EMPEROR Vs. CHANDRA KRISHNA

JUDGEMENT

(1.) It is urged by Mr. Wadia that it is no longer open to us to admit this reference in view of the judgment of the Division Bench on the 29 January last. But when reference is made to that judgment, it will be seen that it is obiter and proceeds on a hypothetical and unascertained state of facts. We think, therefore, that the point is still open to us, especially as we can see no way in which the accused could be prejudiced by this opinion, and it was the accused themselves who in the Court below objected to the Sessions Judge disposing of the case. We hold that the interlocutory judgment of the former Bench does not debar us from accepting this reference. That being so, it is clear to us that we ought to accept it. We should do so even if it were irregular. Acting under the authority of Queen-Empress V/s. Jeyram Haribhai (1895) I.L.R. 20 Bom. 215 we have no reason to suppose that the present reference is irregular.

(2.) What has happened is this. The Jury were seised of the case in respect of the charge of dacoity, and upon that charge it was competent to the Jury, as a Jury-not assessors-to return a verdict of theft : see Section 238 of the Criminal Procedure Code and compare Queen- Empress V/s. Devji (1899) I.L.R. 23 Bom. 696. But the Jury by their verdict have acquitted the accused simply and entirely on the charge of dacoity including the involved charge of theft, and the learned Sessions Judge quoad this charge of theft disagrees with the verdict so completely that he has felt himself bound to refer the case to us under Section 307 of the Criminal Procedure Code. We think, therefore, that the reference is in order; and the result is that the whole case is now thrown open to us, and we must decide it for ourselves, after giving due weight to the opinions of the Sessions Judge and the Jury.

(3.) We have considered the verdict returned by the Jury, and we have paid great attention to the very careful summing up of the learned Sessions Judge. Though the result may suggest that we have gone as against the prisoners even beyond the point reached by the Sessions Judge, yet it will be seen that our opinion is based entirely upon the footing that only those facts are proved which the Sessions Judge himself accepted as proved. Beyond that we do not go.