BANSIDHAR Vs. EMPEROR

JUDGEMENT

(1.) This is an appeal by Bansidbar and Ram Kishen from their convictions under Section 460, Indian Penal Code, based on the unanimous verdict of the jury that they were guilty, The grounds taken in the memorandum of appeal are: (1) That there has been a grave misdirection to the jury and the verdict is therefore vitiated. (2). That the sentence is too servere.

(2.) The facts are perfectly clear. The deceased Gauri Shankar was an old gentle man of about 75 years of age who was a retired Deputy Collector. He was living in a big house with many rooms and several doors and had considerable valuables in the house, most of which were kept in an iron safe. On the night preceding the 24 January, he was found murdered in one of the rooms with his neck cur. The medical evidence showed that there were at least three cuts on his neck which had caused his death. There were plenty of blood marks on the bed stead on which his body was found as well as on the ground. There can therefore be no manner of doubt on the medical evidence that the deceased had been deliberately murdered. The Committing Magistrate set up the case against the accused persons both under Section 302 and Section 457-75, Indian Penal Code, but in the Session a Court, unfortunately on some mistake made by the Crown Counsel, the charge was altered to one under Section 460, Indian Penal Code, only. There can be no doubt whatsoever that murder was committed in the house with the object of stealing the valuables belonging to the deceased and if any of the accused persons were guilty, be would certainly be guilty of murder and not only of an offence under Section 460, Indian Penal Code.

(3.) The jury returned a unanimous verdict of guilty against all the three accused who were standing their trial, although as regards Kanhaiya Lal the Judge had made it clear to them that there was really no evidence against him at all. It has to be conceded on behalf of the accused that unless there has been misdirection on the part of the Judge this Court cannot go into the question of fact and examine the evidence. By merely showing that the prosecution story was improbable or that there were material discrepancies or even contradictions in the evidence, Counsel for the accused cannot succeed in persuading us to set aside the conviction. There is often a considerable misapprehension as to the manner in which the Judge is to address the jury. The Sessions Judge is only a Judge "on questions of law on which point his opinion is conclusive, but on questions of fact he can only express his opinion and must, leave the decision to the jury. No doubt the Judge must point out the important evidence in the case as well as emphasize the points for and against the accused, draw the attention of the jury to the contradictions and discrepancies in the evidence and even express his own opinion as to what conclusion the evidence on particular points leads to, provided he makes it perfectly clear to the jury that they are the final Judges on the questions of fact. It is not for the Sessions Judge to propound new theories which have never been suggested at the Bar and to put them before the jury which, would have no other effect than that of confusing them. Of course where he is satisfied that there is no legal evidence against any accused person he is bound to tell the jury that there is no such evidence and that they should acquit that particular accused.