Criminal Appeal No 104 of 1955
Appeal by special leave from the judgment and order  dated September 9 1953 of the Patna High Court in Jury Reference No I of 1952 arising out of the ReferencE made on February 16 1952 by the Assistant Sessions Judge 2nd Court Chapra in connection with Sessions Trial No 81 of 1951
section P Verma for the appellants Nos 2 and 3
B K Saran and R C Prasad for the respondent
January 30
The Judgment of the Court was delivered by BHAGWATI J
The appellants Nos 2 and 3 who are the surviving appellants after the death of appellant No 1 during the pendency of this appeal were charged with having committed offences under sections 435 and 436 of the Indian Penal Code and were tried by the Second Assistant Sessions Judge of Saran Chapra with the aid of a jury
The jury returned a majority verdict that both of them were guilty of the offences under those sections
The Assistant Sessions Judge disagreed with the said verdict and made a reference to the High Court of Judicature at Patna 275 under section 307 of the Code of Criminal Procedure
The said reference was heard by a Division Bench of that High Court
The learned judges of the High Court overruled the contentions which were urged before them in regard to the charge to the jury being defective and further held that the reference was in the circumstances not competent
They however without anything more accepted the majority verdict and held the appellants guilty of the offences under sections 435 and 436 of the Indian Penal Code and sentenced them to six months  rigorous imprisonment each
The appellants obtained from this Court special leave to appeal under article 136 of the Constitution and hence this appeal
The facts leading up to this appeal may be shortly stated as follows There was a dispute between the parties as to title to plot No 1100 of village Rampur Tengrahi
One Kailash Rai claimed to be the owner of that plot and also claimed to be in possession of a Palani standing in a portion of that plot as also of a Punjaul ie a haystack in its vicinity
There had been proceedings under section 144 of the Code of Criminal Procedure in regard to this area leading up to a title suit being TS No 588 of 1948 50 filed by Kailash Rai against the appellants in regard to the same
A decree had been pawed on December 16 1950 in that title suit dismissing the claim of Kailash Rai
An appeal had been filed by Kailash Rai against that decree and that appeal was pending at the date of the occurrence
On March 4 1951 Kailash Rai was sitting in the Palani and at about 3 to 4 pm a mob consisting of about 100 to 125 persons including the appellants all armed with lathes bhallas and pharsas came to the Palani and began to demolish the same
Kailash Rai remonstrated and the deceased appellant No 1 ordered that the Palai should be set on fire
The appellant No 2 thereupon set fire to the Palani with a match stick and the appellant No 3 set fire to the Punjaul
The first information report of this occurrence was lodged at Gopalganj Police Station at 8 pm the same night
The officer in charge of Gopalganj Police Station investigated the case and 276 challaned the appellants charging them with having committed offences under sections 435 and 436 of the Indian Penal Code
The Committing Court found a prima facie case made out against the appellants and sent them up for trial by the Assistant Sessions Judge Second Court Chapra who tried them by a jury
The jury returned a majority verdict of guilty against the appellants
The Assistant Sessions Judge however disagreed with that verdict and made a reference to the High Court stating in the letter of reference that on the evidence recorded before him the appellants had been in possession of the Palani and the Punjaul but were dispossessed of the same some time prior to the passing of the decree in the title suit on December 161950 and were therefore justified in taking steps for recovery of possession thereof from Kailash Rai on March 4 195 1 and if in that process the appellants set fire to the Palani and the Punjaul they were only destroying their own property and were not guilty of the offence of committing mischief by fire as alleged by the prosecution
The Assistant Sessions Judge tried to analyse the working of the minds of the jury in arriving at the verdict which they did and though he agreed with the alleged finding of fact reached by the jury in regard to the possession of the Palani and the Punjaul disagreed with the law as allegedly applied by the jury and therefore disagreed with the majority verdict
When the reference was heard before the High Court the counsel for the appellants only contended that the charge addressed by the Assistant Sessions Judge to the jury was defective and he did not invite the High Court as he should have done to consider the entire evidence and to acquit or convict the appellants of the offences of which the jury could have convicted them upon the charges framed and placed before it after giving due weight to the opinions of the learned Sessions Judge and the jury as required by a 307 3 of the Code of Criminal Procedure
The High Court therefore only considered the objections which had been urged by the learned counsel for the appellants before it in regard to the charge being defective and 277 overruled them accepted the majority verdict convicted the appellants and sentenced them as above
We are of opinion that in so doing the High Court was clearly in error and acted in violation of the provisions of section 307 3 of the Code of Criminal Procedure
