1. The Sessions Judge, Nagpur, has referred under Section 307 of the Cr PC, to this Court the case of the two non-applicant accused Kankaya and Babulal. These men, with two others, Ramanna and Jhallaiya, were tried in the said Court on a charge under S. 304, Indian Penal Code: the jury in the case of all four men returned a unanimous verdict of not guilty: the Sessions Judge accepted the verdict in the case of Ramanna and Jhallaiya and acquitted them, but has referred the case of the two non-applicants to this Court.
2. The facts of the case, briefly, are that the four men mentioned, along with the deceased man Mohan alias John, all of the domestic servant class, were returning on the night of the 14th September 1925 from a liquor shop in the Sadar Bazar to their homos in the civil station when a drunken brawl arose between them in the course of which Mohan received injuries which caused his death at noon next day, some fourteen hours after the assault.
3. The evidence of P.W 10, Dr. Nerulkar, Assistant Surgeon, before C.M Mayo Hospital, shows that. Mohans was admitted at 11 p.m on the day in question. Of two lacerated wounds or the bead one covered a depressed fracture of the skull. An operation was performed at midnight but proved unsuccessful. The post-mortem examination left no doubt that the depressed fracture of the skull was the cause of death. In addition to the said injury, there was another lacerated wound 3″ by ½″ on the head and some eleven bruises or wounds, obviously of the lathi type, on the back and shoulders. One of these wounds, from its appearance, suggested that a knobbed stick or lathi had been used in the assault About 10 a.m, on the 15th September, Mohan's dying declaration was recorded by a First Glass Magistrate. In this statement Mohan deposed to Jhallaiya having inflicted lathi blows on his head and back and he added that “the bearer of Mr. Gardiner,” who had a lathi, joined in the assault. Kankaya, one of the non-applicants, is the butler of Mr. Gardiner; but this slight misdescription is a venial matter and there can be little doubt but that the deceased referred to Kankaya. Of the other two men, Ramanna is a peon in the Government Press, while Jhallaiya is apparently a butler or cook of Mr. Gardiner. It would have greatly helped to clearness in the present case if. In examining the various accused, either the Magistrate or the Sessions Judge had taken care to record exactly in whose service each accused was, and what post he held. Jhallaiya, for example, is shown by the committing Magistrate as “Mr. Gordon's cook.” The Sessions Judge shows him simply as “butler”. Uncertainties and ambiguities of this nature should have been cleared up at least in the Sessions Court.
4. As the evidence in the case developed, however, the prosecution found it impossible to support the story in the dying declaration that Jhallaiya had been responsible for the assault. The deceased is roved by the medical and other evidence to have been in a thoroughly drunken state at the time of the assault: neither his observation nor memory, therefore, could be depended upon, and, moreover, when he gave his dying declaration, he was in a parlous state owing to the injuries he had received; he had just been operated upon; some of the effects of the chloroform must have remained and, in short, his mental state must have been confused and blurred. I concur with the Sessions Judge, therefore, in thinking that the dying declaration cannot with safety be relied upon unless it receives substantial corroboration from other evidence and this not certainly is not forthcoming as regards details of the assault. (The judgment then discussed the evidence of the three eye-witnesses and proceeded.) The jury on this evidence recorded a verdict of not guilty. The Sessions Judge, in referring the case of the non-applicants to this Court, thinks that the evidence of the three eye-witnesses would justify the conviction of the two non-applicants. In the first place, I desire to remark that this Court is placed at a serious disadvantage in dealing with this case owing to the somewhat cursory procedure of the Sessions Judge. When the latter found it necessary to disagree with the verdict, he should have been at pains to extract from the jury their reasons for disbelieving the alleged eye-witnesses and should have recorded the same for the information and guidance of this Court (cf. 11 Weir, 388, Criminal Appeal No. 166 of 1884.) The Sessions Judge has an implied authority to follow the obviously desirable course of taking from the jury the reasons for their verdict: cf. Emperor v. Annada Charan Thakur [1909] 36 Cal. 629 , 13 C.W.N 757 , 9 C.L.J 638 and this course was all the more desirable when the verdict was a unanimous one and the Sessions Judge disagreed with it.
5. As regards the principle which underlies interference of this Court in a matter like the present, I desire to say that it will interfere only when the verdict of the jury is obviously perverse or manifestly wrong or unreasonable: cf. Emperor v. Madan Mandal [1914] 41 Cal. 662 , 18 C.W.N 668, and King-Emperor v. Dhananjay Ray A.I.R 1924 Cal. 321. The learned Standing Counsel has admitted that the verdict was not necessarily a perverse one, but has urged that it was manifestly wrong or unreasonable. For my own part I find it wholly impossible to assent to the latter proposition so far as the present case is concerned. It seems to ma that any number of reasonable men might well have declined to accept the evidence of the three eye-witnesses referred to above. (The judgment further criticized the evidence of the three eye-witnesses and concluded.) For my own part, unfortunate though it may be that none of the drunken participants in this disgraceful affray can be brought to justice, I am of opinion that the verdict of the jury was a perfectly reasonable and justifiable one in the circumstances of this case and I decline to interfere with it. I accordingly acquit the two non-applicants Kankaya and Babulal and order them to be released.
6. Accused acquitted.