P L D 1954 Federal Court 176 (PLP)

CORNELIUS, J.

The appellant Chand Barman was one of eight persons who were placed before the First Class Magis trate of Dinajpur with a view to their being committed to the Court of sessions for trial under sections 147 and 304 read with section 114 P. P. C. The allegation was that on the 12th July 1950, these persons had formed an unlawful assembly with the common object of attacking one Dayal, and that in the course of the prosecution of this object, Dayal was given a number of injuries as a result of which he died. There was no fracture and prima facie the injuries were not of a serious nature. Four marks of blows with blunt weapons appeared on the right and left fore-arms and the back, and on the head there were two lacerated wounds caused by blunt weapons, which led to concussion and eventually to death. The trouble arose over the possession of land. Two persons named Surja Kanta and Bedang were ploughing this land on the 12th July 1950, of'whom Bedang was a claimant to ownership, and had filed a suit against Dayal for the purpose. Dayal appeared on the spot, and stopped the ploughing. He unyoked one pair or bullocks and was engaged in unyoking the other pair, when one Falu Muhammad who was standing on the edge of the field and who appears to have been a prospective purchaser of the land, called out that Dayal should be beaten, and thereupon the remaining five persons who were placed before the Magistrate, namely Chand Barman, Mani Barman, Fata, Nagan Seal and Madhu Barman came out from an adjoining jute field, and attacked Dayal. The latter was accompanied by his sons Bhupendra Nath and Harendra Nath, on whose evidence this narrative of the occurrence is based, and on the alarm being raised several persons including one Seedam Barman also arrived on the spot. Dayal was carried to the police station and made a brief report which gave an altogether different picture of the occurrence. Dayal s story was that he himself was ploughing the land when Chand Barman appeared and tried to prevent him. He did so because he claimed a share in the land. There was an alter cation and Chand Barman became excited and struck Dayal with a lathi. The Police Officer who recorded this report sent Dayal to a doctor for examination, presumably because his injuries seemed to be simple. Later on, Dayal's condition deteriorated and as a precaution, his statement was recorded by a Magistrate. On this occasion he said :- "Chand, Nagan, Ata, Madhu and four or five persons more have beaten me. There were 20/25 persons more. The dispute over possession of land led to this mutual fighting". The Committing Magistrate found a prima facie case made out under section 304 P. P. C. against Chand Barman alone, relying on the fact that his was the solitary name appearing in Dayal's first report to the police. Accordingly Chand was tried by a Sessions Judge. Direct evidence of the occurrence was given by the two sons of Dayal, namely Bhupendra and Harendra, as well as by Seedarn Barman. The accused pleaded innocence and led no evidence in his defence. In his lengthy charge to the jury, the trial judge while stressing that the option to believe or not to believe lay with the jury, placed emphasis upon the consistent nature of the statements of Bhupendra and Harendra, as well as on that of Seedam. He indicated that the variations in the statements of Dayal had already had their effect in exonerating the remaining persons who were originally accused, but did not benefit Dayal. The effect upon the case of the complete reversal of facts stated in the initial report was not discussed at all. Nevertheless, when the question was put, the jury returned a majority verdict of not guilty. The trial judge was not satisfied with this verdict. In a short order, he expressed the opinion that the verdict was "not only unreasonable and contrary to evidence but it is also perverse and manifestly wrong". In the formal reference to the High Court, the judge expressed the view that the ocular evidence was consistent and no doubt appeared therein of which the benefit could be given to the accused, for which reason the charge under section 304 was, in his opinion, fully established. He repeated his view regarding the nature of the jury's verdict, and ended with the statement that "no reasonable body of men could have reached the conclusion as arrived at by the majority of the jury in this case." The reference was accepted by a Division Bench of the Dacca High Court, which recorded a conviction under section 304 against Chand Barman and sentenced him to undergo five years' rigorous imprisonment. A careful reading of the judgment of the Division Bench shows that the learned Judges considered that the jury had been "grievously misled" by what they have described as "an unfair and dishonest question" put to the witness Harendra in cross-exami nation. The answer he gave embodies the question put, and is in this form :- "It is not true that I stated to the Committing Magistrate that we fled and heard of the beating of father from Nishin." The learned judges have been at pains to show that the suggestion is not borne out by the relevant answers given by the witness in the Committing Court, and have concluded that the putting of the question "was an unconscionable piece of slick advocacy with the obvious intention of showing the seeds of unjustifiable doubt in the mind of the jury. "From this they have proceeded to draw the inference that the divided verdict of the jury showed that the "seeds of doubt were successfully sown." The variations between the different statements made by Dayal before his death being brought to their notice, the learned Judges thought that they could not place "very much importance" on the initial report, and the facts mentioned therein. When it was pointed out that in Dayal's later statement, other assailants besides Chand were named, and that this was an improvement, the learned judges opined that "there was no chance whatever of Dayal Sil being tutored to make any improvement on the original story", and declared that they were "not prepared to hold that there has been any exaggeration whatever in the story as given by Dayal in