JUDGMENT Bind Basni Prasad, J. - This is a reference by the learned Assistant Sessions Judge of Saharanpur under S. 307, Criminal P.C. The complainant in this case was a European British subject. The two accused are British Indian subjects and they claimed the trial by jury under the provisions of chap. 33 of the Code. The committing Magistrate held that they were entitled to this. The learned Assistant Sessions Judge accordingly tried the two accused with five jurors. 2. It is an undisputed fact that at about 2-30 A.M. on the night between 8th and 9th August 1945, Fusilier Spence and Captain (now Major) Wright, who were out for military exercise near the Mohand pass on Dehradun Saharanpur road received some gun-shot wounds. Fusilier Spence died the following morning at about 10 A.M. According to the post-mortem examination conducted by Captain Lahiry the cause of death of Fusilier Spence was concussion of the cord and medulla oblongata due to gun-shot wound. The pellet was extracted at the post-mortem examination from the tissue behind the larynx in front of the fourth cervical vertebrae. It was handed over by Captain Lahiry to the police and was produced before the learned Assistant Sessions Judge. According to Mr. Harris, Deputy Superintendent of Police, P.W. 10, the pellet was one which is usually put in L.G. cartridges ordinarily used in a 12-bore gun. Captain Wright received three injuries. The first one was on the neck. The second one was an entry on the ulnar side of the left wrist and an exit on the radial side of the wrist. The third wound was on the buttock. Captain Wright was discharged from the hospital after 15 days. He was examined before the learned Assistant Sessions Judge on 11th December 1945 and he stated that even then be was undergoing massage, radiant heat and faradism in an endeavour to bring back the sense of his jaw and wrist nerves. 3. There are to accused in this case, Jagmohan Thukral, aged 26 years and Ravi Thukral, aged 15 years. The former is one of the proprietors of the Green Hotel at Dehra Dun and the latter is a student. They are first cousins. The charge against Ravi was that it was he who caused the injuries to Fusilier Spence and Captain Wright while coming by car from Saharanpur to Dehra Dun on the night of the occurrence. The former is one of the proprietors of the Green Hotel at Dehra Dun and the latter is a student. They are first cousins. The charge against Ravi was that it was he who caused the injuries to Fusilier Spence and Captain Wright while coming by car from Saharanpur to Dehra Dun on the night of the occurrence. He held no licence for a gun. On these allegations he was charged with offences under Ss. 304A and 337, Penal Code, and S. 19 (f), Arms Act. Jagmohan accused was also in the car along with Ravi and it is alleged that it was with his gun that Ravi committed the offence. He was, therefore, charged for abetment of the offences under Ss. 304A and 337, Penal Code, and for the substantive offence under S. 21, Arms Act. He holds a licence for the gun. The unanimous verdict of the jury was that Ravi was not guilty of the offences under Ss. 304A and 337, Penal Code but was guilty of the offence under S. 19 (f). Arms Act. As against Jagmohan the jury returned a unanimous verdict of not guilty in respect of all the three offences with which he was charged. The learned Assistant Sessions Judge agreed with the verdict of the jury under S. 19 (f), Arms Act as against Ravi and sentenced him to a fine of Rs. 200 or in default to undergo a simple imprisonment for three months. He disagreed, however, with the rest of the verdict and has referred the case to this Court recommending that Ravi be convicted of the remaining two offences and Jagmohan of all the three offences for the commission of which they were charged. 4. I may say at the outset that the procedure adopted by the learned Assistant Sessions Judge in submitting to this Court only a part of the case is irregular. Subsection (2) of S. 307, Criminal C.P., provides as follows : Whenever the Judge submits a ease under this section, he shall not record judgment of acquittal or of conviction on any of the charges on which such accused has been tried, but he may either remand such accused to custody or admit him to bail. Subsection (2) of S. 307, Criminal C.P., provides as follows : Whenever the Judge submits a ease under this section, he shall not record judgment of acquittal or of conviction on any of the charges on which such accused has been tried, but he may either remand such accused to custody or admit him to bail. It is clear from the above provision that the whole case should have been submitted to this Court and no judgment of conviction on any head of the charges should have been recorded by the learned Assistant Sessions Judge. A similar point came up before this Court in Emperor Vs. Nawal Behari Lal, AIR 1930 All 489 In that case also the learned Sessions Judge had convicted the accused on some of the charges and disagreeing with the verdict of the jury in respect of the other charges had referred that part of the case only to this Court. This Court, while expressing its disapproval of the procedure adopted by the learned Sessions Judge, considered the whole of the case, substituted its own judgment and sentence for that awarded by the learned Sessions Judges and disposed of the reference in respect of the other heads of the charges on merits. I think