Chandra Singh vs The State

Chakravartti, C.J.—The Appellant Chandra Singh was tried by Mr. Justice Sen at a recent sitting of the Criminal Sessions of this Court with the aid of a special Jury and convicted u/s 366A of the Indian Penal Code upon a unanimous verdict. The sentence passed on her was rigorous imprisonment for two years. She has appealed from her conviction and sentence.

The appeal has had a rather chequered history. Originally, the petition of appeal was sent directly from jail and as no one was appearing on behalf of the Appellant at that stage, it was treated as an undefended appeal. The Criminal Appellate Bench at that time was constituted of S.R. Das Gupta J. and myself. After I had completed the consideration of the papers, I passed them on to S.R. Das Gupta J., with my observations, but before he could consider the appeal, the Appellant was able to instruct counsel to appear on her behalf. Mr. Dutt informed us that he had been instructed to appear and thereupon the appeal was transferred to the defended list.

Mr. Dutt also informed us of one other matter which has given rise to a rather unusual point in the appeal. He presented before us a petition in which it was stated that on July 12, 1952, that is, the date next following that on which the trial was concluded, the foreman of the jury, one Ernest William George Robertson, saw the clerk of the State and informed him that there had been a grave miscarriage of justice the previous evening in the last stages at the trial in that he, the said foreman, under a misapprehension as to the procedure to be followed by jury, had wrongly and mistakenly given the verdict as a unanimous verdict of the jury when the said jury was really and in fact divided in the proportion of 5 to 4.

It was stated further that on July 14 following, the said foreman saw the learned Judge himself in his chambers at about 10-15 a.m. and repeated to him what he had already told the clerk of the State, but what transpired at that interview was not stated. It appears, however, that the learned Judge was not prepared or did not consider it possible to take any action. The last fact stated in the petition was that on or about July 16, 1952, another member of the jury, one Michael James Pridham, had seen the learned standing counsel and "apprised "him as to how there had been the said miscarriage of justice "owing to the fact that the members of the jury were labouring "under a misapprehension as to their duties." Mr. Dutt brought the facts stated in the petition to our notice, but we did not consider it possible to take any action on the bare statements contained in the petition. The petition was affirmed by the Appellant's father and the facts I have mentioned were described as true to the information of the declarant, but the source of his information was not disclosed. In those circumstances, we expressed the view that Mr. Dutt's client must make an attempt to produce before us more dependable materials before any action could be taken. As far as I remember, the application was repeated to us on a second occasion, when also we expressed similar views and on an enquiry from Mr. Dutt as to whether it would be proper, either for the solicitor instructing him or for himself, to contact the foreman of the jury and to ascertain from him what the facts according to him were, we observed that we could see no objection to that course being taken.

Thereafter, the application for the admission of the appeal came up for hearing before the Vacation Bench and by an order, dated September 15, 1952, the appeal was admitted u/s 411A(1)(a) of the Code of Criminal Procedure. Leave to appeal under Clause (b) of Section 411A(1) was refused. Nothing was said about Clause (c). The learned Judges, however, added a postscript to their order which was in the following terms:

Let there be an enquiry as to the verdict complained of in the petition. The matter will be set down in the list immediately after the re-opening of the Court for directions from the Bench which will hear this appeal, as to the form of the enquiry.

The appeal having come up before us for final hearing, Mr. Dutt informs us that he had taken the trouble of seeing the foreman of the jury himself and shown him a copy of the petition and that on going through it, the foreman had told him that the facts stated in the petition were entirely correct. That statement made by Mr. Dutt from the bar removes the objection as regards the insufficiency of the affidavit and it is possible now to proceed on the basis that the statements contained in the petition as regards the verdict are vouchsafed by the foreman himself. I must add, however, that the foreman was not prepared to come forward and swear an affidavit unless, as he is reported to have said, he was summoned.

The next question, however, and an extremely difficult one, is whether any enquiry is possible in law at all and assuming that an enquiry is possible, whether the evidence of the jurors or any affidavit from them can be taken. The learned Judges who admitted the appeal obviously considered an enquiry to be possible, because they directed an enquiry. It is, therefore rather disappointing that they did not themselves say what the form of the enquiry could be and direct an enquiry to be held in the manner considered proper by them. As I have stated, they left the form of the enquiry to be decided by the Bench hearing the appeal and, accordingly, it now becomes our duty to decide whether an enquiry can be held at all.

