ION Criminal Appeal No 15 of 1955
Appeal by special leave from the judgment and order dated the 24th March 1953 of the Calcutta High Court in Criminal Appeal No 94 of 1952 arising out of the Judgment and order dated the 22nd April 1952 373 of the Court of Sessions Judge Murshidabad in Sessions Trial No 1 of 1952
Jai Gopal Sethi C F Ali and P K Ghosh with him for the appellants
BSen I N Shroff for P K Bose with them for the respondent
April 18
The Judgment of the Court was delivered by 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 section 30234 of the Indian Penal Code by the Sessions Judge with a jury
The jury returned a unanimous verdict of guilty against each under the first part of section 304 read with section 34 of the Indian Penal Code
The learned Judge accepted the verdict and convicted them accordingly and sentenced each of the appellants to rigorous imprisonment for ten years
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 pm on the 3rd November 1951
There was owing to litigation previous enmity between the deceased and the appellants
All of them belonged to a village called Mirzapur which is within the police station Beldanga district Murshidabad
The deceased along with two friends of his of the same village examined as PWs 1 and 2 attended a foot ball match that evening at Beldanga
The match was over by 5 pm 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 pm 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
PW 1 49 374 was first struck with a lathi and thereupon both PWs 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 PWs 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 pm
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 exhibit 4
He died some time thereafter
PWs 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 PW 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 PW 3 came there he is also said to have stated to PW 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 PWs 1 and 2 and of the four dying declarations 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 375 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 evidence on this point was indecisive
There can be no doubt however that the reliability of the prosecution evidence was open to serious challenge in many respects
But learned counsel for the appellants has not been able to raise either before the High Court or before us any objection to the verdict on the ground of misdirection or non direction of a material nature in the charge to the jury by the Sessions Judge On the other band the charge brought out every point in favour of the appellants and against the prosecution evidence
It erred if at all
in that the learned Judge involved himself in a great deal of elaboration
The only flaw in the charge which learned counsel for the appellants could attempt to make out was that the exposition therein of the legal concept underlying section 34 of the Indian Penal Code was obscure and that it would not have been correctly appreciated by the jurors
It may be that this could have been expressed in more lucid terms
But we are unable to find that there was any misdirection or non direction therein
Nor do we see any reason to think that the jury has been misled
Thus there was no real attack either in the High Court or here as against the learned Judge s charge to the jury
Accordingly the only points urged before us are the following
1The circumstances of the case and the nature of the charge to the jury made it incumbent on the learned Judge to disagree with the jury and to refer the case to the High Court under section 307 of the Code of Criminal Procedure
2In the alternative the learned Sessions Judge having expressed himself in his charge to the jury definitely for acquittal he should not have accepted its verdict though unanimous without giving satisfactory reasons for such acceptance
The learned Judge having in his charge speci 376 fically cautioned the jury against communal prejudice in the following terms your deliberations and verdict should not be influenced by any communal considerations should have refused to accept the verdict as having been vitiated by communal bias
It may be stated that all the jurors were Hindus and that the accused were both Muhammadans
The suggestion is that in view of the fact that thescene Of occurrence was near the border between West and East Bengal it should have been appreciated that communal bias was at the time almost inevitable
4There has been virtually no examination of the accused by the Sessions Judge under section 342 of the Code of Criminal Procedure and the trial has been vitiated thereby
In advancing the first two of the above contentions learned counsel for the appellants assumes and asserts that the Sessions Judge in his charge to the jury was unequivocally of the opinion that there was no reliable evidence on which the conviction could be based and that the appellants should be acquitted
