The King vs Jagdish Tewari And Anr.

on 26 April, 1949

Patna High Court

The King vs Jagdish Tewari And Anr. on 26 April, 1949
Equivalent citations: AIR 1950 Pat 79
Author: Reuben
Bench: Reuben, Narayan
JUDGMENT Reuben, J.
1. This is a reference by the Assistant Sessions Judge, Arrah, under Section 307, Criminal P. C ,
against a verdict, by a majority of four to one, finding accused Jagdish Tewari guilty under Section
436, Penal Code, and accused Dipan Singh guilty under Section 436/109, Penal Code.
2. The prosecution case is that, on 18th November 1947, at village Katkinar, police station
Nawanagar, accused Jagdish Tewari, abetted by Dipan Singh, committed mischief by setting fire to
and destroying a hut belonging to the first informant Pati Ram Das and occupied by his servants.
The land on which the hut was standing is recorded in the khatian in the name of one Mahanth
Gobardhan Das deceased. The case of the first informant is that he was the chela of Gobardhan Das
and succeeded to him as mahanth and is in possession of this hut in his capacity of mahanth. That
the hut in question has been destroyed by fire is not disputed. The defence of the accused persons is
that Pati Ram Das is not the mahanth and was not in possession of the hut. According to them, the
mahanth is Sarju Das, guru of the accused Jagdish Tewari, and the hut belonged to him and was in
his possession. From the evidence adduced, it appears that there is a dispute between Pati Ram Das
and Sarju Das relating to the mahanthship, and that Sarju Das is in possession of the bulk of the
properties. Pati Ram's account is that, after being installed as mahanth, he left Sarju Das in charge
of all the mathia properties and went out on pilgrimage in Baisakh, 1943 (sic). He returned about
two and a half years later in Asin, 1946 (sic), but Sarju Das is not giving up possession. He admits
that Sarju Das is in possession of the main mathia house, which is in the basti, but claims to have got
possession of this hut and a small samadhi room, which are outside the basti,
3. It is clear from the above statement of the case that an important point for consideration was the
possession of this hut. If, in fact, this hut is not in the possession of Pati Ram Das, the motive alleged
by the prosecution for the commission of the offence disappears. The evidence on the point consists
of the statements of Pati Ram Das and of three witnesses, who are residents of the village, Ram
Singhasan Singh (P. W. 2), Ajgaib Koeri (P. W. 3) and Markat Koeri (P. W. 4). There are also some
documents, which I shall refer to later. On the factum of the arson, the evidence is confined to the
statements of the last three named witnesses, who claim to be eye-witnesses to the alleged
occurrence.
4. The witnesses whom I have named above were examined in connection with this occurrence on
two previous occasions, once in the Court of the committing Magistrate, and again in the Court of
Session in a trial which could not be completed as one of the jurors absented himself at the final
stage.

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5. On the question of possession, the Assistant Sessions Judge is very strongly of the opinion that
Sarju Das, and not Pati Ram Das, was in possession of the hut. He points out that, on Pati Ram
Das's own admission, Sarju Das was in possession of all the property for at least two and a half years
and is still in possession of the bulk of the property; that, several years back, Sarju Das got his name
recorded in respect of these lands in the Canal Department and, in April 1947, Pati Ram Das's
application to get his name substituted for that of Sarju Das was rejected; that a proceeding under
Section 144, Criminal P. C., instituted by Pati Ram Das in respect of the mathia property, was
decided against him on 20th May 1947, and on 19th October 1947, the police submitted a report
under Section 107, Criminal P. C., against Pati Ram Das. The Assistant Sessions Judge rightly
considers that these proceedings are not, by themselves, proof of the possession of Sarju Das, but he
correctly regards them as important circumstances supporting an inference that, with these
proceedings in his favour, it is unlikely that Sarju Das and his men would allow Pati Ram Das to
recover possession of any part of the disputed property. Even on 18th November 1947, the day of the
alleged occurrence, there seems to have been some trouble between the parties and the
Sub-Inspector of Police on-going to the spot, found injured persons on the side of Sarju Das and
actually saw one Ramchandra being assaulted in the field, Pati Ram Das being among the assailants.
