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Criminal Appeal No. 27 of 1956, decided on 14th February, 1956, from the judgment and order of the High Court of judi cature at Dacca, dated the 30th August 1955 in Criminal Appeal No. 27 of 1955.

Granted to consider whether the High Court was right in holding that jury's verdict of "not guilty" was plainly wrong.

Leave to appeal to the Federal Court was granted to con victs on a jail petition to consider whether in the state of evidence on record it could rightly be held by the Judges of the High Court that the jury's verdict of "not guilty" was plainly wrong.

S. 307‑High Court not obliged to accept or reject reference as a whole ‑Jury's failure to act upon unrebutted direct evidence of disinterested witnesses‑‑Verdict perverse‑Law governing inter ference with verdicts of jury.

The Sessions Judge, differing with a verdict of not guilty in respect of all 14 accused submitted the case to the High Court under section 307, Criminal P. C. recording the grounds of his opinion that all the accused should be convicted on the charge of dacoity.

The High Court accepted the reference in respect of five accused only and rejected it in respect of nine remaining accused:

Held, that there was nothing in section 307, Criminal p, C. which obliged the High Court to accept or reject the recommendation as a whole. Indeed, any such indication or provision would conflict with the 'overriding consideration, namely that the ends of justice should be met. Conse quently there was nothing in law to prevent the High Court from accepting a reference in part, in relation to one or more accused persons, but to reject it with reference to the remaining accused persons.

Held further that failure of the jury to act upon the direct evidence of disinterested witnesses implicating the five appellants in the offence of dacoity, which evidence was entirely unrebutted, was perverse.

Law governing interference with verdicts of jury indicated.

Ramanugrah Singh v. King Emperor 73 I A 174 ref.

Darkness with only a lantern and a few torches‑Memorising faces of "so many" (15 to 25) dacoits‑Doubtful.

Allegation against prosecution suggest ing false implication of accused Not affirmatively put forward by accused but raised by questions in cross‑examination of prose cution witnesses‑Value.

An allegation by the accused against the prosecution centred upon the fact that one of the dacoits, was seriously wounded by the villagers and died on the spot. It was urged that this man was carrying on a love intrigue with a widowed inmate of the house which was entered by the dacoits, and that the male members of the family had assaulted and killed this man and thereafter in order to save themselves, had fabricated the story of a dacoity by twenty or thirty men including the five appellants. This allegation was not affirmatively put forward by any of the accused persons in any of their statements, but was raised in the form of questions in cross‑examination to two of the principal eye‑witnesses and was expressly denied by the latter.

Held, that the allegation was of the weakest possible kind, and in any case was wholly inadequate for explaining the false implication of so many persons apparently un connected with the dacoit in question and almost devoid of any natural association among themselves.

M. Fazlul Haq for Appellants.

Maksum‑ul‑Hakim, instructed by Nandalal Dass, Attorney for Respondent.

This is an appeal by special leave pre ferred by five persons named Dil Muhammad Mondal, Dinu Sonar, Osman Molla, Mohini Kanta Sannyashi and Dilbar Sardar, who stand convicted by the Dacca High Court of offences under section 395, P. P.C They were tried along with nine others, by Sessions Judge of Rajshahi sitting with a jury, which returned a unanimous verdict of not guilty upon a charge under section 395, P. P. C. The Sessions Judge did not accept the verdict and made a reference to the High Court under section 307, Criminal P. C. recommending that all the fourteen accused persons should be convicted upon the charge, which in his opinion had been brought home to the accused persons beyond all reasonable doubt. The High Court did not accept the reference in full. With reference to the nine accused persons other than the appellants, the learned Judges expressed the opinion that it could not be said that the verdict of the jury regarding them was "perverse or manifestly wrong". The learned Judges further thought that "in any event the jury were entitled to give these nine accused persons the benefit of doubt" and accordingly they made an order rejecting the reference in relation to these accused persons, and acquitting them of the charge, but as to the remaining five persons who are the appellants before us, the learned Judges expressed themselves as being in agreement with the learned Sessions Judge that "the verdict of the jury is plainly wrong". They went on to say that they were satisfied that these persons took part in the dacoity and ought to have been convicted. They convicted them accordingly. Leave to appeal to this Court, was granted to the convicts on a jail petition to consider "whether in the state of evidence on record it could rightly be held by the learned Judges that the verdict of the jury was plainly wrong".

An important consideration in this case arises from the circumstances that the reference was rejected in part by the learned Judges of the High Court, and. to that extent it was held that the verdict of the jury was not perverse or manifestly wrong. The jury's verdict was a single verdict upon the whole case, and the fact that in relation to as many as nine of the fourteen persons whose conviction upon the same charge had been strongly recommended by the Sessions Judge, that verdict was found by the learned Judges of the High Court to be correct, cannot be without effect upon the case against the remaining persons whose conviction had been recommended by the trial Judge. We shall con sider the case from this aspect presently but before doing so it will be convenient to state the law governing interference with verdicts by juries, under section 307, Criminal P. C. The law has been authoritatively stated by the Judicial Com mittee in the case of Ramanugrah Singh v. King Emperor (73 I A 174) After stating the relevant provisions of the Criminal Pro cedure Code, their Lordships of the Judicial Committee proceeded to declare that a "jury, aided by the judge, is the final tribunal for deciding the facts" and went on to opine that while the object and purpose of section 307 might have been to guard against the danger of "mis carriages of justice through jurors, in their ignorance and, inexperience, returning erroneous verdicts", the section was not intended "to enable the Sessions Judge and the High Court to deprive jurors, acting properly within their powers, of the right to determine the facts conferred on them by the Code". Accordingly, their Lordships laid down the following principles governing the making of references under section 307, Criminal P. C. and the treatment of such references by the High Court :‑

