# MUSH'rAK HUSSEIN v. 'rHE S'fATE OF BOMBAY

- **Citation:** [1953] 1 S.C.R. 809
- **Court:** Supreme Court of India
- **Decided:** 1951-09-17
- **Case number:** Criminal Appeal No. 96 of 1952
- **Bench:** Mehr Chand Mahajan, Vivian Bose, Jagannadha Das
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mush-rak-hussein-v-rhe-s-fate-of-bombay-203
- **Pages:** 16

## Headnote

Criminal trial-Charge to jury-Mis-direction-Powers of
appellate Court-Power of appellate Court to go into the whole ease
to determine whether there has been failure of justice-PracticeAppellate Court-Summary 1·ejection of appeal-D1'ty to state
reasons in arguahle cases.
In his charge to the jury the Judge told them that the oase
before them was a jig saw puzzle with some missing links and
directed them to use their ingenuity to piece them together by
finding out the probabilities and seeing whether they could successfully solve the puzzle. Held, this was misdirection in that it invited the jury to exercise its ingenuity by having resort, if necessary, to speculative reasoning.
Where a jury has been mis-directed and bas based its verdict
on assumptions and conjectures the Supreme Court may order a
retrial or remit the case to the High Court with a direction that
it should consider the merits of the case in the light of the decision of the Supreme Court and eay whether there has been a
Ltd.
v.
Rm.N. N.
Nagappa
Chettiar.
Mahajan J.
l9~3
March BO.
810
SUPREME COURT REPORTS
[1953]
1968
failure of justice as a result of the mis-directions, or it may examine the merits of the case and decide for itself whether there
MushtakHumin has been a failure of justice in the case.
· v.
In deciding whether there has in fact been a failure of justice
Th• Stat• of in consequence of a mis-direction, the Court is entitled to take the
Bombay.
whole case into consideration.
Abdul Rahman v. Empel'or (A.LR. 1946 Lah. 82) referred to.
Though in cases which prima Jacie raise no arguable issue
the High Court may dismiss an appeal summarily.without giving
any reasons, it is desirable that in arguable cases the High Court
should in its summary rejection order give some indication of the
views of the High Court on the points raised.
CRIMINAL APPELLATE
JURISDICTION:
Criminal
Appeal No. 96 of 1952. Appeal by special leave
granted by the Supreme Court on the 14th February.
1952, from the Order dated the 17th September, 1951,
of the High Court of Judicature at Bombay (Bavdekar and Chainani JJ.) in Criminal Appeal No. 1026
of 1951 arising out of Judgment and Order dated the
28th July, 1951, of the Court of the Third Additional
Sessions Judge of Poona in Sessions Case No. 78 of
1951.
A. S. R. Chari and J. B. Dadachanji for the appellant.
C. K. Daphtary, Solicitor-General for India, (Porus
A. Mehta, with him) for the respondent.
1953. March 30. The Judgment of the Court was
delivered by
MAHAJAN J.-The appellant on 28th July, 1951,
was convicted on a charge under section 366, Indian
Penal Code, for having kidnapped. at Poona a
minor girl Shilavati in order that she may be forced
or seduced to illicit intercourne and was sentenced to
undergo rigorous imprisonment for two years after a
trial before the third additional Sessions Judge of that
place sitting with a jury of five.
The jury returned a
verdict of guilty by a majority of three to two.
The
Sessions Judge came to the conclusion that the
verdict was not perverse. He therefore accepted it.
The appellant preferred an appeal to the High Court
S C.R
SUPREME COURT REPORTS
811
but this, was summarily dismissed.
This appeal is be1953
fore us by special leave.
M ht kH
·
us a
ussein
The prosecution case was that on the 12th Decemv.
ber, 1949, the appellant who was a music teacher
The State of
went to the house of S,hilavat[ and on the pretext
Bombay.
that there was a girl waiting in his house and that he
llfahajan J.
wanted to compare the voice of Shilavati with the
voice of the girl took her to his house, and with the·
assistance of one Iqbal Putlabai (accused~) kidnapped her.
Shilavati was traced in Bombay after four
months in the house of one Babu Konde. Thereafter
she was medically examined and it was found that she
was pregnant.