This incident suggests that the fight over possession was still in progress and is inconsistent with the
prosecution story that Pati Ram Das bad obtained possession of this portion of the property and had
constructed the hut in question for the occupation of his (sic)nts. The Assistant Sessions Judge, also,
relies on the Sub-Inspector's failure to find at the spot signs of occupation, such as nad, charan,
chulha, ghur, etc. No certain inference, however, can be drawn from this circumstantial evidence,
because it does not appear if the Sub-Inspector specially directed his attention to a search for these
signs of habitation,
6. Coming to the occurrence, he points out certain improbabilities in the prosecution story and
certain circumstances affecting the weight attaching to the evidence of the prosecution witnesses,
First of all, there is the delay that occurred in the lodging of a first information report. The
occurrence took place on 18th November 1947, but the first information report was lodged in the
village at 1.30 P. M. on 23rd November 1947. The explanation given by Pati Ram Das is that he was
himself arrested by the Sub-Inspector on 18th November 1947 before the occurrence took place, and
came back to the village only on the 22nd evening after having been released on bail. He did not
lodge a first information report that clay because he was given to understand that the police would
be visiting the village the next day. More serious is what appears to be an alteration in the time at
which the occurrence is said to have taken place. In the first information report, the time is stated to
be at night, whereas the witnesses in Court flay that it took place in the evening towards sunset. The
explanation given by Pati Ram Das is that the time was wrongly recorded by the Sub-Inspector in
the first information report. The Assistant Sessisons Judge conjectures that the change has been
deliberately made, because the three eyewitnesses live some distance away from the hut and their
presence at the spot would have been difficult to account for if the occurrence was stated to have
occurred at night. There is much weight in the conjecture of the Assistant Sessions Judge, but it was
a conjecture which was placed before the jury and the jury were entitled to come to their own
finding of fact. The statement in the first information report wag, at best, a statement of a person
who was not an eye-witness. It was available to contradict him, but not to contradict the eye
witnesses. Regarding the witnesses themselves, the Assistant Sessions Judge relied on certain
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circumstances affecting their credit. Ram Singhasan Singh, for instance, did not hesitate to deny
falsely that he had deposed on behalf of Pati Ram Das on a former occasion, and there is reason to
believe that Ajgaib Koeri is not well disposed towards both the accused and falsely denied
knowledge that accused Jagdish Tewari had once deposed in a criminal case against Rajeah Koeri,
uncle of the witness. Similarly, Markat Kosri falsely denied knowledge of the proceeding under
Section 144 and of having given evidence in that case on behalf of Pati Ram Das. He also notices a
discrepancy as to a detail of the occurrence between the statements of the witness at the first and the
second trials. There is, however, no necessary contradiction between the two statements. His
statement at the second trial was:
"I did not try to throw any water on the flames. I did not state at the time of the first trial that I tried
to throw water on the flames."
On the first occasion, he had deposed:
"We had tried to throw some water on the hut (viz. halt a bucket), but the flame was very strong."
7. I have read with care the evidence adduced by the prosecution. It is such as carries little
conviction, and the reasons given by the Assistant Sessions Judge are, in my opinion, reasons of
weight for holding that the offences charged have not been proved against the accused persona. In a
reference under Section 307, however, we want something more than this. The test has been
recently laid down by the Privy Council in Ramanugrah Singh v. King Emperor, 73 I. A. 174 : (A. I. R.
(33) 1946 P. C. 151). The High Court must be satisfied that the verdict is one which no reasonable
body of men could have reached. Here, there are three eyewitnesses and four witnesses to
possession. The Assistant Sessions Judge has placed before the jury in forcible language all the
above reasons for rejecting their evidence. Nevertheless, the jury felt that they could safely act upon
their evidence. The jury saw the witnesses for themselves and were entitled to rely upon the
impression which the witnesses created on them. In the circumstances, I find it difficult to say that
the verdict at which they arrived is one which no reasonable body of men could have come to.
