RAMADHIH BRAHMIN Vs. EMPEROR

JUDGEMENT

(1.) THE appellant, Ramadhin, together with his co-appellants Bachhoo Singh, Bhika, Ramprashad, Ramchandra, Dharma, Dewaji and Rama (Criminal Appeals Nos. 130, 131, 132, 133, 134, 135 and 136 of 1928), whose appeals are also disposed of in this judgment, has been convicted by the Sessions Judge, Nagpur, of an offence under Section 302 read with Section 149, I.P.C. and sentenced to transportation for life. At the same trial, eight appellants were also tried with the aid of a jury, under provisions of Section 269 (3), Criminal P.C., for an offences under Section 436, read with Section 149, I.P.C. As regards the latter offence, the jury returned a unanimous verdict of not guilty and the Sessions Judge disagreeing with this verdict, has referred the case under Section 307, Criminil P.C., to this Court. In this judgment, therefore, I dispose of the criminal appeals stated as well as of the above reference.

(2.) THE present offence is alleged to have occurred on the 5th day of September last in the course of the communal rioting between Hindus and Muhammadans, which was, at the time, rife in Nagpur. In the particular riot with which I am concerned, no less than five Muhammadans, Budhu, Piru, Zahed Ali, Fateh Khan and Pir Khan met with their death, while others were seriously injured. A house, to be referred to hereafter, was also set on fire, and the circumstances of the case are admittedly such that, if the present appellants are guilty, or innocent of the offence under Section 436, I.P.C. they are equally guilty or innocent of the offence under Section 302, read in each case as already stated with Section 149, I.P.C.

(3.) BEFORE , however, entering on an examination of the evidence, I desire to dispose of certain law points which have been raised on behalf of the appellants. One of the counsel, who appeared on behalf of the appellant Dharma, raised what appears to me to be a somewhat unsubstantial question of law. As is obvious from the Sessions Judge's judgment and his order on the reference, when read together, the Sessions Judge was of opinion that the opinion of the assessors and jurors as to the innocence of the appellants was a perverse one. It must be noted in this connexion that all the five jurors and assessors were Hindus. The Sessions Judge has given his reasons for his view in this connexion in para 13 of the judgment. Whether that view is correct or not is not a question I am concerned with at the moment. The argument offered in this connexion has been a somewhat novel one. It is that, as the Sessions Judge holds the jurors' verdict and assessors' opinion to be a perverse one, there was no properly constituted Court for the trial of the case in question. I am wholly unable to accept this contention for which I know of no sound basis, either in law or even in common sense. Very obviously the fact of whether a jury is going to return a perverse, verdict cannot, in the normal case, appear until the verdict has been given and, even if an individual juror or assessor is, at the inception of the trial, prejudiced in a communal case like the present because of the fact that persons belonging to his of own community are being tried for an offence against members of a rival community, the Court can, in the normal case, have no means of finding this out until his verdict or opinion, as the ease may be, is given in the matter. I have referred to an unofficially reported case, apparently a Madras one, in which it was laid down that where, in the course of a trial, it is found that one of the assessors is interested, and is so unfit to sit, the duty of the Court is to refer the case to the High Court to set aside the order appointing the incompetent assessor and all subsequent proceedings in the trial. Even if this case could be accepted as laying down a correct exposition of the law, it is obvious, on the face of it, that it has no application to the circumstances of the present case, and, as a matter of fact, another counsel, who appeared for the same appellant (Dharma) admitted in his reply that the Court, as constituted, was a proper one. I see no reason, therefore, to devote further time to this contention which seems to me to have no sound basis, either in law or in reason.