it would be proper to adopt the same procedure in the present case. I shall consider the whole of the case and not only so far as it relates to the charges under Ss. 304A and 337, Penal Code and S. 21, Arms Act. 4a. Now from the mere fact that Ravi has been charged under S. 304A it is obvious that it is not the prosecution case that he or Jagmohan intended to wound Fusilier Spence and Captain Wright or did the alleged act with the knowledge that it was likely to result in injury to these two persons. The charge against Ravi is that he committed a rash and negligent act by firing two shots at night into the forest without taking good care, with consequent injuries to Fusilier Spence and Captain Wright. The accused deny that the injuries to Fusilier Spence and Captain Wright were caused from their gun shots and suggest that some other party was responsible for the same. The accused deny that the injuries to Fusilier Spence and Captain Wright were caused from their gun shots and suggest that some other party was responsible for the same. They further contend that even if it be held that the injuries were caused from their gun shots, they committed no rash or negligent act and that they are protected by S. 79, Penal Code, which provides inter alia that nothing is an offence which is done by any person who by reason of a mistake of fact in good faith believes himself to be justified by law in doing it. 5. Before examining the prosecution evidence, the statements of the accused recorded under S. 164, Criminal P.C., and the circumstances in which they were made may be mentioned. It will be remembered that the occurrence took place on the night between the 8th and 9th August 1945. It so happened that the two accused along with P.W. 9, Jamal Uddin, left Dehra Dun for Saharanpur on the afternoon of 8th August for some business by a car which belonged to Jamal Uddin. On their way back they visited Roorkee. They started from there at about 8.30 P.M. The distance between Roorkee and Dehra Dun is 40 miles. They were delayed on the way on account of a puncture. There was a forest on the way and the party had in mind when they started from Dehra Dun to do some shooting if an animal was found. Jagmohan had, therefore, taken his gun with him. When the party on its way back reached near the Mohand pass, Ravi fired two shots from the, car at what he considered to be an animal but thinking that his shots had missed, the party did not stop and proceeded by the car. They reached Dehra Dun at about 4 a.m. The party took no action on 9th August in the way of any information to the police probably because they thought that nothing untoward had happened as a result of the firing. They reached Dehra Dun at about 4 a.m. The party took no action on 9th August in the way of any information to the police probably because they thought that nothing untoward had happened as a result of the firing. At about 11-30 p.m. on 9th August one Darrick who is the manager of the Green Hotel informed Jagmohan that a Circle Inspector of Police who had come to the hotel to dine was mentioning that an incident had taken place on the previous night near the Mohand pass as a result of which a British Officer and a British soldier had received gun-shot wounds. On hearing this it occurred to Jagmohan that it might have been caused by the gun-shots fired by Ravi. So on the following morning he consulted P.W. 4, Khurshed Lal, Vakil and also a relation of his; the latter advised Jagmohan to go to the Superintendent of Police and state to him frankly and straightforwardly what had happened. Jagmohan followed this advice. He along with Ravi and Jamal Uddin were then examined under S. 164 by P.W. 5, Mr. Bokhari, a Magistrate First Class. Exhibits P-9, P-10 and P-17 are their statements under S. 164. 6. The prosecution examined twelve witnesses before the learned Assistant Sessions Judge and tendered the medical evidence of Major Griffiths, Captain Gibson and Captain Lahiry. The evidence of Captain Christie recorded before the committing Magistrate was also admitted in evidence u/s 33 of the Evidence Act as at the time of the evidence in the Court of Session he had left for England. Thus there was in ali the evidence of sixteen witnesses for the prosecution. The first remarkable feature of the case is that the only witness who can give definite, direct evidence about the charges framed against the accused is P.W. 9, Jamal Uddin. This witness does not at all support the case against the accused. He does not say that Fusilier Spence and Captain Wright were injured by Ravi. He says that Ravi fired at what he considered to be an animal and that he did not see or hear any man after the shots had been fired. Further he locates the place at which Ravi fired the shots differently from that fixed by Captain Wright and other prosecution witnesses. He says that Ravi fired at what he considered to be an animal and that he did not see or hear any man after the shots had been fired. Further he locates the place at which Ravi fired the shots differently from that fixed by Captain Wright and other prosecution witnesses. According to Jamal Uddin these shots were fired at a distance of about 3 furlongs or 733 yards from the temple near the Mohand pass. The temple itself is at a distance of 30 or 40 yards from the tunnel. Captain Wright, however, locates the place from which the gun shots were fired at about 150 or 200 yards from the temple near the tunnel. The learned Assistant Sessions Judge remarks that Jamal Uddin being a friend of the accused is supporting them. It may or may not be so, but the fact remains that Jamal Uddin's evidence does not help the prosecution case. On the other hand, it helps the defence story. 