Sen, J.
1. This is a reference under Section 374 of the Criminal Procedure Code, 1898, by the Sessions Judge of Thana who has convicted the accused Narhari Ganpati Borkar under Section 302 of the Indian Penal Code, 1860, and sentenced him to death. The accused has also appealed against the conviction and the sentence. The case against him was as follows.
2. The accused was originally working as a wood-cutter at Kalyan where he contracted intimacy with a Maratha woman named Shevanti, and they lived together for some time at Kalyan. Thereafter they went to Pen and lived there for some months. At the time of the Diwali of 1944, i.e. in October, 1944, the accused went to his native place while Shevanti returned to Kalyan on or about October 16, 1944. There she met one Govind Ragho, a former acquaintance of hers and one Shankar Chhagan, a driver of a military lorry. She went, thereafter to live with Shankar as his mistress in a chawl called Khadyachi chawl at Kalyan, Some time in October the accused came back to Pen and not finding his mistress there went to Kalyan on October 27, 1944, He learnt from Govind that Shevanti had been living as Shankar's mistress and he accordingly went to the room of the accused in Khadyachi Chawl. He asked Shevanti to go with him but she did not agree. On the night of October 27, he slept on the verandah of Shankar. The next day he repeated the question with similar result. Thereafter the accused told Shevanti that if she was not willing to go with him, she should return the ornaments which he had given her while she had been living with him, Shevanti at first refused to comply with this request also; but as he persisted in his demand, the three ornaments which the accused had given her were returned to him on October 29, 1944. Shankar had stayed in his room and had not gone out for work for two or three days up to October 29. Oh October 30, being assured by Shevanti that the accused would not come again to give her trouble, he went to his work, leaving Shevanti in the room. At that time certain people had been living in the room of Shankar, viz. one Vithal alias Vithoba, his wife Tulsi, their small child and a labourer Nana. Nana as well as Tulsi both used to work in a military camp near Kalyan. On October 30, Nana and Shankar had both gone out for work while Vithal had stayed in the room with Shevanti. At 5 or 5-30 P.M. the accused came there and suggested that as ha and Shevanti were going to part they should go to the adjoining toddy-booth and have some drinks. The accused, Shevanti and Vithal went to the toddy-booth and consumed six bottles of toddy there. Thereafter Shevanti and the accused left the booth followed by Vithal. In the meanwhile Tulsi, wife of Vithoba, who had gone to a well behind the chawl for washing clothes had returned to the room, and shortly thereafter Nana also came there. Nana suggested to Tulsi that they should go to the military camp to get their wages. Tulsi then locked up the room and the two went out together. As they came on the main road leading to the town, she saw her husband Vithoba coming and therefore asked Nana to shout to Vithoba to come and get the key from her. Nana accordingly called out to Vithoba and as Vithoba was coming towards them, Nana was heard to shout that Shevanti was being murdered. Both Vithoba and Tulsi then saw the accused stabbing Shevanti in the back, after which she fell down and the accused ran away. Vithoba ran after the accused, but he could not catch him. Vithoba then came back to where Shevanti had fallen on the ground, and he then suggested to Nana and his wife that they should go to get their wages but at the same time should inform Shankar about what had taken place. Shankar had left his work at about 6-30 P.M. and was returning home. He met Tulsi on his way and heard from her that Shevanti had been murdered by the accused. Going to the scene of the offence, he found Vithal sitting near the dead body of Shevanti. He made some attempt to find out the accused but was unsuccessful, after which he went to the police-station along with Govind, whom he had also met, and lodged the first information. Thereafter the Police Sub-Inspector came to the scene of the offence and after keeping a constable to watch the body recorded the statements of Vithoba and Tulsi on the spot. He also examined Nana the same night. Next morning the inquest on the dead body of Shevanti was held and a panchanama regarding the scene of the offence was made. Other witnesses were examined on that day and the succeeding day, search was made for the accused at several places and he was ultimately found in the house of his sister at Murti on November 14, 1944, His person was searched on November 17 and his dhoti, shirt and cap, which appeared to bear some blood marks, were attached. One Kharote of Kalyan who stated that the accused had pawned three ornaments with him on October 30, 1944, for Rs. 5 was also examined.
