HASHMATULLA RAHATULLA Vs. EMPEROR

JUDGEMENT

(1.) This is an appeal under the amended Section 411 A of the Criminal Procedure Code, 1898, against the verdict given by a majority of seven to two in a trial held before Mr. Justice Bhagwati on a charge of murder. The majority of the jury convicted the accused of murder, and Mr. Justice Bhagwati accepted the verdict and sentenced him to transportation for life, but at the same time gave a certificate that this was a fit case for appeal under the amended law.

(2.) The powers of this Court in dealing with appeals from verdicts of a High Court jury have been laid down in Government of Bombay V/s. Fernandez (1944) 47 Bom. L.R. 363. The effect of that decision is that, although the power of interference given by Section 411 A is very wide, it does not necessarily follow that the High Court is bound to follow it indiscriminately in every case, and in practice the High Court will not exceed the powers which it ordinarily exercises in dealing with cases referred to it under Section 307 of the Code, although both in appeals under Section 411 A and in references under Section 307 the powers which it is entitled to use ii it thinks fit are very much wider. In practice references under Section 307 are treated as if the test for interference were either a material error in the charge to the jury or a verdict which on the facts of the case is manifestly erroneous or unreasonable. Here there is no question of any error in the charge to the jury; and the principal question which we have to decide is whether it can be said that the verdict of the jury in this case is the verdict of unreasonable men, having regard to the facts of the case. A subsidiary question arises as to whether we ought in this case to exercise our power to direct a new trial in view of the fact that certain questions which might properly have been put to the accused under Section 342 of the Code and which ordinarily would have been put to the accused under that section were not put to him. [His Lordship then dealt with the facts of the case and continued:]

(3.) When called upon to make a statement the accused said that at about 7 o clock he returned from his hair cutting saloon and saw the three Pathans in his room, two of them inside and one outside. As he arrived, the two Pathans inside were coming out, and one of them aimed a blow at the accused. The accused then caught hold of the knife with his hand and was cut across the fingers. He again caught hold of the knife, and was again cut across the fingers when the Pathan pulled the knife out of his grasp. He then says that the Pathans started running away and that he chased them shouting thieves, thieves. When he came out on the road he saw the deceased lying on the road, and a victoria was fetched and the deceased taken to hospital. It is to be noted that the apparent meaning of this statement is that the accused did not see the woman injured until he saw her lying on the road. The statement covers the use of the accused's knife, and it also covers his presence on the spot either at the time of the murder or almost immediately afterwards. But it does not cover certain other points upon which the prosecution relies, namely the dying declaration, the motive, the request to Abdul Rahim to tell a false story to the police about Pathans, and the fact of the knife having been bought in a false name; nor does it cover the story of the knife having been thrown behind the gharry. Speaking for myself, I am not quite clear as to the meaning of the evidence on this last point; I am not altogether satisfied that the intention of the witness was to suggest that the accused had made a concealment of bringing the knife from the house.