Onkar v. State of M. P. — 1969 DIGILAW 130 (MP)

JUDGMENT P.K. Tare, J 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. 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. 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 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. 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 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. 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. 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. 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 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. 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. At the outset, it may be mentioned that while considering the question of sentence, the learned Sessions Judge has entirely believed the defence story that Mallu (P.W. 1) was drunk at the relevant time and that he was wild and abusive. At the outset, it may be mentioned that while considering the question of sentence, the learned Sessions Judge has entirely believed the defence story that Mallu (P.W. 1) was drunk at the relevant time and that he was wild and abusive. It was for this reason that the learned Judge thought that the case did not deserve a severe sentence and, therefore, the present appellants were sentenced, taking a lenient view of the matter. This, clearly indicates that the learned Judge was convinced that the defence version was correct. But, he was helpless on account of the verdict of the jury, Paragraphs 1 to 26 of the charge indicate, that the trial Judge apprised the jury with the manner as to how they are to judge the evidence in the case, as also the law relating thereto. The trial Judge placed the case on a very fair basis giving both sides of the version and also pointed out contradictions and the special features of the prosecution case. He mentioned, particularly, that the other independent evidence, which was available to the prosecution had not, strangely, been produced by the prosecution. The defence had adduced such independent evidence (which could in no case be rejected). Moreover, some of the prosecution witnesses, who supported the defence completely, negatived the garbled version of the interested witnesses, namely, Mallu (P.W. 1), Natthu (P.W. 3), Mst. Mathai (P.W. 4) and Lakhmya (P.W. 6), all members of the family of Mallu. The prosecution witnesses had admitted the presence of certain independent person at the scene of occurrence, who however, were not examined by the prosecution, but by the defence. The first important thing that the learned Judge pointed out to the jury was that Sukya (P.W. 2), the immediate neighbour of Mallu (P.W. 1), as also Chhajju s/o Sigdar (P.W. 8) had entirely supported the defence version. The learned Judge further pointed out that the so called eye-witnesses, namely, Natthu (P.W. 3), Smt. Mathai (P.W. 4) and Lakhmya (P.W. 6), who are all members of the family of Mallu (P.W. 1), could not be actual eye-witnesses, according to their own testimony, as they appeared to have come out of their huts, after the fire was lit. Mallu (P.W. 1) himself being drunk, was wild and using abusive and rambling. Mallu (P.W. 1) himself being drunk, was wild and using abusive and rambling. It was Mallu's version that he had been beaten with a lathi by the appellants, causing bleeding injuries, but, he was never sent for medical examination, nor did he point out any injuries to the Investigating Officer at the time of lodging the first information report (Ex. P-1). As regards the testimony of the said eye-witnesses, the learned Judge pointed out the inconsistencies and the contradictions in their own version given to the police, as also in their version given in the committal Court and the Sessions Court, The learned Judge wanted the jury to take into account the said contradictions and improbabilities in the depositions of the said prosecution witnesses. The learned Judge also pointed out the delay made by Mallu (P.W. 1) in lodging the first information report, which would establish the defence version that Mallu (P.W. 1) was drunk at the time. The seizure of the gun from Mallu (P.W. 1) by Tinofilus Milton Rao Ji (D.W. 3) and Gopalrao (D.W. 4) and handing over the same to Babnlal Patel (D.W. 1), would indicate that the said witnesses thought that Mallu, who was drunk, might use the gun in his state of drunkenness. The learned Judge also pointed out the delay in filing the challan after about 5 months of the completion of the investigation. The investigation was completed on 31-12-1957, while the challan was filed on 23-5-1958. The incident took place on 11-10-1957. The District Superintendent of Police had ordered the Sub-Inspector to conduct the further investigation himself. In spite of this, the said Sub-Inspector Kashi Prasad (P.W. 10) stated that he had not obeyed the orders of the District Superintendent of Police in that behalf and had left the investigation to a Head Constable. The trial Judge also pointed out that the accused had made a complaint against the conduct of the Head Constable to the higher authorities and had sent some applications in that behalf. It was in pursuance of those applications that the District Superintendent of Police had thought it fit to give the said direction. The learned Judge also pointed out that the investigation had not been done in the present case honestly and that the orders of the superior officers had been disobeyed by the subordinate police officials. It was in pursuance of those applications that the District Superintendent of Police had thought it fit to give the said direction. The learned Judge also pointed out that the investigation had not been done in the present case honestly and that the orders of the superior officers had been disobeyed by the subordinate police officials. The trial Judge placed all those special features of the case before the learned members of the jury, who, however, acquitted the appellants of the charge under section 323 and found him guilty of the charge under section 436, Indian Penal Code. The facts relating to two offences under sections 323 and 436, Indian Penal Code are dependent on the same set of witnesses. As pointed out by the learned Sessions Judge, the prosecution avoided to