3. The accused was put up for trial on the charge of the murder of Shevanti, and the evidence in the case was mainly that of Shankar who had given the first information, Govind, Vithal, Tulsabai, Ramchandra, the owner of the toddy booth, the Medical Officer, who produced the post-mortem notes as well as the opinion of the Imperial Serologist and the Chemical Analyser regarding the clothes of the accused, and the Police Sub-Inspector,
4. The defence of the accused was that Shevanti had been in his keeping for about twelve months, that he had gone to Khadyachi Chawl to take her from the room of Shankar, that he had asked her to come away with him or to return his ornaments, that she returned the ornaments which he pledged with Damodar Kharote and that thereafter he went to his native place in the Poona District. He denied that he had anything to do with the offence. The alleged eye-witnesses are Nana, Vithal and Tulsabai. Out of these three, Vithal and Tulsabai were examined in the Sessions Court but not Nana. Nana was present in the Court for the first two days of the 'hearing but later on his whereabouts could not be traced. With regard to the offence Vithal stated, after describing how the accused came to Shankar's room at about 5 P.M. and invited Shevanti and him to the toddy booth where they drank six bottles of toddy:
After we had finished the drink the accused asked Shevanti to go with him. She replied that as he had taken from her the ornaments she would not come. Shevanti then got up and was walking ahead. The accused went behind her. I also got up and followed them. Shevanti and the accused were walking abreast by the road over the bridge. I was a little distance behind them. They sat on the road and were talking with each other. I was standing nearby on the road. Sometime later Nana and my wife Tulsa: came near the bridge and they asked me to take the key of the room as they were going to the military, camp for getting their wages. I went up to them and took the key, The accused and Shevanti were sitting on the road about fifty paces away from the toddy booth. I had gone about forty paces from that place to take from Nana and Tulsa the key of the room. Nana then shouted that the accused had stabbed Shevanti. I looked behind and saw that the accused was standing with an open penknife in his hand. 1 saw the accused stab Shevanti in the back. Then she fell down and the accused started running below the bridge. 'I ran to catch him but found that he had disappeared.
5. Tulsabai's evidence on this point is as follows:
He (i.e., Nana) told me that I should go with him to the military camp to get our wages. I then locked the room, and went out together. When we came near the road I asked Nana to shout to my husband who wasi seen by us with the accused and Shevanti near the bridge. Shevanti and the accused were sitting on a stack of metal and my husband was then walking away from near them. Nana then shouted to my husband that he should take the key of the room as we were going to get our wages. While my husband was coming towards us Nana shouted, ' Shevanti is killed.' I looked towards Shevanti and saw the accused stabbing Shevanti with a pen-knife in the back. . The accused then ran away.
6. Shankar has stated that he was free from his work at 6-30 P.M., that as he was coming home he met Tulsa at Shivaji Chowk and that she told him that Narahari, i.e., the accused, who had taken away the ornaments the previous day, had murdered Shevanti. If, therefore, Shankar's evidence is relied upon, the name of the accused was given out to him shortly after the offence by Tulsabai. The other parts of the prosecution case appear to us to be fully borne out by the evidence of the witnesses, the principal ones among whom I have already named. The medical evidence shows that the main injury found on the body of the deceased Shewanti was an incised wound in the back, there being a corresponding injury in the internal organs cutting through the visceral pleura. According to the Medical Officer this injury was ante-mortem and had been caused with an instrument like a knife and the death was due to haemorrhage from the internal injury. He is also of opinion that this injury was sufficient in the ordinary course of nature to cause death.
