ONKAR Vs. STATE OF M.P.
LAWS(MPH)-1969-11-18
HIGH COURT OF MADHYA PRADESH
Decided on November 19,1969

ONKAR Appellant
VERSUS
STATE OF M.P. Respondents

JUDGEMENT

P .K.TARE,J - (1.) This appeal is by the accused against their conviction under section 436, Indian Penal Code and the sentence of 6 months' rigorous imprisonment and a fine of Rs. 50 or, in default, rigorous imprisonment for 1 month, passed by Shri K.B. Patil, Sessions Judge, East Nimar, Khandwa, in Sessions Trial No. 11 of 1958, dated 29 -7 -1958, accepting the verdict of the jury, finding the appellants guilty of the said offence and holding them not guilty of an offence under section 323, Indian Penal Code. Although, the charge to the jury delivered by the learned Sessions Judge indicates that the trial Judge was of the view that there was no evidence against the appellants, so as to warrant a conviction, he, while delivering the judgment, accepted the verdict and refused to refer the case to this Court under section 307, Criminal Procedure Code. As the learned Judge accepted the verdict and refused to refer the matter to this Court, he will be deemed to have endorsed the verdict of the jury, although it is clear from his charge to the jury that at one time he may have felt that the verdict was such, as no reasonable body of men could have arrived at. Under such circumstances, the question arises as to what the appellate Court can do in such a matter. A Division Bench of the Allahabad High Court consisting of Suleman C.J. and Niamatullah J. in Manjia v. Emperor ILR 1937 All. 419 : AIR 1937 All. 195 made the following observations: Of course, where the Judge is doubtful and nevertheless he does not think it necessary to express disagreement with the verdict of the jury, then the case would come under section 306, Criminal Procedure Code, and he is bound to give judgment according to the verdict. In such a case the learned Judge labours under no misapprehension as to his jurisdiction to refer the case to the High Court but merely considers that having regard to all the circumstances it is not necessary in that case for him to express disagreement with the verdict of the jury. The present case was not one of that kind as the learned Judge does not appear to have applied his mind to this aspect of the case and has not said that he does not consider this a fit case where it is necessary to express disagreement. He has merely held that he is helpless in the matter and cannot refer the case to the High Court and must agree with the verdict of the jury. The difficulty that arises in this case is one of procedure. Had the reference come to us under section 307, Criminal Procedure Code, we would have jurisdiction to exercise all the powers conferred by the Code on an appellate Court including the power to set aside the verdict of the jury and substitute another verdict for it or order a retrial or discharge the accused. But the case has not come up before us under section 307 but has come up by way of an appeal under section 418, sub -section (1) on a matter of law, namely that the learned Judge has erroneously supposed that he had no jurisdiction to disagree with the verdict. But the powers of an appellate Court are governed by section 423, sub -section (2), which provides that nothing in that section shall authorize the Court to alter or reverse the verdict of a 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. Obviously in the present case there has neither been a misdirection by the Judge nor a mis -understanding on the part of the jury of the law as laid down by the Judge. It, therefore, follows that the appellate Court has no power to alter or reverse the verdict of the Jury. The reason is obvious. In cases coining under section 307 the Judge who heard the evidence is in the first instance of the opinion that the verdict is wrong and, if the appellate Court is also of the same opinion, it is empowered to set aside that verdict. But when the case comes by way of an appeal under section 418 where the Judge himself has not differed, the Legislature has provided that there should be no interference by the appellate Court with the verdict of the jury, unless there has been either a misdirection of misunderstanding mentioned therein. The question is whether, if we not only set aside the convictions and sentences but also set aside the verdict of the jury and order a retrial, we would be altering or reversing the verdict. The word 'altering' might mean substituting another verdict for the verdict of the jury, but the word 'reversing' would include the setting aside of that verdict or making it null and void. If a retrial de novo were ordered, then the necessary effect would be to reverse the verdict of the jury. We therefore, think that as an appellate Court we cannot set aside the verdict of the jury and order a retrial. It is unnecessary for us to consider whether revisional power conferred by section 439 is subject to the same restriction, because there is nothing to prevent this Court from setting aside the convictions of the accused and the sentences imposed on them by the Additional Sessions Judge who accepted the verdict of the jury. If the case is sent back to the Sessions Court, the learned Additional Sessions Judge would reexamine the matter carefully and then come to the conclusion whether he should or should not disagree with the verdict of the jury. If he things that he should not disagree with the verdict or that it is not a case in which it is necessary to express disagreement, he would forthwith convict the accused accordingly. If, however, he is of opinion that the case should be referred to the High Court under section 307 because he disagrees with the verdict and the case is so referred, we would have power to reconsider the case on its merits and pass suitable orders. The new section 561A amply justifies the order which we propose to make.