The situation which has arisen in this case, although an unusual one and of infrequent occurrence, arose once or twice in the past. A case very similar to this, although not identical, was considered by Lort-Williams and S.K. Ghose JJ. in the case of Ifatulla Akanda v. Emperor ILR (1931) Cal. 1138. An exhaustive review of the cases bearing on the question can be found in the judgment of the Court delivered by S.K. Ghose J., and the view which the learned Judges themselves took was that, generally speaking, after the verdict had been recorded by the Judge and after the jury had left the box, it would be most improper for the Judge to listen to any application to amend the verdict. Before I proceed further, however, it will be useful to refer to the statutory provision regarding amendment of verdicts which is to be found in Section 304 of the Code of Criminal Procedure. That section runs thus:

When by accident or mistake a wrong verdict is delivered, the jury may, before or immediately after it is recorded, amend the verdict, and it shall stand as ultimately amended.

In the case before Lort-Williams and S.K. Ghose JJ., the jury returned a verdict of guilty u/s 304Pt. I of the Indian Penal Code, but about two hours later, a pleader informed the Judge that the jurors were expressing their regret that they had committed a great blunder in bringing in a verdict of guilty u/s 304, Pt. I of the Indian Penal Code. Subsequently at about 12 noon, the Judge was informed that some of the jurors wanted to have an interview with him and an interview with seven of the nine jurors did actually take place at 3 p.m. What the learned Judge was informed was that the jurors had really intended to return a verdict of guilty u/s 304A of the Indian Penal Code. It appears from the judgment that their Lordships did not believe that the jurors had committed a mistake and seem to have been of the view that the attempt to have the verdict amended was due to some reason other than a genuine mistake committed at the time the verdict was arrived at or returned. Nevertheless, the learned Judges went into the question at great length and the conclusion reached by them was what I have already mentioned. They pointed out that Section 304 of the Code permitted an amendment of the verdict only at the time it was recorded or immediately thereafter and they also referred to a considerable body of case-law to the effect that in no circumstances could the jurors be permitted to give evidence as to what had actually happened during the deliberations in the jury room. Reference was made to the great public mischief that would result if jurors were permitted to come forward after the verdict had been recorded and they had left the box and say that some mistake had occurred in their verdict, because during the interval they would be exposed to outside influences. It was on those grounds of a general character and also on the language of Section 304 of the Code that the learned Judges held the case before them not to be a proper one in which any investigation as regards the alleged mistake by the jurors could be held. It was also held that, in any event, no affidavit or evidence from the jurors could be accepted.

In a case decided by the Punjab Chief Court, Emperor v. Lieutenant Brian Bonham Carter (1912) 17 Ind. Cas. 559, to which the learned Judge referred and in which the facts were almost identical as the facts in the present case, the same view of the law was taken. In a very strongly expressed opinion Rattigan J. said that it would be in the highest degree dangerous to accept statements of affidavits on the part of individual jurors, after they had left the Court, to the effect that a verdict publicly announced by the foreman of the jury in the hearing of all the jurors and without dissent on the part of any of them as the unanimous verdict of all the jurors was, in fact, not their verdict. The learned Judge referred to the possibility of there being a failure or miscarriage of justice in individual cases, but he thought that much as such a result was to be deplored, it would be far more disastrous to the course of justice if the Courts allowed verdicts, openly given, to be disturbed in consequence of individual jurors subsequently coming forward to depose that such verdict, by accident or mistake, did not really represent their opinion.

