# V enkateswarl u v. Ohilukuri

- **Citation:** [1954] 1 S.C.R. 435
- **Court:** Supreme Court of India
- **Decided:** 1952-06-16
- **Case number:** CRIMINAL APPELLA'l'E JURISDICTION. Criminal Appeal No. 76 of 1953
- **Bench:** B. K. MuKHERJEA arid N. H. BHAGWA'rI
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/v-enkateswarl-u-v-ohilukuri-303
- **Pages:** 10

## Headnote

Criminal Proced·urc Code (V of 1898 as amended), -ll. 807-Reference to High Oo1irt-Propcr approach-J,ury-Sole Judges of
facts-Provided verdict co1dd be arrived cit by reasonable body of
men.
The proper method of approach in the matters of references
under s. 307 of the Criminal Procedure Code as finally settled is
that the High Court will only interfere with the verdict of the
jury if it finds the verdict perverse in the sense of being unreasonable, manifestly wrong or against the weight of evidence.
If the facts and circumstances of the case are such that a
reasonable body of men could arrive at one conclusion or the
other, it is not competent to the Sessions Judge or the High Court
to substitute their verdict in place of the verdict which has been
given by the jury. The jury are the sole judges of the facts and it
is the right of the accused to have the benefit of the verdict of the
jury. Even if the Sessions Judge or the High Court would, if left
to themselves, have anived at a different verdict, it is not competent to the Sessions Judge to make a reference nor ta the F,[igh
Comt to accept the same and substitute their own verdict for the
verdict of the jury provided the verdict was such as could be arrived at by a reasonable body of men on the facts and circumstances
of the case.
·
Ramamtgrah Singh v. Emperor (A. I. R. 1946 P. C.- 151)
referred to.
CRIMINAL APPELLA'l'E
JURISDICTION.
Criminal
Appeal No. 76 of 1953.
...,
Appear by special leave against the Judgment and
Order dated the 16th June, 1952, of the High Court of
Judicature at Bombay in Criminal Jury Reference
No. 58 of 1952.
19/ii!
Ohilukuri
V enkateswarl u
v.
Ohilukuri
Venkatanarayana
191i3
Dec. 9.
'
S.C.R.
SUPREME COURT .REPORTS
437
on the right arm pit, on the front sid~ of the shirt and
on the right thigh. There were-_ also blood stains on
the right side collar and on the back of the shirt.
·
The defence put up by the appellant was that he
was a fruit broker and after collecting his dues from
the Crawford market up to 11 p.m., he came to the
corner of Dhobi
Street, when
he heard the · shouts,
"chor, chor" and
he also then shouted
"chor,
chor"
and ran after the person who was running away. in order
to catch him. When he reached the junction of Nagdevi
Cross Street he fell down and the . person who. was
rulJiling
ahead of him rushed into a gutter.
As he
was ·ahead and members of the public were following
him, three or four of them fell on his body after c he
fell down and when he got up he was caught by two
or three other persons who all said that . he was the
man. Sub-Inspector Chawan was one · of these ·J?Crsons.
Chawan was suspected to be his accomplice,
but someone said that· he was a police officer and
Chawan was
then released. The appellant was put Into . the police
·pilot car which • came along and taken to
the police
station.
l{e was then taken to the scene of the offence
and a panchnaina
was drawn there.
He was again
brought to the police station thereafter and was_ made
to sit in the charge room.
As he was feeling very hot,
he removed his shirt and kept it by his side.
In the
meanwhile, a
police constable came there
and gave
him a blow on his nose saying, "Do you think this is
. your father's residence
that you removed your shirt?"
He thereupon garted bleeding from his nose, and due
to that bleeding his shirt and trousers
were stained
with blood.
The same constable then asked him to
put on the clothes and took him to his officer.
He
produced the
appellant
before. D. I. Kakatkar who
there noticed
his
clothes. The panchas . were then
called and a panchnama was drawn up in . which the
blood stains on the shirt and trousers were noted.
The appellant was tried by the Additional Sessions
Judge and a
common jury. The prosecution
called
the evidence of the
complainant. Abdul Satar,
Babu
Adam and Sub-Inspector Chawan.
