Macklin, J. - (1.) THIS is an appeal under the amended Section 411 A of the Criminal Procedure Code, 1898, against the verdict given by a majority of seven to two in a trial held before Mr. Justice Bhagwati on a charge of murder. The majority of the jury convicted the accused of murder, and Mr. Justice Bhagwati accepted the verdict and sentenced him to transportation for life, but at the same time gave a certificate that this was a fit case for appeal under the amended law.
(2.) THE powers of this Court in dealing with appeals from verdicts of a High Court jury have been laid down in Government of Bombay v. Fernandez (1944) 47 Bom. L. R. 363. THE effect of that decision is that, although the power of interference given by Section 411 A is very wide, it does not necessarily follow that the High Court is bound to follow it indiscriminately in every case, and in practice the High Court will not exceed the powers which it ordinarily exercises in dealing with cases referred to it under Section 307 of the Code, although both in appeals under Section 411 A and in references under Section 307 the powers which it is entitled to use ii it thinks fit are very much wider. In practice references under Section 307 are treated as if the test for interference were either a material error in the charge to the jury or a verdict which on the facts of the case is manifestly erroneous or unreasonable. Here there is no question of any error in the charge to the jury; and the principal question which we have to decide is whether it can be said that the verdict of the jury in this case is the verdict of unreasonable men, having regard to the facts of the case. A subsidiary question arises as to whether we ought in this case to exercise our power to direct a new trial in view of the fact that certain questions which might properly have been put to the accused under Section 342 of the Code and which ordinarily would have been put to the accused under that section were not put to him. [his Lordship then dealt with the facts of the case and continued:] When called upon to make a statement the accused said that at about 7 o'clock he returned from his hair cutting saloon and saw the three Pathans in his room, two of them inside and one outside. As he arrived, the two Pathans inside were coming out, and one of them aimed a blow at the accused. The accused then caught hold of the knife with his hand and was cut across the fingers. He again caught hold of the knife, and was again cut across the fingers when the Pathan pulled the knife out of his grasp. He then says that the Pathans started running away and that he chased them shouting ' thieves, thieves. ' When he came out on the road he saw the deceased lying on the road, and a victoria was fetched and the deceased taken to hospital. It is to be noted that the apparent meaning of this statement is that the accused did not see the woman injured until he saw her lying on the road. The statement covers the use of the accused's knife, and it also covers his presence on the spot either at the time of the murder or almost immediately afterwards. But it does not cover certain other points upon which the prosecution relies, namely the dying declaration, the motive, the request to Abdul Rahim to tell a false story to the police about Pathans, and the fact of the knife having been bought in a false name; nor does it cover the story of the knife having been thrown behind the gharry. Speaking for myself, I am not quite clear as to the meaning of the evidence on this last point; I am not altogether satisfied that the intention of the witness was to suggest that the accused had made a concealment of bringing the knife from the house. It is argued before us that the omission to ask questions on these points so as to enable the accused to explain them is either an illegality which vitiates the whole trial or an irregularity which is material in the sense that the jury must have been influenced by this part of the evidence and were probably also influenced by the omission of the accused to explain these incidents, though the omission of the accused to explain them was due to no fault of his own, he having been asked no questions about them. We are satisfied that the omission to ask specific questions on points like these is not an illegality. The accused was questioned generally on the case and made a general statement; and that we think is all that the law requires, namely a formal compliance with the provisions of Section 342 of the Code. But there can be no doubt that it is the duty of the Judge to examine an accused person on points which are of great importance to the case against him. This is made clear from the judgment of the Privy Council in Dwarkanath Varma v. Emperor (1933) 35 Bom. L. R. 507, P. C. . But it does not follow that the omission to question an accused person on specific points, even though it may be the duty of the Judge to do so, will necessarily vitiate the trial. If the omission to question an accused person on such points is not an illegality, then the omission to do so will not vitiate the trial unless it has in fact caused a failure of justice (see Section 537 of the Code); and whether it has or has not occasioned a failure of justice in any particular case is a question depending on that case alone.
(3.) IT is argued that here the jury must have been influenced by this part of the evidence which was not specifically put to the accused for explanation. But it is very doubtful if that is so, because the learned Judge dealt with the point of the dying declaration and with the point of the alleged corruption of the witness Abdul Rahim at great length in his charge to the jury and gave the jury the strongest possible hint that they ought not to rely on that part of the evidence. He did not refer to the fact of the knife having been bought in a false name; but that, as I have said, does not seem to take the case very much further, since the accused had a friend with him and any attempt to give a false name seems pointless. In practice, therefore, it is difficult to see how the omission of the learned Judge to put specific questions to the accused on these points and the consequent failure of the accused to give an explanation of them-can have had any practical effect upon the verdict of the jury. I may mention that it is difficult to imagine what explanation the accused could have given beyond saying that the evidence was false; and that in effect is what the learned Judge himself said to the jury, namely that the evidence must be accepted only with the utmost caution. I may also mention that the evidence as to the knife having been purchased in a false name has never been disputed and no questions in cross-examination were put to the witness on that point. There is, however, ample evidence in our opinion to justify the jury in reaching the verdict which they did reach, quite apart from the evidence about which the accused -was asked no specific questions. It is true that immediately after this occurrence the conduct of the accused, so far as the general public could see, was that of a man who was genuinely distressed at what had happened and was doing what he could to alleviate the sufferings of the woman; and his behaviour generally was that of a person who was sincerely fond of hen and had no possible reason for killing her. The learned Judge in his summing up dwelt on this point at great length and asked the jury if they thought that it was, possible for the accused before them to behave in this way if he had killed the woman only a few minutes before. But I take it that the jury were prepared to think that he really was as much of an actor as all that; and it cannot be denied that for a murderer to be successful he must always be something of an actor.;