Emperor v. Jagmohan And Another

Bind Basni Prasad, J.:— This is a reference by the learned Assistant Sessions Judge of Saharanpur under section 307 of the Code of Criminal Procedure. The complainant in this case was a European British subject. The two accused are British Indian subjects and they claimed the trial by jury under the provisions of chapter XXXIII of the Code. The Committing Magistrate held that they were entitled to this. The learned Assistant Sessions Judge accordingly tried the two accused with five jurors.

It is an undisputed fact that at about 2.30 a.m, on the night between August 8 and 9, 1945, Fusilier Spence and Captain (now Major) Wright, who were out for military exercise near the Mohand pass on Dehra Dun-Saharanpur road, received some gunshot wounds. Fusilier Spence died the following morning at about 10 a.m According to the post-mortem examination conducted by Captain Lahiry the cause of death of Fusilier Spence was concussion of the cord and medulla oblongata due to gun-shot wound. The pellet was extracted at the post-mortem examination from the tissue behind the larynx in front of the fourth cervical vertebrae. It was handed over by Captain Lahiry to the police and was produced before the learned Assistant Sessions Judge. According to Mr. Harris, Deputy Superintendent of Police, P.W 10, the pellet was one which is usually put in L.G cartridges ordinarily used in a 12 bore gun. Captain Wright re-reived three injuries. The first one was on the neck. The second one was an entry on the ulnar side of the left wrist and an exit on the radial side of the wrist. The third wound was on the buttock. Captain Wright was discharged from the hospital after fifteen days. He was examined before the learned Assistant Sessions Judge on December, 11, 1945 and he stated, that even then he was undergoing massage, radiant heat and faradism in an endeavour to bring back the sense of his law and wrist nerves.

There are two accused in this case, Jagmohan Thukral, aged 26 years and Ravi Thukral, aged 15 years. The former is one of the proprietors of the Green Hotel at Dehra Dun and the latter is a student. They are first cousins.

The charge against Ravi was that it was he who caused the injuries to Fusilier Spence and Captain Wright while coming by car from Saharanpur to Dehra Dun on the night of the occurrence. He held no licence for a gun. On these allegations he was charged with offences under sections 304(A) and 337, I.P.C and Section 19(f) of the Arms Act. Jagmohan accused was also in the car along with Ravi and it is alleged that it was with his gun that Ravi committed the offence. He was, therefore, charged for abetment of the offences under sections 304(A) and 337, I.P.C and for the substantive offence under section 21 of the Arms Act. He holds a licence for the gun.

The unanimous verdict of the jury was that Ravi was not guilty of the offences under sections 304(A) and 337, I.P C, but was guilty of the offence under Section 19(f) of the Arms Act. As against Jagmohan the jury returned a unanimous verdict of not guilty in respect of all the three offences with which he was charged. The learned Assistant Sessions Judge agreed with the verdict of the jury under Section 19(f) of the Arms Act as against Ravi and sentenced him to a fine of Rs. 200 or in default to undergo a simple imprisonment for three months. He disagreed, however, with the rest of the verdict and has referred the case to this Court, recommending that Ravi be convicted of the remaining two offences and Jagmohan of all the three offences for the commission of which they were charged.

I may say at the outest that the procedure adopted by the learned Assistant Sessions Judge in submitting to this Court only a part of the case is irregular. Sub-section (2) of section 307 of the Code of Criminal Procedure provides as follows:—

“Whenever the Judge submits a case under this section, he shall not record judgment of acquittal or of conviction on any of the charges on which such accused has been tried, but he may either remand such accused to custody or admit him to bail.”

It is clear from the above provision that the whole case should have been submitted to this Court and no judgment of conviction on any head of the charges should have been recorded by the learned Assistant Sessions Judge. A similar point came up before this Court in Emperor v. Nawal Behari*(1). In that case also the learned Sessions Judge had convicted the accused on some of the charges and disagreeing with the verdict of the jury in respect of the other charges had referred that part of the case only to this Court. This Court, while expressing its disapproval of the procedure adopted by the learned Sessions Judge, considered the whole of the case, substituted its own judgment and sentence for that awarded by the learned Sessions Judge and disposed of the reference in respect of the other heads of the charges on merits. I think it would be proper to adopt the same procedure in the present case. I shall consider the whole of the case and not only so far as it relates to the charges under sections 304(A) and 337, I.P.C and section 21 of the Arms Act.