Section 307 3 provides 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 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 charge framed and placed before it and if it convicts him may pass such sentence a might have been passed by the Court of Sessions
 We had occasion to consider this provision in Akhlakali Hayatalli vs The State of Bombay1 where we approved of the following observations of their Lordships of the Privy Council in Ramanugrah Singh vs The Emperor2  The powers of the High Court in dealing with the reference are contained in sub section 3
It may exercise any of the powers
which it might exercise upon an appeal and this includes the power to call fresh evidence conferred by section 428
The Court must consider the whole case and give due weight to the opinions of the Sessions Judge and jury and then acquit or convict the accused
In their Lordships  view the paramount consideration in the High Court must be whether the ends of justice require that
the verdict of the jury should be set aside
In general if the evidence is such that it can properly support a verdict either of guilty or not guilty according to the view taken of it by the trial Court and if the jury take one view of the evidence and the judge thinks that they should have taken the other the view of the jury must prevail since they are the judges of fact
In such a case a reference is not justified and it is only by accepting their view that the High Court can give due weight to the opinion of the jury
It however I  442
2 AIR 1946 PC 151 154
278 the High Court considers that upon the evidence no reasonable body of men could have reached the conclusion arrived at by the jury then the reference was justified and the ends of justice required that the verdict be disregarded
 This wag pronounced by us to be the correct method of approach in a reference under section 307 of the Code of Criminal Procedure
It was incumbent on the High Court when the reference was heard by it to consider the entire evidence and come to its own conclusion whether the evidence was such that it could properly support the verdict of guilty against the appellants
If the High Court came to the conclusion that the evidence was such that it was possible for the jury to take the view that it did even though the judge thought that they should have taken another view the reference would not have been justified and the High Court should have accepted the opinion of the jury
If the High Court was however of opinion upon the evidence that no reasonable body of men could have reached the conclusion arrived at by the jury the reference would have been quite justified and the ends of justice required that the verdict should be disregarded
The High Court however only considered the arguments in regard to the defect in the charge to the jury addressed before it by the learned counsel for the appellants and did not consider the entire evidence which was on the record before it
In not having done so we are clearly of opinion that it violated the provisions of section 307 3 of the Code of Criminal Procedure
We are accordingly of opinion that the judgment of the High Court accepting the majority verdict and convicting the appellants and sentencing them as above without considering the entire evidence was clearly wrong and the conviction of the appellants and the sentences passed upon them should be set aside
We were invited by learned counsel for the parties appearing before us to consider the entire evidence for ourselves and come to the conclusion which according to the provisions of section 307 3 of the Code of Criminal Procedure I he High Court should have done
We do 279 not think that is the proper procedure to adopt and we therefore allow the appeal and remand this matter to the High Court to act in accordance with the provisions of section 307 3 of the Code of Criminal Procedure and deal with the same in accordance with law
The appellants Will continue on the same bail as before
Appeal allowed


Summary:
The appellants were charged under sections 435 and 436 of the Indian Penal Code and were tried by a jury who returned a majority verdict of guilty
The Assistant Sessions judge disagreed with the said verdict and made a reference to the High Court
At the hearing of the reference the counsel for the appellants only contended that the charge to the jury was defective and did not place the entire evidence before the judges who only considered the objections  urged and nothing more and held the 35 274 reference to be incompetent and found the appellants guilty and convicted them
Held that in a reference under section 307 of the Code of Criminal Procedure it was the duty of counsel to place and it was incumbent on the High Court to consider the entire evidence and the charge as framed and placed before the jury and to come to its own conclusion after giving due weight to the opinion of the trial judge and the verdict of the jury and to acquit or convict the accused of the offences of which the jury could have convicted or acquitted him
It was wrong of the  High Court to pass judgment without considering the entire evidence
It is not proper for the Supreme Court to adopt the procedure of considering the entire evidence and come to a conclusion which according to the provisions of s3073 of the Code of Criminal Procedure the High Court should have done
Akhlakali Hayatalli vs The State of Bombay 1954 SCR 435 and Ramanugrah Singh vs The Emperor AIR T946 PC 151 referred to