In the Calcutta case, as well as in the Punjab case, reference was made to English decision, Rex v. Wooller (1817) 2 Stark. 111 : 18 R.R. 402. There, after the jury had been charged, they were directed to retire to the jury room and consider their verdict. At the time the jury returned, the learned Judge had commenced another trial and when the foreman walked in, only he and one or two other members of the jury could come into the view of the learned Judge, while the others remained behind in another room which was screened off by a partition. The verdict was given as the unanimous verdict of the jury, but after the jurors in the second case had retired to consider their verdict, a member of the Bar pointed out to the learned Judge that what had been given as the unanimous verdict of the jury in the earlier case, was really the verdict of only some of the jurors. Abbott J., who was presiding over the trial, observed that he could do nothing at that stage, but immediately after the Judges of the Court's Bench had taken their seats upon the first day of the ensuing term, he stated the facts and added that since all the members of the jury were not in Court at the time when the verdict was delivered, it was possible that all the jury might not have heard what had passed. The Attorney-General himself moved for a new trial and the opinion of the Court, which was delivered by Lord Ellenborough, suggests that the learned Judges acted on the statement of the trial Judge and not on any extrinsic evidence. As a matter of fact, it was emphasised that the Court was shut out from acquiring any knowledge by means of any affidavit from the jurors. The reason why a new trial was ordered was that the assent of a juror must be inferred from his having consented that the foreman should deliver his verdict and his not protesting when the verdict was delivered in his hearing. But, in the case before the Court, some of the jurors had not been in a position to hear the verdict as pronounced at all and the Court thought that, in those circumstances, the usual assent given by all the members of the jury to the verdict delivered by the foreman could not be inferred or presumed. While ordering a new trial, however, Lort Ellenborough added: "The Court "cannot, according to the established form and precedent, receive "the affidavit of the jurymen in any case."

The rule laid down in Rex v. Wooller (supra) seems to have been modified to a certain extent in the subsequent case of Ellin v. Deheer (1922) 2 K.B. 113, decided by the Court of Criminal Appeal. There also, the facts were practically similar to those in Rex v. Wooller with this difference that it was one of the members of the jury who came and complained to the learned Judge on the next day that he had not assented to what had been given by the foreman as the unanimous verdict of the jury. The Court thought that the case fell within the principle of Rex v. Wooller, but they admitted affidavits by three of the jurors. It was pointed out that there was a distinction between what took place between the jurors during their deliberations in the jury room and what took place in open Court after they had returned. Evidence from the jurors or from any other quarter could never be admitted to prove what had gone on in the jury room, but "the rule does not exclude jurymen from swearing to what took "place in open Court." It was pointed out that the matter which was being enquired into in that case was whether or not all the jurors were in a position to hear the verdict given on their behalf by the foreman, so that in the absence of a protest by any one of them their assent could be inferred and that, it was pointed out, was an enquiry into a matter which had taken place in open Court and not in the jury room. All the learned Judges, however, repeated the principle laid down in the earlier cases that no evidence or affidavit could be admitted regarding anything concerning the deliberations of the jury. Atkin L.J., as he then was, seems to have gone the farthest in departing from the rule in Rex v. Wooller and he observed that it was not essential that the protesting juryman's objection should be taken before the jury had been discharged. The time at which the protest was made was, according to the learned Lord Justice, a mere detail of fact, which went to the credit to be given to the juryman's statement and not to its admissibility. The rule laid down by Lord Ellenborough that the Court cannot accept any affidavit from any of the jurors in any circumstances was thus, to a certain extent, modified in Ellis v. Deheer (supra) and it was held that the jurors might be permitted to say by affidavit what according to them had taken place in open Court.

I need refer only to one other case, decided by the Judicial Committee, in which the judgment of the Board was delivered by Lord Atkin. It is the case of Ras Behari Lal v. The King-Emperor (1933) 38 C.W.N. 11 : 60 I.A. 354. There, the allegation was that one of the jurors was ignorant of English, so that he had been completely unable to follow the proceedings and it was on that ground that special leave to appeal was granted by the Judicial Committee. Before granting such leave, however, their Lordships directed an enquiry to be held by the High Court as to the truth of the allegation and it appears from the judgment that in the course of that enquiry held by the High Court, evidence of the juror whose knowledge of English was questioned and of certain other jurors was taken. Lord Atkin referred to his earlier decision in the case of Ellis v. Deheer (supra) and also had occasion to refer to another case, Rex v. Thomas (1933) 24 C.A.R. 91, decided by the Court of Criminal Appeal, on the very day on which the Board pronounced judgment in Ras Behari Lal's case (supra). It was pointed out that an enquiry was possible in the case then before the Board, because it was not an enquiry into the reasons for the verdict and, therefore, such an enquiry could not invade the privacy of the discussions in the jury box or in the retiring room. As regards the point of time at which an enquiry could be initiated or held, their Lordships observed that in so far as the Court of Criminal Appeal held in Rex v. Thomas (supra) that no evidence was admissible after the verdict to establish the inability of a juror to understand the proceedings, the Board very definitely dissented from that opinion and they considered an enquiry as to the competence of a juror to be always possible. I have referred to that decision simply as an illustration of a case where the evidence of some of the jurors was considered admissible; but on the facts the case was of a very different kind.