the general diary entry". Their final conclusion is that there was "no material discrepancy" between the several statements attributed to Dayal, having regard to his condition at the time when he made them. In the order of this Court granting special leave to Chand Barman to appeal against his conviction by the High Court, reference was made to the case of Ramanugrah Singh (LR731 A174.). That was a case from the Patna High Court, where the Sessions judge, disagreeing with a verdict of acquittal by the jury, on, a particular count, had made a reference under section 307 Cr. P. C. The High Court heard arguments and convicted Ramanugrah Singh on that count. On appeal, the conviction on this count was set aside by the Privy Council. Their Lordships made the following observations regarding the duty of a High Court in dealing with a reference under section 307 Cr. P. C. "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. If, however, the High Court considers that on 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 require that' the verdict be dis regarded." Certain observations made in that case with particular reference to the judgments delivered by the learned Judges in the Patna High Court are directly in point, in relation to the present case, and are reproduced below :- "In the first paragraph of his judgment Imam J., observed that since the whole case was before the Court under section 307 of the Code of Criminal Procedure it was necessary to come to a definite conclusion on the evidence in the case as to whether the present appellant, was guilty of the offences with which he had been charged. The learned judge then discussed in detail various criticisms made by the defence on the prosecution case, and came to the conclusion that the prosecution case was proved. But he did not discuss whether the jury, acting reasonably within their powers, might not have been 'justified in taking a view more favourable to the defence." "In their Lordships' opinion had the High Court approached the reference on the right lines and given due weight to the opinion of the jury they would have been bound to hold that the reference was not justified and that the ends of justice did not require any interference with the verdict of the jury." It seems to us that in the present case as well, the view taken by the learned judges of the Dacca 'High Court suffers from the same defects. They have taken no account of the possible effect on the minds of the jury of the variations between the different statements made by Dayal before his death and of the considerable difference between any of these statements, and the evidence given in Court, by the eye witnesses. There were other factors of doubt also for which no explanation was offered by the prosecution. Chand Barman was not a claimant to the land, and had not been involved in any conflict with Dayal concerning this land at any stage. On the other hand, Dayal was not without a grudge against Chand. At the trial, Bhupendra denied that Chand had deposed against his father and others", but in the Committing Court, he had made a clear admission in the following terms :- "Dayal (deceased) figured as an accused in a police case, under section 436 P. P. C. Accused Falu, Fata, Nagan, Chand, Bedang and Madhu deposed against my father in that case." This grudge must be borne in mind when considering the truth or otherwise of the prosecution case particularly in view of the different shapes given to it at different times. Now, Bedang had a teal dispute with Dayal over the land, and his ploughing the land in company with Suria Kanta would be an act of defiance if Dayal was in possession. It would be reasonable to expect that Dayal would physically prevent Bedang and Surja Kanta from ploughing his land. But from this point onwards,, the prosecution story becomes entirely unnatural, for it is not said that Bedang or Surja Kanta attacked Dayal, or even that they summoned assistance. Falu Muhammad's intervention, which brought the assailant on the scene, is difficult to understand, in the absence of. either, allegation or proof of prior conspiracy. The intervention of the assailants becomes inexplicable for the same reason. The existence of the grudge arising out of the case under section 436 P. P. C. points to a danger of false implication, In the light of Dayal's original and very simple account of the occurrence, the story told in Court may well have impressed the jury as being artificially elaborated. The partnership of Bhupendra and Harendra was evident, and Seedam too conceded that he had a grudge against Chand Barman, who had been at the back of several of his "troubles". In view of these substantial factors of doubt, which were only too apparent, it 'is unnecessary to suppose that the jury were misled, much less that they were deliberately misled, as the learned judges appear to have thought. On referring to the charge to the jury, we find that the trial judge read out to them the whole of the relevant passage from the statement of the witness Harendra in the Committing. Court, and there after, while emphasising that the prosecution evidence was consistent, left it to the jury to decide whether or not they could believe that Harendra and Bhupendra were eye witnesses. In our opinion, it was only natural to find in the circum stances that a majority of the jury should feel that the charge against Chand Barman had not been established by the prosecution beyond reasonable doubt. The evidence an circumstances in this case were such that they could support a verdict of not guilty at least as strongly as the opposite verdict. This being the case, the view of the jury should have been allowed to prevail. The inclination of the jury in favour of the defence was reasonable, and within their powers. If the learned Judges of the High Court had approached the reference on the right lines and given due weight to the opinion of the jury, they would have been bound to hold that the ends of justice did not require any interference with the jury's verdict. For these reasons, we allow this appeal, and setting aside the conviction and sentence awarded by the High Court, we hereby acquit the appellant. A. H. Appeal allowed,