Patkar, J.:— (After stating the facts of the cases as above, the judgment proceeded). The learned counsel appearing on behalf of the accused has urged that there were misdirections and non-directions on points of capital importance to the accused which vitiated the verdict of the jury. It is contended by counsel on behalf of the appellant that as notice is given to show cause why the sentence should not be enhanced to that of death he is entitled to go into the evidence under sub-section (6), section 439, and that in showing cause why the sentence should not be enhanced, he is also entitled to show cause against the conviction. It is further urged that if the Court came to the conclusion that the accused was not guilty, he should be acquitted, but Page: 155if the Court was not prepared to acquit the accused, he should not be convicted if the Court came to the conclusion that there was a misdirection to the jury and the accused was entitled to a re-trial. On behalf of the Crown it was urged that there was no misdirection in the charge to the jury as the conviction was right, but, in any event, if the Court did not accept the verdict, the accused was not entitled to an acquittal, but a retrial must be ordered. Section 439, sub-Section (6) of the Cr PC, runs as follows:
Notwithstanding anything contained in this section, any convicted person to whom an opportunity has been given under sub-s. (2) of showing cause why his sentence should not be enhanced shall, in showing cause, be entitled also to show cause against his conviction.
2. The question is whether in showing cause against his conviction, sub-section (2), 423 of the Cr PC, would prevent the appellant from going into the evidence in the case. Sub-s. (2), S. 423 says:
Nothing herein contained shall authorize the Court to alter or reverse the verdict of a jury, unless it is of opinion that such verdict is erroneous owing to a misdirection by the Judge, or to a misunderstanding on the part of the jury of the law as laid down by him.
3. Even in a jury case where the Court comes to the conclusion that there are misdirections by the Judge, S. 537 lays down that no sentence by a criminal Court shall be reversed on appeal or revision on account of any misdirection in any charge to a jury unless such misdirection has in fact occasioned a failure of justice. It will be necessary for the Court to go into the facts and the evidence in order to consider whether any verdict is erroneous or not on account of any misdirection or error of law and to determine whether the misdirection has occasioned a failure of justice. In a jury case the High Court has in several cases to go into the questions of fact and has to appreciate the evidence for itself. In cases tried by a jury on a reference by the Judge under Section 307 of the Cr PC, or in cases of confirmation of sentence of death under Section 374 of the Cr PC, and in cases falling under sub-s. (2), Section 418 of the Cr PC, the High Court can go into the facts and decide for itself whether the accused is guilty or innocent.
4. Under Section 167 of the Evidence Act:
The improper admission or rejection of evidence shall not be ground of itself for a new trial or reversal of any decision in any case, if it shall appear to the Court before which such objection is raised that, Independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that, if the rejected evidence had been received, it ought not to have varied the decision.
5. In a case therefore of misdirection or admission of improper evidence the High Court can go into the facts and decide for itself whether the decision of the lower Court is right on the merits or whether the misdirection or the illegal admission of evidence has occasioned a failure of justice. In a case tried with the aid of jury, there was some difference of opinion as to the course to be followed when the Court came to the conclusion that there was a misdirection. It was held in Wafadar Khan v. Empress (1894) 21 Cal 955, following the decision in the case of Makin v. Attorney-General for New South Wales (1894) AC 57 , 63 LJPC 41 , 53 JP 148 , 17 Cox CC 704 , 69 LT 778, that the appellate Court cannot go into the facts in such a case, and that it would be tantamount to substituting the decision of the appellate Court for the verdict of the jury, which had an opportunity of seeing the demeanour of the witnesses and weighing the evidence. The view is supported by the Allahabad High Court in Emperor v. Ikramud-din (1917) 39 All 348 , 18 Cr LJ 491 , 39 IC 331. But the view taken in the case of Wafadar Khan v. Queen-Empress (1894) 21 Cal 955 has been dissented from by this Court in Queen-Empress v. Ramchandra Govind (1895) 19 Bom 749, where it was held that Section 167 of the Evidence Act, applied to criminal trials by jury and that when part of the evidence, which has been allowed to go to the jury, is found to be irrelevant and inadmissible, it is open to the High Court in appeal either to uphold the verdict upon the remaining evidence on the record or to quash the verdict or to order a retrial, and that the law as settled in England by the decision in The Queen v. Gibson (1887) 18 QBD 537 and by the Privy Council in the case of Makin v. Attorney-General for New South Wales (1894) AC 57 , 63 LJPC 41 , 53 JP 148 , 17 Cox CC 704 , 69 LT 778 with reference to the granting of new trials where evidence had been improperly admitted, does not apply to India. At p. 763 it was observed as follows:
We have then to apply the test adopted from Queen v. Elahi Bux (1866) 5 WR Cr 80 , BLR Sup Vol 459, by Warden and Page: 156Sargent, JJ., in Reg. v. Fattechand Vastachand (1868) 5 BHCR 85—whether if the case had been tried by a Judge and assessors, the Court would set aside the verdict.