Evidence
was led
of an identification parade which was held in the
6-93 S.C.lndia/59
· 1953
Akhlakali
Ha.Jatalli
.v.
. Th Stat• of
Bomb<f!.
. Bha

## Text

)
S.C.lt.
SUPREME COURT REPORTS
435
The court-fees ·payable to tile Government will come
out of defendant No. 1 in this case.
We certify for
two counsel and an agent in this appeal.
Appeal allowecl.
Agent for the appellant:
J.11.S.K. Sastri.
Agent for the respondent : Nau nit Lal.
AKHLAKALl HAYATALLI
v.
THE STATE O:F BOMBAY.
[B. K. MuKHERJEA arid N. H. BHAGWA'rI JJ.]
Criminal Proced·urc Code (V of 1898 as amended), -ll. 807-Reference to High Oo1irt-Propcr approach-J,ury-Sole Judges of
facts-Provided verdict co1dd be arrived cit by reasonable body of
men.
The proper method of approach in the matters of references
under s. 307 of the Criminal Procedure Code as finally settled is
that the High Court will only interfere with the verdict of the
jury if it finds the verdict perverse in the sense of being unreasonable, manifestly wrong or against the weight of evidence.
If the facts and circumstances of the case are such that a
reasonable body of men could arrive at one conclusion or the
other, it is not competent to the Sessions Judge or the High Court
to substitute their verdict in place of the verdict which has been
given by the jury. The jury are the sole judges of the facts and it
is the right of the accused to have the benefit of the verdict of the
jury. Even if the Sessions Judge or the High Court would, if left
to themselves, have anived at a different verdict, it is not competent to the Sessions Judge to make a reference nor ta the F,[igh
Comt to accept the same and substitute their own verdict for the
verdict of the jury provided the verdict was such as could be arrived at by a reasonable body of men on the facts and circumstances
of the case.
·
Ramamtgrah Singh v. Emperor (A. I. R. 1946 P. C.- 151)
referred to.
CRIMINAL APPELLA'l'E
JURISDICTION.
Criminal
Appeal No. 76 of 1953.
...,
Appear by special leave against the Judgment and
Order dated the 16th June, 1952, of the High Court of
Judicature at Bombay in Criminal Jury Reference
No. 58 of 1952.
19/ii!
Ohilukuri
V enkateswarl u
v.
Ohilukuri
Venkatanarayana
191i3
Dec. 9.
'
S.C.R.
SUPREME COURT .REPORTS
437
on the right arm pit, on the front sid~ of the shirt and
on the right thigh. There were-_ also blood stains on
the right side collar and on the back of the shirt.
·
The defence put up by the appellant was that he
was a fruit broker and after collecting his dues from
the Crawford market up to 11 p.m., he came to the
corner of Dhobi
Street, when
he heard the · shouts,
"chor, chor" and
he also then shouted
"chor,
chor"
and ran after the person who was running away. in order
to catch him. When he reached the junction of Nagdevi
Cross Street he fell down and the . person who. was
rulJiling
ahead of him rushed into a gutter.
As he
was ·ahead and members of the public were following
him, three or four of them fell on his body after c he
fell down and when he got up he was caught by two
or three other persons who all said that . he was the
man. Sub-Inspector Chawan was one · of these ·J?Crsons.
Chawan was suspected to be his accomplice,
but someone said that· he was a police officer and
Chawan was
then released. The appellant was put Into . the police
·pilot car which • came along and taken to
the police
station.
l{e was then taken to the scene of the offence
and a panchnaina
was drawn there.
He was again
brought to the police station thereafter and was_ made
to sit in the charge room.
As he was feeling very hot,
he removed his shirt and kept it by his side.
In the
meanwhile, a
police constable came there
and gave
him a blow on his nose saying, "Do you think this is
. your father's residence
that you removed your shirt?"
He thereupon garted bleeding from his nose, and due
to that bleeding his shirt and trousers
were stained
with blood.
The same constable then asked him to
put on the clothes and took him to his officer.
He
produced the
appellant
before. D. I. Kakatkar who
there noticed
his
clothes. The panchas . were then
called and a panchnama was drawn up in . which the
blood stains on the shirt and trousers were noted.