8. Mr. S.N. Sahay has urged that the test laid down by the Privy Council does not require that there
should be an entire absence of evidence in support of the conclusion arrived at by the jury. I agree,
but I do think that the reasons against the correctness of the verdict must be of such a compelling
nature that the High Court can say that the verdict is "unreasonable" or "manifestly wrong". This is
the effect of all the Indian decisions which have been approved by their Lordships of the Privy
Council in Ramanugrah Singh's case, (73 I. A, 174 : A. I. R. (83) 1946 P. C. 161). In Queen v. Sham
Bagdi, 13 Beng. L. B. App. 19 : (20 W. R. cr. 73), the verdict of guilty was passed on the evidence of
the prosecutors alone. Nevertheless, their Lordships refused to interfere, observing that the
evidence though not very strong, was "quite sufficient, if believed". They expressed the view that
interference is justified only if the High Court finds the verdict of the jury to be clearly and
undoubtedly wrong. In Queen-Empress v. Dada Ana, 15 Bom. 452, Charles Sargent C. J. and Jardine
J. adopted the teat laid down by Nanabhai Haridas J. in Queen-Empress v. Mania Dayal, 10 Bom.
497. Is the verdict clearly and manifestly wrong? In Emperor v. Ear Mohan Das, 54 Cal. 708 : (A. I.
R. (14) 1927 Cal. 848 : 28 Cr. L. J. 903), Suhrawardy J. laid down the test : "Whether any reasonable
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man on the materials before him can hold it (the opinion expressed in the verdict)". Reliance has
been placed by Mr. Sahay on the decision of Mitter J. in this case. His decision is not in conflict with
the other decisions. His Lordship, on a review of the evidence, relying on certain undeniable
circumstances pointing conclusively to a finding contrary to the verdict of the jury, held that the
verdict of the jury was "clearly wrong". In In re Veerappa Goundan, 51 Mad. 956 : (AI.R. (15) 1928
Mad. 1186 : 30 Cr. L. J. 817), the Full Bench observed:
"The jury is clearly made primarily the tribunal to find the facts; and when they Lave found them in
one direction or the other, it is not for us to interfere unless the verdict is unreasonable."
and they cited with approval the test laid down in the English authorities "that the verdict was such
as no reasonable men could have come to". In Emperor v. Bai Lali, 34 Bom. L. R. 896 : (33 Cr. L. J.
745) which was a reference against a verdict of acquittal, Beaumont C. J. (as he then was) observed
that the High Court cannot interfere unless it is satisfied that the verdict is perverse and "no jury
could really have entertained any reasonable doubt as to the guilt of the accused", and Broomfield J.
applied the test whether the verdict is one which could not be arrived at by a reasonable body of
men.
9. In Queen-Empress v. Dada Ana, (15 Bom. 452) (supra) and In re Veerappa Goundan, (51 Mad.
956; A.I.R. (15) 1928 Mad. 1186 : 30 Cr.L.J. 817 F. B.) (supra), there are references to the English
practice in proceedings to set aside a verdict on the ground that it is "against the weight of the
evidence"--a test approved by their Lordships of the Privy Council in Ramanugrah Singh's case, (73
I. A. 174 : A. I. R. (33) 1946 P. C. 151). This does not mean that the weighing of the evidence by the
High Court is substituted for the weighing of the evidence which has been made by the jury in
arriving at its verdict. The test is not really different from that expressly laid down by the Privy
Council. In Metropolitan Railway Co. v. Wright, ( (1886) 11 A. C. 162 : (55 L. J. Q. E. 401) ) Lord
Fitzgerald stated the question for consideration to be "whether the evidence so preponderates
against the verdict as to shew that it was unreasonable and unjust" and Lord Halsbury observed :
"If their finding is absolutely unreasonable, a Court may consider that that shews that they have not
really performed the judicial duty cast upon them; but the principle must be that the judgment upon
the facts is to be the judgment of the jury and not the judgment of any other tribunal."
