1. The appellants who are fifteen in number were tried by the Additional Sessions Judge of Tippera with the aid of a jury. The jury unanimously found all the appellants guilty under Section 147, I.P.C., and one of them, viz., appellant 6, guilty also under Section 323, I.P.C. The learned Judge accepting the verdict of the jury convicted these appellants under Section 147, I.P.C. and sentenced each of them to undergo rigorous imprisonment for nine months. He also convicted appellant 6 under Section 323, I.P.C., and sentenced him to undergo rigorous imprisonment for six months, this sentence to run concurrently with that passed under Section 147, I.P.C.
2. The learned Judge in charging the jury at the close of the case did not sum up the evidence that was adduced in this, case. He observed that the evidence had been summarized against each accused at great length by both sides and he therefore left it to the jury to consider upon the lines which he had indicated what conclusion they should draw from that evidence. The reason why the learned Judge did not sum up the evidence is to be found in a note which he has embodied in his heads of charge. That note runs as follows:
The charge I had originally prepared for delivery has been destroyed by me purposely. In it I had myself summarized by narrative and charts the evidence against each of the seventeen accused. Such a summary in fact it is in most cases incumbent on the Judge to put before the jury. In the present case, however, my own opinion on the question of the truth or falsehood of the prosecution case is so very strong that I found it impossible to place this evidence before the jury without indicating at every time my opinion in such a way as I know might fail to leave their decision as unfettered as the law contemplates it must be in a jury trial. I have, therefore, deliberately, in fairness to the side whose story I find unacceptable, omitted to comment on the actual evidence in detail. The jury have taken down from the arguments a complete summary of the evidence against each accused, and the fact that there is no necessity to do so again supports my conviction that under the circumstances it would be more discreet not to do so.
3. Now, the law with regard to this matter is quite clear and is to be found in. Section 297, Criminal P.C. That section says:
In cases tried by jury, when the case for the defence and the prosecution's reply (if any) are concluded, the Court shall proceed to charge the jury, summing up the evidence for the prosecution and defence, and laying down the law by which the jury are to be guided.
4. Upon the plain words of this section it is abundantly clear that the learned Judge should sum up the evidence for the prosecution and the defence in the course of his charge to the jury. The object of summing up the evidence is to enable the jury to arrive at a right decision on the facts and a proper summing up is one in which the learned Judge makes a clear and distinct statement of the evidence on both sides with such advice as to the legal bearing of that evidence and the weight which should properly be attached to the several parts of it as sound judicial discretion would suggest. The fact that the evidence had been summarized at great length by both sides and the jury had taken notes from the arguments and had themselves made a complete summary of the evidence for their own convenience would not, in our opinion, relieve the learned Judge from the duty of conforming to the provisions of Section 297, Criminal P.C., which distinctly lays down that he should sum up the evidence. If any authority is needed for this proposition we may refer to the case of Emperor v. Malgowda Basgowda  27 Bom. 644. The reason why the learned Judge refrained from summing up the evidence is that he himself had formed a rather strong opinion on questions of fact and he apprehended that it would be impossible for him to place the evidence before the jury without indicating the opinion which he had formed, and if he indicated that opinion it would probably fetter the decision of the jury. We do not quite understand why that should be so, so long as the learned Judge does not endeavour to persuade the jury to agree with him and clearly tells them that they are the sole judges of facts and that they are not bound to accept any opinion on questions of fact which he may express. If a proper caution to this effect is duly administered there can be no objection to the learned Judge's expressing his own opinion to the jury Of course it is desirable that he should not express his opinion too strongly But if he happens to do so and sufficiently warns the jury we do not think that there can be any objection. In fact the law allows such a course. Section 298, Sub-section 2, lays down that the
Judge may, if he thinks proper, in the course of his summing up express to the jury his opinion upon any question of fact, or upon any question of mixed law and fact relevant to the proceeding.
5. And it is obvious that in many case it is not merely permissible but also desirable that the learned Judge should tell the jury what view he has taken of the facts in order to enable them to consider the facts properly and arrive at their own decision on them. Even under the Code of 1861, in which there was no provision corresponding to that contained in Sub-section 2, Section 298, it was held by this Court in the case of Dwarka Nath Sen 13 W.R. Cr. 34 that
there can be no doubt that a Sessions Judge is bound to sum up properly, that he ought to advise the jury on questions of fact, and that there is no objection, to use the words of the learned Chief Justice Tindal, to the Judge's letting the jury know the impression which the evidence has made upon his own mind.
6. The omission to place the evidence before the jury and to give them proper direction with regard to that evidence is a material defect in the charge and must necessarily cause prejudice.
7. There is another point to which our attention has been drawn by the learned Counsel for the appellants and that is with reference to the learned Judge's direction on the question of the law as to the right of private defence. The learned Judge told the jury that the essence of the law of private defence is that the person exercising it must be possessed of reasonable fear either for his own safety or the safety of his property. This exposition of the law. on the right of private defence is hot exhaustive. For under Section 97, I.P.C., the right of private defence extends under the restrictions specified in that section not only to the defence of one's own body or property, but to the, body or property of any other person as well.
8. For the above reasons we think that there has been no proper summing up, and the direction to which we have just referred is also not free from objection. That the accused have been prejudiced by defects in the learned Judges charge is clear from the fact that the learned Judge was not prepared to agree with the verdict of the jury. We, therefore, think that the conviction of and the sentences passed on the appellants should be set aside, and we accordingly do set them aside.
9. Having regard to the view taken by the learned Judge of the evidence in the case we do not order a retrial, but we leave it open to the authorities to take further proceedings against the accused if they consider it proper to do so.