The principles which one can gather from the decisions to which I have referred are that an enquiry may be made with regard to what happened in the Court-room after the jury had returned to deliver their verdict and that, in such an enquiry, affidavits or evidence from the jurors themselves can properly be received, but no enquiry is possible as regards what had happened between the jurors during their deliberations and with regard to the manner in which they had arrived at their verdict.

In view of those principles what is the position in the present case? As I have already stated, the first intimation that a mistake had been committed was given to the clerk of the State on the next day following the trial. On the facts, the position was that whereas the verdict delivered to the Judge was a unanimous verdict, at least two of the jurymen wanted to say that the verdict had really been a verdict of five to four. It is not clear to my mind what is meant by saying that there had been a "misapprehension as to the procedure to be followed by a "jury". It is not stated that the jurors did not know the meaning of the word "unanimous". Two of them from whom information about what is alleged to have been the real verdict has come are Englishmen and it may perhaps be presumed that they have a working knowledge of their own language. It was not as if the clerk of the State had asked them something like a rolled-up question as to whether they were unanimous in finding the accused guilty or not guilty on a particular charge. He took care first to ask them whether they were unanimous and it was only after receiving an answer in the affirmative that he proceeded to ask further what the verdict was. In those circumstances, it can hardly be disputed that the attention of the jury was pointedly directed to the question as to whether they were all agreed as to their verdict or whether it was a case of some thinking in one way or some in another. It was after they had been interrogated in that fashion that the foreman of the jury preferred to answer that the jury were unanimous. It is, therefore, difficult to understand what either Robertson or Pridham meant by saying that there had been a misapprehension as regards the procedure to be followed by the jury, unless they thought that it was their duty to return a majority verdict as a unanimous verdict. In any event, it seems to me that if an enquiry be held at all in the present case, it must be an enquiry as regards two matters: (a) what was in fact the verdict of the jury, (b) what was the state of mind of the jurors or the state of their knowledge of the English language at the time the verdict was delivered in open Court. The second, I concede, relates to what happened in Court after the jury had returned and a part of the second question, which relates to the degree of the jurymen's knowledge of English, is perhaps timeless. But the other question, namely, what was really the verdict, clearly relates to what had happened in the jury room at the conclusion of the deliberations, and it appears to me that with regard to that question, no enquiry is possible. It is to be pointed out that the complaint is not, as it was in Rex v. Wooller (supra) and Ellis v. Deheer (supra), that some of the jurymen had been unable to hear what the foreman was delivering as the unanimous verdict. The allegation here is some confusion in the mind of the jurors and a consequent misrepresentation of the real verdict. An enquiry as to what the real verdict was is, therefore, unavoidable. I may also refer to the fact that a protest against the verdict or rather the disclaimer came only on the next day. It is true that in Ellis v. Deheer (supra) one of the Lord Justices, Lord Atkin, said that the time when the protest was made was only a mere detail of fact. He was free to lay down a rule in those wide terms, because there is no statutory provision governing the matter in England. In India, there is Section 304 of the Code of Criminal Procedure, the terms of which I have already read, and there it is laid down that a verdict can be amended only "before or immediately after it is "recorded." There was no objection to the verdict in the present case before it was recorded, and as regards "immediately "after" it seems to me difficult to hold that that phrase can be elastic enough to cover as much as twenty-four hours. The Legislature obviously considered it important that any alleged mistake on the part of the jury about the verdict should be brought to the notice of the Judge while the jurors were still under his observance.