Now from the mere fact that Ravi has been charged under Section 304(A) it is obvious that it is not the prosecution case that he or Jagmohan intended to wound Tusilier Spence and Captain Wright or did the alleged act with the knowledge that it was likely to result in injury to these two persons. The charge against Ravi is that he committed a rash and negligent act by firing two shots at night into the forest without taking good care, with consequent injuries to Fusilier Spence and Captain Wright.

The accused deny that the injuries to Fusilier Spence and Captain Wright were caused from their gun-shots and suggest that some other party was responsible for the same. They further contend that even if it be held that the injuries were caused from their gun-shots, they committed no rash or negligent act and that they are protected by section 79 of the Indian Penal Code which provides inter alia that nothing is an offence which is done, by any person who by reason of a mistake of fact in good faith believes himself to be justified by law in doing it.

Before examining the prosecution evidence the statements of the accused recorded under section 164 of the Code of Criminal Procedure and the circumstances in which they were made may be mentioned. It will be remembered that the occurrence took place on the night between August 8 and 9, 1945. It so happened that the two accused along with P.W 9, Jamal Uddin, left Dehra Dun for Saharanpur on the afternoon of August 8 for some business by a car which belonged to Jamal Uddin. On their way back they visited Roorkee. They started from there at about 8.30 p.m The distance between Roorkee and Dehra Dun is 40 miles. They were delayed on the way on account of a puncture. There was a forest on the way and the party had in mind when they started from Dehra Dun to do some shooting if an animal was found. Jagmohan had, therefore, taken his gun with him. When the party on its way back reached near the Mohand pass, Ravi fired two shots from the car at what he considered to be an animal but thinking that his shots had missed, the party did not stop and proceeded by the car. They reached Dehra Dun at about 4 a.m The party took no action on August 9 in the way of any information to the police, probably because they thought that nothing untoward had happened as a result of the firing. At about 11.30 p.m on August 9 one Darrick who is the manager of the Green Hotel informed Jagmohan that a Circle Inspector of Police who had come to the hotel to dine was mentioning that an incident had taken place on the previous night near the Mohand pass as a result of which a British officer and a British soldier had received gun-shot wounds. On hearing this it occurred to Jagmohan that it might have been caused by the gun-shots fired by Ravi. So on the following morning he consulted P.W 4, Khurshed Lal Vakil, and also a relation of his. The latter advised Jagmohan to go to the Superintendent of Police and state to him frankly and straightforwardly what had happened. Jagmohan followed this advice. He along with Ravi and Jamal Uddin were then examined under section 164 by P.W 5, Mr. Bokhari, a Magistrate, first class. Exs. p9, p10 and p17 are their statements under section 164.

The prosecution examined twelve witnesses before the learned Assistant Sessions Judge and tendered the medical evidence of Major Griffths, Captain Gibson and Captain Lahiry. The evidence of Captain Christie recorded before the Committing Magistrate was also admitted in evidence under section 33 of the Evidence Act as at the time of the evidence in the court of session he had left for England. Thus there was in all the evidence of sixteen witnesses for the prosecution.

The first remarkable feature of the case is that the only witness who can give definite and direct evidence about the charges framed against the accused is P.W 9, Jamal Uddin. This witness does not all support the case against the accused. He does not say that Fusilier Spence and Captain Wright were injured by Ravi. He says that Ravi fired at what he considered to be an animal and that he did not see or hear any man after the shots had been fired. Further he locates the place at which Ravi fired the shots differently from that fixed by Captain Wright and other, prosecution witnesses. According to Jamal Uddin these shots were fired at a distance of about 3¼ furlongs or 733 yards from the temple near the Mohand pass. The temple itself is at a distance of 30 or 40 yards from the tunnel. Captain Wright, however, locates the place from which the gun-shots were fired at about 150 or 200 yards from the temple near the tunnel. The learned Assistant Sessions Judge remarks that Jamal Uddin being a friend of the accused is supporting them. It may or may not be so, but the fact remains that Jamal Uddin's evidence does not help the prosecution case. On the other hand, it helps the defence story.