To prove the case against the appellant the prosecution examined in all sixteen witnesses. Ont of these
four were eye-witnesses, viz., Pra.hlad, Jamunabai,
Namdeo and Shilavati.
Yamunabai,

## Text

S.C.R.
SUPREME COUR'r REPOR1'8
809
19~8
modified and plaintiff will be entitled to damages in
the sum of Rs. 93,000 on the 3,000 Indian Iron shares.
The decree given to the plaintiff in respect of
Rs. 6, 762-8-0 is set aside over and above the decree
for Rs. 9,100 in his favour set aside by the High Court.
In the calculation of future interest tbe plaintiff will
not be allowed interest from 9th March, 1943, to
12th September, 1944. In the result tbe decree given
to the plaintiff in the sum of Rs. 61, 787 is reduced to
Rs. 42,17 5.
He will get interest at six per cent. per
annum from 5th April, 1937, until pttyment or realization except for a period of one year and six months.
Plaintiff will get proportionate costs throughout.
Trojan ct Co.
Appeal allowed in part.
Agent for the appellant: Ganpat Rai.
Agent for the respondent: M. S. K. Sastri.
MUSH'rAK HUSSEIN
v.
'rHE S'fATE OF BOMBAY.
[MEHR CHAND MAHAJAN, VIVIAN BOSE and
JAGANNADHA DAS JJ.]
Criminal trial-Charge to jury-Mis-direction-Powers of
appellate Court-Power of appellate Court to go into the whole ease
to determine whether there has been failure of justice-PracticeAppellate Court-Summary 1·ejection of appeal-D1'ty to state
reasons in arguahle cases.
In his charge to the jury the Judge told them that the oase
before them was a jig saw puzzle with some missing links and
directed them to use their ingenuity to piece them together by
finding out the probabilities and seeing whether they could successfully solve the puzzle. Held, this was misdirection in that it invited the jury to exercise its ingenuity by having resort, if necessary, to speculative reasoning.
Where a jury has been mis-directed and bas based its verdict
on assumptions and conjectures the Supreme Court may order a
retrial or remit the case to the High Court with a direction that
it should consider the merits of the case in the light of the decision of the Supreme Court and eay whether there has been a
Ltd.
v.
Rm.N. N.
Nagappa
Chettiar.
Mahajan J.
l9~3
March BO.
810
SUPREME COURT REPORTS
[1953]
1968
failure of justice as a result of the mis-directions, or it may examine the merits of the case and decide for itself whether there
MushtakHumin has been a failure of justice in the case.
· v.
In deciding whether there has in fact been a failure of justice
Th• Stat• of in consequence of a mis-direction, the Court is entitled to take the
Bombay.
whole case into consideration.
Abdul Rahman v. Empel'or (A.LR. 1946 Lah. 82) referred to.
Though in cases which prima Jacie raise no arguable issue
the High Court may dismiss an appeal summarily.without giving
any reasons, it is desirable that in arguable cases the High Court
should in its summary rejection order give some indication of the
views of the High Court on the points raised.
CRIMINAL APPELLATE
JURISDICTION:
Criminal
Appeal No. 96 of 1952. Appeal by special leave
granted by the Supreme Court on the 14th February.
1952, from the Order dated the 17th September, 1951,
of the High Court of Judicature at Bombay (Bavdekar and Chainani JJ.) in Criminal Appeal No. 1026
of 1951 arising out of Judgment and Order dated the
28th July, 1951, of the Court of the Third Additional
Sessions Judge of Poona in Sessions Case No. 78 of
1951.
A. S. R. Chari and J. B. Dadachanji for the appellant.
C. K. Daphtary, Solicitor-General for India, (Porus
A. Mehta, with him) for the respondent.
1953. March 30. The Judgment of the Court was
delivered by
MAHAJAN J.-The appellant on 28th July, 1951,
was convicted on a charge under section 366, Indian
Penal Code, for having kidnapped. at Poona a
minor girl Shilavati in order that she may be forced
or seduced to illicit intercourne and was sentenced to
undergo rigorous imprisonment for two years after a
trial before the third additional Sessions Judge of that
place sitting with a jury of five.
The jury returned a
verdict of guilty by a majority of three to two.
The
Sessions Judge came to the conclusion that the
verdict was not perverse. He therefore accepted it.
