EMPEROR Vs. SHANKAR GANPAT PAWAR

JUDGEMENT

(1.) This is a reference made by the Additional Sessions Judge of Poona under Section 307 of the Criminal Procedure Code, 1898. The accused Shankar alias Baban Pawar was a friend of the deceased Vishnu, who Was living in the house of Babu Kale in Shukrawar Peth, Poona City. Vishnu and Babu Kale went to the toddy shop at about 8-30 p.m. on the night of May 21, 1944, and thence they proceeded to the liquor shop at about 9 or 9.15 p.m. They met the accused there, and Vishnu asked him to give some drink to him and his friend Babu at his cost. The accused said that he had no money, and called them some bad names. This was followed by an exchange of abuses between them, and Vishnu lost his temper and struck the accused with his chappal on his face. The accused retaliated by giving a slap on Vishnu's face. In the meantime witness Gulam Mahomed came out of the liquor shop and separated them. He took the accused away in the direction of the lamp post to the north, and, when they had gone some distance, the accused slipped away and ran towards Vishnu. The accused took out his knife from his pocket, opened its blade, and, going to Vishnu, suddenly stabbed him near his left chest. Vishnu cried aloud and fell down on the ground. He died almost instantaneously, and a large crowd of people collected. The accused left the place, stood for a while near the telephone post at a distance of about twenty-five feet, and then proceeded to the electric lamp post at a distance of about thirty feet more. He was carrying an open penknife still in his hand, and talked to Police Constable Dhawale, who was going on a bicycle. Police Constable Powale, who had seen the accused stabbing Vishnu, followed the accused and caught hold of him by his neck. He wanted to take him to the Police Gate, but the accused said that he would first go to his house and talk to his people. As he promised to go with him thereafter to the Police Station quietly, Constable Powale accompanied him to his house. The accused told his women what had happened, and then both he and Constable Powale started for the Police Gate. On the way the accused gave a jerk to the Constable and ran away. Powale pursued him and caught hold of him, but in the meantime the accused had thrown away the penknife in his hand, and the Constable was not able to trace it, He took the accused to the Police Gate and produced him before Constable Shelar who was then in charge there. Police Jamadar Shaikh Abdul Kadar, who came to know about the incident, went to the scene of offence and found that Vishnu had already died. He kept a Police Constable to watch the dead body, and sent a message to the Police Sub-Inspector. The Sub-Inspector recorded the complaint of the Jamadar, and started investigation. He held an inquest over the dead body, and sent it to the Sassoon Hospital for post-mortem examination. The accused was formally arrested at 11-30 p.m., and an electric torch was found with him. The Sub-Inspector completed the investigation and sent a charge-sheet against the accused on May 28, 1944. The accused was committed to Sessions on a charge under Section 304, part I, of the Indian Penal Code, 1860, and was tried by the Additional Sessions Judge and a jury. The accused pleaded not guilty, and stated that, when he met the deceased Vishnu and Babu Kale near the liquor shop, Vishnu asked him to pay for his drink and, when he refused, Vishnu got so enraged that he took out his chappal and hit him on his face, that he (the accused) told him (Vishnu) that he would lodge a complaint with the police and being enraged Vishnu took out an open knife from his pocket and aimed a blow at him, that he (the accused) moved back and caught hold of Vishnu's right wrist and tried to wrest the knife with his left hand, that in doing so he got a cut on his left middle finger, that Vishnu who was then drunk gave a jerk to his hand towards his own body and when he (the accused) let go the hold, the knife in Vishnu's hand was drawn with force towards his own body, that Vishnu lost his balance, and when he bent, the knife struck him on his left chest, and that Vishnu then fell down. He further stated that, after Vishnu fell, Babu took the knife from his hand and ran away. The accused left the place and was afterwards arrested by the Police Constable. The jury by a majority of four to one returned a verdict that the accused was not guilty of the offence charged against him. The learned Additional Sessions Judge, disagreeing with the verdict, has made this reference under Section 307 of the Criminal Procedure Code.

(2.) In dealing with a case submitted to the High Court under Section 307 of the Criminal Procedure Code, "the High Court may exercise any of the powers which it may exercise on an appeal, and subject thereto it shall, after considering the entire evidence and after giving due weight to the opinions of the Sessions Judge and the jury, acquit or convict such accused ofany offence of which the jury could have convicted him upon the charge framed and placed before it." This does not mean that in every case the High Court should appreciate the evidence and come to a conclusion independently of the verdict of the jury. Ordinarily the High Court will not interfere with the verdict, unless it is either perverse, or manifestly wrong, or wholly unreasonable, or definitely contrary to evidence, or not supported by any evidence or induced by a misdirection or non-direction in the Judge's charge to the jury. In the words of Beaumont C.J. in Emperor V/s. Bai Lali , the High Court will not interfere with the verdict of a jury merely because on a perusal of the evidence the Judges think that they would have come to a different conclusion from that at which the jury arrived, and before interfering with the verdict the Court must come to the conclusion on a perusal of the evidence that no jury could really have entertained any reasonable doubt as to the guilt of the accused. Under Section 307, Sub-section (1), of the Criminal Procedure Code, when the Judge disagrees with the verdict of the jury, he can make a reference to this Court only if he is clearly of opinion that it is necessary for the ends of Justice to submit the case to the High Court, and the only question which the High Court will consider itself is whether the Judge's view that the verdict of the jury has been perverse or unreasonable or altogether against the weight of the evidence, is justified by the record ; and if the High Court come to the conclusion that it is not, then it will accept the verdict of the jury. As observed by the full bench in Veerappa Goundan, In re (1925) I.L.R. 51 Mad. 956 F.B, it is not the duty of the High Court to try the whole case de novo, as if there had been no trial in the Sessions Court at all ; and the jury being primarily the tribunal to find the facts, it is not for the High Court to interfere with the verdict of the jury unless it is unreasonable. Considering the, evidence from this point of view, we are not prepared to say that the verdict of the jury in this case is manifestly wrong or unreasonable, much less perverse. The learned Judge's charge to the jury is fair and exhaustive and there is no misdirection or non-direction In it.

(3.) It is true there are three eye-witnesses who depose to having actually seen the accused stabbing the deceased Vishnu on the left side of his chest with a knife. Babu Kale, who was Vishnu's companion, was admittedly present when the incident took place. He is certainly an interested witness, and the accused says that it was he who left the place with the penknife with which the deceased was injured. Nivratti, who was a servant in a chivda shop inside the compound of the liquor shop, says that he had just come out of the chivda shop when the deceased was asking the accused to give him a drink of liquor, that he saw the deceased giving a blow on the face of the accused with a chappal, that Gulam Mahomed then took away the accused from the place, and that the accused slipped away and returning to the deceased stabbed him on his chest with a knife. The third eye-witness is Constable Sonu Powale who was passing by the liquor shop at 9 p.m., and he says that on seeing a crowd gathered near the liquor shop he stopped for a while and saw the accused come running from the side of Datta Upahar Griha and opening his knife, that he then saw the accused go to the deceased, stab him, and run away towards the lamp post with the blood-stained knife in his hand, that he then went after him, caught him and took him to his house at his request, and that when he was taking him to the Police Gate from there the accused ran away and threw the knife somewhere. If the evidence of these three witnesses is believed, then there is no doubt that the accused stabbed the deceased Vishnu and caused his death. But there are various circumstances which go to throw some doubt on this evidence, and, if the jury refused to place any reliance on it, or preferred to give the benefit of the doubt to the accused, their verdict cannot be said to be perverse or unreasonable.