On this assumption he urges that when in the circumstances the jury gave a unanimous verdict of guilty his obvious duty was either to express his dis agreement with the verdict of the jury and refer the whole case for the consideration of the High Court under section 307 of the Code of Criminal Procedure or at the least to have placed on record his reasons why in spite of his clear opinion against the prosecution case he did not consider it necessary to disagree from the verdict of the jury
In order to substantiate this point of view learned counsel took us through various portions of the charge to the jury and we have ourselves perused carefully the entirety of it
As already stated the learned Judge undoubtedly pointed out in his charge all the weaknesses of the prosecution evidence in great detail
It is also likely that be was inclined for an acquittal
But we are not satisfied that he came to a definite and positive conclusion that there should be acquittal
While pointing out the weakness of the prosecution evidence with a leaning against its reliability he has not specifically 377 rejected every important item of the prosecution evidence
It was only in some places that he stated categorically that he would not accept a particular item of evidence and would advise the jurors to reject it
In other places while pointing out the infirmities of the evidence he was not so categorical and positive as to what his own opinion on that item of evidence was
For instance out of the two eye witnesses PWs 1 and 2 the learned Judge said so far as PW 2 is concerned as follows Personally speaking I am not satisfied with the evidence of recognition of the accused persons as the assailants of Sourindra Gopal furnished by PW 2 Satyapada
You will be advised gentlemen not to rely upon the evidence of PW 2
As regards the evidence of the other eye witness PW 1 however he summed it up as follows You should take a comprehensive view of all matters and then decide whether you should act upon the evidence of recognition of the accused persons as the assailants of Sourindra furnished by PW 1 Bhupati
There was similar difference in the expression of his opinions with reference to the evidence of the dying declarations of the deceased
It may be recalled that the evidence of the oral dying declarations is of statements to PW 7 Phani and PW 3 Radhashyam
The evidence of statement to PW 7 was given by a number of witnesses viz PWs 6 7 8 9 10 11 12 and 13
Out of these so far as the evidence of P W 9 is concerned the learned Judge specifically stated as follows I should tell you that you should not believe PW 9 when he stated on being questioned by Phani Sourindra mentioned Moseb and Sattar as his assailants
But he did not rule out the evidence of the others on this item in the same manner
Then again when he dealt with the question whether the slip of paper exhibit 4 is genuine the learned Judge noticed that the said paper was shown to have been taken from the medical officer PW 17 into the possession of the In 378 vestigating Officer PW 35 about a month later and commented on it as follows Personally speaking I see no reasonable explanation as to why the IO should not have seized exhibit 4 from PW 17 immediately after it was recorded if it was recorded on 3rd November 1951 and sent it to the Magistrate forthwith
All the same the learned Judge also remarked thus You will consider very seriously whether you have any reason to disbelieve the evidence of P Ws 17 32 and 33
PWs 32 and 33 are witnesses who spoke to the statement of the deceased said to have been taken by the Doctor P W 17
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 therefore that there is no foundation as a fact for the argument that the learned Judge should have made a reference to the High Court under section 307 of the Code of Criminal Procedure or that in any case he should have placed on record his reasons 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 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 379 Ramnugrah Singh vs King Emperor1 that under section 307 of the Code of Criminal Procedure a Session 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 reasonable 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
Learned counsel urges that this acceptance is a judicial act and that having regard to the whole tenor of the Judge s charge to the jury he was at least under a duty to himself and to the appellate court to record his reasons for acceptance of the verdict of the jury
We are unable to agree with this contention
It may be that in a case where a Judge in his charge to the jury has clearly and definitely expressed himself for acquittal it would be very desirable though not imperative that he should give his reasons why be changed his view and accepted the verdict of the jury
But we can find no basis for any such contention in this case
The two further contentions that remain which are enumerated above as 3 and 4 were not raised before the High Court
We are reluctant to allow any such contentions to be raised on special leave
The point relating to the possibility of the verdict having been the result of bias has no serious basis
It appears to us that the learned Sessions Judge had no justification in this case for imagining the possibility of such bias and giving a warning to the jury in this behalf
