W.W. Dalziel, J.

1. This is a reference under S. 307, Criminal P.C., from the learned Assistant Sessions Judge of Shahabad in respect of the accused person Ramadhar Kurmi who was charged under S. 366, Penal Code, in a trial held with a jury of five, who by a majority of four to one gave a verdict of guilty. The learned Assistant Sessions Judge holding that the verdict is perverse and wholly unwarranted by the evidence on record has referred the case with a recommendation that the accused should be acquitted. The complainant is one Agin Singh, a Rajput of village Masarh in P.S. Arrah Mufassil, and the case relates to the alleged kidnapping of his two daughters, Rajkalia and Gorki, for the purpose of compelling them to marry against their will. Rajkalia was found by the lady doctor of Arrah (P.W. 8) to be aged between 12 and 13, and Gorki to be aged between 11 and 12. The prosecution case is that on the evening of 16th June 1915, at about 9 p.m., Agin Singh having left his house for about half an hour, in his absence the accused Ramadhar Kurmi, who used to fetch water to the house of Agin Singh, came and took away Rajkalia and Gorki on the pretext that their nani, who lives in village Galimapur in another district, had sent for them. They were taken first to the house of one Sahodri Ahirin in their own village and then to the house of the accused himself where they remained for that night. Next morning they were taken via Arrah town to a village Bingawan Rampur, and from there the accused is said to have taken them to the bank of the river Sone, where one Birbahadur Singh was waiting with a mare. Birbahadur Singh took the girls on the back of the mare to Hardi Chapra, the accused accompanying them, and at Hardi Chapra Birbahadur sold Rajkalia to one Ramdeyal Singh for Rs. 400 and the girl was married in the house of Ramdeyal to the latter's son Bikram Singh. This ends the story of the girl Rajkalia, until she was recovered from the house of Ramdeyal Singh by the police on 27th July. Gorki had further adventures. She ran away from the house of Ramdeyal Singh, and went back to Bingawan Rampur, where she went to the house of Ganga Singh and Mahadeo Singh. From there she was taken by Mahadeo to village Dehuli, and was kept in the house of Dome Hajam for about 15 days, and thereafter she was taken by Mahadeo's grandson, Sheokumar Singh, to the house of Jagdish Ahir in village Jhakar. There Gorki told Jagdish Ahir who she was and how she had been deceitfully taken from her home. Jagdish then made her over to some Banias who took her to Masaurhi bazar, where they left her. She went to the house of Sheonandan Gope, Dafadar of village Masaurhi, and from there she was ultimately recovered by the police on 24th August. Agin Singh had already, after making search and obtaining some clues, lodged his first information at the Arrah Mufassil thana on 17th July.

2. There are two main grounds on which the learned Assistant Sessions Judge disagrees with the verdict of guilty, viz. (1) that the prosecution story is inherently so improbable as to be unworthy of belief, and (2) that the evidence, particularly of Agin Singh, is so discrepant and contradictory as to be unacceptable.

3. On the hearing of this reference it came to our notice that a great deal of evidence, which was pure hearsay, was entirely inadmissible, had been put on record in the trial Court and placed before the jury. Much of the evidence in this case relates to the enquiry which Agin Singh made in various quarters to discover the whereabouts of his daughters. He is said to have obtained information from a number of persons, some of whose names are given, although here, as the learned Assistant Sessions Judge points out, there are marked discrepancies as to who these people were. None of them was called as witness. Statements alleged to have been made by these persons to Agin Singh and others and also statements of unknown persons have been very freely admitted on to the record. One of the most glaring examples will serve to show the nature of this evidence. In his examination in-chief Agin Singh is recorded as having deposed as follows:

There (Bingawan Rampur) we learn that Ramadhar and Sahodri had kept my daughters in the house oil Sahodari's daughter and I further learnt that from that house Ramadhar had taken my two daughters to the bank of the river Bone. I also learnt that from the bank of the river, Birbahadur Singh had taken both the daughters on horse back to Hardi Chapra. Ramadhar had also gone with them; there in the house of Birbahadur Singh, my daughters were kept in a room. Then I learnt that Birbahadur and Ramadhar had sold my elder daughter Rajkalia for Ms. 400 to Ramdeyal Singh and Bikrama Singh . . . .
Agin Singh is here quoting statements of persons whom he does not even name, and who have not appeared as witnesses. These statements, if believed, would afford strong corroboration of the evidence of the girls, Rajkalia and Gorki, themselves on which the whole case of the prosecution rests. In short, here and in many other passages the evidence of the girls was sought to be corroborated by other evidence which is pure hearsay, and is inadmissible. In his charge to the jury the learned Assistant Sessions Judge placed the evidence of this nature very prominently before the jury. It is true that he did so mainly for the purpose of pointing out discrepancies between one statement and another made by Agin at various times or between his statements and those of other witnesses, Jiut Singh and Raghunandan Singh, who are said to have accompanied him during his enquiries. This, however, does not appear to me to detract from the mischief of not only permitting the jury to hear such evidence (but also) bringing it prominently to their notice in the charge. As the learned Assistant Sessions Judge himself instructed the jury they were the sole judges of the facts and were not bound by any [opinion which he himself expressed on them. It is quite likely that they were not so deeply impressed by the various discrepancies which he pointed out to, them as by the volume of the evidence itself regarding the facts alleged to have been discovered by Agin Singh during his enquiries.

