JUDGMENT Misra and Madeley, JJ. - This is a reference by the learned Sessions Judge of Lucknow u/s 307, Code of Criminal Procedure. 2. Sheo Nandan Mallah was committed to the Court of Session under Sections 328 and 302, I.P.C., the first offence being triable by jury and the second with assessors. The learned Sessions Judge convicted him u/s 326, I.P.C. but the jury brought in a verdict of not guilty u/s 328, I.P.C. The learned Judge has referred the case because he regards the verdict of the jury as unreasonable. At the end of the reference he remarks, "Under the law (Section 71, I.P.C) the accused cannot be given a separate sentence for each of the two offences, but the circumstances of this case being as they are it would be unreasonable and improper for me not to make a reference in this case. Although, therefore, the accused has been adequately punished by me u/s 326, I.P.C., I cannot reasonably allow the verdict of the jury u/s 328, I.P.C. to stand. Accordingly I hold that for the ends of justice it is necessary to submit the case to the Hon'ble Chief Court for convicting the accused u/s 328, I.P.C. The record shall accordingly be submitted to the Hon'ble Chief Court along with my charge to the jury and the judgment against the accused in the assessor case for suitable action." 3. The jury by their unanimous verdict found that the deceased had died of "dhatura" poisoning, but that the accused did not administer it to him. 4. The prosecution case is that on the 2nd January 1944 at about 2 p.m. Shiva Charan P.W. 1, who is an electric fitter, employed by O & T Railway at Charbagh Meter-Gauge station, saw the accused and an old man come near his tube-well in the station yard. That old man is the deceased in the present case. His photograph is Exh. 14, but he has not been identified by any one and it is not known who he was or where he came from. The two sat down and the accused took out some sweetmeats, which were wrapped in a leaf, and gave them to the old man to eat. Then accused came over to Shiva Charan and asked him where he could get water. Witness indicated the last pump where the carriages are washed. The two sat down and the accused took out some sweetmeats, which were wrapped in a leaf, and gave them to the old man to eat. Then accused came over to Shiva Charan and asked him where he could get water. Witness indicated the last pump where the carriages are washed. Both the accused and the old man went to have a drink and when they came back they sat down again. The accused gave the old man three "biris" to smoke. While the old man was smoking the last "biri" he began to tremble and fell down unconscious. Shiva Charan then went up and asked the accused what was the matter. Accused said that this was nothing unusual with his companion. Shortly after this witness saw accused groping round the abdomen of the old man as if feeling for something, and, when the witness asked him what he was doing, he said that he was comforting the old man and he asked Shiva Charan to bring a tonga, but Shiva Charan refused to leave them. Soon after Tulshi Ram Khalasi, who is P.W. 8, arrived. Shiva Charan told him what had happened and asked him to bring a constable as there was danger of the accused running away. Tulshi Ram then brought a thela and some coolies and constable Mohammad Raza. The old man was then taken to the police station along with the accused and Shiva Charan made the report Ex. 1. A bag attached to the waist of the old man was found, and in it were Rs. 350 in currency notes. This bag is Exh. I. The old man was then sent to the Balrampur Hospital where he died at about 9 a.m. on the 4th January 1944. After the report Pt. Manohar Lal, Station Officer, Government Railway Police, Charbagh, went to the spot and picked up the leaf and the ends of the "biris". These were sent to the Chemical Examiner, but no traces of "dhatura" poison were found in them. The condition of the patient, however, in the Balrampur hospital suggested "dhatura" poisoning and his stomach was washed and the wash sent to the Chemical Examiner, and when he died portions of his viscera were also sent. In both the stomach wash and the viscera "dhatuta" was detected. 5. The condition of the patient, however, in the Balrampur hospital suggested "dhatura" poisoning and his stomach was washed and the wash sent to the Chemical Examiner, and when he died portions of his viscera were also sent. In both the stomach wash and the viscera "dhatuta" was detected. 5. As to the facts deposed by Shiva Charan, they were accepted by the learned Sessions Judge, and it does not appear that they were disbelieved by the Jury. The jury probably acquitted because there was no evidence that there was any "dhatura" on the leaf or in the biris. 