This is not a case which arose out of any incident involving communal tension
The likelihood of any such bias is not to be assumed merely from the fact of the appellants being Mubammadans and the jurors being Hindus
Nor is it right to take it 1 1946 LR 73 IA 174
380 for granted merely from the fact of proximity of the place of trial to the border between West and East Bengal
On the other hand it is not without some relevance that when the jury was empanelled at the commencement of the trial there was absolutely no such objection taken
Nor was the right of challenge to the jurors exercised
Learned counsel for the appellants has very strenuously argued before us the point relating to the inadequacy of the examination of the appellants under section 342 of the Code of Criminal Procedure
Now it is true that the examination in this case was absolutely perfunctory
The only questions put to each of the accused in the Sessions Court and the answers thereto were the following Q You have heard the charges made and the evidence adduced against you
Now say what is your defence What have you got to say A
I am innocent
Will you say anything more A No Q Will you adduce any evidence in defence A No There can be no doubt that this is very inadequate compliance with the salutary provisions of section 342 of the Code of Criminal Procedure
It is regrettable that there has occurred in this case such a serious lacuna in procedure notwithstanding repeated insistence of this Court  in various decisions commencing Tara Singh s case1 on a due and fair compliance with the terms of section 342 of the Code of Criminal Procedure
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 clear prejudice must be shown
This court has clarified the position in relation to cases where accused is represented by counsel at the trial and in appeal
It is up to the accused or his counsel in such cases to satisfy the Court that such inadequate examination has resulted in miscarriage of justice
This Court in its judgment 11951 SCR 729
381 in the latest case on this matter viz K C Mathew and Others vs The State of Travancore Cochin1 delivered on the 15th December 1955 has laid down that if the counsel was unable to say that his client had in fact been prejudiced and if all that he could urge was that there was a possibility of prejudice that was not enough
Learned counsel could not before us make out any clear prejudice
All that learned counsel for the appellants urges is that this might be so in a case where the trial was with the assessors and the Judge s view on the evidence was the main determining factor
But he contends that the same would not be the case where the trial is with the aid of a jury
Learned counsel urges that a full and clear questioning in a jury trial does not serve the mere purpose of enabling the accused to put forward his defence or offer his explanation which may be considered along with the entire evidence in the case
The jury would he suggests also have the opportunity of being impressed one way or the other by the method and the manner of the accused when giving the explanation and answering the questions and that the same might turn the scale
Learned counsel urges therefore that the non examination or inadequate examination under section 342 of the Code of Criminal Procedure 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 of the Code of Criminal Procedure
We are not prepared to accept this contention as a matter of law
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
But we see no reason to think that in the present case this would have made any difference
We are therefore not Prepared to accept the argument of the learned counsel for the appellants in this behalf
In any case an argument of this kind which would if accepted 11955 2 SCR 1057
50 382 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
For all the above reasons this appeal is dismissed


Summary:
A Sessions Judge even if he disagrees with the verdict of the Jury must normally give effect to that verdict unless he is clearly of opinion that no reasonable body of men could have given the verdict which the Jury did
Ramnugrah Singh vs King Emperor 1946 LR 73 IA 174 relied on
A Sessions Judge need not record his reasons for accepting the verdict of the Jury
In a case where a Judge in his charge to the Jury has clearly and definitely expressed himself for acquittal it would be desirable though not imperative that he should give his reasons why he changed his view and accepted the verdict of the Jury finding the accused guilty
Even where the examination of the accused under section 342 Cr
PC is perfunctory the judgment cannot be set aside unless clear prejudice is shown
Tara Singh s case 1951 SCR 729 referred to
KC Mathew and Others vs The State of Travanore Cochin 1955 2 SCR 1057 relied on
Prejudice cannot be presumed from the fact that the trial is by a jury though that is a circumstance which may be taken into consideration
An argument which would if accepted necessitate a retrial ought to be put forward at the earliest stage and at any rate before the High Court in appeal and cannot be entertained for the first time in an appeal on special leave