CROWN PROSECUTOR Vs. KRISHNAN ALIAS KARIKARA KRISHNAN

JUDGEMENT

(1.) This is an appeal under Section 411-A(2), Criminal Procedure Code, from the acquittal of the three respondents of the murder of Nammalwar and of other offences comprised in the charge. The three respondents were tried in Sessions Case No. 6 of 1946 of the First Criminal Sessions of this Court and six charges were framed against them. The first charge was one of murder against all the accused read with Section 34, Indian Penal Code. The second charge was under Section 326, Indian Penal Code, against the first accused. The third and fourth charges were under Section 326 read with Section 114, Indian Penal Code, against the second and third accused. The fifth charge related to the simple hurt committed by the second accused, and the sixth charge was under Section 323 read with Section 114, Indian Penal Code, against the third accused. The jury by a majority of 7 to 2 found the first and second accused not guilty in respect of all the charges against- them, and by a verdict which was unanimous found the third accused not guilty and of any of the charges. The learned Judge who presided had directed the jury to return a verdict of not guilty so far as the third accused was concerned in relation to the first charge. The learned Judge " accepted " (presumably agreed .with) the verdict of the jury in- respect of the charges, and he acquitted the three accused of all the charges against them and directed them to be set at liberty.

(2.) An application was made by the Crown Prosecutor for a certificate under Section 411-A, Clause (b) that this is a fit case for appeal against the acquittal on the ground that the verdict of the jury was perverse. The learned Judge granted leave considering that there was evidence let in by the prosecution on which the jury might well have returned a verdict of gailty, except as to the third accused in regard to the charge against him under Section 302, read with Section 34,-Indian Indian Penal Code. Upon this certificate the appeal has come before us, and in deciding such an appeal the principle will have to be applied, which was recently enunciated in the judgment of the Judicial Committee- delivered on 27 March, 1947, in Thiagaraja Bhagavathar V/s. The King-Emperor (1947) 1 M.L.J. 404 (P.C.). Their Lordships have, after discussing the decisions of this Court and of the Bombay High Court bearing upon this question, pointed out that a Judge hearing an application for leave to appeal on the facts has an absolute discretion to grant or withhold such leave, but it is a discretion to be exercised judicially Their Lordships observed. that a Judge is bound to consider any special features in the particular case, but he cannot ignore the effect which the granting of leave to appeal without due discrimination "may have upon the whole system of trial by jury in the High Court. Then the following principle was laid down, which is of direct application in this case: Leave once having been granted, however, the matter is at large, and the Court of Appeal must dispose of the appeal upon the merits paying due regard however to the principles on which Courts of Appeal always act in such cases. After enunciating this criterion their Lordships referred to the decision of the Board in Sheo Swarup V/s. The King-Emperor (1934) 67 M.L.J. 664 : L.R. 61 I.A. 398 : I.L.R. 56 All. 645 (P.C.), where the Privy Council had laid down the matters to which proper weight and-consideration should be given in exercising the power conferred by the Code on a Court of Appeal. As modified in the judgment in Thiagaraja Bhagavathar V/s. The King-Emperor (1947) 1 M.L.J. 404 (P.C.), referred to above, the considerations applicable to appeals under Section 411-A, Criminal Procedure Code, are the following : (1) the views of the jury implicit in their verdict as to the credibility of the witnesses ; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at the trial ; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate Court in disturbing a rinding of fact arrived at by a Judge who had the advantage of seeing the witnesses. It is manifest from this pronouncement of the Judicial Committee that subject to the considerations which a Court of Appeal bears in mind in dealing with such matters the whole matter is at large before us except in respect of the charge against the third accused under Section 302 read with Section 34, Indian Penal Code.

(3.) We may also point out that the test which was hitherto applied, namely, whether the verdict of the jury is perverse or unreasonable in order to entitle the Court to interfere with it has now been definitely discarded, and the test to be applied is whether the verdict is, upon the evidence, right or wrong.