6. The story of Shiva Charan is moreover corroborated by the first information report Exh. 1, which was made without delay, and by Tulshi Rani P.W. 8, and to some extent by Mohammad Raza constable P.W. 5 who took the deceased and the accused to the hospital from the station yard where the occurrence took place. This is very important in view of the fact that accused denies his presence with the deceased at the station yard altogether. He says that he has been falsely implicated, because he refused to carry fuel for the station officer, an absurd plea which he has made no attempt to substantiate. 7. Both the Judge and the Jury came to the conclusion that death was due to "dhatura" poisoning and we consider that the medical evidence satisfactorily proves this fact. 8. The question is whether this poison was administered by the accused or not. We think that the circumstantial evidence proves this fact against the accused also 9. Modi Medical Jurisprudence and Toxicology (7th edition) at page 719 says, "Symptoms.--The symptoms usually appear within half-an-hour after swallowing the poison. Vomiting often occurs immediately after taking the seeds, especially when crushed, as they produce gastric irritation. A bitter taste, dryness of the mouth and throat, burning pain in the stomach and dysphagia are the first symptoms that are complained of. These are followed by giddiness, staggering gait, incoordination of the muscles, peculiar flushed appearance of the face, dry, hot skin, diplopia, dilated pupils, red and injected conjunctivae and drowsiness. Sometimes, the temperature of the body is raised very high. In three cases of poisoning in the district of Hissar the temperatures were noted 105.4 107.4 and 148 F. respectively. These are followed by giddiness, staggering gait, incoordination of the muscles, peculiar flushed appearance of the face, dry, hot skin, diplopia, dilated pupils, red and injected conjunctivae and drowsiness. Sometimes, the temperature of the body is raised very high. In three cases of poisoning in the district of Hissar the temperatures were noted 105.4 107.4 and 148 F. respectively. In three cases which came under my observation in the King George's Hospital, Lucknow, during 1932, the temperatures were found to be 102, 104 and 105 F. respectively. The pulse is full and bounding but, later becomes weak, irregular and intermittent. The patient now becomes restless and delirious Delirium is of a peculiar character. He is silent or mutters indistinct and inaudible words, but usually he is noisy, tries to run away from his bed, picks at the bed clothes, tries to pull imaginary thereads from the tips of his fingers, and is subject to dreadful hallucinations of sight and hearing. In fatal cases drowsiness passes into stupor, convlusions and coma. Death occurs from paralysis of the heart or respiration. In cases, which recover, stupor passes away, any, and secondary delirium develops which lasts for some hours." 10. None of these symptoms occurred. On the contrary the old man first sat and ate and then went to the water-pipe, and then sat and smoked with the accused. All this lasted a considerable time, perhaps 20 minutes or half an hour. He was perfectly normal to all appearances which he certainly would not have been if the poison had been given to him by someone before he met the accused. His case was like that in the beginning of the next para of Modi's Medical Jurisprudence and Toxicology, "In some cases insensibility occurs almost immediately after the poison is administered either in solution, or in very fine powder." This is what happened to the old man. He seemed perfectly normal till he fell back senseless while smoking the last "biri". It follows that the "dhatura" must have been given to him by the accused unless it was self administered. We have no reason whatsoever to think that the old man was trying to commit suicide. He seemed perfectly normal till he fell back senseless while smoking the last "biri". It follows that the "dhatura" must have been given to him by the accused unless it was self administered. We have no reason whatsoever to think that the old man was trying to commit suicide. He showed no signs of wishing to do so and he had plenty of money which he would probably have disposed of, instead of committing suicide with it round his waist in the presence of a stranger, if he had had any desire for self immolation. On the other hand the conduct of the accused shows clearly that he is guilty. Instead of calling for help he tried to make out that these fits were a common thing with the old man, though he now says he never met the old man in his life. He then began to grope in the old man's clothes, obviously searching for what he could find, and he tried to get rid of Shiva Charan on the pretext of getting a tonga. Finally in the Sessions Court, and here before us also, he says he has never seen the old man in his life and knows nothing about him. This is clearly false. We think therefore that there can be no doubt that he administered the poison of which the old man died. It may have been administered to him when he went to the water-pipe or it may be that it was placed completely in that part of the "pera" which he ate. The fact that none was left in the small remnants of the repast is merely negative evidence which has little effect in face of the strong circumstantial evidence against the accused. 