(2.) THEREFORE , the learned Judges, in the said, case set aside the conviction of the accused and the sentence passed on them and sent the case back to the trial Court to readmit the case to its original number on the file and after hearing the arguments consider whether the trial Judge would express disagreement with the verdict or not and if so, make a reference under section 307, to the High Court or uphold the verdict or convict the accused and pass suitable sentences. This question also came up for consideration before a Division Bench of the Madras High Court in Queen Empress v. Chinna Tevan and another ILR 14 Mad. 36, wherein the learned Judges made the following observations: - This is another case of a conviction by a jury of persons accused of dacoity against the opinion and advice of the Sessions Judge although he declines to refer the case to the High Court under section 307 of the Criminal Procedure Code; we have no power to interfere however absurd or wrong we may think the verdict to have been. There has been no misdirection by the Sessions Judge, and there is evidence against the prisoners if the juryman chose to believe it. The sentence also is not too severe supposing the prisoners are guilty. The prisoners, of course, may bring their case to the notice of His Excellency the Governor in Council, if they be so advised. Our duty under the present state of the law is to dismiss the petition and confirm the conviction and sentence. The learned Judges of the Madras High Court were, therefore, of opinion that in the absence of the mis -direction or non -direction on the part of the Sessions Judge or a misunderstanding of the law stated by the Judge on the part of the jury, the appellate Court had no power to interfere with the verdict of the jury, however, perverse it may be. This is the other view, treating the verdict of the jury sacrosanct so as to warrant no interference, except when the requirements of section 423(2) are fulfilled. The learned Judges of the Allahabad High Court evolved another course of remitting the case back for reconsidering by the trial Judge whether he would act under section 307, Criminal Procedure Code or would accept the verdict and convict the accused. This is an important question on which there was a difference of opinion about the procedure to be followed by the appellate Court in such a situation. I might have been inclined to refer the present case for consideration by a larger Bench, but for the view that I take on the facts of the case, as also the sentences to be passed in the present case. Therefore, I am of opinion that the said question need not be considered in the present case and the same may have to be considered in a suitable case. The learned counsel for the appellants urged that the members of the jury did not know the language in which the charge was delivered. The objection was confined to three of the jurors, namely, Narayanrao (C.W. 1), Gyanchand Gupta (C.W. 2) and P.L. Gupta (C.W. 3), who were examined in this Court with reference to their knowledge of English. Narayanrao (C.W.1) stated that he could follow the charge in English. He is Joint Secretary of the Cooperative Bank, Khandwa, and Honorary Secretary, Tahsil Agricultural Marketing Association. He was also a Panch of the Nagar Nyaya Panchayat with powers of a Magistrate Second Class. He has studied upto the middle class and he understands English fairly well, although he is not in the hibit of writing English. Gyanchand Gupta (C.W. 2), who is a substantial agriculturist, stated that he has studied upto 6th standard. He has been working as a juror for the last 10 years, even during the time, when Mr. Digby was Sessions Judge, Khandwa. This Court put the witness questions in English, which were understood by him well. The learned counsel for the appellants did not press his objection regarding the said witnesses, but pressed it with reference to Shri P.L. Gupta (C.W. 3). Shri P.L. Gupta (C.W. 3), stated that he had studied upto matric class and that he could follow English fully. The witness has been a juror for the last 2 years. Shri Jakatdar, the learned counsel for the appellants, put certain questions to this witness and asked him to read section 425, Indian Penal Code. He read the same haltingly. He was asked to give the meaning of the section in English. He could not explain the meaning. He also could not explain some technical words, namely, 'diminish' and 'utility', as also the word 'meticulously' mentioned in paragraph 14 of the charge. However, as observed by my brother S.B. Sen J. in the order -sheet dated 25 -9 -1959, the witness had no difficulty in understanding the questions put either by the Court or the counsel. What is required by section 278(g) of the Criminal Procedure Code is the inability of the jurors to understand the language in which the evidence is given or when such evidence is interpreted, the language in which it is interpreted. In a jury trial it would be