I would not, however, like-no Court would ever like-to lay down any absolute rule which is to govern such cases. It may sometimes happen that because of some inaptitude or inefficiency of the jurors or some irregularity in the proceedings during their deliberations or in the manner in which the verdict was delivered, some shocking injustice may be caused to the accused and in such cases it would be perhaps the duty of the Court to find some means of getting at the truth and rectifying the error. It is sufficient to say that the facts of the present case, the nature of the allegation as regards the error and the manner in which and the time at which information about the alleged error was given, do not seem to me to justify any departure from the usual rule that no enquiry can be made with regard to what had actually happened in the jury room or what the real verdict was. To a certain extent, a case in point would be the Scottish case of Pirie v. Caledonian Ry. Co. (1890) 17 R. 1157 where the allegation was that what had been delivered as the majority verdict was not really the majority verdict, since a mistake had been made in the counting of votes. It was held that the allegation plainly went to the matter of the deliberations of the jury and, it seems to me, that the present case is more or less of the same kind.

For the reasons above given, I am of opinion that no enquiry of the kind directed by the learned Judges can be held in the present case. The appeal has, therefore, to be heard on the merits, so far as the other questions are concerned.

In opening the appeal Mr. Dutt referred to the limitation under which he was labouring, because his client had not been granted leave to appeal under Clause (b) of Section 411A(1) of the Code of Criminal Procedure. As he rightly pointed out, the appeal was to be heard as if it was an appeal from a conviction made and sentence passed by a district and sessions Judge in a case other than a capital sentence case, and that, therefore, unless he could establish misdirection which had caused an erroneous verdict and also caused failure of justice in fact, he could not expect to succeed. Mr. Dutt formulated before us three or four grounds on which, according to him, the learned Judge's charge to the jury could be assailed.

I may now refer to the broad facts of the prosecution case which also are somewhat unusual. It appears that on September 8, 1951, a girl, named Renuka Roy, was arrested in Dharamtolla Street along with the Appellant and another girl named Bejoya, and on the same day, two men, Mukshed and Habib, were also arrested, more or less from the same quarter. The prosecution case is that on some day, a month or so before September 8, the accused Chandra Singh had come to the house of Renuka and taken her out with the ostensible object of escorting her to a cinema house, either for the purpose of witnessing a show or for the purpose of doing a small assignment in a film, but that her real object was to seduce her or force her into a sexual intercourse with a man called Mukshed who was the second accused in the case. It is alleged that on the day in question the girl, Renuka, was living with her mother and elder sister at a house in Monoharpukur Road and when Chandra Singh, the accused, approached the mother for permission to take Renuka out, such permission was refused; but later, after the mother had gone out to attend to her duties at a hospital, where she was engaged, Chandra was able to persuade the elder sister of Renuka to permit her to take Renuka with her. It is alleged further that a car was waiting near Renuka's house in which two persons, Habib and Mukshed, were already seated and another girl, named Bejoya, joined the party, presumably at the same time. They, thereafter, drove to a hotel in Dharamtolla Street where Renuka was made to follow Mukshed into a particular room where Mukshed had sexual intercourse with her. According to the medical evidence, Renuka is about fourteen years of age.