7. There is no doubt, therefore, that this was a case of murder. The learned advocate for the accused-appellant has contended that the evidence in the case should not be considered sufficient to support the conviction. The three main grounds which he has urged in support of his contention are, firstly, that the learned Sessions Judge's summing-up is vitiated by a serious misdirection in that Nana Yeshwant Shinde, an alleged eye-witness, not having been examined by the prosecution, and the statement made by him in the Committing Magistrate's Court not having been put in, the learned Sessions Judge was wrong in directing the jury to consider the fact that the witness had not been examined as not giving rise to an adverse inference against the prosecution; Mr. Joshi's contention being that the jury's verdict must be deemed to have become erroneous owing to this misdirection; secondly, he has tried to show that there was considerable delay in the first information reaching the police after the commission of the offence; this, according to him, was a very suspicious circumstance, for the delay gave time to interested parties to connect false evidence; and he has also contended that the evidence shows that a deliberate attempt was made by several witnesses to minimise this delay; and thirdly, he has pointed out that there were a large number of important discrepancies in the evidence showing, according to him, that the evidence of the main witnesses is unreliable.
8. As to the question of misdirection, it is no doubt true that Nana, according to the prosecution case, was the first person to see Shevanti being stabbed by the accused, and he ought, therefore, to have been examined by the prosecution in the early stages of the proceedings. The first date of the hearing was June 12, 1945, when the Circle Inspector, Shankar, Govind and Vithal were examined. On the next day the panch, the Police Head Constable, the Medical Officer and Tulsi were examined. On June 14, Ramchandra Bhoir, the toddy booth keeper, two panchas, the Police Sub-Inspector, the Head Constable and an unimportant witness named Shripati were examined. On June 15, an application was made on behalf of the Crown stating that the prosecution witness Nana Yeshwant Shinde had been present in Court for two days but that on inquiries made it was learnt that he had left Kalyan due to the cholera epidemic prevailing there and that his whereabouts could not be ascertained in spite of efforts on the part of the Police Sub-Inspector and other constables. It was, therefore, prayed that his evidence might be cancelled as he could not be produced in Court. This application was supported by the evidence of the Police Sub-Inspector, exhibit 35, who stated that he had made inquiries at Kalyan the day; before and on that day but that Nana could not be found and that his whereabouts were unknown. The evidence of Nana recorded in the Committing Magistrate's Court could not under Section 288 of the Criminal Procedure Code be put in and treated as evidence in the case. But there seems to be no reason why it was not possible to produce Nana's deposition in the Committing Magistrate's Court under the provisions of Section 33 of the Indian Evidence Act. It seems clear from the application made on behalf of the Crown, exhibit 32, that Nana had been present in Court on June 12 when nearly all the important prosecution witnesses were examined. The prosecution have not explained why Nana was not examined on either of the two days when he was present nor why his deposition recorded in the Committing Magistrate's Court was not put in as evidence in this case. It seems to us that these circumstances are capable of giving rise to at least two presumptions against the prosecution in this case, first, that the prosecution was reluctant to examine this witness as he was not going to support their case, and secondly, that Nana had made himself scarce in order that he might avoid saying what he did not wish to say or that he did not want to antagonise the prosecution by stating what he knew. Either of these presumptions can arise against the prosecution. It seems to us, therefore, that the learned Sessions Judge was wrong in telling the jury that 'the fact that any witness has not been examined on behalf of the prosecution need not give rise to an adverse inference against the prosecution and you have to decide the truth or reliability of the evidence of the witnesses who have been examined.' In our opinion the learned Sessions Judge ought to have pointed out the possible presumptions that might arise against the prosecution from the circumstances in this case relating to the non-examination of Nana and that he should have left it to the jury to act or not to act on any of such presumptions as they thought
9. We have before us the proceedings of the case submitted to us under Section 374 of the Criminal Procedure Code as well as the appeal preferred by the accused, against his conviction and the sentence passed upon him. Under the proviso to Section 376 ' no order of confirmation can be made until the period allowed for preferring an appeal has expired, or, if an appeal is presented within such period, until such appeal is disposed of.' It is, therefore, our duty-first to dispose of the appeal and then to deal with the reference under Section 374 of the Criminal Procedure Code.