The appellant preferred an appeal to the High Court
S C.R
SUPREME COURT REPORTS
811
but this, was summarily dismissed.
This appeal is be1953
fore us by special leave.
M ht kH
·
us a
ussein
The prosecution case was that on the 12th Decemv.
ber, 1949, the appellant who was a music teacher
The State of
went to the house of S,hilavat[ and on the pretext
Bombay.
that there was a girl waiting in his house and that he
llfahajan J.
wanted to compare the voice of Shilavati with the
voice of the girl took her to his house, and with the·
assistance of one Iqbal Putlabai (accused~) kidnapped her.
Shilavati was traced in Bombay after four
months in the house of one Babu Konde. Thereafter
she was medically examined and it was found that she
was pregnant.
To prove the case against the appellant the prosecution examined in all sixteen witnesses. Ont of these
four were eye-witnesses, viz., Pra.hlad, Jamunabai,
Namdeo and Shilavati.
Yamunabai, the mother of
Shilavati, stated that on 12th December when she
returned home in the evening she learnt from her
sister-in-law Jamunabai and others that the appellant
had taken Shilavati on the pretext that he wanted to
compare her voice with that of one Prabba who was
waiting in bis house and thereafter Sbilavati had not
come back, that on getting this information she along
with her brothers and sister-in-law went to the house
of the appellant and questioned him as to why
Shilavati was not sent back, whereupon tbs appellant
replied that be bad sent her by bus.
As Sbilav&ti did
not return home, she went to the police and lodged a
complaint. Ananda, uncle of the girl, deposed to the
same effect.
Prahlad, brother of Shilavati, a boy of
school-going age, deposed that be saw Sbilavati going
witb·tbe appellant while he was playing outside the
school. N amdeo, who is a bricklayer, stated that on
the 12th December while he was returning after
completing his work at about 3-30 p. m. be saw
Shilavati going with the appellant.
On medical
examination it was found that Shilavati was a girl of
15 or 16 years of age and that she was pregnant.
Shilavati was examined as P. IV. 10 and she llepose'd
J05
812
SUPREME COURT REPORTS
[1953]
1958
that the accused came to her house at about 3-30
h -:-H
. p.m. aud told her that there was a singing party at
Jfug tan;
usssin
.
.
v.
Kirkee and that she should. accompany him there,
The state of that she went with him on the promise that the
Bombay.
appellant would seud her back before her mother returned home, that while at the appellant's house she
.l!ahajan J.
was asked to smell cer.tain scents and she felt giddy
and could not speak and when she came to senses in
the morning she found herself in Bombay in a hut at
Sion.
She further said tha-t on enquiry from one
Kassam she was told that the appellant had left her
there.
.
On th.e 12th December at about 11-40 p. m.
Yamunaba.i went to Padamji Gate police station and
lodged a complaint there. In the comp la int it was
stated that Shilavati ha.d quarrelled with one Shanta.-
bai and had left the house and since then she had not
returned. The police ware asked to find out her whereabouts.
On the 13t.h she sent a complaint to the
Pollce Iuspector, A Division, Poona. Therein she
made the allegation that the appellant used to come
to her h~use for coaching Shilavati in harmonium,
that she learnt that he had sent a chit to her daughter
in her absence and had called her to his house and
that on enquiries about Shilavati's whereabouts he
had given evasive answers. The police head-constable
who was on duty on receipt of
this complaint
examined Yamunabai. He read out the application to
her and recorded her statement which reads thue :-
"My daughter Shilavati age about 13/14 has left
my house at 4 p. m. I made search for my daughter at
the house of my paternal aunt, but I could not find
her there.
M. H. Gyani (appel!ant) used to come to
my house for coaching up my daughter in singing. I
do not know whether he has taken away my daughter
nor have I seen him taking her away. I have mentioned his name in my application through mistake.
My daughter has gone out of my house to some other
place.
A search should therefore be made for her .
.. .... I again state that. my daughter left tb!;l house
S.d.R.
SUPREME ootJR'r REPORTS
813
after quarreU.iug with my mother Harnahai. This is
woa
given in writing."
Mushta.k Hussetn
In July, 1950, Yamunabai sent an application to
v.
the Collector of Poona. In this application she ~id Th• Stat• 01
that she had appointed the appellant as a. music , Bombay.
master for her daughter, that on Monday the 12th
Mahajan J.