The case against the accused thus rests entirely on circumstantial evidence. It is a well-established principle of law that an accused can be convicted on circumstantial evidence only when such evidence is quite incompatible with his innocence and there can be a reasonable certainty of his guilt. I am of opinion that judged by this standard the evidence adduced by the prosecution cannot be said to prove the case against the accused.

Learned counsel for the Crown has argued that at least Ravi accused can be convicted on his statement under section 164 of the Code of Criminal Procedure. In fact he goes so far as even to suggest that the statement amounts to a confession. As regards Jagmohan he has frankly stated that no case against him is made out. The gun was lying loaded on the seat of the car. Jagmohan himself was driving it and he had intended to do the shooting himself but upon sighting an animal Ravi suddenly took up the gurt and fired it. Thereupon Jagmohan rebuked him. Certainly this cannot be said to be an abetment on his part; nor can be said to have committed the offence under section 21 of the Arms Act. The case against Jagmohan has thus no legs to stand. I shall, therefore, confine myself now to the case against Ravi alone.

I entirely disagree with learned counsel for the Crown that Ravi's statement under section 164 amounts to a confession. He nowhere admits that his shots hit Fusilier Spence and Captain Wright. He says that he saw the eyes of an animal and he fired at it. He thought that he had missed it and he did not see the animal falling down. He added in his statement before the Committing Magistrate that he had fired the shots about half a mile from the tunnel towards Saharanpur. He did not admit that the shots were fired at the time at which Fusilier Spence and Captain Wright received the gun-shot wounds. He adhered to that statement in his examination before the Committing Magistrate and the learned Assistant Sessions Judge.

Now what is the evidence against Ravi? The first witness is Captain Wright. The incident occurred in the following manner in his own words:—

“On August 9, 1945, was commanding an exercise in the area of the Mohand Pass. Fifteen or twenty persons were in that party and we were stationed on two sides of the road. It was about 2.30 a.m was sitting off the road with my back towards the road and talking to Fusilier Noble who was sentry then. I was on the left of the road as we go to Dehra Dun. I was at a distance of 8 or 9 feet from the road then……………About ten persons were sleeping in my party under mosquito nets…………This place is about 150 or 200 yards from the temple near the Mohand tunnel, on the Saharanpur side. I and Noble were then 1 smoking and we were facing each other. We heard sounds of a motor car approaching and it stopped about 30 yards from us on the wrong side of the road. The car was coming from Saharanpur side. The head lights of the car were shining on us and a torch was flashed on us from the right hand side of the car. Because of the head lights I estimated the front of the car and the torch appeared above and behind. A shot rang out and this hit me through the left wrist, and passed out at the base of the thumb. I merely stood up and shouted at the top of my voice ‘For God's sake, stop firing’ and another shot rang out and this shot hit me in the left jaw and passed through my jaw bone and neck bone and came out through my right throat. This shot knocked me on the ground. As I fell down I felt another pain in my left buttock. The torch was put out and the car immediately accelerated and went off with full speed towards Dehra Dun. If appeared to me to be an Austin or Morris Saloon car.”

About fifteen minutes later the witness heard what appeared to him to be a groan from the direction where Fusilier Spence was lying down. It was found that Fusilier Spence had been hit on the back of his neck. Some time was taken in arranging for transport and eventully a military lorry happened to pass by the road from Saharanpur to Dehra Dun. Captain Wright and Fusilier Spence went in it to the combined military hospital at Dehra Dun. When they were about two miles from Dehra Dun, they saw a car stranded on the road and apparently empty. It looked like the car from which the gun-shots had been fired. They did not stop the lorry to examine the car. Captain Wright tried to read the number of that car and it appeared to him that it was either U.S.S 713 or U.P 8713.

Now it is admitted that the number of the car by which the accused travelled is U.P.S 715, vide recovery list Ex. P3. It is an Austin car. It is also admitted by them that on their way back from Saharanpur about two miles off from Dehra Dun the petrol in the car was exhausted and they had, therefore, to leave it on the road there to bring petrol. It was between 4 and 5 a.m that jamal Uddin was able to bring petrol to the place. It is, therefore, quite likely that the car which was sighted by Captain Wright when he was on his way to the hospital was the one by which the accused travelled from Saharanpur to Dehra Dun, but from this there can be no positive inference that it was the same car from which the shots were fired specially when we find that Captain Wright in his statement before the police stated—“I am not sure whether or not this was the same car from which we were fired on.”

