Moseb Kaka Chowdhry alias Moseb... vs The State Of West Bengal

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 15 of 1955

Decision Date: 18 April 1956

Coram: B. Jagannadhadas, Bhuvneshwar P. Sinha

Moseb Kaka Chowdhry alias Moseb … versus The State of West Bengal was decided on 18 April 1956 by a Bench of the Supreme Court of India comprising Justice B. Jagannadhadas, Justice B. Sinha and Justice Bhuvneshwar P. Sinha. The citation for the judgment is 1956 AIR 536 and 1956 SCR 372. The matters addressed in the judgment relate to the operation of a jury trial, the effect of a jury’s verdict on a Sessions Judge, the requirement for a judge to state reasons when accepting a jury verdict, the adequacy of an examination of an accused under section 342 of the Code of Criminal Procedure, and the question of prejudice arising from a perfunctory examination. The headnote of the judgment explains that a Sessions Judge, even if personally opposed to the jury’s decision, must ordinarily give effect to that decision unless he is convinced that no reasonable jury could have reached such a verdict. The Court relied on the earlier decision of Ramnugrah Singh v. King‑Emperor and held that a judge is not obliged to record reasons for accepting a jury’s verdict, although if the judge’s earlier charge to the jury had strongly advocated acquittal, it would be desirable—though not mandatory—for the judge to explain why he later accepted a guilty verdict. The Court further observed that a perfunctory examination of the accused under section 342 Cr PC does not merit setting aside a judgment unless a clear prejudice is demonstrated, referring to Tara Singh’s case. The Court also cited K.C. Mathew and Others v. The State of Travancore‑Cochin, stating that prejudice cannot be presumed merely because the trial involved a jury, although the circumstance may be considered. An argument that would require a retrial must be raised at the earliest stage, preferably before the High Court on appeal, and cannot be introduced for the first time in a special leave appeal. The judgment concerns Criminal Appeal No. 15 of 1955, filed by special leave against the order of the Calcutta High Court dated 24 March 1953, which had affirmed the conviction and sentence passed by the Sessions Judge of Murshidabad in Sessions Trial No. 1 of 1952. Counsel for the appellants represented them, while counsel for the respondent appeared for the State. The Court delivered its judgment on 18 April 1956, stating that the present appeal challenges the High Court’s confirmation of the conviction and sentence imposed by the Sessions Judge.

The jury returned a unanimous verdict of guilty against each appellant under the first part of section 304 read with section 34 of the Indian Penal Code, and the learned judge accepted the verdict, convicting them and sentencing each to rigorous imprisonment for ten years. To understand the matters raised, the Court set out a brief account of the prosecution case. On the evening of 3 November 1951, at about six‑thirty p.m., the two appellants jointly carried out a murderous assault on Saurindra Gopal Roy. There was a background of litigation and previous enmity between the deceased and the appellants. All the persons concerned belonged to the village of Mirzapur, which fell within the jurisdiction of Beldanga police station in Murshidabad district. The deceased, accompanied by two friends from the same village who were later identified as PW 1 and PW 2, had been attending a football match at Beldanga that day. The match concluded by five p.m., and the three men were returning together to their village. While passing through a field approximately half a mile from the village at around six‑thirty p.m., the two appellants emerged from a nearby bush, each armed with a lathi and a hashua (sickle), and rushed at the deceased and his companions. PW 1 was the first to be struck with a lathi, after which both PW 1 and PW 2 moved away to a distance. The appellants then assaulted the deceased, inflicting a number of serious injuries. PW 1 and PW 2 fled toward the village and shouted for help, prompting several villagers to assemble at the spot. Information about the incident was also conveyed to the deceased’s son and brother, who subsequently arrived at the scene. The brother, identified as Radhashyam, proceeded immediately to the Beldanga police station and lodged the first information report at approximately seven‑thirty p.m. A police officer arrived, recorded a statement from the deceased, who was still alive at that time, and then the deceased was taken to the Beldanga hospital where the medical officer also obtained a statement (Exhibit 4). The deceased later died. The prosecution’s case relied principally on the testimony of the two eye‑witnesses, PW 1 and PW 2, and on several statements allegedly made by the deceased after the assault, commonly referred to as dying declarations. The deceased is said to have told PW 7, a villager who first reached the scene after hearing the shouts of PW 1 and PW 2, that the two appellants were his assailants. Shortly thereafter, when his son and brother (PW 3) arrived, he is said to have reiterated to PW 3 that the appellants were the assailants. Consequently, the first information report identified the two appellants as the perpetrators. Similar statements were purportedly made by the deceased to the police officer upon his arrival and later to the medical officer at the hospital. Thus, the prosecution’s evidence consisted mainly of the accounts of the two eye‑witnesses and the four dying declarations, two oral and two written.