6. The view of the Madras High Court in Emperor v. Edward William Smither (1902) 26 Mad 1 is consistent with the view of the Bombay High Court, and it was held that it was not obligatory on the High Court to order further inquiry or retrial and that the High Court could consider the evidence and if, after so doing, it formed the opinion that the evidence could not, in any proper view of the case, support a conviction, it would not alter or reverse the order of acquittal. The Calcutta High Court appears to have recently taken a view which is more in consonance with the view of the Bombay High Court rather than with the view taken in the earlier decisions of that Court. In the case of Government Of Bengal… v. Santiram Mondal…. AIR 1930 Cal 370 , 1930 Cr C 634 , 127 IC 657 , 32 Cr LJ 10 , 58 Cal 96, it was held that there was nothing in the language of Section 423, sub-section (1)(a) of the Cr PC, to differentiate the way in which the powers of the appellate Court are to be exercised according as it is a jury trial or not, and that the language of the section is wide enough to enable the Court to deal with the entire case on appeal against an order of acquittal, though in a jury trial, and finally dispose of the same. I think therefore, that in a case of trial by jury the appellate Court has power in the event of any misdirection or admission of inadmissible evidence either to convict or acquit the accused according as the evidence is or is not sufficient for conviction, or where the facts have to be determined and the evidence is of such a character as to render it difficult to pronounce any opinion on its character without hearing the witnesses, a new trial may be ordered as in the case of Reg. v. Ramswami Mudaliar (1869) 6 BHCR Cr 47. In the present case notice has been issued to show cause why the sentence should not be enhanced from transportation for life to that of death. It is undesirable that such a notice should be issued at the time of the admission of the appeal. It was held in Emperor v. Mangal Naran AIR 1925 Bom 268 , 87 IC 424 , 26 Cr LJ 968 , 49 Bom 450 , 27 Bom LR 355 that when a case comes to the knowledge of the High Court by an appeal having been filed, it is not desirable, if the appeal is admitted, to issue a notice at the same time on the accused, under Section 439 of the Cr PC, asking him to show cause why the sentence passed upon him should not be enhanced. It was observed by Crump, J., as follows (p. 359 of 27 Bom. L.R):
It is likely to produce an impression on the mind of an illiterate accused in jail, that it is proposed to enhance the sentence because he has appealed. Further, my own experience is that this practice is likely to lead to an Inconvenient result because it confounds two matters which should be kept separate.
7. The Court must first of all deal with the appeal on the merits, and it is only after disposing of the appeal that it can consider whether notice to enhance the sentence should issue. It is observed in one of the judgments in the case of Emperor v. Jorabhai AIR 1926 Bom 555 , 97 IC 805 , 27 Cr LJ 1173 , 50 Bom 783 that no hard and fast rule can be laid down on this point, but if the appeal of an accused person 3 against his conviction and sentence has been dismissed and notice to enhance the sentence has been issued, the conviction is to be treated as correct when another Bench of the Court considers the application for enhancement on the merits. The District Magistrate can move the Local Government to make an application for enhancement of sentence in an appropriate case. It is therefore neither necessary nor desirable for the High Court to issue a notice for enhancement of sentence at the time of admission of the appeal. It is however open to consider the question of enhancement of sentence after the appeal has been heard. In the present case as the notice has been issued at the time of the admission, I think the appellant is entitled on the evidence to show that he is innocent. If the conviction is not correct on the evidence, the appellant will be entitled to an acquittal. If, on the other hand, the evidence is sufficient for conviction, it is not necessary for the Court to send the case for retrial even though there may be misdirection or admission of irrelevant evidence, as the Court can accept the verdict of the jury under Section 167 of the Evidence Act, unless the Court Page: 157is of opinion that it is difficult to arrive at any conclusion on the evidence and that it is necessary or desirable that a retrial should be ordered. (Here his Lordship discussed the evidence and proceeded). With regard to Lilavati, it is urged that certain statements made by her in her deposition come within the prohibition laid down in Section 122 of the Evidence Act. It is urged on behalf of the Crown that objection was taken only to the threat which was given by the accused in order to prevent her from giving out what the husband is alleged to have done to the woman Sundrabai. The learned Judge has made a note to the following effect:
Though it might not be permissible for a husband or wife to disclose the actual communication it is open to the husband or wife to state why he or she followed a particular course of conduct referring only to the effect produced on him or her by reason of any communication which it is not permissible to disclose because S. 122 provides against disclosure of a ‘communication’ and not against disclosure of effect of said communication.