The appellant was tried by the Additional Sessions
Judge and a
common jury. The prosecution
called
the evidence of the
complainant. Abdul Satar,
Babu
Adam and Sub-Inspector Chawan.
Evidence
was led
of an identification parade which was held in the
6-93 S.C.lndia/59
· 1953
Akhlakali
Ha.Jatalli
.v.
. Th Stat• of
Bomb<f!.
. Bhagwatl j.
S.C.R.
SUPREME COURT REPORTS
437
on the right arm pit, on the front side of the shirt and
on the right thigh. There were also blood stains on
the right side collar an<i on the back of the shirt.
The defence put up by the appellant was that he
was a fruit broker and after co~ )Cting his dues from
the Crawford market up to 11 p-:' m., he came to the
corner of Dhobi Street, when he heard the shouts,
" chor, chor" and he also then shouted "chor, chor"
and ran after the person who was running away in order
to catch him. When he reached the junction ofNagdevi
Cross Street he fell down and the person who was
running ahead of him rushed into a gutter. As he
was ahead and members of the public were following
him, three or four of them foll on his body after he
fell down and when he got up he was caught by two
or three other persons who all said that he was the.
man. Suh-Inspector Cha wan was one of these persons.
Cha wan was suspected to be his accomplice, but someone said that he was a police officer and Chawan was
then released. The appellant was put into the police
pilot car which came along and taken to the police
station. He was then taken to the scene of the offence
and a panchnama was_ drawn there.
He was again
brought to the police station thereafter and was made
to sit in the charge room. As he was feeling very hot,
he removed his shirt and kept it by his side. In the
meanwhile, a police constable came there and gave
him a blow on his nose saying, "Do you think this is
your father's residence that you removed your shirt ?"
He thereupon started bleeding from his nose, and due
to that bleeding his shirt and trousers were stained
with blood. The same constable then asked him to
put on the clothes and took him to his officer.
He,
produced the appellant before D. I. Kakatkar who
there noticed his clothes. The panchas were then
called and a panchnama was drawn up in which the
blood stains on the shirt and trousers were notl!'U.
The appellant was tried by the Additional Sessions
Judge and a common jury. The prosecution called
the evidence of the complainant Abdul Satar, Babu
Adam and Sub-Inspector Cha wan. Evidence was led
of an identification :parade which was held in the
1963
Akhlafcali
Hayatalli
v.
The State of
Bombay,
Bhagwaii J.
•I
1963
A.khlal.~ali
ilayalalli
v.
The.State of
Bombay.
.-
438
SUPHEM:E COUB,T HEPOHTS
[1954]
hospital where Abdul Satar was taken from the scene of
the offence and it was proved that Abdul Satar identified the appellant at that identification parade. Evidence was also led of the panch witness who deposed
to the panchnama noting the blood stains on the shirt
· and the trousers of the appellant.
· Bhagwati ·'·
The Additional Sessions Judge summed up the case
against the a.ppellant in a charge which was very fair.
The charge was not attacked before the High Court
nor before us as containing any misdirections or nondirections to the jury such as to vitiate the verdict.
The jury after due deliberation could not be unanimous
and pronounced a verdict of not guilty against the
appellant by a. majority of six to three.
The Additional Sessions Judge did not accept the verdict of the
majority. He disagreed with the verdict and thought
that it was necessary for the ends of justice to submit
the case to the High Court and accordingly by an
order of reference dated the 22nd April, 1952, submitted the case to the High Court under section 307
of the Criminal Procedure Code.
It is significant to note that,prior to the enactment
of Bombay Act VI of 1952, sections 305 and 306 of the
Criminal Prpcedure Code were applicable to the Court
of Sessions for Greater Bombay. It was intended as
stated in the objects of the Bill to provide for a case of
disagreement with a unanimous verdict of the jury
·and enable the Sessions Judge for Greater Bombay tp
make a reference under section 307 of the Criminal
Procedure Code even in the case of a unanimous verdict with which he disagreed. In making the amend-
. ment however by the Bombay Act VI of 1952 the
Legislature took away the powers of the Sessions
Judge of Greater Bombay to discharge the jury and
order a retrial of the accused by another jury even in
the case of a majority verdict so much so that even in
a verdict of five to four which was not till then an
effective verdict the case would have to be submitted
to the High Court under section 307 of the Criminal
froceelure Code,
.-
S.C.R.