December, 1949, at about 6 p. m. the appellant and
his friend Badsha had induced and kidnapped her to
au unknown plac~. She asserted therein that she was
sure that nobody but both M. H. Gyani and Badsha
had kidnapped her daughter.
In the witness box
Yamuna Bai, as already stated, gave a different story
and Shilavati herself did not fully support the version
of her mother.
On the 14th Marnh, 1950, a letter,
·Exhibit 4-G, was sent by Shilavati to her mother.
The relevant part of this letter is in these terms:-
"Since last so many days, I have left the house
and I have not sent any letter to you and you must
also be worrying as to where I have gone. I am at
Bombay and qu\te well too. Do not worry a.bout me,
I had gone to the river at Bamburda, and there
some one forced me and brought me to Bombay and.
he was prepared to ma.rry with me. He was an
ordinary and old fellow.
J did not like it and he was
going to convert me to Mahomedanism.
I felt
very sorry for this and I was· very much sad.
He
beat me twice or thrice. Te whom shall I express
my sorrow?
But there was a boy staying there
whom I told all the facts and told him to save me
anyhow.
He promised to save me.
There were
two days remaining for my marriage.
Till then,
he arranged for my stay and also for dinner, and
one day before the marriage, previous night be
took me out from that place.
There were many
police complaints against him, and be, at the cost
of his life, saved me.
I married him in order
to return his obligations.
Now I am very happy.
I
am not in need of anything now. He is au ordiu:try
boy.
He works in a press, and be is a worker.
He is
from us and his name is Baburao Ronde and next
814
SUPREME COURT REPOllTS
[i953j
19os
time we will send a photograph of botb of us.
Do
' -
not worry about me. I am very happy. N amaskar to
.1-lu•htak liussein
l
d l
d
.
d ·
v
al
el er y persons an
ash1rwa as to youngsters.
The st~te of N amaskar to grandmother Harnabai. Convey namasBombay.
kars to Anand mama, Vithal mama, Ram mama,
Shankar, Prah lad, Laxman, Hirabai, J amnabai,
Mahajan J. Yamunabai, J a1bai, and to master."
Shilavati is admittedly a talented Harijan girl who
used to take part in dramatic peformances and used
to give public peformances in music and dancing on
some remuneration. The letter written by her from
Bombay speaks for itself and it 'vas on receipt of this
letter and further co~respondence to which it is not
necessary to refer tl:at the police got clue of her
whereabouts and ware able to restore her tG her
mother Yamunabai.
The statute law in India in certain circumstances
permits an appeal against a jury's verdict and authorizes the appellate court to substitu~e its own verdict
on its own consideration of the evidence. It has conferred on the appellate court extensive powers of
overruling or .modifying the verdict of a jury in the
interests of due administration of justice confident
that the appellate judges who have not themselves
seen and heard the witnesses, will not exercise lightly
the responsible power entrusted to them. Section 423
in sub-section (2), Criminal Procedure Code, snates
as follows:-
"Nothing herein contained shall authorize the
court to alter or re.-erse the verd\ct 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."
Section 537 in sub clause (d) provides that no finding, sentence or order passed by a court of competent
jurisdiction shall be reversed or altered on appea.I on
a.ccount of any misdirection in any charge to the jury
·-
S.C.R.
SUPREME COURT REPO.RTS
815
unless such error, omission, irregularity or misdirec1963
ti on has in fact occasioned a failure of justice. Unless
-
.
h
f
· ·
bl' h d ·
h
h
M"sh!akHumin
t ere ore it 1s esta 1s e
m a case t at t ere has
v.
been a serious misdirection by the judge in charging The stot• of
the jury which has occasioned a failure of justice and
Bombay.
has misled the jury in giving its verdict, the verdict
of the jury cannot be set aside.
The learned counsel
Jfahajan 1•
for the appellant contended that the judge in his
charge to the jury misdirected it in several important
particulars and violated the rules of criminal jurisprudence and of evidence in a number of ways. It was
said that he failed to warn the jury that it would he
unsafe for it to act on the stateme'Ilt of Shilavati
without her statement being corroborated by other
evidence in material particulars.