The same test was formulated by the Court of appeal in Solomon v. Bitton, (1831) 8 Q. B. D. 176, in
which a rule for a new action was rejected on the ground that the grant of a new trial "ought not to
depend on the question whether the learned Judge who tried the action was or not dissatisfied with
the verdict, or whether be would have come to the same conclusion as the jury, bat whether the
verdict was such as reasonable men ought not to have come to,"
Some confusion was caused by the omission of the word "not" (italicised) in the report as originally
printed. In actual fact there was no doubt as to the correct test to be applied, and the missing word
was inserted by the Court of appeal in Webster v. Friedeberg, (1886) 17 Q. B. D. 736; (55 L. J. Q. B.
403). The incorrectness of the test as originally printed was noticed by : Lord Halsbury in
Metropolitan Railway Co. v. Wright, (1886) 11 A.C. 152: 55 L.J.Q.B. 401) (supra), and he formulated
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a positive test: "whether the verdict was such as reasonable men might have come to."
10. This finishes with all the decisions which have been expressly approved by the Judicial
Committee in the case of Ramanugrah Singh, (73 I. A. 174 : A. I. R. (33) 1946 P. C. 151). Mr. S.N.
Sahay has also referred to Emperor v. Dagadu Kondaji, A. I. R. (20) 1933 Bom. 144 : (34 Cr. D. J.
660). In this decision, their Lordships did not lay down any new test, but drew a distinction between
a reference against a verdict of conviction and one against a verdict of acquittal, and expressed the
opinion that the weight and volume of evidence in the two cases differs because of the presumption
of innocence. In the case with which they were dealing, there was a very serious misdirection,
namely, that the Judge, in his heads of charge, did not tell the jury that it was their duty to give the
accused the benefit of the doubt. He has also referred to three unreported decisions of this Court
subsequent to Ramanugrah Singh's case, (73 I. A. 174 : A. I. R. (33) 1946 P. C. 151). In King-Emperor
v. Jamuna Thakur (Jury Ref. no. 3 of 1948, decided on 28th April 1948), my learned brother, sitting
with Imam J., accepted a reference against a verdict of guilt, proceeding on an examination of the
evidence in the case. He was very careful, however, to follow the test laid down in Ramanugrah
Singh's case, 73 I. A. 174 : A. I. R. (33) 1916 P. C. 161), and observed:
"We cannot say that the jury were wrong in accepting the evidence of the witnesses simply because it
appears that they had animus or bias against the accused; nor can we say that the jury were not
justified in acting on the evidence of the witnesses who came forward to prove the prosecution case
simply because other persona, who could have been examined in the case, were not examined. The
charge that the witnesses are biassed may afford a legitimate ground of criticism of their evidence
and for rejecting it in the absence of corroboration, but it was essentially a matter for the jury to
decide whether they will accept the evidence of the interested witnesses. But if the evidence
unmistakably leads to the conclusion that no katchery was in existence and no servant of the
landlord was in occupation of it, then the conclusion arrived at by the jurors would be deemed to be
one which could not be arrived at by any reasonable body of men."
Applying this test, he came to the conclusion that the verdict was manifestly wrong and perverse.
This conclusion was not arrived at on a mere consideration of discrepancies and improbabilities, but
was based on circumstances which, in the words of Imam J., "precluded all possibility of doubt". In
King-Emperor v. Parmeshwar Singh, (Jury Ret no. 5 of 1948, decided on 6th May 1948), the same
two learned Judges, applying the test of Ramanugrah Singh's case, (73 I. A. 174: A. I. R. (33) 1946 P.
C. 151) came to the conclusion that the verdict was not unreasonable. The decision in King-Emperor
v. Dil Bahadur, (Jury Ref. no. 2 of 1943, decided on 19th April 1918) was, again, of the same two
learned Judges. There were three accused persons in the case, against all of whom the jury had
returned a majority verdict of guilty under Section 307 and against one of whom, Dil Bahadur, there
was also a verdict of guilty under Section 304, Part I. The reference related to the verdict under
Section 307. Their Lordships, in setting aside the verdict, proceeded on the finding as regards two of
the accused persons that there was not "any evidence worth the name" to prove that either of them
fired a shot that night, and that there was no evidence at all to prove that they fired in circumstances
bringing them within the mischief of Section 307. As regards the remaining accused, they held that
it was impossible to say exactly who fired the shot in question. The evidence, therefore, was of the
kind where it was possible to say that the verdict of the jury was manifestly wrong.