SUPREME COURT REPORTS
439
The High Court heard the reference and came to
the conclusion after
discussing the evidence on the
record that
no
other conclusion was possible
for a
reasonable person
except that the appellant was the
assailant of Abdul Satar. The High Court accordingly
convicted the appellant of the
offence under section
326 of the
Indian Penal Code and sentenced him as
above.
The appellant obtained special leave to appeal
from this court on the 4th February, 1953, and hence
this appeal.
There were various circumstances brought out in the
evidence of the prosecution
witnesses
which
were
particularly relied
upon
by the defence.
The prosecution frankly admitted that it had failed
to
prove
any motive for the commission of the offence by the
appellant.
Abdul
Satar
had not stated
anywhere
before he gave evidence in the Sessions Court that he
had any conversation with the appellant as to why the
latter was inflicting the injuries on him.
He however
stated for the first time in the Sessions Court that he
asked the
app~llant as to why he was stabbing him
and the appellant replied that he was doing it at the
instance of a friend of his.
Abdul Satar then stated
that he was on inimical terms with one Sulaiman and
it was at the instance of Sulaiman that the
appellant
inflicted the injuries on his person.
This was characterised by the defence as a pure after-thought in order
to supply a motive for the commission of tbe offence
by the appellant and it was urged that if Abdul Satar
was capable of
inventing a story for supplying
the
motive for the commission of the offence by the appellant he could not certainly be relied upon even in the
identification of the appellant by him.
The weapon of offence was also not found upon the
person of the appellant and in spite of a search being
made for the same was not discovered by the police
either at or near tbe scene of the offence.
Neither
Babu Adam nor Sub-Inspector Chawan deposed to having seen tbe knife in the hands of the
appellant.
It
was only Mohamed Safi, a witness who was
dropped
by
the prosecution and was examined by the defence,
1953
·. Aklilakali
Hayatalli
v.
The State of
Bombay.
· Bhagwati J.
•
1953
Akhlaka/i
Hayatalli
v.
The State of
Bombay.
BhagwaJi].
440
SUPREME COURT REPORTS
[1954]
hut treated as a hostile
witness
even by the defence,
who stated that he saw a knife in the hands of the
appellant.
If Babu Adam's evidence was to be accepted
Mohamed Safi was not telling the
truth and if
Mohamed Safi' s evidence
was
to be accepted
Babu
Adam was not telling the truth.
This
conflict
of
evidence was therefore rightly commented upon by the
defence.
The identification parade also was challenged as not
proper because it was alleged that mostly
ward
boys
were mixed up with the appellant when the identification parade was held.
No questions were addressed in
the cross-examination
of
prosecution
witnesses
in
regard to this aspect of the case and the Additional
Sessions Judge observed to the jury that in the absence
of such cross-examination, not much reliance could
be
placed on this criticism of the identification parade. It
may be noted
in passing that
even the High Court
observed that "the parade was
not as satisfactory as
we expect parades
to be in such cases" and further
observed that the only
~ffect of that fact would be to
put them upon
guard with regard to the
evidence of
Abdul Satar and they should not proceed to act upon
that evidence unless it was corroborated.
The blood stains on the shirt and the trousers of the
appellant
were not observed in the first instance by
either Babu Adam or Sub-Inspector Chawan and it was
only when the second panchnama was made at about
1-30 a.m. on the
26th
August, 1951,
after the appellant was brought back to the police station
from the
scene of the offence that these blood stains were noticed and were noted in the
panchnama.
The existence
of these blood stains was urged as corroborative of the
testimony of Abdul Satar in so far as he stated that the
appellant
caused
the
m1uries
on his
person.
The
defence
story of the police
constable having dealt a
blow on the nose of the
appellant which led to the
bleeding of the nose and the blood stains on the shirt
and the trousers of the appellant
was sought to be
negatived by pointing out the
improbability
of the
police constable having acted in that manner
within
S.C.R.
