EMPEROR Vs. WAMAN SHIVRAM DAMLE

JUDGEMENT

(1.) The unanimous verdict of the jury, finding the accused guilty in this case, has been accepted by the Judge, and, in accordance with it, he has sentenced accused Nos. 1 to 12 to five years rigorous imprisonment on the charge of forgery of a will under Section 467, Indian Penal Coda, and accused No. 1 to an additional term of two years rigorous imprisonment on the charge of using as genuine a forged document under Section 471, Indian Penal Code. In this appeal against the convictions and sentences, the learned Counsel for the appellants, relying on Emperor V/s. Malgowda Basgowda (1902) 4 Bom. L.R. 683; post p. 644 has contended that there was misdirection in the learned Judge's charge to the jury, because, it is urged, he omitted to call the attention of the jury to several matters of prime importance which favoured the accused. It is conceded that the Judge's charge was, upon the whole, favourable to the accused, and we think that he summed up the case most carefully and fairly. Most of the arguments urged in support of the appeal before us amount practically to this, that the learned Sessions Judge did not put the points referred to in the heads of charge in greater detail. Most of the points of importance urged by the learned Counsel for the appellants have been more or less dealt with in the charge, and the mere fact that some of the points were not amplified as they might have been does not, in our opinion, amount to a misdirection.

(2.) There are three objections, however, urged in support of this appeal, which stand upon a different footing. They may be formulated as follows: (1) Exhibit 58, the deposition of the deceased Nazir recorded in a civil proceeding, was wrongly admitted in evidence under Section 33 of the Evidence Act as containing accused No. 1's confession. (2) The Judge put before the jury the evidence of accused No. 1's conduct as if the jury could, if they chose, draw an inference from it against all the accused. (3) The Judge omitted to place before the jury the evidence as to the alleged signature of Lakshman on the will,. Exhibit 8, which told in favour of its genuineness and which stood uncontradicted.