11. We now come to the question what should be the attitude of this Court towards a reference of this nature. 12. Two views have been taken by High Courts on this question. They are given in Chitaley's Commentary on the Code of Criminal Procedure, Section 307. One is that before the High Court can interfere with a jury decision, the decision of the jury must be either unreasonable, or definitely contrary to evidence or not supported by any evidence. 13. 12. Two views have been taken by High Courts on this question. They are given in Chitaley's Commentary on the Code of Criminal Procedure, Section 307. One is that before the High Court can interfere with a jury decision, the decision of the jury must be either unreasonable, or definitely contrary to evidence or not supported by any evidence. 13. We may say that if the charge is not supported by any evidence, the reference u/s 307, Code of Civil Procedure, should never arise, because according to Section 289(2), Code of Criminal Procedure the duty of the Judge is to direct the jury return a verdict of "not guilty". Such a direction, is of course, binding upon the jury as Chitaley remarks in note 8 on that section. 14. The second opinion on Section 307, Code of Criminal Procedure, is shortly that the whole case is open to the High Court when once a reference is made as the particular sanctity attaching to the verdict of a jury depends upon the concurrence of the Judge. Chitaley supports this view partly on the ground that though it speaks of the verdict of the jury in Section 307(1) and (2), Sub-section (3) says "in dealing with the case so submitted the High Court may exercise any of the powers which it may exercise on an appeal, and subject thereto it shall, after considering the entire evidence and after giving due weight to the opinions (the underlining is ours and Chitaley's) of the Sessions Judge and the jury, acquit or convict such accused of any offence of which the jury could have convicted him Upon the charged framed and placed before it, and, if it convicts him, may pass such sentence as might have been passed by the Court of session." 15. We may add that the section says nothing about setting aside the verdict of the jury. The High Court is simply to acquit or convict after giving due weight to the opinions of the Judge and the jury. It appears from this that the powers of the High Court are the same as the High Court has in any appeal by Government against an acquittal or by the convicted person against a conviction and sentence. The High Court is simply to acquit or convict after giving due weight to the opinions of the Judge and the jury. It appears from this that the powers of the High Court are the same as the High Court has in any appeal by Government against an acquittal or by the convicted person against a conviction and sentence. That which was the verdict of the jury before the Sessions Judge must be given due weight as their opinion by the High Court; but no more. This view is supported by: 16. King-Emperor v. Rafi Mian (1932) 11 Pat. 669. "Where the Sessions Judge has expressed such a dissent (sc 'complete dissent'), the special sanctity of a verdict disappears and it has no greater force than the decision of any other tribunal of fact." The Hon'ble High Court at Patna held that it was the duty of the High Court to consider all the evidence and the opinions of the Judge and the Jury and to exercise all the powers of the Court of appeal "remembering that the duty of the appellate Court, where an appeal is on questions of fact, is to throw upon those who seek to disturb the verdict of the jury or other first tribunal of fact the onus of shewing that the verdict is wrong." Emperor v. Bansi 1938 A.W.R. (H.C.) 217 : ILR 1938 All. 483,does not seem to us bear upon the question, since the basis of that decision was that the jury had brought in a verdict of guilty and the Sessions Judge disagreed and referred the case. The Hon'ble Judges thought that the "matter stands on a different footing" when the verdict sought to be reversed is one of "not guilty". Emperor v. Shera (1928) 50 All 625, decided that it is not necessary that there must have been some misdirection by the Judge or any misunderstanding by the jury of the law as laid down by the Judge before the High Court can revise the verdict of a jury u/s 307, Code of Criminal Procedure. 17. Emperor v. Shera (1928) 50 All 625, decided that it is not necessary that there must have been some misdirection by the Judge or any misunderstanding by the jury of the law as laid down by the Judge before the High Court can revise the verdict of a jury u/s 307, Code of Criminal Procedure. 