counsel for the appellants could attempt to make out, was that the
exposition therein of the legal concept underlying section 34 of the Indian
Penal Code was obscure and that it would not have been correctly appreciated by
the jurors. It may be that this could have been expressed in more lucid terms.
But we are unable to find that there was any misdirection or non-direction
therein. Nor do we see any reason to think that the jury has been misled. Thus
there was no real attack either in the High Court or here as against the
learned Judge's charge to the jury.
Accordingly, the only points urged before us
are the following.
1.The circumstances of the case and the
nature of the charge to the jury made it incumbent on the learned Judge to
disagree with the jury and to refer the case to the High Court under section
307 of the Code of Criminal Procedure.
2.In the alternative, the learned Sessions
Judge having expressed himself in his charge to the jury, definitely for
acquittal, he should not have accepted its verdict, though unanimous, without
giving satisfactory reasons for such acceptance.
3. The learned Judge having, in his charge specifically
cautioned the jury against communal prejudice in the following terms "your
deliberations and verdict should not be influenced by any communal
considerations,", should have refused to accept the verdict as having been
vitiated by communal bias. It may be stated that all the jurors were Hindus and
that the accused were both Muhammadans. The suggestion is that in view of the
fact that the scene Of occurrence was near the border between West and East
Bengal, it should have been appreciated that communal bias was, at the time,
4. There has been virtually no examination of
the accused by the Sessions Judge under section 342 of the Code of Criminal
Procedure and the trial has been vitiated thereby.
In advancing the first two of the above
contentions learned counsel for the appellants assumes and asserts that the
Sessions Judge in his charge to the jury was unequivocally of the opinion that
there was no reliable evidence on which the conviction could be based and that
the appellants should be acquitted. On this assumption, he urges that, when in
the circumstances the jury gave a unanimous verdict of guilty, his obvious duty
was either to express his dis- agreement with the verdict of the jury and refer
the whole case for the consideration of the High Court under section 307 of the
Code of Criminal Procedure, or, at the least, to have placed on record his
reasons why in spite of his clear opinion against the prosecution case, he did
not consider it necessary to disagree from the verdict of the jury. In order to
substantiate this point of view, learned counsel took us through various
portions of the charge to the jury and we have ourselves perused carefully the
entirety of it.
As already stated, the learned Judge
undoubtedly pointed out in his charge all the weaknesses of the prosecution
evidence in great detail. It is also likely that be was inclined for an
acquittal. But we are not satisfied that he came to a definite and positive
conclusion that there should be acquittal. While pointing out the weakness of
the prosecution evidence with a leaning against its reliability he has not
specifically 377 rejected every important item of the prosecution evidence.
It was only in some places that he stated
categorically that he would not accept a particular item of evidence and would
advise the jurors to reject it. In other places, while pointing out the
infirmities of the evidence, he was not so categorical and positive, as to what
his own opinion on that item of evidence was. For instance, out of the two eye-
witnesses, P.Ws. 1 and 2, the learned Judge said, so far as P.W. 2 is
concerned, as follows:
"Personally speaking I am not satisfied
with the evidence of recognition of the accused persons as the assailants of
Sourindra Gopal furnished by P.W. 2, Satyapada. You will be advised, gentlemen,
not to rely upon the evidence of P.W. 2".
As regards the evidence of the other
eye-witness, P.W. 1, however he summed it up as follows:
"You should take a comprehensive view of
all matters and then decide whether you should act upon the evidence of
recognition of the accused persons as the assailants of Sourindra furnished by
P.W. 1, Bhupati".
There was similar difference in the
expression of his opinions with reference to the evidence of the dying declarations
of the deceased. It may be recalled that the evidence of the oral dying
declarations is of statements to P.W. 7, Phani, and P.W. 3, Radhashyam. The
evidence of statement to P.W. 7 was given by a number of witnesses, viz.
P.Ws. 6, 7, 8, 9, 10, 11) 12 and 13. Out of
these so far as the evidence of P. W. 9 is concerned, the learned Judge
specifically stated as follows:
"I should tell you that you should not
believe P.W. 9 when he stated on being questioned by Phani, Sourindra mentioned
Moseb and Sattar as his assailants".
But he did not rule out the evidence of the
others on this item in the same manner. Then again, when he dealt with the
question whether the slip of paper, Ex. 4, is genuine the learned Judge noticed
that the said paper was shown to have been taken from the medical officer P.W.
17 into the possession of the Investigating Officer, P.W. 35, about a month
later and commented on it as follows:
"Personally speaking I see no reasonable
explanation as to why the I.O. should not have seized Ex. 4 from P.W. 17
immediately after it was recorded, if it was recorded on 3rd November, 1951,
and sent it to the Magistrate forthwith".
All the same, the learned Judge also remarked
"You will consider very seriously
whether you have any reason to disbelieve the evidence of P. Ws. 17, 32 and
P.Ws. 32 and 33 are witnesses who spoke to
the statement of the deceased said to have been taken by the Doctor, P. W.
17. Taking the charge to the jury, therefore,
comprehensively we are unable to find that the learned Judge rejected the
prosecution evidence and arrived at a clear and categorical conclusion in his
own mind that the appellants were not guilty. We are, therefore, unable to
accept the assumption of learned counsel for the appellants that the Judge
agreed with the unanimous verdict of the jury against his own personal
conviction, as to the guilt of the accused.
It appears to us, therefore, that there is no
foundation, as a fact, for the argument that the learned Judge should have made
a reference to the High Court under section 307 of the Code of Criminal
Procedure or that, in any case, he should have placed on record his reasons for
agreeing with the verdict of the jury notwithstanding his own personal opinion
to the contrary.