7. The case against the accused thus rests entirely on circumstantial evidence. It is a well-established principle of law that an accused can be convicted on circumstantial evidence only when such evidence is quite incompatible with his innocence and there can be a reasonable certainty of his guilt. I am of opinion that judged by this standard the evidence adduced by the prosecution cannot be said to prove the case against the accused. Learned counsel for the Crown has argued that at least Ravi accused can be convicted on his statement under S. 164, Criminal P.C. In fact he goes so far as even to suggest that the statement amounts to a confession. As regards Jagmohan he has frankly stated that no case against him is made out. The gun was lying loaded on the seat of the car. Jagmohan himself was driving it and he had intended to do the shooting himself but upon sighting an animal Ravi suddenly took up the gun and fired it. Thereupon Jagmohan rebuked him. Certainly this cannot be said to be an abetment on his part; nor can he be said to have committed the offence under S. 21, Arms Act. The case against Jagmohan has thus no legs to stand. I shall, therefore, confine myself now to the case against Ravi alone. 8. Thereupon Jagmohan rebuked him. Certainly this cannot be said to be an abetment on his part; nor can he be said to have committed the offence under S. 21, Arms Act. The case against Jagmohan has thus no legs to stand. I shall, therefore, confine myself now to the case against Ravi alone. 8. I entirely disagree with learned counsel for the Crown that Ravi's statement under S. 164 amounts to a confession. He nowhere admits that his shots hit Fusilier Spence and Captain Wright. He says that he saw the eyes of an animal and he fired at it. He thought that he had missed it and he did not see the animal falling down. He added in his statement before the committing Magistrate that he had fired the shots about half a mile from the tunnel towards Saharanpur. He did not admit that the shots were fired at the time at which Fusilier Spence and Captain Wright received the gun shot wounds. He adhered to that statement in his examination before the committing Magistrate and the learned Assistant Sessions Judge. Now what is the evidence against Ravi ? [His Lordship discussed the evidence of the witnesses for the prosecution and concluded:] 8A. TO sum up, the position is that there is no direct evidence that the unfortunate injuries to Captain Wright and Fusilier Spence were caused by Ravi's gun shots. The circumstantial evidence against him is not such as can eliminate all reasonable doubts of his innocence. The learned Assistant Sessions Judge relies upon the following circumstances against the accused: (1) The time at which Captain Wright and Fusilier Spence received the gun-shot wounds is about the same as the one at which the accused would according to the prosecution evidence, have passed by the scene of the occurrence. (2) The conduct of the accused. (3) The facts that the pellet extracted from the body of Fusiligr Spence is one which is ordinarily used in L.G. cartridges and two such unused cartridges were recovered from the accused. (4) The identify of the car. (5) Ravi accused who was a novice and had not handled the gun prior to the night of the occurrence was rash and negligent in firing from a moving car in a jungle without the help of any light. 9. All these circumstances are capable of reasonable explanation. (4) The identify of the car. (5) Ravi accused who was a novice and had not handled the gun prior to the night of the occurrence was rash and negligent in firing from a moving car in a jungle without the help of any light. 9. All these circumstances are capable of reasonable explanation. [After stating how these circumstances can be explained his Lordship proceeded.] Lastly, even if it be assumed that the gun shots were fired by Ravi from Jamal Uddin's car, the question still remains whether or not this amounted to a rash and negligent act on his part. In ('81) 3 All. 776, Empress of India v. Idu Beg, it was observed: That criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury, but without intention to cause injury, or knowledge that it will probably be caused. Criminalty lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted. Now what was the position in the present case? It was a pitched dark night. There is nothing on the record to show that there was any caution or signal to warn people that any military exercise was going on near the Mohand pass. Questioned by the Court Jamal Uddin stated that when going from Dehra Dun to Saharanpur at about 4. 