necessary for the jurors to understand the language, in which the charge is delivered. This would be so in view of section 278(g) and section 297 of the Criminal Procedure Code, which might render a juror unfit for the work. Their Lordships of the Supreme Court in Kapil Deo Shukla v. State of Uttar Pradesh 1958 S.C.R. 640 : AIR 1958 S.C. 121, approving of the Privy Council case in Ras Behari Lal v. Emperor L.R. 60 IndAp 354, laid down that if a trial was held with the help of jury, who did not understand the language, the defect was not curable at all, but that the trial of the case did not amount to a trial at all. What their Lordships have laid down is that the jurors should be acquainted with the language, in which the proceedings of the Court are conducted and that the jurors should have a fair knowledge of the language. However, it does not mean that if the jurors are unable to explain any technical terms or any legal terms or to explain the meaning of a section in their own language, they can be said to be not to be acquainted with the language of the Court, fairly. What is required is a fair knowledge of the language and not proficiency as might be expected from a scholar of the language. I am therefore, of the opinion that as observed by my brother S.B. Sen J., the witnesses did understand the language fairly well and, therefore, I am of opinion that the trial was not vitiated in any manner. Therefore, I overrule this preliminary objection raised by the learned counsel for the appellants to the validity of the trial.
(3.) THE prosecution case was that on 11 -10 -1957 at about 10 in the night, the present appellants, along with some others, who were discharged by the committal Magistrate, set fire to the residential hut of Mallu (P.W. 1). The first information report was lodged by Mallu (P.W. 1) on the next day at about 12.15 in the noon. The defence was that Mallu (P.W. 1) and his son Nathu (P.W. 3) and Lakhmiya (P.W. 6) were drunk and in a state of drunkennese Mallu (P.W. 1) himself set fire to his hut and when other people including Tinofilus Milton Rao Ji (D.W. 3) and Gopalrao (D.W. 4), went to extinguish the fire, Mallu (P.W. 1) stood there with a gun and said that he would shoot anybody, who tried to extinguish the fire. According to the defence, these two defence witnesses seized the gun from Mallu and deposited it with Babulal Patel (D.W. 1), who in his turn deposited the same at the police station house. Ordinarily, it would not be necessary to go into facts in a case, where the trial is by jury. But, in the present case, as the trend of the charge itself indicates, I think it necessary to do so, inasmuch as, I agree with the earlier impression of the learned Sessions Judge that the verdict is such as no reasonable body of men could have arrived at under the circumstances of the case. But, I am also further of the view that the verdict is not vitiated on account of any misdirection or non -direction on the part of the Judge, not due to the fact that the learned members of the jury did not understand the law stated by the Sessions Judge. Therefore, this Court in exercise of powers under sections 418 and 423(2) of the Criminal Procedure Code would not be able to interfere with the verdict of the jury, as laid down by their Lordships of the Privy Council in Abdul Rahim v. Emperor AIR 1946 P.C. 82. Their Lordships of the Supreme Court in Mushtak Hussain v. The State of Bombay AIR 1953 S.C. 282 have approved of the principles indicated by their Lordships of the Privy Council, which lay down that if the Court is convinced that the verdict of the jury is such, as no reasonable body of men could have arrived at, resulting in the conviction of an innocent person or in the acquittal of a guilty person and such verdict is on account of any misdirection or non -direction on the part of the trial Judge or members of the jury did not understand the law stated by the learned trial Judge, it is the duty of the appellate Court to interfere with the verdict. By laying down that in such circumstances it is incumbent on the appellate Court to interfere with the verdict of the jury, their Lordships have indicated a salutary principle that no innocent person ought to be convicted or no guilty person should escape conviction. But, all the same, the failure of justice should arise on account of one of the three things mentioned in sections 418 and 423(2) of the Criminal Procedure Code. If the failure of justice arises on account of the members of the jury taking a different view of the facts, it would not be open to the appellate Court to interfere with the verdict, however wrong the appellate Court might consider the verdict to be. Therefore, I propose to examine the present case from this point of view. It would be advantageous to note the special features of the charge to the jury delivered by the learned Sessions Judge and then to refer to the evidence on record.;


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