The prosecution’s case rested chiefly on the testimony of two eye‑witnesses identified as PW 1 and PW 2, together with four dying declarations—two conveyed orally and two recorded in writing. Considerable room existed for criticism of the eye‑witness evidence, and the dying declarations were likewise vulnerable to attack because of the severe nature of the injuries inflicted on the deceased. The autopsy report disclosed incised wounds on the occipital region and an incised wound penetrating the brain from which a fragment of metal was extracted during dissection. That medical finding was cited to suggest that the victim likely lost consciousness almost immediately, thereby rendering any statements he might have made thereafter improbable. Nevertheless, the expert medical evidence on the precise moment of loss of consciousness remained inconclusive, leaving the reliability of the prosecution’s evidence subject to serious challenge on several fronts. Despite these doubts, learned counsel for the appellants did not raise, either before the High Court or before this Court, any objection to the verdict on the ground of material misdirection or non‑direction in the charge delivered to the jury by the Sessions Judge. On the contrary, the charge reportedly addressed every point favourable to the appellants and adverse to the prosecution’s case. The only possible error identified by the appellants’ counsel lay in the Judge’s extensive elaboration, which may have veered into unnecessary detail. The singular flaw that counsel could pinpoint was that the exposition of the legal principle underlying section 34 of the Indian Penal Code was obscure and might not have been properly understood by the jurors; a more lucid articulation could have aided their comprehension. Nonetheless, this Court found no misdirection or non‑direction in the charge, and saw no reason to conclude that the jury had been misled. Consequently, no substantive attack on the Judge’s charge emerged either in the High Court proceedings or in the present appeal. The arguments now before this Court are limited to three specific points: first, that the circumstances of the case and the nature of the charge to the jury obliged the learned Judge to dissent from the jury’s finding and to refer the matter to the High Court under section 307 of the Code of Criminal Procedure; second, alternatively, having expressed in his charge a clear inclination toward acquittal, the Judge should not have accepted the unanimous guilty verdict without providing satisfactory reasons for such acceptance; and third, having expressly cautioned the jury that “your deliberations and verdict should not be influenced by any communal considerations,” the Judge ought to have declined to accept the verdict if there were any indication that communal bias had tainted the jurors’ decision.

In addressing the fourth ground of appeal, the Court observed that the learned Sessions Judge should not have accepted the jury’s verdict on the basis that it might have been corrupted by communal bias. The Court noted that every juror belonged to the Hindu community while the accused were both Muslims, and it was suggested that, because the incident occurred close to the boundary between West and East Bengal, communal prejudice could have been almost inevitable at the time. The Court further observed that the trial had been virtually devoid of any examination of the accused under section 342 of the Code of Criminal Procedure, thereby rendering the trial vitiated.

While advancing the first two contentions, counsel for the appellants assumed that the Sessions Judge, in his charge to the jury, had firmly held that no reliable evidence existed to sustain a conviction and that the accused ought to be acquitted. Relying on that assumption, counsel argued that, when the jury delivered a unanimous guilty verdict despite such circumstances, the Judge’s duty was either to dissent from the jury’s finding and refer the matter to the High Court under section 307 of the Code of Criminal Procedure, or, at a minimum, to record the reasons why he did not disagree with the jury despite his expressed view against the prosecution’s case. To support this argument, counsel quoted various passages of the charge to the jury, which the Court examined in detail.