10. Under Section 423(2) this Court can alter on reverse the verdict of a jury, only when 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. We have already held that the summing-up of the learned Sessions Judge suffers from an important misdirection by the Judge. Before, therefore, we can alter or reverse the jury's verdict, it will be necessary to find whether the verdict of the jury is erroneous owing to such misdirection. In this connection a reference to Section 537 would be useful. That section lays down that subject to the provisions thereinbefore contained, no finding sentence or order passed by a Court of competent jurisdiction shall be reversed or altered on appeal on account of any misdirection in any charge to a jury unless such error, omission, irregularity, or misdirection has in fact occasioned a failure of justice. The words ' in fact' were expressly inserted into the Code of 1898. It has been remarked in Emperor v. Edward William Smither I.L.R. (1902) Mad. 1 that those words were so introduced ' apparently in order to emphasise the duty of the Court to go into the merits before interfering in consequence of a misdirection or other error.' Prima facie, therefore, the provisions of Section 537 require the High Court, when exercising its powers of appeal under Section 423, to be satisfied that the misdirection has in fact occasioned a failure of justice. If that be so, there can be little doubt that the words ' such verdict is erroneous' occurring in Section 423 mean, that such verdict is erroneous in the opinion of the appellate Court. In Wafadar Khan v. Queen-Empress I.L.R. (1894) Cal. 955 it was held that where a verdict is vitiated owing to misdirection by the Judge, the Appeal Court has no option but to set aside the verdict and direct a retrial, because ' were the appeal Court to go into the facts in such a case, it would be substituting the decision of the Judges of that Court for the verdict of the jury, who have the opportunity of seeing the demeanour of the witnesses and weighing the evidence with the assistance which this affords, whereas the Judges of the Appeal Court can only arrive at a decision on the perusal of the evidence.' An English case, Makin v. Attorney-General for New South Wales [1894] A.C. 57 was relied on in support of this proposition. This case was followed in AH Fakir v. Queen-Empress I.L.R. (1897) Cal. 230, where it was held that where there has been a misdirection, the provisions in Section 423(d) and Section 537 of the Criminal Procedure Code did not require that the Court was to go through the facts and find for itself whether the verdict was erroneous upon) the facts. These two cases were decided in 1894 and 1897 respectively, i.e. prior to the amendment of 1898. The view taken by our High Court, however, in Queen-Empress v. Ramchandra Govind Harshe I.L.R. (1895) Bom. 749 was that when a part of the evidence which had been allowed to go to the jury was found to be irrelevant and inadmissible, it was open to the High Court in appeal either to uphold the verdict upon the remaining evidence on the record or to quash the verdict and order a retrial. It was there held that the law as settled in England and as stated in Makin v. Attorney-General for New South' Wales with reference to the granting of new trials where evidence had been improperly admitted, did not apply to India; and their Lordships expressly dissented from the decision in Wafadar Khan v. Queen-Empress. In Emperor v. Woman I.L.R. (1903) Bom. 626 the trial having been by a jury in the Sessions Court, it was held that there had been misdirection in the case and their Lordships. raised the question whether the verdict could be pronounced to be erroneous owing to the misdirection. They referred to the decision of Melvill J. in Reg. v. Ramsivami Mudliar (1869) 6 B.H.C. . 47 and holding on the basis of that decision that the verdict of the jury had been so far invalidated that the appellate Court could not any longer accept it as a conclusive decision on the facts, they said (p. 636):
It is competent to us, under these circumstances, to consider whether, after excluding the: evidence wrongly admitted, the rest of the evidence is sufficient to sustain the verdict and to determine the appeal: See Queen-Empress v. Ramchandra, Criminal Ruling No. 1,1 of 1895.