Captain Wright is naturally not able to identify any of the accused. His evidence, therefore, does not connect the accused with the offence. He says that the head lights of the car were illuminating the whole scene and that he and his party were in the middle of it. This statement creates the impression that Ravi fired the gun although he saw human beings in the locality. That is, however, not the prosecution case.

The second witness is Fusilier Noble. He corroborates Captain Wright's story about the manner in which the occurrence took place. He adds that Fusilier Spence was sleeping towards his left about 31 yards from him. In his cross-examination he stated that the colour of the abandoned car that they saw while passing towards Dehra Dun was blue and grey. In fact the colour of the car is maroon and the mud-guards are black. It is not gray or blue. In this connection Jamal Uddin's statement may be seen. Further Noble states that many trucks and cars passed by the road both ways between 8 p.m and the time of the incident. It is thus clear that Jamal Uddin's car was not the only car which passed by the scene at or about the time of the occurrence that night.

The third witness was Corporal Wyllie. He was also one of the party that was having military exercise near the Mohand pass, tunnel. He was sleeping. He states that he was awaken between 1 and 2 a.m by the head lights of the car which was going from Saharanpur to Dehra Dun. The difference in time is noteworthy. The witness states that the upper portion of the car was blue or black and the lower portion was green. This is quite inconsistent with the statement of Fusilier Noble and does not tally with the real colour of Jamal Uddin's car.

The fourth witness is Khurshed Lal, Advocate. He states the story given to him by Jagmohan and Jamal Uddin. There is nothing in that story to incriminate the accused because Jagmohan told him that Ravi had fired the shots at an animal and not at the place where Captain Wright and Fusilier Spence were but at a point which was about half a mile off from the tunnel. He adds that he advised Jagmohan to report to the police as a precautionary measure. The learned Assistant Sessions Judge remarks that the conduct of the accused in going to the police to report about the incident shows their guilty mind. Far from this, I think it shows their innocence. It may be that, having regard to the fact that Ravi had fired the shots at a distance of only about half a mile from the tunnel, the police might suspect them and prosecute them in connection with the wounding of Fusilier Spence and Captain Wright. Mr. Khurshed Lal accordingly advised them to place the whole facts before the police so that their conduct may be above board.

P.W 5, Mr. Bokhari, states that when the accused came to him to make the statement, they did not appear mentally disturbed, worried or terrified and they had a normal state of mind. The impression on his mind was that the accused had made the statements in a frank and straightforward manner. The learned Assistant Sessions Judge remarks that probably the accused made a show before the learned Magistrate. Ravi accused is a boy of fifteen years and it is rather improbable that he should have been so successful in making, a pretence before the Magistrate so as to create such an impression upon the latter's mind. The conduct of the accused in going to the police to make the report, the manner in which they gave their statements before Mr. Bokhari and the fact that they voluntarily handed over the gun, the cartridge, the torch and the car to the police the same evening, viz., on August 10, 1945, are index of their innocence rather than of guilt.

P.W 6, Jalal Uddin and P.W 7, Balmakund, are formal witnesses.

P.W 8, Darrick Edward, is the manager of the Green Hotel and he corroborates the defence story about the petrol having run short at a distance of two miles from Dehra Dun and about his having told Jagmohan of the shooting incident about which he had heard from the Circle Inspector of Police.

P.W 9, is Jamal Uddin. As already stated above he does not lend any support to the prosecution case against the accused.

P.W 10 is Mr. Harris, Deputy Superintendent of Police. He states that the pellet Ex. 6 which was extracted from the body of Fusilier Spence is the one which is usually put in L.G cartridges ordinarily used in a 12-bore gun. Out of the 17 cartridges recovered from the accused two were L.G cartridges. It is argued from this that it is likely that Fusilier Spence was hit by one of the L.G cartridges in the possession of the accused. The empty cases of the cartridges were not produced before the trial court. L.G cartridges are not a rarity and on the mere fact that two such cartridges were found in the possession of the accused and the pellet extracted from the body of Fusilier Spence was one which according to Mr. Harris is usually put in L.G cartridges, it is not possible to draw the inference with any degree of certainty that it was the accused who had fired the gun-shots which injured Fusilier Spence and Captain Wright.