The Court acknowledged that the learned Judge had indeed highlighted numerous weaknesses in the prosecution’s evidence and seemed inclined toward acquittal. However, the Court was not convinced that the Judge had arrived at a definite and positive conclusion that acquittal was required. While the Judge pointed out the unreliability of certain pieces of evidence, he did not categorically reject every important item. In some instances, the Judge expressly stated that he would not accept a particular piece of evidence and advised the jurors to discard it. In other instances, although he identified infirmities, he stopped short of expressing a definitive opinion on the evidentiary item. For example, with respect to the two eye‑witnesses, the Judge commented that he was not satisfied with the identification made by P.W. 2, Satyapada, and instructed the jurors not to rely on that testimony. By contrast, regarding P.W. 1, Bhupati, the Judge summed up his direction by urging the jurors to consider the whole evidence comprehensively before deciding whether to act on that identification. This pattern of selective certainty, the Court noted, indicated that the Judge had not unequivocally concluded that the prosecution’s case warranted acquittal.

The charge addressed to the jury that the accused were identified as the assailants of the late Sourindra was based on the testimony of P.W. 1, Bhupati, and the judge expressed this particular evidence in a way that differed from his treatment of other witnesses. A comparable disparity was evident in the way the judge discussed the dying declarations of the deceased, where the oral statements were recorded by two different witnesses, namely P.W. 7, Phani, and P.W. 3, Radhashyam. The declaration made to P.W. 7 was supported by a long roster of witnesses, specifically P.W.s 6, 7, 8, 9, 10, 11, 12 and 13, each of whom testified about what had been said to the medical officer. Concerning the testimony of P.W. 9, the judge gave a clear and unequivocal instruction to the jurors, stating, “I should tell you that you should not believe P.W. 9 when he stated, on being questioned by Phani, that Sourindra mentioned Moseb and Sattar as his assailants.” By contrast, the judge did not extend the same categorical rejection to the statements of the remaining witnesses on that same point, leaving their evidence unrejected. The judge subsequently turned his attention to the question of the authenticity of a slip of paper marked as Exhibit 4, noting that the document had been removed from the custody of Medical Officer P.W. 17 and transferred to the investigating officer, P.W. 35, approximately one month after it was recorded. In his comment, he observed, “Personally speaking I see no reasonable explanation as to why the investigating officer should not have seized Exhibit 4 from P.W. 17 immediately after it was recorded, if it was recorded on 3 November 1951, and sent it to the magistrate forthwith.” Nevertheless, the judge also warned the jury to give serious consideration to any reasons they might have for doubting the credibility of the evidence supplied by P.W.s 17, 32 and 33. The witnesses identified as P.W. 32 and 33 were individuals who had heard the statement of the deceased as taken by Doctor P.W. 17, and the judge’s caution indicated that their testimony remained open to acceptance unless specific reasons for disbelief were shown.

Having reviewed the judge’s instructions to the jury, the appellate court concluded that the judge had not wholly repudiated the prosecution’s case nor had he arrived at a firm, categorical belief that the appellants were innocent. Accordingly, the court could not endorse the counsel’s contention that the judge personally disagreed with the unanimous verdict of the jury while still endorsing it. The court found no factual foundation for the argument that the judge was obliged under section 307 of the Code of Criminal Procedure to refer the matter to the High Court or to set down on record his personal reasons for upholding the jury’s decision in spite of any contrary personal view. Even assuming that the charge to the jury might be read as reflecting a clear inclination in favour of the appellants, the court held that such an inclination, by itself, did not create a mandatory duty to refer the case under the statutory provision. The statutory requirement, as the court understood it, demanded more than a mere personal disagreement; it required a definitive conviction that justice necessitated a higher‑court review. Since the judge’s remarks did not rise to that level of certainty, the court affirmed that no compulsory reference to the High Court was triggered.