SUPREME COURT REPORTS
441
the very precincts of the police station.
The
prosecution theory might possibly
have explained the blood
stains in the right arm pit, in front of the shirt as well
as on the trousers.
But the blood stains on the back
of the shirt could not be easily explained.
The
blood
stains on the back of the
shirt could
certainly be
explained by the defence theory and that was a circumstance which was relied upon by the defence as maring
the defence version probable.
These were the circumstances which were before the
jury when they deliberated upon the question
of the
criminality of the
appellant, and the
only
question
which we have to consider is whether the verdict which
they arrived at by a majority of six to three was such
as no reasonable body of men could arrive at on
the
record of
the case.
The proper method
of approach
in the matter of references
under section 307 of the
Criminal
Procedure
Code was laid down by the Privy
Council
in
Ramamigrali
Singh
v.
Emperor(' ),
where
the
Privy
Council
resolved
the
conflict
of authorities
which was
till
then
prevalent
in
India and accepted the view that the
High Court will
only interfere with the verdict of the
jury
if it finds
the verdict "perverse in the sense of
being unreasonable",
"manifestly
wrong" or "against the
weight of
evidence". The observations of their Lordships of the
Privy Council on the principle underlying section 307
of the
Criminal Procedure Code,may be aptly quoted
here:-
"Under sub-section (1), twp conditions are reqmred to
justify a reference.
The first,
that the
Judge
must disagree with the verdict
of the jury, calls for no
comment, since it is obviously the fom1dation
for any
reference. The second, that the Judge must be "clearly
of opinion that it is necessary for the ends
of justice
to submit
the case" is important, and in their Lordships'
opinion provides a key to the interpretation
of
the section. The legislature no doubt realised
that the
introduction of trial by jury in the mofussil would be
experimental, and might lead to miscarriages of justice
through jurors, in their ignorance and
inexperience,
(1) (1946) A.I.R. 1946 P. C. 151.
1953
Akhlakall
HayataJll
...
Th1Stah.•/
Bombay.
Ehagwatij.
1953
Akhlakali
Hayata/li
...
Th.State of
Bombqy.
Bhagwati].
442
SUPREME COURT REPORTS
[1954]
returning
erroneous
verdicts.
Their Lordships think
that t:ie section was
intended
to guard against this
danger, and not to enable the Sessions Judge and the
High Court to deprive jurors, acting properly
within
their powers, of the right to determine the facts
conferred upon them by the Code. If the jury have reached the conclusion upon the evidence
which a reasonable boc!y of men might reach, it is not necessary for
the ends of justice that the Sessions
Judge should refer
the case to the High Court merely because he himself
would have reached a different
conclusion upon the
facts, since he is not the tribunal to determine the
facts.
He must go further than that and be of opinion
that the verdict is one
which no reasonable body of
men
could have
reached
upon the
evidence.
The
powers of the High Court in dealing with the reference
are contained in sub-section (3).
It may exercise
any
of the powers which it might exercise upon an appeal,
and this includes the power to call fresh evidence conferred by section 428.
The court
must consider the
whole case and give due weight to the opinions of the
Sessions Judge and
jury, and then acquit or convict
the accused.
In their Lordships' view, the
paramount
consideration in the High Court must be whether the
ends of justice require that the verdict
of the jury
should be set aside.
In general, if the evidence is such
that it can properly support a verdict either of guilty
or not guilty, according to the view taken of it by the
trial court, and if the jury take one view of the evidence and the
judge thinks that
they should have
taken the other, the view of the
jury must prevail,
since they are the
judges of fact.
In such a case
a
reference is not justified, and it is only by accepting
their view that the High Court can give due weight to
the opinion of the jury. If, however, the High Court
considers that upon the
evidence no reasonable
body
of men could have reached the
conclusion
arrived at
by
the
jury,
then
the reference
was
justified
and the ends of
justice
reqmre
that
the verdict be
disregarded."
S.C.R.
SUPREME COURT REPORTS'.
4!13:>
\Ve are of the opinion that this is the correct method
of approach in references
under section
307 of the
Criminal .Procedure
Code.