Mr. Dutt referred to the various discrepancies in the evidence of the prosecutrix and pointed out that the conveyance by which she had gone from her house to the hotel had been given alternatively as a car and as a bus by different prosecution witnesses. He pointed out further that in her evidence before the High Court, a visit to the Victoria Memorial had been interposed by Renuka between her leaving her house and her reaching the hotel and during that visit to the Victoria Memorial the two male persons, Habib and Mukshed, had always been with Renuka. It was pointed out further that there was also discrepancy as regards whether Renuka was, on the relevant date, living at Manoharpukur Road or living at Dhakuria, and the mother's evidence on that point was also pointed out to us. Lastly, it was pointed out that while the prosecution case was that the offence had been committed at a hotel, that hotel had never been identified and no attempt had been made by the prosecution to seek out and locate the place of the alleged occurrence. These discrepancies had all been referred to by the learned Judge in his charge to the jury; but Mr. Dutt complained that their proper bearing upon the allegation made against the Appellant had not been clearly brought out. Reference was made to the fact that the charge itself was of a peculiar character in that it amounted to saying that the accused had seduced the prosecutrix to illicit intercourse at an unknown and unidentified hotel on some unspecified date about a month earlier. As regards the introduction of a visit to the Victoria Memorial, Mr. Dutt submitted that while the learned Judge pointed out the bare discrepancy, he did not suggest to the jury that the charge against the accused being one u/s 366A, it should have been pointed out to them that in view of that pleasure trip round about the Victoria Memorial for the space of about two hours with two male persons, one of whom was the person who had sexual intercourse with Renuka, it might well be that when Chandra Singh had taken Renuka away from her hous, she had not done so with an evil intention and that the idea of having a sexual intercourse with her originated in and proceeded from Mukshed or Habib or both of them during the visit to the Victoria Memorial. It was further submitted that the mother's evidence as regards the place where the family had been living at the relevant time had been referred to only in the barest possible manner, but it had not been brought out that she was not corroborating the prosecutrix in regard to the visit of the accused to her house on the particular day in question. The effect, Mr. Dutt complained, was to leave many of the possibilities unexplained to the jurors and the effect of the many omissions complained of by him had been a mistrial.

I have gone through the evidence in the case and the learned Judge's charge to the jury and I do not think that the complaint of Mr. Dutt is justified. It is quite possible to think out any number of possibilities, but to make a complaint that all of those possibilities, remote or near, should have been spun out by the learned Judge and explained to the jury in detail, seems to me to require something which the law does not require. The facts here were perfectly simple. The mother spoke of two visits to the house and the jury were left to decide whether the fact that the place of residence on the relevant date was given by the mother as Dhakuria and given by the daughter as Manoharpukur Road demolished the prosecution case or not; and similarly, with regard to every other discrepancy, it appears to me that the learned Judge directed the jury properly and adequately and they were left in no difficulty in coming to such view of the facts as they might think fit to take. I do not, therefore, think that the ground of misdirection or non-direction taken by the learned Counsel has been made out.

It seems to me, however, that the case calls for interference on the ground of sentence. The application for leave to appeal referred only to Clause (b) of Section 411A(1) but was silent about Clause (c) The order admitting the appeal is also silent so far as the question of sentence is concerned. We are, therefore, not handicapped in the matter of the sentence by any order of the Bench admitting the appeal. It is well-known that Section 366A and Section 366B were introduced into the Code in 1923 as a result of an international convention and the object of those sections is not so much to protect individual woman, which has been left to Section 366, but to maintain public morality by preventing trafficking in young women and girls. The facts in this case make it perfectly clear that the prosecutrix and her associates belong to a class of young women who go in for occasional assignments in film studios, are not too critical of the company they keep, have no objection to going out with young men, and, as the evidence suggests and the prosecutrix herself admits, no objection to receiving payment for occasional hiring out of their bodies. The medical evidence with regard to the prosecutrix herself is that she has been used to sexual intercourse. In those circumstances, it does not seem to me that the public morality is very much in jeopardy in the present case, nor that there is much of trafficking in women or girls that requires to be prevented by severe punishment of persons who arranged for occasional escapades of young women like the prosecutrix. There can be no doubt that there has been a technical offence, as defined in the Indian Penal Code; but there is no doubt in my mind either, in view of all the facts of the case, that the six months or so which the accused has suffered has been quite adequate for the offence she committed. She herself is a young woman, apparently of the same type as the prosecutrix.

In the circumstances, the appeal is allowed on the ground of sentence only. We uphold the conviction of the Appellant, but reduce the sentence to the period already undergone. She will be released forthwith.