Section 307 of the Code of Criminal Procedure required more than a simple disagreement with a jury’s verdict; it demanded that the learned Sessions Judge be “clearly of opinion that it is necessary for the ends of justice to submit the case to the High Court.” The jurisprudence on this point was settled by the Privy Council decision in Ramnugrah Singh v. King‑Emperor (1), which held that even when a Sessions Judge disagreed with the jury, he must ordinarily give effect to the verdict unless he formed a further, unmistakable opinion that “no reasonable body of men could have given the verdict which the jury did.” The Court found that the present case did not meet that test and that the charge to the jury did not express any such definite conclusion. It was noted that, after the jury communicated its unanimous verdict, the learned Judge recorded that he “agreed with and accepted the verdict,” a proceeding the Court considered perfectly competent. Counsel for the appellants argued that this acceptance constituted a judicial act and that, in view of the overall tenor of the Judge’s charge, the Judge was under a duty to himself and to the appellate court to record reasons for accepting the jury’s verdict. The Court could not agree with that contention. While acknowledging that, in a situation where the Judge’s charge had unequivocally urged acquittal, it would be desirable—though not obligatory—for the Judge to explain why he altered his view and accepted the jury’s decision, the Court found no basis for such a requirement in the present circumstances. The two additional contentions identified as points 3 and 4 in the submissions had not been raised before the High Court, and the Court was reluctant to permit those matters to be introduced on a petition for special leave. The argument that the verdict might have resulted from bias lacked serious foundation; the Court observed that the learned Sessions Judge had no justification for entertaining the possibility of bias or for issuing a warning to the jury on that ground. The case did not arise from communal tension, and bias could not be presumed merely because the appellants were Muslims and the jurors Hindus, nor could it be inferred solely from the trial’s proximity to the border between West and East Bengal. Nonetheless, the Court noted that when the jury was empanelled at the start of the trial, there was no objection raised and no right of challenge exercised, a fact that carried some relevance to the overall assessment.

In that portion of the proceedings, no objection to the composition of the jury was recorded, nor was the right to challenge any juror exercised. The counsel representing the appellants advanced a vigorous argument regarding the insufficiency of the examination of the accused under section 342 of the Code of Criminal Procedure. The Court observed that the examination conducted in the Sessions Court had been merely perfunctory. It recorded that the sole line of questioning directed to each accused consisted of the following exchange: the magistrate asked the accused whether he had heard the charges and the evidence, then invited him to state his defence, to which the accused replied, “I am innocent.” The magistrate then inquired whether the accused had anything further to say, to which the answer was “No,” and finally asked whether the accused would adduce any evidence in his defence, receiving the response “No.” The Court emphasized that such a superficial interrogation fell far short of the robust requirements set out in section 342, which is intended to ensure a meaningful opportunity for the accused to present his defence. The Court expressed regret that, despite its own repeated pronouncements in a series of decisions beginning with Tara Singh’s case, the trial court had neglected to comply adequately with the procedural safeguards mandated by the statute.

The Court further explained that a conviction could not be automatically overturned solely on the basis of a deficient examination under section 342; the appellant must demonstrate that the defect caused a tangible prejudice resulting in a miscarriage of justice. Citing its earlier rulings, the Court noted that when an accused is represented by counsel at both trial and appeal, the burden rests on the accused or his counsel to establish that the inadequate examination led to actual prejudice. The Court referred to its judgment in K C Mathew and Others v. The State of Travancore‑Cochin, delivered on 15 December 1955, which held that the mere possibility of prejudice, without concrete evidence of its occurrence, was insufficient. In the present case, the counsel for the appellant was unable to demonstrate any clear prejudice. He contended that the impact of an inadequate examination might be different in a jury trial compared with a trial before assessors, arguing that a thorough questioning in a jury trial serves not only to enable the accused to present his defence but also to influence the jury’s perception. However, the Court rejected the proposition that a lack of comprehensive examination in a jury trial should be presumed to have caused prejudice, stating that the existence of prejudice must be inferred from the totality of facts and circumstances, and that no such inference could be drawn here. Consequently, the Court declined to set aside the conviction on the basis of the alleged procedural defect.

The Court observed that counsel for the appellants had urged that where a trial was conducted before a jury, any failure to examine a witness or an inadequate examination under section 342 of the Code of Criminal Procedure should be presumed to have caused prejudice, and that in such circumstances the conviction should be set aside and a retrial ordered. The Court stated that it could not accept this proposition as a rule of law. It explained that the existence of prejudice must be determined by drawing an inference from all the facts and circumstances of each individual case, rather than by a blanket presumption. While acknowledging that the fact that a trial was held before a jury might, in some appropriate case, be considered an additional circumstance, the Court found no reason to think that the jury trial context in the present matter would have altered the outcome. Consequently, the Court rejected the argument advanced by counsel for the appellants. Furthermore, the Court emphasized that an argument which, if accepted, would require a retrial should have been raised at the earliest opportunity, specifically at the time of the regular appeal to the High Court, and not for the first time in an appeal on special leave. For these reasons, the Court concluded that the appeal could not be entertained and dismissed it.