Assuming however that the charge to the jury
in this case can be read as being indicative of a definite opinion reached by
the Sessions Judge in favour of the appellants, it does not follow that merely
on that account he is obliged to make a reference under section 307 of the Code
of Criminal Procedure. What is required under that section is not merely
disagreement with the verdict of the jury but the additional factor that the
learned Sessions Judge "is clearly of opinion that it is necessary for the
ends of justice to submit the case to the High Court". It is now
well-settled, since the decision of the Privy Council in 379 Ramnugrah Singh v.
King-Emperor(1) that under section 307 of the Code of Criminal Procedure a
Session,, Judge, even if he disagrees with the verdict of the jury must
normally give effect to that verdict unless he is prepared to hold the further
and clear opinion "that no reasonable body of men could have given the
verdict which the jury did". We are certainly not prepared to say that the
present case satisfies that test or that the charge to the jury indicated any
such clear conclusion. Indeed it is to be noticed that on intimation by the
jury of its unanimous verdict, the learned Judge has recorded that he
"agreed with and accepted the verdict". We have no doubt that it was
perfectly competent for him to do so. Learned counsel urges that this
acceptance is a judicial act and that having regard to the whole tenor of the
Judge's charge to the jury, he was at least under a duty to himself and to the appellate
court to record his reasons for acceptance of the verdict of the jury. We are
unable to agree with this contention. It may be that in a case where a Judge in
his charge to the jury has clearly and definitely expressed himself for
acquittal, it would be very desirable, though not imperative, that he should
give his reasons why be changed his view and accepted the verdict of the jury.
But we can find no basis for any such contention in this case.
The two further contentions that remain which
are enumerated above as 3 and 4, were not raised before the High Court. We are
reluctant to allow any such contentions to be raised on special leave. The
point relating to the possibility of the verdict having been the result of bias
has no serious basis.
It appears to us that the learned Sessions
Judge had no justification in this case for imagining the possibility of such
bias and giving a warning to the jury in this behalf.
This is not a case which arose out of any
incident involving communal tension. The likelihood of any such bias is not to
be assumed merely from the fact of the appellants being Mubammadans and the
jurors being Hindus. Nor is it right to take it (1)  L.R. 73 I.A. 174.
380 for granted merely from the fact of
proximity of the place of trial to the border between West and East Bengal. On
the other hand, it is not without some relevance that when the jury was
empanelled at the commencement of the trial, there was absolutely no such
objection taken. Nor was the right of challenge to the jurors exercised.
Learned counsel for the appellants has very
strenuously argued before us, the point relating to the inadequacy of the
examination of the appellants under section 342 of the Code of Criminal
Procedure. Now, it is true that the examination in this case was absolutely
perfunctory. The only questions put to each of the accused in the Sessions
Court, and the answers thereto were the following:
"Q. You have heard the charges made and
the evidence adduced against you. Now say, what is your defence? What have you
got to say? A. I am innocent.
Q. Will you say anything more? A. No. Q. Will
you adduce any evidence in defence? A. No." There can be no doubt that
this is very inadequate compliance with the salutary provisions of section 342
of the Code of Criminal Procedure. It is regrettable that there has occurred in
this case such a serious lacuna in procedure notwithstanding repeated
insistence of this Court , in various decisions commencing Tara Singh's case(1)
on a due and fair compliance with the terms of section 342 of the Code of
Criminal Procedure. But it is also well recognised that a judgment is not to be
set aside merely by reason of inadequate compliance with section 342 of the
Code of Criminal Procedure. It is settled that clear prejudice must be shown.
This court has clarified the position, in relation to cases where accused is
represented by counsel at the trial and in appeal. It is up to the accused or
his counsel in such cases to satisfy the Court that such inadequate examination
has resulted in miscarriage of justice. This Court in its judgment (1)
381 in the latest case on this matter, viz.
K. C. Mathew and Others v. The State of Travancore-Cochin(1) (delivered on the
15th December, 1955) has laid down that "if the counsel was unable to say
that his client had in fact been prejudiced and if all that he could urge was
that there was a possibility of prejudice, that was not enough". Learned
counsel could not, before us, make out any clear prejudice.
All that learned counsel for the appellants
urges is, that this might be so in a case where the trial was with the
assessors and the Judge's view on the evidence was the main determining factor.
But he contends that the same would not be the case where the trial is with the
aid of a jury.
Learned counsel urges that a full and clear
questioning in a jury trial does not serve the mere purpose of enabling the
accused to put forward his defence or offer his explanation, which may be
considered along with the entire evidence in the case. The jury would, he
suggests also, have the opportunity of being impressed one way or the other by
the method and the manner of the accused, when giving the explanation and
answering the questions and that the same might turn the scale. Learned counsel
urges, therefore, that the non-examination or inadequate examination under
section 342 of the Code of Criminal Procedure in a jury trial must be presumed
to cause prejudice and that a conviction in a jury trial should be set aside
and retrial ordered, if there is no adequate examination under section 342 of
the Code of Criminal Procedure. We are not prepared to accept this contention
as a matter of law. The question of prejudice is ultimately one of inference
from all the facts and circumstances of each case. The fact of the trial being
with the jury may possibly also be an additional circumstance for consideration
in an appropriate case. But we see no reason to think that in the present case
this would have made any difference. We are, therefore, not Prepared to accept
the argument of the learned counsel for the appellants in this behalf. In any
case, an argument of this kind which would, if accepted, (1) 2 S.C.R.
50 382 necessitate a retrial, is one that
ought to be put forward at the earliest stage and at any rate at the time of
the regular appeal in the High Court. This cannot be entertained for the first
time in an appeal on special leave.
For all the above reasons this appeal is