17. The meaning of this seems to be that the appellate powers exercised by a High Court u/s 307, Code of Criminal Procedure are wider than those exercised by a High Court in an appeal against a jury verdict; that is, the verdict is not to be regarded in the same light as a "verdict" under appeal before the High Court, but as the "opinion" of the jurors which is to be given due weight only under the section itself. 18. In Emperor v. Ram Chandra Roy (1928) 55 Cal. 879, the same view was held with the addition that more weight should be given to the opinion of the learned Sessions Judge who has been trained to weigh and appreciate evidence than to the opinion of the jury who have not. Coming to the Oudh Judicial Commissioner's Court, the predecessor of this Court, in King-Emperor v. Ram Charan (1924) 27 O.C. 29, we find that it was held by a single Judge, "Where once a reference is made to the High Court, the language of the Code does not justify any undue preference being given to the opinion of the jury over that of the Judge. The appellate Court has to weigh both the opinions and consider the entire evidence on record just as it would consider in any other criminal matter coming before it for decision." 19. Finally we come to King-Emperor v. Chheda alias Chhedwa (1933) 10 O.W.N. 234 which a Bench of this Court held, "Section 307 of the Code of Criminal Procedure, Act v of 1898, casts upon every High Court in India the duty of both the Judge and the Jury and in cases referred to High Courts u/s 307 of the Code of Criminal Procedure the trial remains open for the High Court till it pronounces a judgment of acquittal or conviction. But, inspite of this difference, which clothes an Indian High Court with greater powers and responsibilities than superior Criminal Courts in England, an Indian High Court will, as far as it is possible, be guided by the principles of English law that the verdict of the Jury will not be set aside unless it be manifestly preverse and patently wrong or has been induced by an error of the Judge in his charge to the jury. The principle has been clearly laid down that a High Court will not interfere u/s 307 of the Code of Criminal Procedure upon any mere preponderance of evidence, but will only do so when it is satisfied beyond reasonable doubt that the verdict of the jurors or the majority of the jury is so distinctly against the weight of evidence on the record that it may be unhesitatingly described as a perverse verdict or unless it is clearly established that the jurors were wholly led astray in their conclusions upon the case. In a reference u/s 307 of the Code of Criminal Procedure the High Court has to form and act upon its view of what the evidence in its opinion proves, but in doing so it will no doubt give due weight to the opinion of the Sessions Judge no less than to the verdict of the jury. Where the verdict of the majority of the jurors is manifestly wrong and against the weight of evidence on the record and two of the jurors are of opinion that the accused is guilty of the offence charge while the remaining three hold a different opinion, but upon the evidence on the record there is no doubt that the verdict of the majority of the jurors is manifestly wrong and perverse, the verdict of the majority of the jurors should be set aside." 20. The various decisions of the High Courts quoted above place the emphasis somewhat differently, but we do not think that they are irreconcilable. The legal powers of the High Court u/s 307, Code of Criminal Procedure are wide and are controlled by the section itself. The verdict of the jury should not be set aside lightly, even though the High Court in dealing with the case need only regard it as an opinion. The legal powers of the High Court u/s 307, Code of Criminal Procedure are wide and are controlled by the section itself. The verdict of the jury should not be set aside lightly, even though the High Court in dealing with the case need only regard it as an opinion. In the present case though the verdict of the jury was unanimous we are satisfied that the circumstantial evidence against the accused was so strong that there could have been no reasonable doubt of his guilt in the mind of any one who heard the evidence. Whatever view of the law may be taken the verdict should be set aside. 21. We hold that Sheo Nandan Mallah administered poison to the deceased for the purpose of robbing him and that he knew it to be likely that he would thereby cause hurt. His offence therefore clearly comes u/s 328, I.P.C. as well as u/s 326, I.P.C. under which he has been convicted. We therefore accept the reference made by the learned Sessions Judge as stated in our short order dated the 3rd October 1944, and convict Sheo Nandan Mallah u/s 328, I.P.C. We should have sentenced Sheonandan to 5 years' rigorous imprisonment, but as he has already received sentence u/s 326 I.P.C. and an offence u/s 328 is a part of an offence u/s 326, I.P.C. no separate sentence can be passed (Section 71 I.P.C).