(3.) As to the first of these objections, the learned Advocate-General who has appeared for the Crown to support the convictions, has not contended that Exhibit 58 was admissible in evidence either under Section 33 or any other provision of the Evidence Act. Exhibit 58 is a statement made by the deceased Nazir of the District Court of Belgaum in Miscellaneous Application No. 8 of 1901 and was tendered by the prosecution for the purpose of proving an admission or confession alleged be have been made by accused No. 1 to the Nazir. Its admissibility was objected to by the defence in the Sessions Court, bat the Judge overruled the objection, holding that "the statement may be proved under Section 33 of the Evidence Act, and is admissible as an extra-judicial confession against accused No. 1." But the Sessions Judge omitted to notice the important proviso to Section 33, according to which evidence given by a witness in a judicial proceeding is admissible in a subsequent judicial proceeding only if the parties to both the proceedings are the same. Neither the Crown nor the Nazir now prosecuting the accused were parties to the Miscellaneous Application in which the deceased Nazir made the statement. The argument of the learned Advocate-General is that, though the statement was wrongly admitted, that is not a valid ground for setting aside the verdict of the jury, if as a matter of fact it could not have influenced the jury, and that it did not influence the jury is apparent from the fact that the Judge in his charge was emphatic in telling them that they ought not to believe the statement of the deceased Nazir. It is indeed the case that the Judge in his summing up told the jury firstly, that the alleged confession said to have been made by accused No. 1 to the Nazir was not admissible as against the other accused, because it was "at most a confession not of forgery but of using as genuine a forged document" for which latter offence those other accused were not being tied, and also because it was "self-exculpatory," inasmuch as it did not implicate himself to the same extent as it did the other accused; and secondly, that it was highly improbable that accused No. 1 made the alleged admission or confession to the Nazir and the whole matter rested "on the uncorroborated testimony of a dead man, and without having him before the Court some caution is necessary in accepting his statement." So far the Summing "up was favourable to the accused; but the fact stands that the statement was allowed to go in as part of the evidence which the jury could consider, and it is contended by the appellants counsel that when evidence which ought not to be placed before the jury is placed before them, and they are left to believe it or not, and the evidence so let in is material in the sense that, if believed, it must tell against the accused, it is difficult to say that they have not been influenced by it when, in spite of the Judge's charge that the evidence in question was not entitled to belief, they have brought in a verdict of guilty against the accused. The law on this point was carefully considered by Melvill, J., in Reg V/s. Ramswami Mudaliar (1869) 6 Bom. H.C. Cr. 47 After observing that it is not the admission of every inadmissible evidence which vitiates a trial by jury, that learned Judge went on to say.... "The duty of the Appellate Court is, in my opinion, first to consider whether the evidence improperly admitted is material, and such as is likely to have exercised a prejudicial influence on the minds of the jury. If is be so, then, as it is impossible to know the exact amount of weight which the jury attached to the particular evidence in question, their verdict is so far invalidated that the Appellate Court cannot any longer accept it as a conclusive decision on the facts.... If the appellate Court think that the verdict of the jury is founded, in part, upon evidence which should not have been admitted, or that the appellant has been prejudiced by some misdirection or omission of proper direction on the part of the Judge, the Appellate Court is at liberty to treat the case, as if it had been tried by the Judge with the aid of assessors." This was under the Criminal P. C. in force in 1869. The question is whether it is the law also under the Criminal P. C. now in force. According to Section 418 of the present Criminal Procedure Code, where the trial was by jury, an appeal shall lie on a matter of law only; and according to Clause (2) of Section 423, the Appellate Court cannot alter or reverse the verdict of a jury, unless it is of opinion that such verdict is erroneous owing to a misdirection by the Judge, or to a misunderstanding on the part of the jury of the law as laid down by him. Beading these two sections together, it is clear that before we can interfere with the verdict in this case on the ground that the evidence of accused l's confession was wrongly admitted, we must be satisfied, firstly, that the verdict is erroneous: secondly, that the erroneousness was caused either by the Judge's misdirection to the jury as to that evidence or by a misunderstanding on their part of the law as to it as laid down by the Judge. Where material evidence which ought not to be admitted is admitted and the jury are placed in possession of it, there is an error in law in the trial under Section 418 and there is a misdirection of law when the Judge tells the jury that it is evidence which they can consider and on which they can, if they think proper, convict the accused. The fact that after putting the jury in possession of the inadmissible evidence the Judge in his charge goes on also to point out circumstances which would justify the jury in disbelieving the wrongly admitted evidence does not make the misdirection less a misdirection, since the presumption is that the jury are well aware that it is for them to appreciate the evidence and that they are at liberty to take or not the Judge's view of it. And in this case that presumption is supported by the view the jury have taken of the case notwithstanding the tenor of the Judge's charge. It is no answer to that to say that this particular evidence which was wrongly admitted could-not have influenced the jury. Where evidence which the law says shall not be admitted is let in with other evidence legally admissible, and where the former is of a material character, it would be mere speculative refinement to hold that the jury must have, in convicting the accused, relied upon the latter and rejected the former: see on this point Queen V/s. Chunder Koomar Mozoomdar (1875) 24 W.R. 77. In the present case almost every item of evidence relied upon by the prosecution was dealt with by the learned Judge in his charge in favour of the accused. Under these circumstances, we cannot say that the evidence of accused l's confession which ought not to have been placed before the jury could not have influenced them in returning a verdict of guilty. We must take it, then, that there was a misdirection on a material point of law; but since the Judge directed the jury that the evidence of accused l's confession was admissible as against him only and not against the other accused, the misdirection does not apply to their case. It is true that in directing the jury not to consider the evidence in question against accused Nos. 2 to 8, the learned Judge assigned three reasons for his view, and that one of those reasons was that the confession of accused No. 1 was self-exculpatory, inasmuch as it did not implicate himself to the same extent as them. As a matter of fact, the confession said to have been made to the Nazir does not implicate any one but accused No. 8. The words of the confession as given by the Nazir in his deposition, Exhibit 58, are: "Hosmane Balappa," (that is accused No. 8), "has made this will. I tell the truth before you. Hosmane Balappa has done all this." It is possible that the Judge's statement to the jury may have conveyed to them the impression that all the accused were in fact implicated by the confession; but, having regard to the emphatic manner in which the Judge told the jury that the confession was inadmissible as against accused Nos. 2 to 8, we must hold that so far as those accused persons are concerned there was no misdirection. But as to them, the question is whether there has been misdirection in that the Judge put before the jury the evidence of accused 1's conduct relied upon by the prosecution as if it was evidence also against the other accused.