The judge, according to the learned counsel, should have told the jury
that though in law it was open to them if in the circumstances of this case they thought fit te do, to act
on the uncorroborated trestimony of Shilavati but that
ordinarily it was not safe to do so without that statement being corroborated in material particulars. This
omission on the part of the judge, it was urged,
amounted in law to a grave misdirection and the jury
in all likelihood without such a warning arrived at its
verdict on the basis of the uncQrrobora ted evidence
of the girl. That part of the charge in which reference was made by the judge to Shilavati's evidence
wherein she had said that she was told by Kassam
Khan ·that the appellant had left her there was criticized on the ground that the jury had been dire~ted
to act on inadmissible evidence.· 'l'hen it was contended that it was a serious misdirection to direct the jury
that it had to solve the jigsaw puzzle that had arisen
in the case by using their own ingenuity and by
piecing together the various pieces of the puzzle.
The last misdirection relied upon concerned the
following part of the charge:-
"After weighing the probabilities of the case, the
evidence on record, as prudent men if you come to
the conclusion that the story given by the prosecution does not appear to be probable and that the
816
SUP.REME COURT REPORTS
[1953]
wsh
accused must not have committed the offence, then in th at
--
case you have to return a verdict of not guilty."
Jltishta.k H us.f.ei.n.
v.
In our judgment, it is not necessary to pronounce
The State af on all the points urged by the learned counsel, because
liloonbay.
we are of the opinion that the judge clearly misMahajan J.
directed the jury when he askeg it to solve the problem that had arisen 'by exercising its ingenuity and
by resorting, if necessary, to speculative reasoning.
In other words, the judge gave the jury a carte blanche
to come to its conclusion on the basis of its own
conjectures, if necessary. Not only that. He told the
jury to bold the accused not guilty in case it found it
improbable that he must not have committed the
offence.
These propositions placed before the jury
are repugnant to all notions of criminal jurisprudence
and they must necessarily have affected its mind in
arriving at the conclusion. This is how the cha.rge
on this point reads:-
,
" So you will find, gentlemen, that there are as
inany as six versions before this court and therefore
you have to consider all these versions and probabilities of the case, to find out whether the improved
version now before the court is a correct one. I
would like also to bring to your notice the letter writ- .
ten at the instance of Shil11vati from Bombay.
That
letter is Exhibit 4-G.
Sbilavati in her examination
before the court does not admit that this letter was
·written at her instance. However, she has admitted
before the police that this letter was written
at her instance, and this was brought out in her
cross-examination. In bhis letter she had stated
that she had gone on that day to Bamburda river
and there she was forcibly kidnapped by sGme man
who was a.bout to marry her.
That man was an old
man and she did not approve that marriage.
Fortunately, this Konde came to her rescue and took her
to. Bombay and married her.
'l'hat is her statement.
Now, gentlemen,, this is a jigsaw puzzle kept before you.
In jigsaw puzzles aU the pieces are la~pt before us and we
have to use our ingenuity and piece them together. Some
S.C.R.
SUPREME COURT REPOR'fS
817
links are missing in this case.
However, as rightly sub19M
mitted by the learned Assistant Public Prosecutor,· in
-
.
h
Z
t
. h th
b b 'l 'i.
,!' h
Mushtak Hussein
sue cases you iave o weig
e pro a i i .ies OJ t e case
v.
and there/ ore you have to find out from the material beTh• St.t• of
fore us whether you can solve this jigsaw puzzle.
Now
Bombay.
these points are before you that there was a quarrel
with Shantabai.
The chit was alleged to have been
MahajanJ.
sent by accused No. 1, and then the girl went to
Bamburda river and there she was kidnapped by
somebody.
Now, gentlemen, yon have to consider
whether it is or it is not possible that the girl Shilavati might have received some chit probably from
the accused No. l. 'fhis chit was seen by Shantahai
who exposed to Harnabai the grandmother of bhe
girl.
The witness Harnabai is an old woman and
probably she was put out and she might have taken
her to task, and she might have even gone to the
length of stating that she should go out of the
house.
