HASHMATULLA RAHATULLA Vs. EMPEROR

JUDGEMENT

(1.) THIS is an appeal under the amended Section 411 A of the Criminal Procedure Code, 1898, against the verdict given by a majority of seven to two in a trial held before Mr. Justice Bhagwati on a charge of murder. The majority of the jury convicted the accused of murder, and Mr. Justice Bhagwati accepted the verdict and sentenced him to transportation for life, but at the same time gave a certificate that this was a fit case for appeal under the amended law.

(2.) THE powers of this Court in dealing with appeals from verdicts of a High Court jury have been laid down in Government of Bombay v. Fernandez (1944) 47 Bom. L. R. 363. THE effect of that decision is that, although the power of interference given by Section 411 A is very wide, it does not necessarily follow that the High Court is bound to follow it indiscriminately in every case, and in practice the High Court will not exceed the powers which it ordinarily exercises in dealing with cases referred to it under Section 307 of the Code, although both in appeals under Section 411 A and in references under Section 307 the powers which it is entitled to use ii it thinks fit are very much wider. In practice references under Section 307 are treated as if the test for interference were either a material error in the charge to the jury or a verdict which on the facts of the case is manifestly erroneous or unreasonable. Here there is no question of any error in the charge to the jury; and the principal question which we have to decide is whether it can be said that the verdict of the jury in this case is the verdict of unreasonable men, having regard to the facts of the case. A subsidiary question arises as to whether we ought in this case to exercise our power to direct a new trial in view of the fact that certain questions which might properly have been put to the accused under Section 342 of the Code and which ordinarily would have been put to the accused under that section were not put to him. [his Lordship then dealt with the facts of the case and continued:]

(3.) IT is argued that here the jury must have been influenced by this part of the evidence which was not specifically put to the accused for explanation. But it is very doubtful if that is so, because the learned Judge dealt with the point of the dying declaration and with the point of the alleged corruption of the witness Abdul Rahim at great length in his charge to the jury and gave the jury the strongest possible hint that they ought not to rely on that part of the evidence. He did not refer to the fact of the knife having been bought in a false name; but that, as I have said, does not seem to take the case very much further, since the accused had a friend with him and any attempt to give a false name seems pointless. In practice, therefore, it is difficult to see how the omission of the learned Judge to put specific questions to the accused on these points and the consequent failure of the accused to give an explanation of them-can have had any practical effect upon the verdict of the jury. I may mention that it is difficult to imagine what explanation the accused could have given beyond saying that the evidence was false; and that in effect is what the learned Judge himself said to the jury, namely that the evidence must be accepted only with the utmost caution. I may also mention that the evidence as to the knife having been purchased in a false name has never been disputed and no questions in cross-examination were put to the witness on that point.