HARI CHARAN DAS Vs. EMPEROR

JUDGEMENT

(1.) The appellant, Hari Charan Das, has been convicted by the First Additional Sessions Judge of Dacca on charges under Secs.147 and 325 read with Section 149, Indian Penal Code, and sentenced to undergo rigorous imprisonment for six months Under Section 147, Indian Indian Penal Code, no separate sentence having been passed under Section 325 read with Section 149, Indian Penal Code. The facts relating to the occurrence need not be narrated here as they are to be found in the charge of the learned Judge to the jury. The validity of the conviction of the appellant has been challenged on four grounds, and I propose to deal with them in the order in which they have been urged.

(2.) The first ground urged on behalf of the appellant is to the effect that one Majid Munshi Dafadar, who was tried with the appellant on similar charges framed against him was acquitted by the learned Judge while the trial was yet proceeding and the appellant has been prejudiced in consequence of such acquittal. In order to appreciate the ground it is necessary to state a few facts The trial commenced on the 2 April, 1925 and went on till the 6 of April 1925, on which date the examination of the prosecution witnesses came to a close. The learned Judge being of opinion that there was no evidence against the appellant's co-accused Majid Munshi Dafadar, acquitted him under the provisions of Section 289, Criminal P.C. Whether the learned Judge directed the jury to return a formal verdict of not guilty or not does not clearly appear on the record, but that is not the point of the appellant's objection. His objection, as far as I have been able to make out is this--that the evidence against Majid Munshi Dafadar was precisely the same as against the present appellant, and inasmuch as the learned Judge acquitted Majid Munshi and proceeded with the trial as against the present appellant the course adopted by the learned Judge created in the minds of the jury a certain amount of prejudice against the appellant and the jury thought that if there was really no good evidence against the appellant the learned Judge could have also acquitted him instead of proceeding with the trial as against him. This contention to my mind is not well-founded. In the first place the evidence against Majid Munshi is not, as the learned vakil for the appellant states precisely the same as against the present appellant. Nextly, if the learned Judge in spite of the fact that there was no evidence against him proceeded with the trial as against him instead of acquitting, him under Section 289, Criminal P.C. he would have contravened the provisions of C1. (2) of Section 289. In my opinion the learned Judge adopted the right course in acquitting Majid Manshi at that stage; and having regard to the charge which he delivered subsequently to the jury in respect of the case as against the present appellant it cannot for a moment be suggested that the appellant was in any way prejudiced.

(3.) The next ground urged in support of the appeal is to the effect that the learned Judge should have made a reference to this Court under the provisions of Section 307. Criminal P.C., in view of the fact that in his opinion there was really no case as against the present appellant. The learned Judge's charge to the jury is what may be called in somewhat unforensic language as a charge for acquittal He was clearly of opinion that the appellant should not be convicted. The jury, however, came to a different conclusion and brought a unanimous verdict of guilty as against the appellant in respect of both the charges. The learned Judge disagreed with the verdict but accepted the same presumably because he thought that it was not necessary, in the interests of justice, to make a reference under Section 307, Criminal P.C. It may be that in certain circumstances or in certain cases it is obligatory on the Judge, when he differs from the verdict of the jury to make a reference to this Court. With one of such cases I have had occasion to deal very recently and it is the case of Saroda Charan Mistri V/s. Emperor where in the opinion of the learned Judge himself the acceptance of the verdict would amount to a miscarriage of justice. The present case, however, is not of that description; and, in my opinion, it cannot be contended that there was any obligation on the part of the learned Judge to make a reference to this Court.