Here is a young girl having hot blood, and
it is or is it not probable that the girl in desperation
had gone to Bambnrda, and she mentions the river,
and gentlemen, you can find that there is a confluence
of the rivers Mula and Mutha ; why did she go to the
river ? Whether it is probable that she wanted to commit
suicide. Yon will find, gentlemen, that near that confluence there is a mosque and in the evidence it has
come out that the girl was found at the but at Sion
with an old Mahommedan named Kassam Khan and
bis keep.
You have to consider whether it is probable that this Kassam Khan and bis keep induced the
girl to go with them to Bombay and whether Kassam
Khan wanted to marry her there.
You have to find
out whether it is probable that this chivalrous man
Konde re'cued her from the old man Kassam Khan
who was about to marry her and got himself married
to the girl.
'rhe fact remains that the girl was found
with Konde in Bombay ultimately. It is in evidence
of the girl herself that she found herself in a hut at
Sion and Kassam Khan and his keep were keeping a
watch over her ........................ So, gentlemen, you
will ha1·e to find out all the probabilities @f the oase and
'
818
SUPREME COURT REPORTS
[1953]
1953
see whether you can successfully solve this pitzzle kept
,, 7 -k
H
. before us by the prosecution."
ruU.! ita
usssin
v.
Had the charge to the jury stopped with the senThe State of ience, "So you will find, gentlemeu, that there are as
Bombay.
many as six versious before this, court and therefore
you have to consider all these versions and probabiliMahafan J.
ties of the case, to find out whether the improved version now before the court is a correct one", n6 exception
could possibly have been taken to it.
When the
learned judge, however, proceeded to direct the jury
to piece together the various pieces of the jigsaw
puzzle by use of their ingenuity be clearly misdirected them inasmuch as he told them that they could in
solving the problem draw upon their own imagination
and exercise their ingenuity in the matter without
reference to the evidence th:i.t had been placed by
the prosecution on the record.
Not only that, the
learned judge himself indulged in speculation and
placed a number of conjectures before the jury for its
consideration. The learned judge surmised that the
girl might well have gone to the river for committing
suicide and asked the jury to consider this surmise as
well. It was further surmised that a chit from the
accused was received by Shilavati and that Shantabai saw that chit, and disclosed it to Harnabai, the
grandmother, who in all likelihood took her to task
and told her to get out of the house and thereupon
the hot- blooded Shilavati went to the river to commit
suicide. There is no evidence whatsoever on the record
about the actual receipt of that chit, of Shantabai
seeing it and exposing this fact to Harnabai and of
Harnabai threatening Sbilavati. All these considerations mentioned to the jury were the results of the
judge's fertile imagination and were bound to mislead
it into the belief that they could indulge in like conjectures and surmises in their effort to solve the
puzzle.
'l'he direction to tbe jury that it was to solve
the jigsaw puzzle by use of its ingenuity does not
find place in an isolated passage of the charge, bot
runs through it .. While winding up the learned judge
again reiterateq it and s~id ;-
S.C.R.
SUPREME COURT REPORTS
819
"As I ha.ve already told you, you have to piece
1958
tfiogdether all the pieces of the jigsaw puz?.le and try to Musht•k-;u,,,in
n out what story appears to you to be probable;
v.
whether the girl was drugged at all, or whether as
Th• state of
stated by her in her letter she went to a river at
Bombay.
Bambnrda and there she met this Kassam Khan and
his keep and along with them she went to Bombay of
Maha,ian 1•
her own accord."
In the concluding part of the charge the learued
judge said:-
"After weighing the probabilities of the case,
evidence on record, as prudent men if you come to
the conclusion that the story given by the prosecution
does not appear to be probable and that the accused
must not have co1nmitted the offence, then in that base
you have to return a verdict of not guilty."
It is not possible to say that these words were likely
to give a correct lead to the jury in reaching its concl11sion.
All that the jury should have been told was
that after weighing the probitbilities of the case and
the eYidence on the record, as prudent men they
should answer "whether the prosecution had made out
the charge against the accused."
We are satisfied
that as a result of these misdirections the jury in all
likelihood gave a divided verdict of guilty by three
to two not on evidence but on the basis of assumptions
and conjectures.
In this situation, the question for consideration is
what proeednre should be followed by this court for
undoing the mischief that has happened and which
would be most conducive to the ends of justice.