P.W 11 is Mr. Hamid Hassan, Station Officer, Kotwali Dehra Dun. He prepared a site plan in which the distance from the place from which the shots are said to have been fired to the place where Captain Wright was is shown as 125 feet. According to Captain Wright the distance was only 30 yards or 90 feet. This discrepancy in the distance is significant, but it may be that the Station Officer made a mistake in preparing the plan.

The learned Assistant Sessions Judge inspected the locality on December 17, 1945. A car was made to stand at a distance of 125 feet from the place where the blood spots are said to have been detected. He found that the shots could not be fired from that place on any one at the place where the blood spots are said to have been found by the Station Officer.

To sum up, the position is that there is no direct evidence that the unfortunate injuries to Captain Wright and Fusilier Spence were caused by Ravi's gun-shots. The circumstantial evidence against him is not such as can eliminate all reasonable doubts of his innocence. The learned Assistant Sessions Judge relies upon the following circumstances against the accused:—

(1) The time at which Captain Wright and Fusilier Spence received the gun-shot wounds is about the same as the one at which the accused would according to the prosecution evidence, have passed by the scene of the occurrence.

(2) The conduct of the accused.

(3) The facts that the pellet extracted from the body of Fusilier Spence is one which is ordinarily used in L.G cartridges and two such unused cartridges were recovered from the accused.

(4) The identity of the car.

(5) Ravi accused who was a novice and had not handled the gun prior to the night of the occurrence was rash and negligent in firing from a moving car in a jungle without the help of any light.

All these circumstances are capable of reasonable explanation.

First as to the time factor, it appears from the statements of Jagmohan and Jamal Uddin under section 164 of the Code of Criminal Procedure that they started from Roorkee at 8.30 p.m When they had come about 10 miles there was a puncture in one of the tyres. They had no spare wheel, so Jamal Uddin had to go to Roorke for the repair of the tyre leaving the car and Jagmohan and Ravi at that place. He was able to return to that place at about 12.30 in the night. The wheel was fitted; the party took the food brought by Jamal Uddin and then they started from that place at about 1 a.m The sence of the occurrence is about 8 miles from Dehra Dun, so the distance between the place where the tyre was punctured and the scene of the occurrence was 22 miles. On the way they met with another accident. The hub of one of the wheels dropped and it took them about 20 minutes to search for it and to find it out. It further appears from Jamal Uddin's evidence that they were not driving the car very fast. Jagmohan was driving the car and Ravi was sitting next to him. Jamal Uddin was at the back seat. Ravi was flashing the torch being on the look out for some game. If we eliminate about 20 minutes' wastage for the search of the hub, then it means that the party covered a distance of about 22 miles in about one hour. I do not say that it is unlikely that this distance could have been covered in this time, but it is also possible that having regard to the slow speed at which they were driving they might not have reached the scene of occurrence at about 2.30 a.m when the incident took place. At any rate, there is no definite evidence that Jamal Uddin's car passed by the scene of the occurrence exactly at the time when the incident took place.

As regards the conduct it has already been shown above that the report made by the accused to the police can reasonably be interpreted as an exculpatory circumstance rather than an inculpatory one.

Regarding the pellet also it has been shown above that it is not possible to draw the conclusion with any degree of certainty that the pellet found in the body of Fusilier Spence was the one which was fired from the cartridge in the possession of the accused.

As regards the car it has been shown that none of the prosecution witnesses are definite that Jamal Uddin's car is the one from which the gun-shots were fired. The prosecution witnesses differ as regards the colour. Captain Wright stated before the police that he was not sure whether the car which he found stranded near Dehra Dun was the one from which the gun-shots had been fired.

Lastly, even if it be assumed that the gun-shots were fired by Ravi from Jamal Uddin's car, the question still remains whether or not this amounted to a rash and negligent act on his part. In Empress of India v. Idu Beg it was observed:

“that criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury, but without intention to cause injury, or knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence is the gross culpable neglect or failure to exercise, that reasonable and proper care and precaution to gaurd against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted.