11. It seems to us, therefore, that they interpreted the word ' erroneous ' 'as meaning invalidated by reason of the misdirection to such an extent that the Appellate Court could not any longer accept it as a conclusive decision on the facts. In Reg. v. Ramswami Mudliar (1860) 6 B.H.C. C.C. 47 Melvill J. had observed as follows (p. 50):
The duty of the Appellate Court is, in my opinion, first to consider whether the evidence improperly admitted is material, and such as is likely to have exercised a prejudicial influence; on the minds of the jury. If it be so, then, as it is impossible to know the exact amount of weight which the jury attached to the particular evidence in question, their verdict is so-far invalidated that the Appellate Court cannot any longer accept it as a conclusive decision on the facts. ... If the Appellate Court thinka that the verdict of the jury is founded, in. .part, upon evidence which should not have been admitted, or that the Appellant has been prejudiced by some misdirection or omission of proper direction on the part of the Judge, the Appellate Court is at liberty to treat the case as if it had been tried by the Judge with the aid of assessors.
12. The effect of this view is hardly distinguishable from the view that it is the High Court which has to see whether the verdict of the jury is erroneous on the facts owing to the misdirection. This is the view of the Calcutta High Court in Jamiruddi Masalli v. Emperor I.L.R. (1902) Cal. 782 and Sarojekumar Chakrabarti v. Emperor I.L.R. (1932) Cal. 1361. The first of these cases relied on an earlier case reported in Elahee Buksh (1866) 5 W.R. 80, where the following rule had been laid down in a full bench case by Peacock C. J. (p. 90):
It would tend to defeat, and not promote, justice, if a verdict of guilty were set aside, and a new trial granted, for a defective summing-up with reference to the weight of evidence in. a case in which the High Court would, upon the evidence given on the trial, have affirmed a conviction, if, instead of a trial by Jury, the trial had been before a Judge and Assessors. It appears to me that the question to be considered is not whether, upon a proper summing-up of the whole evidence, a Jury might possibly have given a different verdict, but whether the legitimate effect of the evidence would require a different verdict.
13. In Sarojekumar Chakrabarti v. Emperor it was held that under Section 423(2) of the Criminal Procedure Code, the High Court would not interfere unless the Judge's misdirection had caused the jury to come to a conclusion which was in fact wrong. In Emperor v. Edward William Smither I.L.R. (1902) Mad. 1 the case of Elahee Buksh was followed in preference to the cases of Wafadar Khan v. Queen-Empress and All Fakir v. Queen-Empress I.L.R. (1897) Cal. 230 and their Lordships observed (p. 16):
We cannot say that there has, in fact, been a failure of justice without considering the credibility of the evidence, and I think it would be unreasonable, and contrary to the express, direction of Section 537 to hold that once a misdirection, even though it be an important one-is established we are bound mechanically to order a retrial, even though in our judgment the evidence for the prosecution is untrustworthy.
14. It was objected in that case that the High Court, not having an opportunity of observing the demeanour of the witness, was. at a disadvantage in weighing the evidence, and that in weighing the truth of the evidence, the High Court were assuming the functions of the jury. Their Lordships' answer to this argument was that this was a duty so frequently cast on) Judges of High Courts in India that no adverse argument could be drawn from it, and they referred in this connection to Section 307 of the Criminal Procedure Code as a section which imposed on the High Court the duty of itself trying jury cases. The latest case decided by our High Court which we have been able to find on the point under, consideration is Emperor v. Ramchandra (1932) 35 Bom. L.R. 174, where it was held that:
In the case of a trial by jury, the appellate Court has power, in the event of any mis-direction or admission of inadmissible evidence, either to convict or acquit the accused according as the evidence is or is not sufficient for conviction; or, where the facts have to be determined and the evidence is of such a character as to render it difficult to pronounce any opinion on its character without hearing the witnesses, a new trial may be ordered.