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11. From the above discussion, it follows that, if the reference before us depended only on the
grounds stated by the Assistant Sessions Judge, I would have rejected it. There is, however, another
ground upon which the verdict of the jury is open to question. Under Sub-section (3) of Section 307,
we are in the position of a Court of appeal and, therefore, may interfere with the verdict on a point of
law (Sub-section (1) of Section 418, Criminal P. C.). Here, there has been a serious mistake of law,
namely, the admission of two inadmissible pieces of evidence. One of these is a certified copy of an
order of the Sub-Divisional Officer, dated 23rd December 1947, in a case under Section 144,
Criminal P. C., between Sarju Das and Rani Gobind Das. The Sub-Divisional Officer visited the spot
and made the following note in the order-sheet;
"I visited the village on 21/12 in presence of the parties and their pleaders. There are two-2 (sic)
mathias were shown one in possession of Sarju Das and others and the other in possession of
Patiram Dass and others.
There is no apprehension as there have been substantive oases between the parties.
Proceedings dropped."
For one thing, the order-sheet relates to something which happened subsequent to the occurrence,
and, secondly, it reproduces a statement made by some unknown persons to the Sub-Divisional
Magistrate. Next, there is, Ex. 7, a certified copy of an order of the Executive Engineer dated 13th
August 1948, by which assessment of Canal dues was directed to stand in the name of Pati Ram Das.
This order was passed long after the occurrence and had no relevance whatever. It should not have
been admitted into evidence. In this connection, it is relevant to reproduce the observations of
Jardine and Fulton JJ., in Queen-Empress v. Ramchandra Govind, 19 Bom. 749 regarding the
opinion of a District Judge wrongly admitted in a case in which a clerk of his office was being
prosecuted for abetment of criminal breach of trust;
"Juries usually give weight to the opinion of Judges, They know that Judges are used to deal with
conflicting evidence, to question, to sift, to weigh it impartially; to test it by the presumptions based
on general experience which are now settled rules of law."
To the jury here, it may well have appeared that the Executive Engineer who, in the course of his
official work, would have to deal with applications of this kind, was an officer competent to come to
a finding as to the facts of possession, and, therefore his order was entitled to weight.
12. The learned Government Advocate has urged that the jury were duly warned that these items of
evidence were not entitled to much weight. A warning of this kind is not always sufficient to remove
the harm done by the wrongful admission of evidence, and we are entitled to consider the possibility
that the warning did not suffice for the purpose. A case in point is Ramesh Chandra Das v. Emperor,
46 Cal. 895 : (A. I. R. (6) 1919 Cal. 614 : 20 Cr. L. J. 324), where their Lordships set aside a verdict
on the ground of the admission of inadmissible evidence, observing:

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"No doubt the learned Sessions Judge told the jury to put the evidence out of their minds entirely
and discard it. But the evidence was very prejudicial to the appellant, and 'whatever directions to be
given to the jury, it is almost impossible for them to dismiss such evidence entirely from their minds
: Rex v. Norton, (1910-2 K. B. 496 : 79 L. J. K. B. 756)."
12a. A verdict was set aside on a similar ground in Emperor v. Issuf Mohamad, 55 Bom. 435 : (A. I.
R. (18) 1931 Bom 311 : 32 Cr. L. J. 1077), in which their Lordships said :
"It is very difficult to Hay what effect any particular evidence may have had on the jury. But having
regard to the fact that this is a case which was rather near the line, the jury evidently felt a difficulty
about it because they took an hour in considering their verdict. I think it would be unsafe to say that
the effect of improperly letting in evidence which in substance went to show that the statements of
the accused before the jury were an afterthought had no effect on the minds of the jury."
