1. This is an appeal by four persons against a conviction by the learned Officiating Sessions, Judge of Allahabad and a jury under Sections 330/34 and 384/34, I.P.C.
2. The appellants were found guilty for voluntarily causing hurt to extort a confession and money, and for house trespass. As this was a jury case, the appellants can only succeed if they can show that there has been any misdirection by the learned Judge to the jury which has in fact occasioned a miscarriage of justice. The prosecution story was that four Koals were seized by the accused, who were officials of the Manda estate, and that they were put to torture and beaten in order to make them confess that they had cut the barley produce of one Ram Partab. The defence evidence was that the whole story of the prosecution was mythical, and the defence called several witnesses to say that they had been present all the day in question with the accused and that no such thing took place.
3. The points made by Mr. Iqbal Ahmad, the counsel for the appellants in this case, are that there was misdirection in that, firstly, the learned Judge summed up in too summary a manner the evidence for the prosecution. I do not like to criticise the summing up of an experienced Judge such as the learned Officiating Sessions Judge of Allahabad; but I must say I think the evidence for the prosecution might have been dealt with at greater length.
4. If the criticizm of the charge to the jury had been confined to this point alone, I would not have interfered. The next portion of the charge which has been criticized is that part where the learned Officiating Sessions Judge deals with the evidence which he himself called under Section 540. He says in his charge to the jury:
Abdul Sattar was questioned upon' the same point and had made a statement to the effect that no enquiry had been made by the Manda estate.
5. I have been referred to the evidence on this point, and it is not quite correct to say that this witness said this. What he did say was that it was not within his knowledge that an enquiry had been made, which is quite a different matter. The Judge himself deals rather severely with the defence evidence upon this point, and it is quite possible that this misdirection might have had some effect upon the minds of the jury.
6. The third and last point is that the learned Officiating Sessions Judge failed altogether to give the usual direction to the jury, that if they had any reasonable doubt in their minds as to the guilt of the accused, they should give the accused the benefit of it. It is conceivable that in some cases such an omission might not necessarily be vital. If, for instance, the evidence for the prosecution was overwhelming, so that no reasonable jury could possibly have any doubt, or where it would be unlikely that a jury would have any doubt on the matter, in such cases I think it is clear that the mere omission of this ordinary direction would not amount to such a misdirection that it might be said that there had been a miscarriage of justice. In this case, however, I am influenced by a statement of the learned Judge himself where he says:
Turning next to the evidence for the defence, it is apparently as strong as the evidence on the other side.
7. This means that prima facie to the ordinary jury the evidence was more or less equally balanced. In such a case, it is almost impossible to say that the omission of this very important portion of the charge to the jury might not have affected the minds of the jury. I have to consider in this case whether the misdirection was such as actually did occasion a miscarriage of justice. As to the definition of what a miscarriage of justice would be, I am in agreement with the judgment of Daniels, J. in the case of Chiraji v. Akasi : AIR1926All429 he says:
It means that there must be a reasonable ground for apprehending that the misdirection may have affected the jury's verdict.
8. I think it is possible to say in this case that the omission of this charge may, under the circumstances of this particular case, have affected the minds of the jury. Each case must be considered on this point on its own facts. It is impossible to lay down any direction of law which will be binding in every case. Coming as I do to the conclusion that the jury may possibly have been affected by the omission to which I have just alluded, and also by the other points to which criticizm has been directed by the appellants, I hold that the verdict of the jury cannot stand.
9. It has been urged by the Government Pleader, that, as I have found that the verdict of the jury is vitiated, it is within the power of the appellate Court to go through the evidence and decide the case as if it were an ordinary appeal and not an appeal from the verdict of the jury. I am very doubtful if there is any warrant for this contention in Sections 418 and 423, Criminal P.C. In any case I do not need to decide this point as I am satisfied that this is a proper case for retrial by another jury. I think, under all the circumstances of the case, and without making the smallest reflection upon the learned Officiating Sessions Judge who tried the case, that the retrial should be conducted by some other Judge. This case will, therefore, be sent back to the Sessions Judge of Allahabad to be tried by him or by any Judge to whom the Sessions Judge of Allahabad may send the case for trial. In the meantime the appellants will be admitted to bail to the satisfaction of the District Magistrate.
10. In this case I have not examined the evidence, and express no opinion, as to the weight of evidence either for the prosecution or the defence. Nothing that I have said must weigh with the Court trying the case.
11. In this case there was a delay of nine days after the learned Judge charged the jury until he reduced the charge to writing. If a Judge does not write his charge before delivery which, whenever practical, is the better course, he should reduce the charge to writing as soon as possible after charging the jury so that what he said is fresh in his mind. A delay of this character makes it impossible for an appellate Court to know whether the written charge was really the charge which was given to the jury.