15 p.m. on 8-8-1945, he did not see any military camp near the Mohand pass; nor did he see any such Military party when returning from Saharanpur. The place where the occurrence took place was a forest and there could reasonably be no suspicion in the mind of Ravi accused that any human being was at the place where he was firing. The place where the occurrence took place was a forest and there could reasonably be no suspicion in the mind of Ravi accused that any human being was at the place where he was firing. If a person in his zeal to try his hand at shooting fires a gun in a jungle at a late hour of the night at a place where no human being can be suspected to be present at what he considers to be an animal, he cannot be said to be guilty of a rash and negligent act. If he mistook something else as an animal, then S. 79, Penal Code, comes to his rescue. There is a peculiar feature in this case. While Ravi accused does not say that he fired the shot in the light of the torch, the prosecution witnesses suggest that the shots were fired in the light of the head lamps and of the torch. The learned Assistant Sessions Judge has held that the gun was fired in darkness and that there was no light of the head lamps or of the torch. If it was so, then certainly Captain Wright and Fusilier Spence were not shot by Ravi because, according to Captain Wright, the shots hit him when the whole scene was illumined by the head lights of the car. 10. In this state of the evidence, if the jury returned a verdict of not guilty under S. 304A and 337, Penal Code, it cannot be said to be unreasonable or wrong, what to speak of its being perverse or impossible. When in a case two reasonable views are possible and the jury takes one such view, the High Court will not interfere with it, especially when it is a unanimous verdict. It appears from the record that the jurors applied their mind fully to the case. They took one hour and twenty minutes to consider their verdict. After the verdict was given the learned Judge asked the jury to give their reasons and they submitted the same then and there in writing. A perusal of the reasons given by them will show that the jurors are not illiterate persons. They appear to be men of ordinary commonsense capable of forming their opinions on reasonable grounds. After the verdict was given the learned Judge asked the jury to give their reasons and they submitted the same then and there in writing. A perusal of the reasons given by them will show that the jurors are not illiterate persons. They appear to be men of ordinary commonsense capable of forming their opinions on reasonable grounds. I may remark here that the procedure adopted by the learned Judge in asking the jury to give their reasons in writing is not one which can be approved of. The law nowhere requires the jury to give reasons for the verdict. Under sub-s. (1) of S. 303, Criminal P.C., the Judge can ask the jury only such questions as are necessary to ascertain what their verdict is. This does not mean that they can be asked to give their reasons. The jury are not trained judges and to ask them to give their reasons in writing or in other words to ask them to write a judgment is a procedure which is likely to put them in an awkward position. I would, therefore, express my disapproval with the procedure adopted by the learned Assistant Sessions Judge. 11. Learned counsel for the accused has relied upon ('05) 2 A.L. J. 475, Emperor v. Chirkua in which it was held that the mere fact that upon a consideration of all the evidence a Judge would have arrived at a conclusion different from that arrived at by by the jury would not justify the Court in interfering with their unanimous verdict. In that case this Court declined to interfere with the verdict on the ground that it was not perverse. In ('24) 46 All. 265 : 11 AIR 1924 All. 411 : 81 I.C. 629, Emperor v. Panna Lal also it was held that the High Court should interfere only when a jury has arrived at a verdict which is perverse or clearly and manifestly wrong. Learned counsel for the Crown relies upon the Full Bench case in Emperor Vs. In ('24) 46 All. 265 : 11 AIR 1924 All. 411 : 81 I.C. 629, Emperor v. Panna Lal also it was held that the High Court should interfere only when a jury has arrived at a verdict which is perverse or clearly and manifestly wrong. Learned counsel for the Crown relies upon the Full Bench case in Emperor Vs. Shera and Others, AIR 1928 All 207 in which it was held that where a jury has given its verdict on the facts of the case it is open to the High Court to revise that verdict on a reference by the trial Judge made under S. 307, Criminal P.C., even where it is not alleged that there has been any misdirection by the Judge or any misunderstanding by the jury of the law as laid down by the Judge. It will be seen that this case does not overrule the principles laid down in ('05) 2 A.L. J. 475, Emperor v. Chirkua or ('24) 46 All. 265 : 11 AIR 1924 All. 411 : 81 I.C. 629, Emperor v. Panna Lal The Court was concerned in that case about the powers of the High Court on hearing a reference under S. 307, Criminal P.C. In subsequent cases which came up before this Court ('05) 2 A.L. J. 475, Emperor v. Chirkua was followed and it was held that 50 ALL. 6255 was no authority for departure from the principles laid down in ('05) 2 A.L. J. 475, Emperor v. Chirkua, vide ('31) 1931 A.L.J. 695 : 133 I.C. 475, Emperor v. Madan Gopal. In Emperor Vs. Bansi and Others it was held after considering the case in 50 ALL. 6255 that in cases where there has been a verdict of not guilty it was the practice of this Court and also of other High Courts not to reverse the verdict of a jury unless it was perverse or manifestly wrong. On the other hand, where the jury had returned the verdict of guilty, the matter stood on a different footing. It was further observed that the verdict of a jury, especially when it is unanimous, should not be lightly displaced. On