The
simplest course open to us is to order a retrial of the
appellant. It is also open to us to remit the case to
the High Court with a direction that it should consider the merits of the case in the light of our decision and say whether there has been a failure of
justice as a result of these misdirections. Lastly, it is
open to 11s to examine the merits of the case a.nd
lDO
820
SUPREME COURT REPORTS
(1953]
1958
decide for ourselves whether there has beeu a failure
-
of justice in the case and an innocent man has been
Mu•hlak Huasein
. t d
v.
con vic ,e .
Th• State of
Bo1nbay.
Mahajan J,
It is now well settled that in deciding whether
there has been in fact a failure of justice in consequence of a misdirection the court is entitled to t'.tke
the whole case into consideration. [Vide Abdul Rahim
v. Emperor(1)]. The words "in fact" in section537(d),
Criminal Procedure
Code,
emphasize
the view
that the court is entitled to go iuto the evidence
itself in order to determine whether there has
been a failure of justice. In the peculiar circumstances of this case we have chosen to adopt
the third course, because at this moment of time
it is most conducive to the ends of justice. It
seems plain to us that on the material on this record
no reasonable body of persons could possibly have
arrived at the conclusion ;hat the appellant kidnapped Shilavati as alleged by the prosecution. We have
taken upon ourselves the responsibility of deciding
this case without the valuable opinion of the High
Court because we feel satisfied that any other course
would cause unnecessary harassment to the appellant.
With great respect we are however constrained to
observe that it was not right for the High Court to
·have dismissed the appeal preferred by the appellant
to that court summarily, as it certainly raised some
arguable points which required consideration though
we have not thought it fit to deal with all of them.
In cases which prima facie raise no argun:ble issue
that course is, of course, justified, but this court
would appreciate it if in arguable cases the ~ummary
rejection order gives some indication of the views of
the High Court on the points raised.
Without the
opinion of the High Court on such points in special
leave petitions under article 136 of the Constitution
this Court sometimes feels embarrassed if it has to
deal with those matters without the benefit of that
opinion.
(r) A.LR. 1046 P.C. 8>,
S.O.R.
SUPREME COURT REPORTS
82i
The learne'd Solicitor-General contended that this
ma
was not a fit case where the court was justified in go- M ht-;;:;
.
ing behind the verdict of the jury and in deciding the u• av. u"""
case in accordance with its own view of the evidence.
The Bt•t• of
It was argued that the charge to the jury had to be
Bombay.
taken as a whole, that though some slight exception
might be taken to certain passages in the charge the
M•h•i•• J.
learned judge had placed the case of both sides fairly
before the jury and that not only did the learned
judge place fairly the case of both sides before the
jury, he indicated his opinion on the evidence strongly
against the prosecution and that being so, the accused
could not be allowed to say ~bat the charge which
was strongly in bis favour and against the prosecution was defective iu law.
It was said that it was
open to the jury to accept the statement of the
mother of the girl as well as the statement of the girl
in spite of the different conflicting versions mentioned in the charge and that the jury having done so,
the matter stood concluded.
As already observed, charge to the jury canuot be
said to be a fair charge if it tells the jury to approach
the decision of the matter from a wrong angle, a.nd
directs it to reach its decision by exercise of its own
·ingenuity and by having recourse to conjectures and
speculative reasoning.
This ccmtention of the learned Solicitor- General therefore cannot be seriously
considered.
That the verdict of the jury was erroneous in that
it could not be the verdict of any body of reasonable
men in the circumstances of this case is fully established by the facts and circumstances on the record.
What Yamunabai deposed in court has been set out
in the earlier part of this judgment. Her case now is
that when she returned home on the 12th December,
1949, at about 6-30 p.m., she found that Shilavati was
not in the house, she made enquiries from Jamna and
Hira, she was told that accused 1 came and told them
that there was a girl in his house and her voice was
to qe compared with SbilaYati's voic.e and took her
822
SUPREME COURT REPOR'l'S
[l 953 J
i9M
away on that pretext. Prahlad, P. W. 4," deposed that
-
.. when his mother returned home at 6 p.m. he told her
MushtakHusmn h
Sh']
t' h db
b h'
.
h
v.
t at
1 ava 1 a
een .seen y
nn mt e company
Th• stat• of of accused l. Jamnaba1, P.W. 5, stated that the .~cBombay.
cused came to the house at 3 p.m. and on the pretext
that one girl had come to his honse for singing he
Mahlij•n J. took Shilrtvati and that when Yamunabai returned
she informed her of what had happened.