15. The question for us, therefore, to consider is whether the evidence in this case is or is not sufficient to sustain the conviction, taking into consideration the fact that an important eye-witness has not been examined for the prosecution. If we find that the evidence is sufficient to sustain the conviction, the appeal will have to be dismissed; but if we find the evidence more or less inconclusive, i.e. such as no decisive pronouncement can be made in the absence of Nana, the proper course for us would be to order a retrial. We must, therefore, now proceed to consider the evidence on merits.
16. His Lordship after considering the evidence on merits concluded thus.]
17. The result of our appreciation of the evidence, therefore, on the question whether the murder has been committed by the accused is, firstly, that the evidence of the two year witnesses, Vithal and Tulsabai, is entirely reliable. As to Nana, it is not improbable that he was absent because of the reason actually given in the application, exhibit 32, viz. because there was cholera in the town of Kalyan. Even if he had not supported the prosecution case, we would have relied on the evidence of Vithal and Tulsabai and regarded the case against the accused as proved,
18. With regard to the reference under Section 374, Criminal Procedure Code, it has been pointed out in Emperor v. Daji Yesaba : (1915)17BOMLR1072 that the practice of this Court has been that where a prisoner has been sentenced to death, even though the conviction is on the unanimous verdict of the jury, the whole case is reopened before the High Court both on matters of fact as well as on matters of law, though there does not seem to be any considered case in which this has been held to be the law on the subject. There can, in our opinion, be little doubt that this practice is correct. A reference to Section 375 of the Criminal Procedure Code shows that when proceedings are submitted under Section 374, and the High Court thinks that a further inquiry should be made into, or additional evidence taken upon, any point bearing upon the guilt or innocence of the accused, it has the power to make such inquiry or take such evidence itself or direct it to be made or taken by the Court of Session. Sub-section (2) of Section 375 lays down specifically that ' such inquiry shall not be made nor shall such evidence be taken in the presence of jurors or assessors.' This, it seems to us, is a clear indication that the whole case is reopened before the High Court on submission under Section 374, and that the High Court is bound to go into the facts as well as the law although the conviction is by the verdict of the jury. This view is in accordance with the decision in Crown v. Gul Wd. Loung (1921) 15 S.L.R. 103 where it is held that a High Court has power to substitute its own finding for the unanimous verdict of the jury in a trial for murder, when the sentence comes on for confirmation before the High Court.
19. I have already stated that our conclusion is that the conviction of the accused under Section 302 of the Indian Penal Code is fully supported by the evidence in this case.
20. With regard to the sentence, the learned Sessions Judge has taken the view that the case does not show any extenuating circumstances and that the crime was committed ' out of vengeance and with some deliberation.' We, however, do not think that there was any premeditation in the commission of the offence. When the accused invited Shevanti to go with him to the toddy booth, he took Vithal also with him. According to Vithal, the accused and Shevanti first left the room and thereafter the accused came .back to call him. Vithal also has stated that there had been no quarrel between the -accused and Shevanti before he took her to the toddy booth, nor had they any quarrel at the toddy booth. It is clear from the evidence that the accused had not given up the hope of inducing Shevanti to return to him to the last. Vithal saw them sitting together on a heap of metal shortly before the offence was committed. It appears to us that it was only when all his attempts to persuade Shevanti to come with him had failed that he got suddenly incensed (it is also to be remembered that he was under the influence of liquor) and with hardly any premeditation inflicted the fatal injury on/ the deceased. That being our view, we think that there are certain extenuating circumstances in this case, and the sentence of death is not the appropriate sentence to be inflicted on the accused.
21. We, therefore,' confirm the conviction of the accused under Section 302 of the Indian Penal Code and alter his sentence to one of transportation for life.