the other hand, where the jury had returned the verdict of guilty, the matter stood on a different footing. It was further observed that the verdict of a jury, especially when it is unanimous, should not be lightly displaced. It cannot be said that the evidence in this case before us is of such a character that a verdict of not guilty passed by the jury is demonstrably wrong, I see no good reason to upset the verdict of not guilty given by the jury. 12. Learned counsel for the accused has argued that an offence under S. 19 (f), Arms Act is not made out against Ravi. Section 19 (f) provides that whoever has in his possession or under his control any arms or ammunition in contravention of the provisions of S. 14 or S. 15 shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both. Sections 14 and 15 in essence provide that no person shall have in his possession or under his control any firearms or any ammunition. It is amply proved that Ravi had no licence for the gun. It is admitted that he took hold of Jagmohan's gun and fired it. Though the possession was for a very short time, never the less he committed an offence under S. 19 (f)., Babu Ram Vs. Emperor has been relied upon on his behalf. The facts of that case are distinguishable from those of the present one. In a communal riot taking place in different parts of a town the accused in that case took up the gun of his brother who was a licence-holder and fired shots in the air so that people mischievously inclined might Know that it was not safe for them to do any mischief to the people living in the house. It was held that no offence had been committed by the applicant. It was observed in that case while discussing the question of possession, that if a servant takes out the gun without the permission of his master and commits an offence with it, or goes out for a mere show in a marriage procession, his possession would be unlawful. I am of opinion that the ruling is not applicable to the facts of the present case. I am of opinion that the ruling is not applicable to the facts of the present case. I am of opinion that the case under S. 19 (f), Arms Act is clearly made out against Ravi. The sentence passed by the learned Judge does not err on the side of severity. 13. It was also argued on behalf of Ravi that the provisions of U.P. First Offenders 'Probation Act, 1938, should be applied to the present case. Section 3 of that Act is not applicable because the offence under S. 19 (f) of Arms Act is punishable with more than two years' imprisonment. Section 4, however, can be applicable, but I do not think that in the circumstances of the case it is one in which it should be applied. 14. Lastly it was argued on behalf of the defence that this reference is not competent because the learned Assistant Sessions Judge, having pronounced his judgment in respect of the charge under S. 19 (f), Arms Act, could not refer the remaining portion of the case to this Court and in this connection we are referred to Emperor Vs. Bisnoo Chandra Das, AIR 1933 Cal 665 , Emperor Vs. Hazari Lal, AIR 1932 Patna 156 and ('35) 14 Pat. 717 : 22 AIR 1935 Pat. 357 : 155 I.C. 866, Ram Janam v. Emperor. No doubt these three cases do support the contention of learned counsel for the defence, but against these authorities we have the case of our own High Court in Emperor Vs. Nawal Behari Lal, AIR 1930 All 489 It is urged that in this case the point of in competency of reference was not raised before the learned Judges and so it was not considered by them. It is unnecessary to discuss the view taken in the Calcutta and the Patna cases, because I have arrived at the conclusion that in the present case there are no grounds whatsoever for interference with the verdict of the jury. Further as already stated the procedure adopted in Emperor Vs. Nawal Behari Lal, AIR 1930 All 489 by this Court should be followed in this case. 15. Further as already stated the procedure adopted in Emperor Vs. Nawal Behari Lal, AIR 1930 All 489 by this Court should be followed in this case. 15. For the reasons given above, I would reject the reference, accept the verdict of the jury, set aside the judgment and the sentence passed by the learned Assistant Sessions Judge, convict Ravi accused under S. 19 (f), Arms Act, sentence him to a fine of Rs. 200 only and in default to undergo a simple imprisonment of three months and acquit Ravi of the offences under Ss. 304A and 337, Penal Code and Jagmohan of the offences under Ss. 304A and 337, read with S. 109, Penal Code and S. 21, Arms Act. Verma J. 16. I agree and do not consider it necessary to add anything. Per Curiam. 17. The recommendation made by the learned Judge below is rejected and the verdict of "Not Guilty" delivered by the jury with regard to the offences under Ss. 304A and 337, Penal Code with which Ravi Thukral was charged and the offences under Ss. 304A and 337 read with S. 109, Penal Code and under S. 21, Arms Act with which Jagmohan Thukral was charged is upheld. Ravi Thukral and Jagmohan Thukral are acquitted of the offences mentioned above. The judgment of conviction under S. 19 (f), Arms Act recorded by the Court below and the sentence passed by it in respect thereof are set aside. Ravi Thukral is now convicted by this Court under S. 19 (f), Arms Act and is sentenced to a fine of Rs. 200 only. In case of default in the payment of the fine, Ravi Thukral will undergo simple imprisonment for three months.