"If the jury have reached conclusion on the evidence which a reasonable body of men might reach, it is not necessary for the ends of justice that the Sessions Judge should refer the case to the High Court merely because he himself would have reached a different conclusion on the facts, since he is not the tribunal to determine the facts He must go further than that and be of opinion that the verdict is one which no reasonable body of men could have reached on the evidence . . . . 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 cat properly support a verdict either of guilty. or not guilty, according to the view taken of 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 disregarded."

We observe that this principle has been correctly applied by the High Court in dealing with the present case. It would have been open to the Sessions Judge in making the reference, to distinguish the case of one or more accused persons from that against one or more of the others, although the verdict was a general one, finding upon consideration of the entire case that none of the accused persons had been proved to the guilty. So much appears from, the terms of section 307 itself which refer to disagreement of the Judge with "verdict of the jurors or of a majority of the jurors, on all or any of the charges on which any accused person has been tried" and permits the Judge "to submit the case in respect of such accused person to the High Court" and finally gives power to the High Court to "acquit or convict such accused". There is nothing in the section which obliges the High Court to accept or reject the recommendation as a whole, and indeed, any such indication or provision would conflict with the overriding considera tion, namely that the ends of justice should be met. Consequently there is nothing in law to prevent a High Court from acting in the manner adopted by the learned Judges in the present case, viz., to accept a reference in part relation to one or more accused persons, but to reject it with reference to the remaining accused persons.

The distinction which the High Court has made between the case against the five appellants and that against the remaining nine accused persons is strictly in accordance with the evidence adduced in the case. Whereas the names of the five appellants were mentioned in the first information report of the case, as persons who were known and had been recognised on the spot, that report itself having been made as promptly as the circumstances permitted, the other nine accused persons were included among some fiftei8n to twenty‑five persons who were said to have accompanied the five named accused persons at the time of the dacoity. Their prosecution was ordered only after a test identification parade held some two months after the occurrence, despite the fact that a number of them were arrested shortly after occurrence, and a number of others also had been in custody for a considerable period before the parade was held. The results of the parade were discounted by the learned Judges on the ground that in the prevailing darkness with only the light of the lantern and a few torches to see by, the witnesses could not be expected "to memorise the faces of so many dacoits". These are strong grounds in supports of the existence of doubt regarding the participation of then nine accused persons in the dacoity. They are not found to exist in relation to the five appellants, whose name were mentioned in the initial report as persons who had been recognised in the course of the dacoity. The respective cases being so easily distinguishable, there cannot obviously be any adverse reaction on the case against the five appellants by reason only of the doubt affecting the case against the other nine accused persons.

As regards the five appellants, it seems to us that the verdict of the jury can only be sustained if there be any material on the record justifying the conclusion that they have been falsely implicated, and this material must also have the quality of explaining why so many witnesses have deposed against them, there being the additional circumstances that there is, among the appellants, no apparent bond of relationship or association other than that arising out of their common participation in the crime charged. Two allegations were made by the defence in support of the theory of false implication. , The first allega tion centres upon the fact that one of the dacoits, a ma named Khaibar Shah was seriously wounded by the villager and died on the spot. The allegation was that this man was carrying on a love intrigue with a widowed inmate of the house which was entered by the dacoits, and that the male members of the family had assaulted and killed this man and thereafter in order to save themselves, had fabricated the story of a dacoity by twenty or thirty men including the fide appellants. This allegation was not affirmatively put forward by any of the accused persons in any of their statements, but was raised in the form of questions in, cross‑examination to two of the principal eye‑witnesses and was expressly denied by the latter. It is clearly an allegation of the weakest possible kind, and in any case is wholly inadequate for explaining the false implication of so many persons apparently unconnected with Khaibar Shah and almost devoid of any natural association among themselves.

The second allegation was made by Dil Muhammad and Dinu Sonar appellants as well as by Kasimuddin Sardar and Kazemuddin Mondal who were acquitted. It turns upon the excavation of a dara, in which it is said that some land belonging to one Eshaque Mondal was included, and be being an influential person, out of that grudge, falsely implicated these four persons. Thus explanation is obviously of a partial nature since it does not explain the accusation against ten others. It is entirely unsupported by evidence.

In the absence of any doubt affecting the case as a whole or the bona fide implication of the five appellants, it must be held that the failure of the jury to act upon the direct evidence of disinterested witnesses implicating the five appellants in the offence of dacoity, which evidence was entirely unrebutted, was perverse. No reasonable body of. men could reach the conclusion upon the facts and circumstances here present that the five appellants were not proved to have participated in the dacoity. The con viction of these five persons by the High Court is therefore correct.

We accordingly dismiss this appeal.

A.H. Appeal dismissed.

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