4. I do not find much authority in previous rulings regarding the functions of the High Court on a reference under S. 307 when, apart from the question whether the verdict on the jury is unreasonable or perverse, it is further found that a certain amount of inadmissible evidence has been placed before the jury.  AIR 1935 (Cal) 184 is a case which is somewhat to the point. There on a reference under S. 307 against a verdict of guilty the Court found that the manner of presentation of evidence by the prosecution had been somewhat improper, and on this point arising it was considered what order should be passed. It was remarked that a retrial should not be ordered where it can be established that there is really no evidence to go before a jury because to order a retrial in such circumstances would be to put the accused to unnecessary harassment. The danger of the prosecution in retrial trying to fill up gaps in the evidence was also pointed out. Actually in that case a retrial was ordered, but this does not affect the aptitude of the above-quoted remarks. In 1934 AIR (Cal) 847 which was not actually a case which came up to the High Court on a reference under S. 307 but on appeal, but where the question was raised whether the Sessions Judge should have made a reference under S. 307, it was held that on a question of misdirection as to evidence this Court has to see whether it is reasonably probable that the jury would not have returned the verdict but for the misdirection complained of.

5. In the present case it appears to me that we have wrong admission of evidence and consequent misdirection of the jury by placing such evidence before it. Under S. 307 the High Court is to consider all the evidence but it goes without saying that it is only admissible evidence that can properly be considered. If after excluding the inadmissible evidence the remaining evidence, is such that the jury would probably not have given the verdict of guilty, or that, if they had it would have been an entirely unreasonable verdict, the proper order for this Court to pass is one of acquittal. That indeed appears to be position here. I very much doubt whether the jury would have returned the verdict of guilty if their minds had not been influenced by all the hearsay evidence they were allowed to hear. If they had, I would have had no hesitation in holding that their verdict left on the record as against the accused will be that of the two girls themselves. There is some evidence about the alleged wanderings of Gorki after she had run away from Hardi Chapra, i.e., her going back to Bingawan Rampur and then to Dehuli, Jhakar and finally Masaurhi, but apart from the, fact that this evidence is somewhat discrepant and unconvincing, it relates to a stage after the accused Ramadhar Kurmi had ceased to have any hand in the matter, even according to the prosecution allegations.

6. The charge against the accused is one of kidnapping the girls from the lawful guardianship of their father, and rests on the allegation that he took them away from the house in village Masarh on the evening of 16th June without the consent of Agin Singh. On this we have only the evidence of the girls themselves. Corroboration would have been provided by evidence to support the story of their being taken to Bingawan Rampur and then Hardi Chapra where Rajkalia is said to have been Bold and married. But as I have said, all the evidence of this is pure hearsay, and no competent witness on the point has been examined, except one Charitar Singh (P.W. 10) who throws over the prosecution case by deposing that it was the complainant by whom the girl Rajkalia was sold to Ramdeyal Singh. Further as the learned Assistant Sessions Judge has remarked in his grounds of reference, the entire story of the girls being taken away is a most unlikely one. They are said to have gone off quite happily with the accused, who is nothing to them except that he apparently used to fetch water to their house on the pretext that he was going to take them to their nanihal, and they made no attempt to suggest that their father should be consulted in the matter. They are said to have spent the first night in the village itself, but still made no attempt to get a touch with their father. Indeed, there is an admission in the evidence of again himself that he went to the house of the accused that night which, if true, would destroy the prosecution case. Even after it must have become apparent that the pretext of taking them to the nanihal was false, the girls seem to have made no protest, and gone with the accused quite willingly.

7. It certainly seems much more likely that the girls should have left the house originally with the consent of their father. The defence case was that he himself had sold them for marriage. As against this it might be urged that there is clear evidence of the complainant having gone to search for his daughters which indicates that he must have lost trace of them, but it is quite possible that after he had sent them away willingly, owing to some hitch or breakdown in the negotiations they were then removed out of his reach and kept away from him.