examine independent witnesses. The investigation has not been conducted honestly. The filing of the challan had been unduly delayed and the prosecution examined interested witnesses, whose testimony was full of inconsistencies and contradictions. In spite of this, the learned members of the jury elected to believe the prosecution version in relation to the charge under section 436, Indian Penal Code and to disbelieve the same set of witnesses with respect to the charge under section 323, Indian Penal Code. However, it is not for this Court to say anything more except to observe that the verdict was such as no reasonable body of men could have arrived at under the circumstances of the case, taking into consideration the special features of the case. It is unfortunate that the learned members of the jury should have believed the prosecution version in a case, which was replete with all special features, as indicated above, I am clearly of the view that there has been clear miscarriage of justice in the present case, inasmuch as, believing the impossible prosecution version, the appellants have been found guilty of the offence under section 436, Indian Penal Code. I am convinced that innocent persons are being convicted in the present case. But, in view of the fact that the miscarriage of justice does not arise out of any of the provisions mentioned in sections 418 and 423(2) of the Criminal Procedure Code, I am of opinion that this Court is helpless and is bound to administer the law as it is, however defective it may be. But, in view of the fact that the miscarriage of justice does not arise out of any of the provisions mentioned in sections 418 and 423(2) of the Criminal Procedure Code, I am of opinion that this Court is helpless and is bound to administer the law as it is, however defective it may be. I am further of the opinion that the present case is a sad comment on the jury system. Under the circumstances of the case, I do not think it necessary to adopt the course resorted to by the learned Judges of the Allahabad High Court in Manjia v. Emperor ILR 1937 All. 419 : AIR 1937 All. 195, namely, to remit the case to the Sessions Judge for considering whether he would accept the verdict of the jury or would refer the case to this Court. I have already indicated earlier, it is not necessary to decide the controversy regarding the procedure to be followed in such cases. But, I am inclined to the view that it is open to the appellate Court to reduce the sentence to a nominal one, so as to amount to a token penalty. Hallifax A.J.C. in Sitaram Kunbi v. Emperor 24 NLR 101 was of opinion that even though a Court might find the appellant guilty, it has the power in such cases to reduce the sentence to an extent, so that no penalty is suffered by the accused. The learned Judge was of opinion that it would not be illegal to pass a sentence that no penalty shall be suffered. According to the learned Judge, the reduction of the sentence to a nominal one to the extent of nullity, would avoid, the unnecessary pretence that some sort of penalty must be suffered by a person convicted of an offence. However, a Division Bench of the Orissa High Court in The King v. Tuetipada Mundal and others AIR 1951 Ori 284 dissented from the view of the Hallifax A.J.C. The learned Judges of the Orissa High Court were of opinion that, although the Court had the power to reduce the sentence to a nominal one, yet the same could not be reduced to a nullity. However, the learned Judges of the Orissa High Court were of opinion that the sentence can be reduced to a token one. However, the learned Judges of the Orissa High Court were of opinion that the sentence can be reduced to a token one. There being a reported ruling of this Court, although of a single Bench, I am bound by reported ruling and in case I refuse to accept the correctness of the same, it is incumbent on me to refer the case to a larger Bench. I am of opinion that the provisions of the Indian Penal Code in several sections lay down the maximum penalty that can be imposed for those offences. There are certain offences in which the minimum penalty is indicated, such as section 302, section 397 etc. In cases where the minimum penalty is prescribed, it would be illegal for the Court to award a penalty less than the minimum prescribed, but, in a case where the maximum alone is prescribed and there is no minimum indicated, it would be open to the Court to reduce the sentence to an extent so that no penalty, at all, is suffered by a person, found guilty of an offence. Of course, it is always open to a Court to impose a nominal or a token sentence such as imposition of a fine of Re. 1 or imprisonment till the rising of the Court. I might have been inclined to impose a token sentence in the present case. But, I am unable to adopt that course in view of my impression of the action of the learned Sessions Judge in having felt at one time that the verdict of the jury was erroneous, but, in having refused to refer the case to this Court under section 307, Criminal Procedure Code, I have already indicated as to how the verdict of the jury in the present case is such, as no reasonable body of men, under the circumstances of the case, could have arrived at. Therefore, I am inclined to reiterate the view of Hallifax A.J.C. that in suitable cases it is open to the Court to reduce the sentence to an extent, so that no penalty is suffered by the accused, although he may have to be found guilty of an offence. Therefore, I am inclined to reiterate the view of Hallifax A.J.C. that in suitable cases it is open to the Court to reduce the sentence to an extent, so that no penalty is suffered by the accused, although he may have to be found guilty of an offence. I would, therefore, accepting the verdict of the jury, find the appellants guilty of an offence under section 436, Indian Penal Code, but, would reduce the sentence of the appellants to a nullity, so that they are not required to suffer any penalty. Consequently, this appeal succeeds so far as the sentence is concerned, and, it fails so far as the conviction is concerned. Subject to that modification, the appeal fails and is dismissed. The fine, if recovered from the appellants, be refunded to them. Appeal allowed.