Sinha, J. This case raises, what Bankes L.J. describes in Ellis v. Deheer (1922) 2K.B. 113, 117, as "a peculiar and important question". The question is as to whether, after a jury had communicated its verdict through the foreman in open Court, and the trying Judge accepting the same, had convicted and sentenced the accused, it is permissible to hold an enquiry as to the correctness of the verdict so communicated, because one or more of the members of the Jury allege that the verdict so communicated was not the correct one. In this particular case, the accused was charged u/s 366A of the Indian Penal Code for inducing a minor girl Renuka Roy to go from 122/1/L, Manoharpukur Road, with intent that she may be or knowing it to be likely that she will be forced or seduced to illicit intercourse with another person. The case was tried by Sen J., by the help of a jury. After the gentlemen of the Jury had finished their deliberations and returned to Court, the clerk of the State asked the foreman, one Mr. Robertson, as to whether they were unanimous on the said charge, and the foreman answered in the affirmative. Upon being asked what their verdict was, he answered "guilty". The learned Judge accepted the verdict, convicted the accused and sentenced her to two years'' rigorous imprisonment. It is now alleged that on the next day Mr. Robertson saw the clerk of the State and informed him that "the said foreman under a "misapprehension as to the procedure to be followed by a Jury "had wrongly and mistakenly given the verdict as an "unanimous verdict of the Jury when the said Jury was really "and in fact divided in the proportion of 5 to 4". Three days after the trial was over, it is alleged that the foreman saw the learned Judge in Chambers, but there is nothing on record to show what happened. Another member of the Jury, Mr. Pridham, is also alleged to have informed the learned Standing Counsel that such was the fact. These allegations are all verified as based upon information but the source of the information has not been disclosed.

The accused has now appealed against her conviction and sentence and Bose and Guha Ray JJ. admitted the appeal u/s 411A(1)(a) of the Code of Criminal Procedure (i.e., on a point of law only). Leave under Clause (b) was refused. They also gave the following direction:

Let there be an enquiry as to the verdict complained of in the petition. The matter will be set down in the list immediately after the reopening of the Court for directions from the Bench which will hear this appeal, as to the form of enquiry.

The stage has now come when such direction has to be given and the question is, can we give such directions at all. Learned Counsel for the accused invites us to summon the two jurors and take evidence as to what the real verdict was. The question is as to whether this can be done. Mr. De appearing to the prosecution has taken a very fair attitude. He says that if the facts stated are proved to be correct, there naturally has been a failure of justice. But the difficulty lies in proving such facts. He has placed before us the authorities on the subject and it seems that it is by now well-settled that what has transpired in the privacy of the jury room is not admissible in evidence. In the case that I have mentioned above, namely, Ellis v. Deheer (supra), what happened was this: The action was for personal injury and was tried at the Leeds Assizes before a commissioner. After the learned Judge had summed up, the Jury retired to their room to consider their verdict. As there was not sufficient space available in the body of the Court for the jurymen to stand together, the foreman later on went into the witness box and the other jurymen stood one behind the other in the gangway, some of them being out of sight of the Bench. The foreman announced the verdict, whereupon judgment was entered for the Defendant. It was later on sought on behalf of the Plaintiff to obtain an order for a new trial on the ground that the verdict recorded was not the verdict of the jury as a whole. A number of affidavits of jurymen were tendered, containing statements not only as to what took place in the Court after the Jury had returned but also as to what occurred in the jury room. Bankes L.J. said as follows:

With regard to the latter class of statements I desire to make it clear that the Court will never admit evidence from jurymen of the discussion which they may have had between themselves when considering their verdict or of the reasons for their decision, whether the discussion took place in the jury room after retirement or in the jury box itself. It has for many years been a well-accepted rule that when once a verdict has been given it ought not to be open to an individual juryman to challenge it, or to attempt to support it if challenged. I have spoken of this as a rule of law, but it has also been generally accepted by the public as a rule of conduct, that what passes in the jury room during the discussion by the jury of what their verdict should be, ought to be treated as private and confidential. I may say that I saw the other day with astonishment and disgust the publication in a newspaper of a statement by the foreman of the jury in an important criminal trial as to what took place in the jury room after the jury had retired.