Ananda,
P.\V. 6, repeated the sam@ story.
This story stands
completely demolished by the different complaints
that Yamunabai made to the police.
'l'here i.q no
satisfactory explanation whatsoever why when she
made her first report to the police at 11-40 p.m. she
did not tell the police that she had been told by her
son, by Jamuna and by Namdev that the girl had
been taken away by the appellant and that be had
told them that she had been sent back in a bus.
Not
only this, after she had sent a written complaint on
the 13th December to the Police Inspector, Poona,
suspecting the appellant of having kidnapped her
daughter, she made a statement to the head-constable,
withdrawing that allegation in most unambignons
terms and stated that the girl had left the house after
quarrelling with Harnabai. In the first report to the
police she had said that the girl had left after
quarrelling with
one Shantabai.
These
statements made by her could not be said to be the result
of mere figments of her brain.
She must have made
them on some basis. They give the lie direct to her present version.
\Vhen later on she sent an application
to the Collector accusing the appellant and Badsha
of having kidnapped her daughter .she asserted that
they had taken her away to an unknown place at
o p. m., though the occurrence in the earlier complaints was alleged to have taken place at about
3-30 p. m. The Jetter of 1'1th March, 1950, written at
the instance of Shilavati to Yamunabai falsifies all
the Yersions given by her and clearly suggests that
the girl left the house of her own accord.
Ih this
letter she sent her regards to the appellant. If he
bad kidnapped her, that expression of respect would
S.C.R.
SUPREME COUHT REPORTS
823
not have found place in that letter at all.
Another
1153
version was mentioned in the evidence as to how the
-;:
occurrence took place. It was stated that the girl Jlu•hta v~ussoin
received a chit from the appellant and on the basis The stat• of
of this chit a quarrel ensued and the girl left the
Bombay.
house.
Un this state of the record it is quite evident
that the version now given by Yarnunabai to court
Mahaja,. •1•
or by Shilavati after she had come under the influ-
•
ence of her mother cannot be accepted.
It seems
that the appellant because he was a music master and
had been giving lessons to the girl a few months
before her disappearance has been convicted on a
charge under section 366, Indian Penal Code, not
on the basis
of
evidence but on the basis of
surmises and conjectures.
'l'he learned SolicitorGeneral
referred
us
to the statement of
the
bricklayer and of
the boy Prahlad.
A mere
reading of their statements shows that these are not
true and have been procured to fill in gaps in the
prosecution case.
Harnabai was not produced as a
witness in the case and the learned judge in his
charge to the jury was ri'ght when he observed that a
number of links were missing in the prosecution case
and they could only be filled in on the basis of conjectures.
Both Yamunabai and l'rahlad studiously
avoided stating that the girl took part in dramas or
that she danced in public places.
T'hey bried to
make out that Shilavati was an unsophisticated girl
having no knowledge of the world and that she never
danced in public places or she never acted in public
dramas.
There is ample material on the record
consisting of her photos in the advertisements as well
as in the statements made to the police which
establishes that she acted in various dramas for which
she was paid at the rate of Rs. 5 for each performance and that she gave dance performances and
she was intending to make singing and dancing as
her profession.
'l'he very fact that the brother and
the mother were at pains to create a false impression
on the court by deposing falsely was itself sufficient
to show that no reliance coulcl be placed on theii;
~24
SUPREME COURT REPORTS
t1953j
ma
testimony.
We are therefore firmly o.f the opinion
--
. that there has been a grave failure of jmtice in this
M1l8htakHu'36'n
d h
JI
·
h
b
v
case an t e appe ant, an mnocent man,
as
een
Th• siate of convicted of a serious offonce on a verdict of the jury
Bomba~.
arrived at in all likelihood on the basis of conjectures
a.nd th:i.t that verdict was the consequence of the
Mahajan J,
misdirection given to the jury by the judge.
For the reasons given above we allow this appeal,
set aside the verdict of the jury, and acquit the
appellant
of
the
offence
with
which he was
charged.
Appeal allowed.
Agent for the appellant: V. P. K. Nambiyar.
Agent for the res poll.dent: G. H. Rajadhyakshet.