8. With regard to the other statements as to asking Lilavati to wash the knife or to bring water or to take the gunny bag and to pour kerosene oil over it or to give back the knife and take the two bottles, one half full and the other empty, they amount to communications by the accused which ought to have been excluded under S. 122. It is urged on behalf of the Crown that no objection was taken to such questions in the lower Court. On the other hand, counsel on behalf of the accused in cross-examination questioned Lilavati as to whether her husband asked her whether she had thrown the knife into the mori and whether she had told him that she had thrown it into the mori. It might be contended that such communication might have been consented to by the accused, the husband of Lilavati, as the question was asked in cross-examination on behalf of the accused. I think it would have been much better if the learned Judge had excluded any direct question as to the conversation between the accused and his wife with regard to the several statements which have appeared in her evidence, and Lilavati should have been asked merely as to what she did in consequence of what she was told by her husband instead of permitting her to state what her husband told her in consequence of which she did a particular thing or refrained from doing a particular thing. Under Section 120 of the Evidence Act, the wife of an accused person is a competent witness. Under S. 122 the wife is not permitted to disclose any communication made by the husband during marriage unless the husband who made it consents. The prohibition is based on the ground that the admission of such testimony is likely to disturb the peace of family and weaken the feeling of mutual confidence, and, as observed in Nawab Howladar— v. Emperor— (1913) 40 Cal 891 , 15 Cr LJ 303, rests on no technicality that can be waived at will but is founded on a principle of high import which no Court is entitled to relax. The prohibition is not confined to cases where the communication sought to be given out in evidence is of a strictly confidential character, but the prohibition is extended to all communications of whatever nature which pass between husband and wife. (After discussing the evidence in the case, the accused was found guilty of the murder of Sundrabai. The conviction and sentence were therefore confirmed. The sentence was not enhanced, as there was no direct evidence as to the circumstances under which the offence was committed).
Barlee, J.:— The issues in this as in all murder cases are—(1) Is Sundrabai dead? and (2) Did the appellant kill her? The Sessions Judge, concurring with a majority verdict, has answered both questions in the affirmative, and we have to see whether there are any grounds for interference. Ordinarily, we would be able to interfere with the verdict of a jury only if it were shown to be erroneous owing to a misdirection by the Judge or to a misunderstanding of the law. This case is exceptional. The appellant has been called on to show cause why he should not be hanged and has had the right to show cause against his conviction. That, it seemed to us, means any cause, and we have heard the appeal on the merits. We have to decide whether the conviction is bad because of a misdirection (and this includes a material non-direction or error of law); and, also, whether on the facts the appellant is entitled to an acquittal. Nevertheless, though the appellant has two strings to his bow, the opinion of the Judge and of the majority of the jury is a very important Page: 158factor in this case. And I shall therefore first consider the question whether the jury were misled by the charge so as to be able to estimate the value of their opinion. Two errors of law are alleged (pp. I to K). The first is that the learned Judge allowed the accused's wife to mention certain communication made to her by him. She deposed that she had met her husband and that he had ordered her to clean a knife and to burn a gunny bag and so forth. I very much doubt whether such orders, unaccompanied by any explanation or statement, can be classed as communications within the scope of Section 122 of the Evidence Act. In any case her statement, amounted to no more than this: that in consequence of certain directions she had done certain acts, and the accused was in no way prejudiced by the form in which she put tier answers.
9. The other complaint amounts to this that, when the Public Prosecutor refused to call Sakharam the Judge should have called him as a Court witness. Learned counsel bases his argument on the Calcutta case of Ram Ranjan Roy v. Emperor AIR 1915 Cal 545 , 42 Cal 422 , 16 Cr LJ 170 , 27 IC 554 where the Court stigmatized the conduct of the prosecution as unfair inasmuch as certain eye-witnesses had been kept back. The remarks cannot apply to the present case. Sakharam was a servant of the accused's family. He was called by the police, because Chima had implicated him, and he refused to make a statement. Moreover, it must have been apparent to the learned Judge from the conduct of the defence that the accused expected that he would favour the defence. In these circumstances I am of opinion that the Judge was right when he refused to call him. It would have been most unfair to give the defence an opportunity of cross-examining a favourable witness, whilst preserving the right of reply. A trial must be conducted fairly, but that means that the Court must be fair to both sides. This is a stronger case than that of Emperor v. Vasudeo Gogte AIR 1932 Bom 279 , 1932 Cr C 391 , 138 IC 503 , 33 Cr LJ 613 , 56 Bom 334, for the witness whom Gogte's advocate wanted the Public Prosecutor or the Court to call was not likely to favour the defence. (The remaining portion of the judgment discusses evidence which it is not necessary to report.)
K.S
10. Appeal dismissed.