If the facts and circumstances of the
case are such that a reasonable body of
men could arrive at the one conclusion or the other, it
is not competent to the
Sessions
Judge or the
High
Court to substitute their verdict in place of the verdict
which has been given by the
jury.
The
jury are the
sole judges of the facts and it is the right
of the accused to have the benefit of the verdict of the jury.
Even
if the Sessions Judge or the High Court would if left
to themselves have arrived at a different verdict it is
not competent to the
Sessions Judge to make a reference nor to the
High
Court to accept the same and
substitute their own verdict for the verdict of the jury
provided the verdict was such as could be arrived at
by a reasonable body of men on the facts and circumstances of the case.
Having regard to the position which we have set out
above we are clearly of the opinion that on the facts
and circumstances of the case
before us there were
enough materials before the jury which would enable the
jury to come to one conclusion or the other in regard
to the criminality
of the appellant. Six out of the
nine jurors came to the conclusion that the appellant
was not guilty of the offence with which he was charged.
Three out of the nine jurors came to an opposite
conclusion and it is impossible in the circumstances of
the case for us to characterise the one or the other of
the conclusions reached by the members of the jury as
perverse in the sense of being
unreasonable
or manifestly wrong or against the weight
of evidence.
The
verdict reached by the m~jority was certainly a verdict
which upon the evidence on record a reasonable
body
of men could have
reached and
in our opinion
the
reference was not competent.
The result therefore is that the appeal will be allowed, the judgment of the
High Court on reference set
aside, th.e majority verdict of the jury Pronouncing the
appellant not guilty of the offence with which he was
1953
Akhla/rflli
Hayatoili
v.
Th6 Stat~ of
Bombay.
BhagwatiJ.
1953
Akhlakali
Ha.Jatalli
v.
Th•Stateof
Bombtg.
1953
Dec. 18.
SUPREME COURT REPORTS
[1954]
charged accepted and
the
appellant
acquitted
and
discharged and forthwith set at liberty.
Appeal dllowed.
Agent for the respondent : G. H. Rajadhyaksha.
COMMISSIONER OF INCOME-TAX/EXCESS
PROFITS TAX, BOMBAY CITY
v.
MESSRS. BHOGILAL LAHERCHAND including
BATLIBOI & CO., BOMBAY.
[MEHR CHAND MAHAJAN, S. R. DAs, GHULAM
HASAN and JAGANNADHADAS JJ.]
Indian Income-tax Act (XI of 1922), s. 42(1)-Scope of.
A Hindu undivided family was carrying on business in Bombay, Madras and the Mysore State, being treated as a single assessee and its relevant accounting period was 10th October, 1941, to
8th November, 1942.
During this period, the
Mysore branch
purchased goods from the Bombay head office and the Madras
branch
of
the
value
of
Rs.
2 lakhs odd.
The Incometax Officer estimated
these
purchases
of
the
Mysore
branch
in
British
India at
Rs. 3
lakhs and
its
profits
at
Rs. 75,000 on the sale of these goods )n Mysore.
In view of the
provisions of s. 42 of the Indian Income-tax Act, half of this profit,
i.e.,
to the extent of Rs. 37,500, was deemed to accrue or arise in
British India because of the business connection of the non-resid~
ent branch in British India :
Held, that, on the facts and circumstances of the case, the Income-tax Officer was right in applying the provisions of s. 42 (1)
of the Income-tax Act and holding that
Rs. 37,500
were profits
deemed to accrue in British India and in including in the
assess~
ment a portion thereof.
Held also, that s. 42 sub-ss. (!) and (3), cover cases of both
residents as well as non-residents.
Commissioner of Income-tax v.
Western India
Life Insurance
Co. [1945] (13 LT.R. 405) dissented from. Sutlej Cotton Mills Ltd.
v. Commissioner of Income-tax, West Bengal (A.LR. 1950 Cal. 551),
Commissioner of Income-tax/Excess Profits Tax, Madras v. Parasuram /ethanand (A.LR. 1950 Mad. 631), Commissioner of Income-tax.
Bombay v. Ahmedb}iai
Umarbhai
& Co. ( [ 1950] S.C.R. 335),
referred to.