ERAN KHAN Vs. EMPEROR

JUDGEMENT

(1.) This appeal is preferred by seven persons, all of whom have been convicted under Section 326 read with Section 149, three under Section 148 and four under Section 147 of the Indian Indian Penal Code. These offences are alleged to have been committed in connection with a riot which occurred at what has been described as a 6 cottah plot which one Hossain Mridha was engaged in ploughing Hossain Mridha, according to the evidence, was struck on the head, and received injuries from which he subsequently died.

(2.) The first point which has been urged by the learned vakil for the appellants is that the learned Sessions Judge was wrong in putting certain questions to the Jury at the time he was ascertaining their verdict. In leaving the case to the Jury the learned Judge said "I shall want you to give me a clear verdict in respect of the offences under Secs.147, 148, 301, 326 and 325 for each of the accused." When the Jury returned from a consideration of their verdict, the first question put to them was "Are you unanimous"?, to which the reply was "yes." The second question was "What is your opinion?" to which the reply was "We find that Abdul Gani Khan, Ramjan Khan, Baher Khan and Sadulla Sheik are guilty under Section 147. Bran Khan, Dulal Khan and Matbar Khan are guilty under Section 148 and none of them are guilty under Section 149." Having regard to what the learned Judge had said to the Jury, before they retired for the consideration of their verdict, the answer given by the foreman of the Jury was, in my opinion, an incomplete verdict, and it was necessary that the learned Judge should put further questions to the foreman in order to ascertain precisely what the verdict of the Jury was as regards the other offences which the learned Judge had mentioned, that is to say, as regards Secs.304, 326 and 325. The learned Judge, as I have said, did put further questions and in the result he ascertained that the real opinion of the Jury was that these appellants were not guilty of the offence under Section 304 Indian Penal Code but were guilty of the offence under Section 326, by the operation of Section 149 of the Indian Penal Code. In my opinion, the questions put by the learned Judge were quite legitimate and were in accordance with the provisions of Section 303 of the Criminal P. C..

(3.) The next point urged is that the learned Judge was wrong in not referring the case to this Court under the Provisions of Section 307 of the Criminal Procedure Code. It is true that he expresses the opinion Sat he does not agree with he unanimous verdict of the Jury : but Section 37 clearly gives to the Judge a discretion in the matter, and it is only when he's clearly of opinion that it is necessary for the ends of justice to submit the case to the High Court that he shall so submit it If he is not clearly of that opinion, his failure to submit the case, is not a subject for interference by this Court on appeal.