LexMOSEB KAKA CHOWDHRY ALIAS MOSEB CHOWDHRY AND ANOTHER versus THE STATE OF WEST BENGAL.
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1956 April 18 372 SUPREME COURT REPORTS (1956) MOSEB KAKA CHOWDHRY alias MOSEB CHOWDHRY AND ANOTHER v. THE STATE OF WEST BENGAL. [JAGANNADHADAS and B. P. SINHA JJ.) J1<ry trial-Verdict of Jury-When Sessions Judge to accept and to give reasons for accepting it-S. 307 Or. P.0.-Examination under s. 342 Or. P.O. perfunctory-Prejudice-New point. A Sessions Judge, even if he disagrees with the verdict of the Jufy, must normally give effect to that verdict unless he is clearly of opinion that no reasonable body of men could have given the verdict which the Jury did. Bamnugrah Singh v. Kin~·Emperor, ([1946] L.R. 73 LA. 174), relied on. A Sessions Judge need not record his reasons for accepting the verdict of the Jury. In a case where a Judge in his charge to the Jury, has clearly and definitely expressed himself for acquittal, it would be desirable though not imperative, that he should give his reasons why he changed his view a.nd accepted the verdict of the Jury finding the accused guilty. Even where the examination of the accused under s. 342 Cr.P.C. is perfunctory the judgment cannot be set aside unless clear preju· dice is shown. Tara Singh's case, ([1951) S.C.R. 729), referred to. K. O. Mathew and Others v. The State of Travancore·Oochin, ((1955] 2 S.C.R. 1057), relied on. Prejudice cannot be presumed from the fact that the trial is by a jury though that is a circumstance which rnay be ta.ken into consi- dera.tion. An argument which would, if accepted, necessitate a retrial, ought to be put forward at the earliest stage and at any rate before the High Court in appeal and cannot be entertained for the first time in an appeal on special leave. CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 15 of 1955. Appeal by special leave from the judgment and order dated the 24th March, 1953 of the Calcutta High Court in Criminal Appeal No. 94 of 1952 arising out . of the Judgment and order dated the 22nd April 1952 S.C.R. SUPREME COURT REPORTS 373 of the Court of Sessions Judge, Murshidabad in Ses- sions Trial No. 1 of 1952. Jai Gopal Sethi, (0. F. Ali and P. K. Ghosh, with him) for the appellants. B. Sen, (I. N. Shroff, for P. K. Bose, with them) for the respondent. 1956. April 18. The Judgment of the Court was delivered by JAGANNADHADAS J.-This is an appeal by special leave against the judgment of the High Court of Cal- cutta confirming the conviction and sentence of each of the two appellants before us, by the Sessions Judge of Murshidabad. The appellants were tried on a charge under section 302/34: of the Indian Penal Code by the Sessions Judge with a jury. The jury returned a unan- imous verdict of guilty against each under the first part of section 304: read with section 34: of the Indian Penal Code. The learned Judge accepted the verdict and convicted them accordingly and sentenced each of the appellants to rigorous imprisonment for ten years. In order to appreciate the points raised before us, it is desirable to give a brief account of the prosecu- tion case. The two appellants jointly made a murderous assault on one Saurindra Gopal Roy at about 6-30 p.m. on the 3rd November, 1951. There was, owing to litigation, previous enmity between the deceased and the appellants. All of them belonged to a village called Mirzapur which is within the police station Beldanga, district Murshidabad. The deceased along with two friends of his, of the same village, examined as P.Ws. 1 and 2, attended a foot-ball match that evening at Beldanga. The match was over by 5 p.m. and all the three of them were returning together to their village. In the course of the return they were passing at about 6-30 p.m. through a field, nearly half a mile a way from the village. The two appellants each having a lathi and a Hashua (sickle) in his hand, emerged from a bush nearby and rushed towards the deceased and his companions. P.W. l 4U 1956 MosebKaka Chowdhry alias Moseb Chowdhry and another v. The State of West Bengal 1956 l'tloseb Kaka Chowdhry alias JYioseb Chowdhry and anothe.r v. The State of West Bengal J agannadhadas J. 374 SUPREME COURT REPORTS (1956] was first struck with a lathi and thereupon both P. Ws. 1 and 2 moved away to a distance. The ap- pellants assaulted the deceased and inflicted on him a number of serious injuries. The two companions of the deceased, P.Ws. land 2, ran towards the village and shouted for help whereupon a nu
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