1. The appellants in this case were tried before the acting Sessions Judge of Tinnevelly and a Jury on charges under Sections 395, 402 and 393, Indian Penal Code. The first ground on which the summing up to the Jury is attacked is that it does not set forth the evidence of the prosecution and the defence and the points which arose for consideration in a manner calculated to help the Jury in arriving at a proper verdict. It seems to us the charge of the acting Sessions Judge is by no means a lucid statement, either of the law bearing on the charges against the prisoners, or of the evidence of the prosecution and the defence, or of the points which required consideration in determining the truth or otherwise of the case of the prosecution. The allegations of the prosecution are that on the 1st July the first prosecution witness, who has been acting as informer of the police and had received a reward in the shape of a gold bangle, was waylaid by the prisoners against whom or whose relatives he had given information, and that they were about to seize and to cut off his hand on which he was wearing the bangle, when they were frustrated in their attempt by the arrival of three Nadars, Prosecution witnesses Nos. 2, 3 and 4. The defence was that the charge is false and had been concocted by Prosecution witness No. 1 with the help of the police because the appellants had given information to the police against Prosecution witness No. 1's relatives. The prisoners alleged that at the time they are said to have attacked Prosecution witness No. 1, they were at Tinnevelly, whence they sent certain petitions to the authorities alleging that Prosecution witness No. 1 and the police were concocting charges against them. The acting Sessions Judge delivered a long address to the Jury, but we find it very difficult to gather from it what exactly is the drift of many of his observations on the different questions arising on the evidence and we doubt whether the learned Judge's observations were of any assistance to the Jury in arriving at a true verdict. In fact, it seems to us possible that the summing up might have had the opposite effect on the minds of the Jury. 'Section 303 of the Criminal Procedure Code lays down that the Jury shall return a verdict on all the charges and the Judge may ask them such questions as are necessary to ascertain what the verdict is. In case it becomes necessary to question the Jury the Judge is required to record the questions and the answers.
2. It would appear as if the Judge found it necessary in this case to put questions to the Jury to ascertain what the verdict was, but there is no record of the questions pat to them. The Jury seem to have found the accused guilty under Section 402, but as regards Section 395 they said that they were unable to return a verdict adding that the facts alleged by the prosecution were proved to their satisfaction, but that being laymen, they could not say what offence those facts constituted in law. With regard to Section 398 they said they found the accused Nos. 2 and 5 guilty, but that, is clearly inconsistent with their verdict with reference to the charge under Section 395. The Jury were apparently not able to follow the summing up of the Judge, as regards the law bearing on the charges, and it was clearly the duty of the Judge when he was told that they did not understand the law in the matter, to have explained the law to them again. It also seems to us that the last sentence in the first paragraph of the charge, where the Judge sums up his exposition of the law, is in itself quite unintelligible. We have also to point out that the Judge has sentenced accused Nos. 1, 3, 4, 6 and 7 under Section 395, although the Jury did not find them guilty under that charge. The Judge also failed to direct the Jury properly on some material points. For instance, one of the most important questions in the case for consideration was whether Prosecution witness No. 1 had sufficient motive for concocting a false charge against the prisoners. It was alleged by the defence that the prisoners had given information to the police against certain relatives of Prosecution witness No. 1 and that, therefore, the latter bore them ill-feeling. The attention of the Jury was not drawn to this allegation, nor was the fact that Prosecution witness No. 1 himself admitted that he and the accused were on unfriendly terms brought to the notice of the Jury. Then, it appears, that though the attack on Prosecution witness No. 1 is said to have taken place at 8 P.M., no information was given to the police until 7 A.M. or thereabouts the next morning. The Jury were not asked to consider whether that delay had been sufficiently accounted for. We may also mention that it is not easy to understand the meaning of the Judge's remarks as to the points sought to be made out of Exhibits V, and C, C which bore on the question whether the accused could have been present at the scene of the alleged offence. We set aside the conviction and sentences and direct that the accused be re-tried. The first accused will remain on the same bail.