Now what was the position in the present case? It was a pitch dark night. There is nothing on the record to show that there was any caution or signal to warn people that any military exercise was going on near the Mohand pass. Questioned by the court Jamal Uddin stated that when going from Dehra Dun to Saharanpur at about 4.15 p.m on August 8, 1945, he did not see any military camp near the Mohand pass, nor did he see any such military party when returning from Saharanpur. The place where the occurrence took place was a forest and there could reasonably be no suspicion in the mind of Ravi accused that any human being was at the place where he was firing. If a person in his zeal to try his hand at shooting fires a gun in a jungle at a late hour of the night at a place where no human being can be suspected to be present at what he considers to be an animal, he cannot be said to be guilty of a rash and negligent act. If he mistook something else as an animal, then section 79 of the Indian Penal Code comes to his rescue. There is a peculiar feature in this case. While Ravi accused does not say that he fired the shot in the light of the torch, the prosecution witnesses suggest that the shots were fired in the light of the head lamps and of the torch. The learned Assistant Sessions Judge has held that the gun was fired in darkness and that there was no light of the head lamps or of the torch. If it was so, then certainly Captain Wright and Fusilier Spence were not shot by Ravi because, according to Captain Wright, the shots hit him when the whole scene was illumined by the head lights of the car.

In this state of the evidence if the jury returned a verdict of not guilty under sections 304(A) and 337, I.P.C it cannot be said to be unreasonable or wrong, what to speak of its being perverse or impossible. When in a case two reasonable views are possible and the jury takes one such view, the High Court will not interfere with it, especially when it is a unanimous verdict. It appears from the record that the jurors applied their mind fully to the case. They took one hour and twenty minutes to consider their verdict. After the verdict was given the learned Judge asked the jury to give their reasons and they submitted the same then and there in writing. A perusal of the reasons given by them will show that the jurors are not illiterate persons. They appear to be men of ordinary commonsense capable of forming their opinions on reasonable grounds. I may remark here that the procedure adopted by the learned Judge in asking the jury to give their reasons in writing is not one which can be approved of. The law nowhere requires the jury to give reasons for the verdict. Under sub-section (1) of section 303 of the Code of Criminal Procedure the Judge can ask the jury only such questions as are necessary to ascertain what their verdict is. This does not mean that they can be asked to give their reasons. The jury are not trained Judges and to ask them to give their reasons in writing or in other words to ask them to write a judgment is a procedure which is likely to put them in an awkward position. I would, therefore, express my disapproval of the procedure adopted by the learned Assistant Sessions Judge.

Learned counsel for the accused has relied upon Emperor v. Chirkua in which it was held that the mere fact that upon a consideration of all the evidence a Judge would have arrived at a conclusion different from that arrived at by the jury would not justify the court in interfering with their unanimous verdict. In that case this Court declined to interfere with the verdict on the ground that it was not perverse. In Emperor v. Panna Lal(2) also it was held that the High Court should interfere only when a jury has arrived at a verdict which is perverse or clearly and manifestly wrong. Learned counsel for the Crown relies upon the Full Bench case of Emperor v. Shera(3) in which it was held that where a jury has given its verdict on the facts of the case it is open to the High Court to revise that verdict on a reference by the trial Judge made under section 307 of the Code of Criminal Procedure even where it is not alleged that there has been any misdirection by the Judge or any misunderstanding by the jury of the law as laid down by the Judge. It will be seen that this case has not overruled the principles laid down in Emperor v. Chirkua or Emperor v. Panna Lal. The court was concerned in that case about the powers of the High Court on hearing a reference under section 307 of the Code of Criminal Procedure. In subsequent cases which came up before this Court, Emperor v. Chirkua was followed and it was held that Emperor v. Shera was no authority for departure from the principles laid down in Emperor v. Chirkuna, vide King-Emperor v. Madan Gopal(4). In Emperor v. Bansi(5), it was held after considering the case of Emperor v. Shera that in cases where there has been a verdict of not guilty it was the practice of this Court and also of other High Courts not to reverse the verdict of a jury unless it was perverse or manifestly wrong. On the other hand, where the jury had returned the verdict of guilty the matter stood on a different footing. It was further observed that the verdict of a jury, especial when it is unanimous, should not be lightly displaced.