8. As regards the discrepancies which the learned Assistant Sessions Judge has found in the evidence, these relate mainly to the enquiries made by the complainant along with the witnesses Jiut Singh and Raghunandan Singh. The two main discrepancies appear to me to be the following. First there is a story introduced in Court that the complainant, on getting some information that his daughters had gone to Rampur at first went to a village of that name in Muzaffarpur district under the wrong impression that this village was meant, and that then after he had come back to Masarh he discovered that the real village was Bingawan Rampur in Arrah District. There was no mention of this in the First Information Report and it was possibly introduced for the purpose of explaining the long delay in lodging the first information. Secondly, there is a serious discrepancy as to whether or not the complainant with Jiut Singh and Raghunandan Singh only went to Bingawan Rampur in the course of their enquiries or pursued them further up to Hardi Chapra. In the first information Agin Singh not only did not mention any visit to Hardi Chapra, but after speaking of what he had learnt in Bingawan Rampur he definitely states that he did not go to Ramdeyal Singh's place. Before the committing Magistrate neither Agin Singh himself nor the two witnesses said anything about their having gone to Hardi Chapra. In examination-in-chief in the Sessions Court also Agin Singh himself again does not mention that he went to Hardi Chapra, but after describing his enquiries in Bingawan Rampur he says that thereafter he lodged the complaint at the thana. The other two witnesses, however, deposed that they all went to Hardi Chapra. In cross-examination Agin Singh was asked about this point and then he says that he went on from Bingawan Rampur to Hardi Chapra. The question was then put: "Where did you stay in Hardi Chapra" and it is recorded that the witness gave his answer after a long time saying that "we stayed under a tree at night." There are also numerous discrepancies and contradictions regarding the enquiries alleged to have been made at Hardi Chapra, and even as to whether they went to the house of Ramdeyal Singh, and whether they saw him. In cross-examination Agin Singh says that at Hardi Chapra he met Ramdeyal Singh who told him that he had taken one of his daughters from Birbahadur for Rs. 400 for marrying her with his son Bikram Singh, although, curiously enough, this very important incident was never mentioned at any previous stage of the case, Jiut Singh says that they went to the duar of Ramdeyal Singh, but out of fear did not say anything. Raghunandan Singh does not even mention their going to the house of Ramdeyal Singh. It is quite clear that there has been suppression of the truth here, and it is over a most important point in the case, viz., the contract between the complainant and Ramdeyal Singh. The defence case is that Agin Singh himself sold his elder daughter to Ramdeyal Singh. Thus, when we find that Agin Singh is obviously concealing facts about his visit to the house of Ramdeyal Singh at Hardi Chapra, this leads to a very obvious inference against the prosecution case.

9. I, therefore, find that this reference has to be accepted, although not solely for the reasons given by the learned Assistant Sessions Judge. One further remark has to be made. It appears that when the foreman of the jury was asked for the verdict he stated not only the numbers of those jurors who held the accused guilty, or not guilty, but actually gave the names of those who held either opinion. This is entirely improper in a jury trial where the verdict is deemed to be that of the jury as a body, (either unanimous or of a majority), and the individual opinions of the jurors are not intended to be disclosed. In 26 Cri. L.J. 1846 when a similar thing was done it was held to "opposed to a fundamental principle of the scheme of trial by jury."

10. I would accordingly accept the reference, and disagreeing with the verdict of the jury acquit the accused Ramadhar.

Das, J.

11. I agree to the order proposed by my learned brother. In view of the importance of the question raised, I should like to express in my own words the reasons for my opinion.

12. The question raised is what is the duty of the High Court on a reference under S. 807, Criminal P.C., when it is found that there has been misperception of evidence, or serious misdirection or non-direction by the Judge. If there had been no such defect, the principles laid down by their Lordships of the Judicial Committee in  AIR 1946 (PC) 151 would have applied and the main question would have been if upon the evidence no reasonable body of men could have reached the conclusion arrived at by the jury. Even on that basis, I would have been prepared in this case to say that the majority verdict of the jury was unreasonable. Accused Ramadhar Kurmi was charged in the case with kidnapping the two girls, Rajkalia and Gorki with intent that they might be compelled to marry against their will. Except the evidence of the two girls, there was no other direct evidence on the point that Ramadhar had taken them from the lawful guardianship of their father. One of the girls, Rajkalia, had admitted in cross-examination - it should be remembered both are very young and liable to be influenced by others - that she and her sister had been asked by her father and others to say that Ramadhar had taken them from their house and to make statements in a particular way. This clearly shows tutoring of the girls; and though it is pre-eminently a matter for the jury to believe a witness or not, I find it extremely difficult to hold that a reasonable body of men could have come to the conclusion at which the majority of the jurors arrived, on the basis of evidence which was clearly tutored and otherwise unnatural as well as improbable, as pointed out by the learned Sessions Judge.

