JUDGMENT
1. This is an appeal which certainly does present peculiar and interesting features, particularly from the legal point of view. It has been extremely well argued and one may say at once that if it were not for a verdict standing against him of a jury given after an almost perfect example of summing up, Mr. Shinde, who appears for the appellants, would have had a very strong case for shaking one's confidence in the actual result as it stands, for, on the view which we are forced to take the result is not unlikely to appear to what is called, "the man in the street," as a somewhat incongruous one; but we do not shrink from that conclusion because we are satisfied that it is the inevitable result of the application of the legal principles by which in an appellate Court we are bound.
2. The charge in substance was robbery with murder, under circumstances which really make such an offence one offence and not two. On the face of it the murder arose out of and could only have been committed in the course of the robbery, and the strong presumption is that the man or men who committed the robbery also committed the murder, if indeed it would not be more correct to state it in the reverse order. The accused of whom there were three, were charged with two offences separately, the robbery under Section 394 and the murder under Section 302, but the hearing of the two charges was a joint hearing though the tribunals, like the charges were two; and in an appellate Court, the principles which have to guide us are like the charges and the tribunals, twofold; that is to say, they do not work upon the same lines.
3. After a summing up which, as we have said, was admirable and indeed would be difficult to be improved upon, and was certainly favourable, particularly in its closing observations to the accused, the jury convicted the three accused of the robbery upon the uncorroborated testimony of a man, who, on his own statement, was clearly an abettor if not an important principal, and who also gave untruthful evidence in Court. The jury were solemnly warned more than once of the danger of acting upon such testimony and of their right to ignore it. They were not only told that they had not to believe the witness's evidence, but they were also told that if they had any doubt they ought to give the benefit of it to the accused. In spite of this the jury, who saw the man, who heard his story, who were able to make up their minds whether they believed the part of it which pointed against the accused, although they disbelieved the part of it which applied to himself, and who saw the accused and presumably paid great attention to the trial and the summing up, convicted the three men of robbery.
4. In our view the well-established principles of law absolutely prohibit us from interfering with that verdict, whatever we think of it, whether it is a verdict of acquittal or conviction, if it was a verdict which could be reasonably arrived at by honest men, and they had been guided by an accurate direction in matters of law. This Court, as has been said over and over again, has no right to upset the confirmed opinion of the jury and to state its own judgment, for theirs is the verdict which must stand, and the three men must be regarded as having taken part in the robbery. The strong probability to a reasonable person, therefore, tends to arise that they took part in the murder and the Judge has held them guilty. It seems probable, if not almost certain, that the Judge was fortified by the verdict with which he agreed. It is impossible to study his judgment without coming to the conclusion that his instinctive feeling was in the direction of the guilt of all three, and that the jury having believed the uncorroborated testimony of the witness Badlu, the Judge was satisfied that it is a case in which he could do the same. Logical though this may seem, it is not strictly in accordance with the traditional views of the highest criminal Courts in this country. To put it plainly, we have to approach the consideration of the independent case under Section 302 unaided on the one hand and unobstructed on the other by the opinion of the jury.
5. We have already pointed out that the average man would be compelled to say that whoever committed the robbery committed the murder, but, in our view, we are bound to consider the case under Section 302 as though there had been no trial or conviction under separate trial of the charge under Section 394. It is possible that an appellate Court would have given these appellants the benefit of the doubt even under Section 394 if it had seen the witnesses and there had been no jury. It is possible, therefore, that the jury were wrong, though we have no right to say so, or to act as if we thought so but following the accepted principles by which this Court guides itself in cases where there is an uncorroborated accomplice, we come unhesitatingly to the conclusion that if the Section 302 case had come before us as an independent matter upon the precise material upon which the Judge below has acted accompanied by the finding of the Jury, we should have felt that we ought to apply the principle of giving the benefit of a reasonable doubt to the appellants.
6. This reasoning, however, does not apply to the case of Badlu. His case, as the Government Advocate has pointed out, is quite different. There is his own statement, and there is the damning piece of evidence against him of the possession of the stolen property. Therefore, the accomplice is amply corroborated in his case and the appeal of Badlu must fail. But the automatic application of the recognized rules for an appellate Court for these two classes of cases results in the acquittal under Section 302 of the two appellants Jia Lal and Kali Charan although they must be regarded as guilty of the real offence are entitled to be acquitted. We, therefore, allow their appeal under Section 302, set aside the conviction and sentence of death passed under that section and uphold the conviction and confirm the sentence under Section 302 of Badlu. The appeal under Section 394 is dismissed.