Moseb Kaka Chowdhry vs State Of W. B.

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1956 Supreme(SC) 34

SUPREME COURT OF INDIA
18th April 1956
JAGANNADHA DAS AND SINHA JJ.
Moseb Kaka Chowdhry and another, Appellants
Versus
State of W.B., Respondent.
Criminal Appeal No. 15 of 1955.
Advocates Appeared
Mr. Jaigopal Sethi, Sr. Advocate, (Mr. C. F. Ali and Mr. P. K. Ghosh, Advocates with him), for Appellants, Mr. B. Sen, Sr. Advocate, (Mr. I. N. Shroff, Advocate for Mr. P. K. Bose Advocate, with him), for Respondent.

Advocates:
B.SEN, C.F.Ali, I.M.SHROFF, Jai Gopal Sethi, P.K.GHOSH, P.K.Rose

Headnote:Article 136-New plea.
       Held: (1) Where the points that the verdict of the jury was Vitiated by communal bias and that the examination of the accused under S. 342, Cr. P.C. was inadequate, were not raised before the High Court, the Supreme Court is reluctant to allow any such contentions to be raised on special leave.
       (2) "In any case, an argument of this kind1 which would, if accepted, necessitate a retrial is one that ought to be put forward at the earliest stage and at any rate at the time of the regular appeal in the High Court. This cannot be entertained for the first time in an appeal on special leave." - Criminal Procedure Code, Section 307-Scope-Judges view on the evidence-Direction to jury-Reference to the High Court if necessary Section 342 of the Act-Inadequate compliance-Effect.
       Held: (1)" Taking the charge to the jury, therefore, comprehensively we are unable to find that the learned Judge rejected the prosecution evidence and arrived at a clear and categorical conclusion in his own mind that the appellants were not guilty. We are, therefore, unable to accept the assumption of learned counsel for the appellants that the Judge agreed with the unanimous verdict of the jury against his Own personal conviction, as to the guilt of the accused. It appears to us the fore that there is no foundation, as a fact, for the argument that the learn Judge should have Made a reference to the High Court under section 307 of the code of Criminal Procedure or that, in ally case, he should have placed on record his reason for agreeing with the verdict of the jury notwithstanding his own personal opinion to the contrary.
       "Assuming however that the charge to the jury in this case can be read as being indicative of a definite opinion reached by the Sessions Judge in favour of the appellants, it does not follow that merely on that account he is obliged to make a reference to the High Court under section 307 of the Code of Criminal Procedure. What is required under that section is not merely disagreement with the verdict of the jury but the additional factor that the learned Sessions Judge is clearly of opinion that it is necessary for the ends of justice, to submit the case to the High Court. It is now well-settled since the decision of the Privy Council in Ramnugrah Singh v. King Emperor1 that under section 37 of the Code of Criminal Procedure a Sessions Judge, even if he disagrees with the verdict of the jury must normally give effect to that verdict unless he is prepared to hold the further and clear opinion that no reasona"9le body of men could have given the verdict which the jury did. We are certainly not prepared to say that the present case satisfies that test or that the charge to the jury indicated any such clear conclusion. Indeed, it is to be noticed that on intimation by the jury of its unanimous verdict, the learned Judge has recorded that he agreed with and accepted the verdict. We have no doubt that it was perfectly competent for him to do so." (per Jagannadhadas J.)
       (2) There is no doubt that adequate compliance with the salutary provisions of section 342 of the Code of Criminal Procedure is necessary. But it is also well recognised that a judgment is not to be set aside merely by reason of inadequate compliance with section 342 of the Code of Criminal Procedure. It is settled that the clear prejudice mut be shown. It cannot be accepted as a matter of law that the non-examination or inadequate examination under section 342 of the Code in a jury trial must be presumed to cause prejudice and that a conviction in a jury trial should be set aside and retrial ordered, if there is no adequate examination under section 342 Cr. P. C. The question of prejudice is ultimately one of inference from all the facts and circumstances of each case. The fact of the trial being with the jury may possibly also be an additional circumstance for consideration in an appropriate case.

Judgement

JAGANNADHADAS, J. : This is an appeal by special leave against the judgment of the High Court of Calcutta confirming the conviction and sentence of each of the two appellants before us, by the Sessions Judge of Murshidabad. The appellants were tried on a charge under S. 302/34, I.P.C. by the Sessions Judge with a jury. The jury returned an unanimous verdict of guilty against each under the first part of S. 304 read with S. 34, I.P.C. The learned Jude accepted the verdict and convicted them accordingly and sentenced each of the appellants to rigorous imprisonment for ten years.

2. In order to appreciate the points raised before us, it is desirable to give a brief account of the prosecution case. The two appellants jointly made a murderous assault on one Saurindra Gopal Roy at about 6.30 p.m. on 3-11-1951. There was, owing to litigation, previous enmity between the deceased and the appellants. All of them belonged to a village called Mirzapur which in within the police station Beldanga, district Murshidabad.

The deceased along with two friends of his, of the same village examined as P. W. 1 and 2, attended a foot-ball match that evening at Beldanga. The match was over by 5 p.m. and all the three of them, were returning together to their village. In the course of the return they were passing at about 6.30 p.m. through a field, nearly half a mile away from the village. The two appellants each having a lathi and a Hashua (sickle) in his hand, emerged from a bush nearby and rushed towards the deceased and his companions. P. W. 1 was first struck with a lathi and thereupon both P. Ws. 1 and 2 moved away to a distance. The appellants assaulted the deceased and inflicted on him a number of serious injuries.

The two companions of the deceased, P.Ws. 1 and 2 ran towards the village and shouted for help whereupon a number of people from the village came and collected at the spot. Information was also carried to the son as well as to the brother of the deceased. They also came on the scene. The brother, by name Radhashyam, proceeded at once to the Beldanga police Station and lodged the first information report at about 7.30 p.m. The police officer came to the scene and recorded a statement from the deceased who was then still alive. He was thereafter taken to the hospital at Beldanga. At the hospital the Medical Officer also took a statement from him (Ex. 4) He died some time thereafter.

3. P. Ws. 1 and 2, the companions of the deceased, were the only eye-witnesses to the murderous assault. The prosecution relied also on certain statements said to have been made by the deceased after the assault. The deceased is said to have stated to P. W. 7 one of the villagers who first came on the scene, after hearing the shouts of P. Ws. 1 and 2 that the two appellants were his assailants. A little later, when his son and his brother, P. W. 3 came there, he is also said to have stated to P. W. 3 that the two appellants were the assailants.

Accordingly the first information report gave the names of the two appellants as the assailants. Similar statements are said to have been made by the deceased to the police officer when he came on the spot and later to the medical officer when he was taken to the hospital. The evidence, therefore, in support of the prosecution case was mainly, that of the two eye-witnesses, P. Ws. 1 and 2 and of the four dying declaration, two of them oral and two written.

There was considerable scope for criticism about the evidence of the two eye-witnesses. The evidence relating to the dying declarations was also open to attack in view of the nature of the injuries inflicted on the deceased. These included incised wounds on the occipital region and an incised wound in the brain from out of which a piece of metal was removed on dissection. This, as was urged, indicated the likelihood of the deceased having lost his consciousness almost immediately and hence the improbability of any statements by the deceased. But the medical evi

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