13. I now turn to the main question raised. There is no doubt that a lot of hearsay evidence has been admitted in this case, and placed before the jury for consideration. The learned Judge had clearly misdirected the jury in asking them to consider as evidence that which was not evidence at all - though he did so for the purpose of pointing out certain contradictions. The jury were probably misled by the volume of such hearsay evidence to think that it afforded corroboration to the testimony of the girls, though it did nothing of the kind. Then, the learned Judge has been guilty of a serious non direction. He has failed to warn the jury of the danger of convicting upon the uncorroborated testimony of the girls, and has also failed to explain what amounts to corroboration in such cases. The duty of a Judge in such cases has been very' clearly explained in AIR 1939 (Pat) 536 . The learned Judge has completely failed in his duty in this respect.

14. When there has been such serious misdirection and non-direction, the verdict of the jury is clearly vitiated. What then is the duty of the High Court - must it send back the case for retrial or can it decide it for itself The question has been considered in somewhat similar circumstances by their Lordships of the Judicial Committee in a recent decision: AIR 1946 (PC) 82 . I must say at once that their Lordships were not dealing with a reference under S. 807, Criminal P.C. The case came to their Lordships from a reference under S. 374, Criminal P.C., and an appeal by the convicted person, which were dealt with by a Divisional Bench of the Lahore High Court after certain questions had been referred to the Full Bench. The answers given by the Full Bench were limited to a murder reference and an appeal under S. 449, Criminal P.C. Their Lordships, however, did not so limit their decision, but dealt generally with the powers of the appellate Court with reference to a jury verdict where (a) there has been misreception of evidence; or (b) a serious misdirection. Dealing with the effect of misreception of evidence, their Lordships observed:

The appellate Court must apply its own mind to the evidence and alter discarding what has been improperly admitted decide whether what is left is sufficient to justify the verdict.
15. Their Lordships have referred in this connection to S. 167, Evidence Act, which says that the improper admission of evidence shall not be ground of itself for a new trial or reversal of any decision in any case if it shall appear to the Court before which such objection is raised, that independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision. It may be argued that S. 167 will not in terms apply in the case of a reference under S. 307, Criminal P.C., because sub-s. (2) of the latter section requires the Judge to submit the case without recording a judgment of acquittal or conviction, and, therefore, there is no decision to reverse or justify. I do not however, see why the principle underlying the section should not apply, particularly when sub-s. (8) of pound the same section says that in dealing with the case so submitted, the High Court may exercise any of the powers it may exercise on an appeal. Dealing with the question of misdirection or non-direction, their Lordships say:

That there has been a misdirection is not of itself a sufficient ground to justify interference with the verdict. The Court must proceed to consider whether the verdict is erroneous owing to the misdirection or whether the misdirection has, in fact, occasioned a failure of justice. If the Court so finds, then it has a plain justification for interfering and indeed a duty to do so.
Their Lordships have considered the effect of S. 587, Criminal P.C., which says, amongst other things, that no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under chap. 27, or on appeal or revision on account of any misdirection (in any charge to a jury unless such misdirection) has in fact occasioned a failure of justice. Here, again, it may be argued that S. 537 does not in terms apply to a reference under S. 307, Criminal P.C. Referring to the various ways in which a verdict of the jury may come before the High Court, their Lordships have referred to S. 807 and have said:

Similarly, under S. 307 where the trial Judge who disagrees with the jury's verdict submits the case to the High Court it is plainly the duty of the High Court to go into the whole case for itself in order to enable it to decide whether the accused should be acquitted or convicted.
The generality of the observations made above would, no doubt, be subject to the principles laid down in AIR 1946 (PC) 151 where the verdict is not vitiated by any error. Where, however, there is misdirection, the principle embodied in S. 537 would apply and if the verdict is erroneous owing to the misdirection, it can have no weight on a reference under S. 307 as on an appeal. In dealing with the case submitted under S. 307, it would then be the duty of the Court to go into the whole case in order to find out the effect of the misdirection, and if it has resulted in an erroneous verdict, to decide what order should be passed. It must interfere with the verdict, and as observed by their Lordships in AIR 1946 (PC) 828 what form the interference will take Will depend on the facts of each case: the Court may in an appropriate case order a re-trial or convict or acquit the accused person, as the case may require. I am, therefore, of the opinion that the principles laid down by their Lordships in  AIR 1946 (PC) 82 (6) regarding the powers of the appellate Court as respects the verdict of the jury where there has been misreception of evidence or misdirection to the jury, would also apply, as far as possible, when a case is submitted to the High Court under S. 307, Criminal P.C., and the High Court finds that there has been misreception of evidence or misdirection by the Judge.

In the case before us the misdirection has clearly resulted in an erroneous verdict: if the hearsay evidence is excluded, the only evidence which remains is the tutored evidence of the girls on which the accused cannot be convicted. This is not, therefore, a case where a re-trial should or ought to be ordered. The accused is clearly entitled to an acquittal.