Proceeding, the learned Judge thought that the previous authority of Rex v. Wooller 2 Stark. 111, was an authority in support of the application before him. With great respect, I do not see how Wooller's case was in support, because in that case what had happened was as follows: Certain members of the Jury in a crowded Court could not come into the view of the learned Judge when verdict was pronounced by the foreman. It was held that affidavits by the members of the jury themselves to that effect could not be accepted although the statement of the learned Judge was accepted. It is clear that the decision of Ellis v. Deheer (supra) is a distinct advance in the legal concept since Wooller's case. It has now established the law to be that what has transpired in the jury room is not admissible, but What has transpired in the open Court is certainly admissible. In Deheer's case, Atkin L.J., as he then was, went the farthest and said that even the time at which the protest was made was a mere detail of fact, which went to the credit to be given to the juryman's statement, but not to its admissibility. In considering these English decisions, the relevant provisions in Section 304 of the Code of Criminal Procedure ought of course not to be ignored. According to that section, a verdict may be amended in certain specified circumstances. When by accident or mistake a wrong verdict was delivered, the jury might, before or immediately after it was recorded, amend the verdict. Now, in that section, it has not been expressly said that it could not be amended after the jury were discharged, or after they came out from the jury box. But the words "immediately after", in my opinion, do, import that meaning and this has been held by Rattigan J. in Emperor v. Brian Bonham Carter (1912) 17 Ind. Cas. 559. There the learned Judge says:

This section thus provides for an amendment of a wrong verdict delivered by accident or mistake, but it clearly contemplates that such a verdict can be amended only before or immediately after it is recorded, in other words, before the jurors have left the Court and while they are still under the observance of the presiding Judge. And the reason for this restriction upon the powers of amendment is obvious, for once, the jurors have left the Court, they are liable to outside influences, and it would be in the highest degree dangerous thereafter to accept statements or affidavits on the part of individual jurors to the effect that a verdict, publicly announced by the foreman of the Jury, in the hearing of all the jurors and without dissent on the part of any of them, as the unanimous verdict of all the jurors, was in fact not their verdict but the verdict of other members of the Jury. A mistake of this kind may, no doubt, lead to a failure or miscarriage of justice, but, while such a result is to be deplored, I am decidedly of opinion that it would be far more disastrous to the course of justice if the Courts allowed verdicts, openly given, to be disturbed in consequence of individual jurors subsequently coming forward to depose that such verdict, by accident or mistake, did not really represent their opinions.

This has been followed in our Court in the case of Ifatulla Akanda v. Emperor ILR (1931) Cal. 1138. In England there have been other cases, e.g., Roberts v. Huges (1841) 7 M. and W. 399, Pirie v. Caledonian Ry. Co. (1890) 17 R. 1157. It is unnecessary to refer to them any further. The position in law seems to be this: affidavits may be permitted or evidence admitted of what happened in Court, but not of what happened when the jury were deliberating amongst themselves and arrived at a verdict. In this case, therefore, what are we asked to do? The foreman of the Jury was an Englishman and it is said that he was under a misapprehension as to the procedure. It follows that he did not understand the import of the word "unanimous". It seems to be somewhat difficult to appreciate this. Be that as it may, in my opinion, there is no escape from the fact that any enquiry must involve the question as to whether the jury were unanimous in their verdict, or whether they were divided in the proportion of five to four or in any other way. That is the kernel of the question which is an enquiry we shall be called upon to decide. It is unthinkable that there can be an enquiry without asking the witnesses this one question, namely, as to what verdict did they arrive at. Clearly, therefore, the enquiry cannot be held because the answer would be inadmissible in evidence. The only thing left, therefore, is to go into the merits of the appeal.

My Lord has stated all the facts in detail, and I do not propose to repeat them except saying that this is a somewhat peculiar case even on the facts, relating as it does to a charge for an offence committed at some unspecified date and at an unidentified place. Unfortunately, it is not open at this stage for us to go into the facts, because leave to appeal on facts has been refused. Therefore, Mr. Dutt appearing on behalf of the accused had to rely on misdirections or non-directions in the charge of the learned Judge. But in doing so, I am afraid, he really relied on the infirmity of the facts and not the manner in which the learned Judge placed it before the Jury, which appears to me to have been quite fair and full. It, therefore, remains for us to consider whether we can reduce the sentence.

For the reasons stated by my Lord, I agree that this is a fit case in which we should reduce the sentence to the period already undergone. I, therefore, agree with the order made by my Lord.

Attorney for Appellant-Asoke Chatterjee.

Attorney for the State-Public Prosecutor, High Court.