1. In this ease the learned Additional Sessions Judge of Poona, agreed with the unanimous verdict of the jury finding accused Nos. 1 and 3 guilty of forgery of a will of one Shahjadi Begum, who died on the evening of May 9, 1925. There were other charges of extortion practised on Syed Husein, her maid (Ex. 2), and of misappropriation of certain monies. But on those two latter charges, the accused were acquitted.
2. Now the verdict of the jury being unanimous it is conceded that on appeal that verdict must stand, subject to well recognised but limited principles on which such verdict can be upset.
3. It is conceded by counsel for the accused in his candid and telling speech that the summing up of the learned Judge was a facie one so far as it went. The only criticism passed upon it was one really of omission in some two or three points. Only one of these points appears to us to have any substance in it and it is more perhaps a point of mis-reception of evidence than any mere defect in the summing up. This point occurs in the evidence of the writer of the alleged document. He is Ex. 31. He was called by the defence, and in his cross-examination the pleader for the prosecution wrongly sought to contradict the witness by putting to him certain statements he had previously made to the Police. That may have been justifiable under the old law, but it is not justifiable under the present law. These statements will be found at page 63 of the appeal paper book. The first statement was with reference to the deed of gift, Ex. 16. Its purport was to contradict what the witness had just said in the Sessions Court, namely, that he could hear what the testatrix Shabjadi was saying whereas in his statement to the police he had said he was not able to hear properly all that she was saying. Some few sentences further on another statement that he had made to the police was put to him, namely that the contents of the will were dictated to him by the complainant, who was consulting Bai (the testatrix) about it. It does not appear from the Judge's notes that 'any objection was taken to these police statements up to that point, but we have looked at the vernacular notes and those show that the pleader for the accused objected to the latter statement and that the learned Judge upheld the objection. Consequently no more questions appear to have been asked. Accordingly we are left with this rather curious situation, viz., the second statement made to the police about the dictation of the will, but we have no other answers to show whether at the trial the witness did or did not allege that the will was dictated to him by the complainant.
4. At the foot of his evidence in the Judge's notes it is stated that at the time of giving the charge to the jury, these answers as to the statements made to the police were not referred to, as the Public Prosecutor has conceded that according to the amended Section 162 of the Criminal Procedure Code he should not have put any questions on the matter to the witness. It is clear, therefore, that in his charge the learned Judge never warned the jury that they must disregard these statements, which had been improperly asked and admitted. We are asked by the Government Pleader to assume that the learned Judge must have given some such warning elsewhere. But that seems to me to be the reverse of the true position. If improper questions have been admitted at a trial it is for the Grown to show that their improper effect has been set right by the Court Either the jury should be told at once to disregard the statements, or else the charge should contain a similar warning to them and they should be expressly told that they are not to consider the statement as involving a contradiction or otherwise damaging the evidence of the witness. In the present case, the witness was an important one, ha being the writer of the alleged forged document.
5. Assuming then a mistake was made in admitting the statements, did it amount in effect to a miscarriage of justice, or, was it otherwise such as would entitle us to set aside the verdict in the present case The material sections are 423 (2) and 537(d)of the Code of Criminal Procedure. The former subsection provides:-
Nothing herein contained shall authorize the Court to alter or reverse the verdict of a jury, unless 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.
6. Section 537 (d) provides :-
Subject to the provisions hereinbefore oontained, no finding, sentence or order paasad by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account,-(d) of any misdirection in any charge to a jury unless such error, omission, irregularity, or misdirection has in fact occasioned a failure of justice.
7. And the explanation provides:-
In determining whether any error, omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.
8. Dealing first with that explanation it is said that objection could and should have been taken earlier. That may apply to the first police statement, but it hardly applies to the second one, because the vernacular notes show that immediately the question was answered, objection was taken. On the other hand, one must bear in mind that this point was not taken in the memorandum of appeal, and accordingly it would seem a fair deduction that it can hardly have operated at the time in the minds of the legal advisers of the accused as causing a miscarriage of justice if they do not even mention it in the memorandum of appeal. I do not overlook the fact that counsel for the accused has told us that the depositions were not before the draftsman of the memorandum of appeal, but so important a point could hardly have escaped the notice of the legal advisers in the Court below and should have been communicated to those drafting any application in this High Court, if it had been considered there was any substance in it. I do not mean that this by any means concludes the matter. It is only one element to be taken into consideration in determining, as a matter of common sense, whether this was really a serious objection.
9. Now, as I have already pointed out, as regards the will the effect of this second police statement hardly causes any contradiction of the witness, because substantially we are left only with this that he had told the police that the contents were dictated by the complainant, who was consulting the testatrix about it. The previous statement in examination-in-chief that the witness wrote out the will at the ' instance ' of Shahjadi the testatrix appears to coincide with the vernacular notes. It is pointed out to us that the learned Judge's charge at page 91 stated that the will was prepared according to the dictation of the accused and that he nowhere suggested to the jury that the witness had told one story at one time and another at another.