13. The learned Government Advocate has further contended that, even conceding that this evidence
has been wrongly admitted, the correct course for this Court to follow is not to examine and consider
for itself whether the remaining evidence justifies the verdict, but to consider whether, excluding
this evidence, there was sufficient evidence on which the jury could have based its verdict. I do not
think that this contention is supported by the authority relied upon by him, Abdul Rahim v.
Emperor, 73 I. A. 77: (A. I. R. (33) 1946 P. C. 82 : 47 Cr. L. J. 616). Their Lordships of the Judicial
Committee there laid down in the following words the duty of the High Court where material
evidence has been improperly admitted:
"The appellate Court must apply its own mind to the evidence and after discarding what has been
improperly admitted decide whether what is left is sufficient to justify the verdict. If the appellate
Court does not think that the admissible evidence in the case is sufficient to justify the verdict then it
will not affirm the verdict, and may adopt the course of ordering a new trial or take whatever other
course is open to it. But the appellate Court, if satisfied that there is sufficient admissible evidence to
justify the verdict, is plainly entitled to uphold it."
The headnote to the report is somewhat misleading. It is not in all cases where inadmissible
evidence has been admitted that the High Court may adopt this course, It can do so only if the
evidence wrongly admitted is material. What is meant by material is illustrated by Ramesh Chandra
Das v. Emperor, (46 Cal. 895 : A. I. R. (6) 1919 cal, 614 : 20 cr. L. J. 324), (supra) and Emperor v.
Issuf Mohamad, 55 Bom. 435 : A. I. R. (18) 1931 Bom. 311 : 32 Cr. L. J. 1077) (supra), namely, that
the evidence is such that it appears to the Court to be likely to have affected the decision of the jury,
14. Oar attention has been drawn to the following observation of Dalziel J., in Emperor v. Ramadhar
Kurmi, A. I. R. (35) 1948 Pat. 79: (48 Cr. L. J. 391) :
"Under Section 307 the High Court is to consider all the evidence but it goes without saying that it is
only admissible evidence that can properly be considered. If after excluding the inadmissible
evidence the remaining evidence is such that the jury would probably not have given the verdict of
guilty, or that, if they had it would have been an entirely unreasonable verdict, the proper order for
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this Court to pass is one of acquittal."

His Lordship lays down two alternative tests :
"(1) Is the verdict one which the jury would probably not have returned on the admissible evidence
alone ?
(2) On the admissible evidence would the verdict be entirely unreasonable ?
The learned Government Advocate relies on the first teat. With all respect, I must say that I find the
meaning of this teat somewhat obscure. Assuming it to mean what the learned Government
Advocate says, it is merely an obiter, for the case was disposed of by his Lordship on the second test.
Further, Das J., did not associate himself with it. According to him, the correct test is the one just
derived by me from Abdul Rahim v. King-Emperor, (73 I. A. 77 : A. I. R. (33) 1946 P. C. 82 : 47 Cr. L.
J. 616) (supra).
15. In the case before us, the admissible evidence of possession is extremely weak, and it appears to
me very probable that the decision of the jury in favour of Pati Bam Das was influenced by the
admission of these two pieces of evidence. In the circumstances, I consider that we are entitled to go
into the evidence and come to our own conclusion as to the facts of possession. That being so, the
grounds given by the Assistant Sessions Judge are reasons which weigh strongly in favour of the
defence. I am not satisfied on the evidence that Pati Bam Das was in possession of the hut. The
question of possession, as I have indicated above, is vital to the question of the offence charged, as it
furnishes the motive. The wrong admission of evidence is, therefore, very likely also to have affected
the conclusion of the jury on the factum of the offence, and it is open to us to consider on the merits
the evidence on the factum of arson. This evidence, as I have said already, carries very little
conviction, and I have no hesitation in coming to the conclusion that it is insufficient to establish the
guilt of the accused.
16. On the above grounds, I would accept the reference, set aside the verdict of the jury, and acquit
the accused persons.
Narayan, J.
17. I agree.

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