It cannot be said that the evidence in this case before us is of such a character that a verdict of not guilty passed by the jury is demonstrably wrong. I see no good reason to upset the verdict of not guilty given by the jury.

Learned counsel for the accused has argued that an offence under Section 19(f) of the Arms Act is not made out against Ravi. Section 19(f) provides that whoever has in his possession or under his control any arms or ammunition in contravention of the provisions of section 14 or 15 shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both. Sections 14 and 15 in essence provide that no person shall have in his possession or under his control any firearms or any ammunition without a licence. It is amply prove that Ravi had no licence for the gun. It is admitted that he took hold of Jagmohan's gun and fired it. Though the possession was for a very short time, nevertheless he committed an offence under Section 19(f). Emperor v. Babu Ram has been relied upon on his behalf. The facts of that case are distinguishable from those of the present one. In a communal not taking place in different parts of a town the accused in that case took up the gun of his brother who was a licence-holder and fired shots in the air so that people his chievously inclined might know that it was not safe for them to do any mischief to the people living in the house. It was held that no offence had been committed by the applicant. It was observed in that case while discussing the question of possession, that if a servant takes out the gun without the permission oil his master and commits an offence with it, or goes out for a mere show in a marriage procession, his possession would be unlawful. I am of opinion that the ruling is not applicable to the facts of the present case.

I am of opinion that the case under Section 19(f) of the Arnis Act is clearly made out against Ravi. The sentence passed by the learned Judge does not err on the side of severity.

It was argued on behalf of Ravi that the provisions of the U.P First Offenders Probation Act, 1938, should be applied to the present case. Section 3 of that Act is not applicable because the offence under section 19 (f) of the Aims Act is punishable with more than two years' imprisonment. Section 4, however, can be applicable, but I do not think that in the circumstances of the case it is one in which, it should be applied.

Lastly it was argued on behalf of the defence that this reference is not competent because the learned Assistant Sessions Judge, having pronounced his judgment in respect of the charge under Section 19(f) of the Arms Act, could not refer the remaining portion of the case to this Court and in this connection we are referred to Emperor v. Basnoo Chandra Das, K.E v. Hazari Lal and Ram Janam Tewari v. King-Emperor. No doubt these three cases do support the contention of learned counsel for the defence, but against these authorities we have the case of our own High Court in Emperor v. Nawal Behari*. It is urged that in this case the point of incompetency of reference was not raised before the learned Judges and so it was not considered by them. It is unnecessary to discuss the view taken in the Calcutta and the Patna cases, because I have arrived, at the conclusion that in the present case there are no grounds whatsoever for interference with the verdict of the jury. Further as already stated the procedure adopted in Emperor v. Nawal Behari* by this Court should be followed in this case.

For the reasons given above I would reject the reference accept the verdict of the jury, set aside the judgment and the sentence passed by the learned Assistant Sessions Judge, convict Ravi accused under Section 19(f) of the Arms Act, sentence him to a fine of Rs. 200 only and in default to undergo a simple imprisonment of three months and acquit Ravi of the offences under sections 304(A) and 337, I.P.C and Jagmohan of the offences under sections 304(A) and 337 read with section 109, I.P.C and section 21 of the Arms Act.

Verma, J.:— I agree and do not consider it necessary to add anything.

Per Curiam:— The recommendation made by the learned Judge below is rejected and the verdict of “Not guilty” delivered by the jury with regard to the offences under sections 304(A) and 337. I.P.C with which Ravi Thukral was charged and the offences under sections 304(A) and 337 read with section 109, I.P.C and under section 21 of the Arms Act with which Jag mohan Thukral was charged is upheld. Ravi Thukral and Jagmohan Thukral are acquitted of the offences mentioned above.

The judgment of conviction under Section 19(f) of the Aims Act recorded by the court below and the sentence passed by it in respect thereof are set aside.

Ravi Thukral is now convicted by this Court under Section 19(f) of the Arms Act and is sentenced to a fine of Rs. 200 only. In case of default in the payment of the fine, Ravi Thukral will undergo simple imprisonment for three months.