10. As regards the deed of gift it may be that the jury remembered what the witness had said and that there was an inconsistency between his statements in the witness-box and to the police. But, weighing the circumstances as a whole, we do not think it can be said that this was sufficient to cause a miscarriage of justice, and that, it must or might have influenced the minds of the jury in arriving at their verdict of guilty. In other words we cannot say that the wrongful admission of this evidence was such a mistake in point of law as to vitiate the subsequent proceedings.
11. As to this I recognise the difficulty in jury cases of inadmissible evidence being accepted. It may in certain cases be the uty of the presiding Judge to discharge the jury and begin the case de novo. For instance, if the prosecution had asked some improper question which resulted in a previous conviction of a person being elicited this might well cause such an unfortunate impression in the minds of the jury that it would be only fair to have a retrial. In other cases the Judge would be well advised to warn the jury at once that they must disregard entirely some answer that has slipped out from & witness or something that is not evidence And, I think, it will be usually found that if it is put clearly to the jury, they will, accept the Judge's direction on the point, It is really a matter of discretion in each case as to how far a mistake that has been made can be remedied.
12. In the present case, speaking for myself, I do not approve of the course actually taken, viz. to say nothing at all. No doubt a warning that they must disregard a particular statement would bring back to their minds a statement which perhaps they might have forgotten. But, I think, it unsafe to rely on the latter contingency as regards all the jury. After giving then my best consideration to the matter, I do not think that the mistake the prosecution made is sufficiently serious as to necessitate a new trial.
13. There are two other points which I may deal with shortly. It was said that the Judge should have told the jury that the doctor, who was an independent witness, has stated that preparations for a will were being made in the open yard, viz, the verandah, and that Ibrahim had said that his father-in-law was making preparations for a will. But after all these are matters of omission in the Judge's summing up and to my mind they are not such omissions as would in any way vitiate a summing up, which otherwise taken as a whole is a fair and accurate summing up of the case for and against the accused.
14. Then it was said that an application made by the defence at the close of the prosecution evidence to have certain documents produced in a previous suit to show the strained relations between Lalkhan and the deceased ought to have been allowed. But it was in the discretion of the learned Judge to admit the documents at that late stage of the case. No injury was in fact done to the accused because the Judge expressly told the jury in paragraph 6 that the deceased's relations with Lalkhan were strained and that she might have well ignored his claims, when making the will.
15. Counsel did say that these documents would also have a bearing on the relationship between accused No. 1 and the deceased, which he pat forward. But as to that the learned Judge did admit another document, viz,, the deposition of accused No, 1 in another Court for that very reason, If then these other documents also had some bearing on the same point then presumably he would have allowed them to be produced. Either then the documents did not have that effect, or else there was some misapprehension owing to the way in which the matter was placed before him by the pleader for the accused. In any event this seems to me to be one of those small points of criticism which are almost inseparable from the trial of a substantial case such as the present one.
16. I need not, I think, refer to the authorities, Emperor v. Fakira Appaya : (1915)17BOMLR1059 and Arnold v. King-Emperor I.L.R.(1914) Cal. 1023 which were cited as laying down the general principles governing charges to a jury. No doubt, if there are serious omissions in a charge, this may amount to a misdirection and result in the judgment and the verdict being set aside. But, in my opinion, that is not the case hero.
17. We, accordingly, hold that, the appeal must be dismissed. As regards the sentence that has been passed we should have been glad to reduce the sentence on accused No. 1 having regard to his age and past record. But the crime which he has been found guilty of appears to us to be so serious and to have been of such a bad character that we do not think we should be justified interfering with the discretion which the learned Judge exercised. There is one matter I wish to add. We will direct Exs. 16 and 3 to be re-translated. They are two of the mast important documents in the case, namely, the alleged forged deed of gift and the alleged forged will. It is regrettable that the translations sent up to us are so defective that any body reading them carefully and comparing them with the Judge's summing up would realise that either the translations or else the learned Judge's summing up was incorrect. On looking at the originals we find that the learned Judge's summing up is correct and the paper book translations are wrong. We hope that the learned Judge will give such directions as will ensure in future that the translations of the more important documents in the case are reasonably accurate,
18. I only desire to add that before a jury or assessors, the Judge should invariably in the course of the charge, expressly direct the jury or assessors to dismiss entirely from their minds any evidence which might have been wrongly admitted; and if the Judge is of opinion that it will be difficult for the jury to do so and the evidence is material, it is preferable that there should be a new trial before another jury or other assessors.