1. This is an appeal by the accused, who has been convicted under Section 302Penal Code, and sentenced to transportation for life by the Additional Seasions Judge, Ahmedabad. The accused was tried by a jury, who unanimously found him guilty. Section 297, Criminal P. C., provides that in cases tried by jury, when the case for the defence and the prosecutor's reply (if any) are concluded, the Court shall proceed to charge the jury, summing up the evidence for the prosecution and the defence and laying down the law by which the jury are to be guided. Under Sub-section (2) of Section 423, Criminal P. C., the jury's verdict cannot be altered or reversed unless the appellate Court is of the 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. In order to determine whether there were any misdirections by the Judge or whether the law was correctly laid down by him, it is necessary to know what exactly the Judge told the jury. When this appeal came before us sometime ago, it was stated by Mr Zaveri, who appears for the accused, that the charge which ia on record was taken down in writing two days after it had been delivered and that the charge which was actually delivered was different from the record of it contained in the papers of the case. We called for a report from the trial Judge in the matter. In his report he has stated that his steno-typist was not present on the day on which he delivered the charge, that no other steno-typist was then available, that the 'whole charge' was 'delivered by him on the basis of exhaustive notes prepared' by him, 'covering all the points' he had to refer to in the charge and that 'on the basis of these very notes' he 'had dictated the charge to his steno-typist on the next day.' It has been contended by Mr. Zaveri that even though the charge was dictated from the exhaustive notes prepared by the learned Judge before he addressed the jury, it cannot be said that it reproduces exactly what had been stated to the jury, and that it is consequently difficult for him to point out misdirections which were contained in the actual charge given to the jury. He has also suggested that some observations contained in the charge were in all probability not made by the learned Judge, when he addressed the jury, for, according to him, if he had made those observations, the jury would not have found the accused guilty.
2. The relevant provision of law is contained in Section 367, Criminal P. C., Sub-section (5) of which states that in trials by jury the Court of Session shall record the heads of the charge to the jury. Under this section, the Judge is not required to write out in in extenso everything he says to the jury. He has only to record the heads of the charge. In In re Shambhulal 10 Bom. L. R. 565 : 8 cri. L. J. 35, it was held that the expression 'heads of charge' in Section 367, Criminal P. C., must be construed reasonably and must be held to include such statements on the part of the Sessions Judge as will enable the appellate Court to decide whether the evidence has been properly laid before the jury or whether there has been any misdirection in the charge. In Bupan Singh v. Emperor : AIR1925Pat797 , it was held that Section 367 did not requite that the heads of charge to the jury should be a verbatim reproduction of the Judge's Bumming up, but that they must give accurately the substance of what the Judge said to the jury and that they should be placed on record by the Judge as soon as it is possible for him to do so and whilst what he said is fresh in his recollection. In Panchu Das v. Emperor 34 Cal. 698: 5 CRI L. J. 427, it was observed (p. 701) :
'We ate not unmindful of the fact that law requires only the heads of charge to be recorded. At the same time, since law allows an appeal on grounds of misdirection, it ia not only desirable but necessary that the charge should be recorded in an intelligible form and with sufficient fulness to enable the Appellate Court to satisfy itself that all points of law were clearly and corractly explained to the jury in reference to the facts and the evidence in the case.'
The same view was taken in Fanindra Nath v. Emperor 36 Cal. 281 : 1 I. C. 970 and Khijiruddin Sonar v. Emperor : AIR1926Cal139 . In the former case it was held that the heads of charge should represent with absolute accuracy the substance of the charge and be such as to enable the High Court on appeal to see distinctly, whether the case was fairly and properly placed before the jury. It was also observed in that case that the charge should be written out as soon as possible after delivery of the charge and when the facts are fresh in the Judge's mind. The Allahabad High Court has taken the same view in Emperor v. Ikram-ud-din : AIR1917All173 . 3. While, therefore, the law requires that the heads of the charge only should be recorded in practice the charges have been required to be recorded in 'sufficient fulness' so as to enable the appellate Court to decide whether the facts and the circumstances of the case were fairly and properly placed before and the law correctly explained to the jury. In this State there are stenographers or shorthand typists practically in all the Sessions Courts and the usual practice, therefore, has been that a charge delivered by the Judge is taken down verbatim by the shorthand-typist and a fair copy of it is subsequently placed on record, after the Judge has made such verbal and grammatical corrections as maybe necessary. This is a sound practice which, in our opinion, should always be followed, except when circumstances make this impossible. For it is only when the appellate Court has before it an accurate record of the Judge's summing up that it can properly determine whether the Judge gave or did not give any wrong directions to the jury. The charge or the heads of charge required by Section 367, Criminal P. C., should, therefore, so far as practicable, be an accurate reproduction of what was actually said to the jury. The only corrections which a Judge is entitled to make in his charge, after a copy of it has been made from the notes taken by the shorthand-typist, are verbal or grammatical ones, and it would be wrong on his part to make any substantial changes in the charge, such as to include in it something which through mistake, oversight or otherwise was not said to the jury, or to exclude something which was wrongly mentioned to the jury. Cases might sometimes arise, though we feel that such cases should be very few, when it may not be possible to arrange for shorthand notes to be taken of the charge while it is being delivered. But in such oases the charge should be written as soon as possible after it is delivered, while the Judge has a good recollection of what he told the jury.
4. So far as the present case is concerned, the learned Judge has stated in his report that he dictated the charge on the following day from exhaustive notes prepared by him and on the basis of which he had addressed the jury. But it frequently happens that even though a Judge has prepared exhaustive notes, on the basis of which he proposes to charge the jury, while addressing them he forgets to mention a point which is referred to in his notes or says something which is not contained in the notes. I do Hoi mean to say that this is what has happened in this case. But the possibility that it might have happened cannot be excluded. The charge runs into 22 typed pages and it is, therefore, difficult to say that when the learned Judge dictated it on the following day, he was able to recall to his memory all that be had said to the jury. We cannot, therefore, definitely say that the charge which the learned Judge gave to the jury was identical with one which was subsequently recorded by him, Consequently we are not able to determine whether the charge actually given contained any misdirections.
5. In this view of the case, the only two alternatives open to us are to order a retrial of the accused or to go into the evidence ourselves in order to decide whether on merits the accused's conviction was justified. The accused was tried by a jury of 9 persons, who were unanimously of the opinion that he was guilty of theoffence with which he was charged. Although the evidence against the accused is mainly circumstantial, the decisions in the case would to a great extent depend upon appreciation of oral evidence given by witnesses. The jury before whom the witnesses would be examined would be in a much better position to decide what reliance should be placed on their testimony, In our opinion, therefore, the better course in this case would be to order a retrial.
6. We accordingly set aside the conviction of and the sentence passed upon the accused and direct that he should be retried by some Judge other than the one by whom be was previously tried.