1. This reference and the appeal have been heard by us together. They both arise out of the same case. A number of men were charged under Sections 342, 365 and 366, I.P.C. Five of them were convicted. Abdul Gani, whose case was referred to this Court, was convicted under Section 342, I.P.C. Akbar and Kamiruddin were convicted under Sections 342, 365 and 366 and sentenced under Section 366 to two years rigorous imprisonment. Sadan and Sabdul were convicted under Section 342 and sentenced to six months' rigorous imprisonment. These four have appealed against their convictions. The learned Judge has referred the case of Abdul Gani because he is of opinion that there was no evidence against him. Dealing with that point first we are of opinion that there was evidence against him although perhaps to a loss degree than some of the others who were charged by the prosecution with those offences. There were five jurors and their verdicts were by a majority of 3 to 2.
2. The story was that a girl named Taripannessa whose husband had recently died was living with her mother, brothers and relatives at her late husband's house when some negotiations were going on for the purpose of arranging a marriage with her to a second husband So far as we can gather from the evidence there were at least two parties that took part in this discussion each one urging that the girl aught to be married to one of their colleagues, probably owing to the fact that she was the owner or possessor of certain lands. On the night of 13th December 1929, it is alleged by the prosecution that these accused came to the hut and got the girl to come out by a trick. They induced her to believe that the key of a certain box had been left by her brother on the verandah. When she came out to take it from Akbar she was seized by Akbar, Sadn, Sadul and Kamiruddin who dragged her out and look her into Banoo's house. Eight or nine other persona were there at the time. From there she was taken to various other houses staying a day or a night at each. Complaint having been made to the police she was subsequently recovered on 24th December when she was found in the company of a number of the accused. The defence story was that Tarinanaessa had gone away willingly from her house that night with a view to marry her husband's brother Sabed and that she kept herself concealed in other houses apparently because it was doubtful whether her mother and relative?, wore desirous of this marriage. The girl and her mother and other witnesses have told two different stories. When first confronted by the police the girl told this story about her desire to marry Sabed and that she had gone willingly and so on. Later on she told the story upon which the prosecution relies and sail that she had told the first story because she had been tutored to say so by the accused. Her evidence and the evidence of the mother and several of the other witnesses not only contain a record of an entirely opposite story but are full of discrepanices, material and immaterial. It is quite clear that there was some discussion after that about a compromise and upon looking through the evidence the impression that is left on one's mind is that the whole of the circumstances arose from a series of discussions or attempts to come to an agreement as to how to dispose of this girl and her fortune, and leaves a considerable doubt as to whether there was evidence sufficient to bring any of these men within the sections of the Penal Code under which they have been charged. In these circumstances it was essential that a clear and useful charge should have been delivered to the jury. It is in just such a case as this that the necessary functions of the Judge arise prominently in a jury trial.
3. There wore a large number of witnesses and the case was tried for six days. It is quite impossible for people like those who were called to serve upon the jury and who are untrainel both in law and in the art of analyzing and sifting evidence for themselves to retain in their memory the whole of the facts which have been detailed before them, material and immaterial, important and unimportant, during the trial. It is the duty of the Judge therefore to analyse, to sift and to weigh this evidence, to marshal the facts properly an 1 so out of the whole of the evidence that has been given to discover and arrange in some sort of order before the jury the facts which are really material and upon which they should concentrate their attention. In dealing with each individual prisoner he must take the evidence against each one, summarize it, and point out clearly to the jury how each prisoner is affected by the evidence which has been given. He must point out the kind of weight which ought] to be given to this, that or the other set of facts in order, as 1 have said on another occasion, to show the jury some light and shale in the submission of the facts to them, that some matters are particularly important, some less, and some of little importance whatever. Otherwise it is impossible for the members of the jury to grasp the particular facts which are essential and important and concentrate their attention upon them. I am not going to repeat at length what I have already said about what a charge should be. I have already dealt with the question at considerable length in the case of Nagendra Nath v. Emperor : AIR1929Cal742 and to some extent in the base of Nalabar Haldar v. Emperor : AIR1930Cal136 . Now the learned Judge in this case, if such a test is to be applied to his charge, has completely failed. The charge to my mind is' quite unintelligible. It is only by reading it most carefully and concentrating one's attention most severely upon various sentences here and there, that I, at any rate, was able to understand what he was balking about and what he intended the jury to understand.
4. The truth of the matter is that, he has done, what is so often done, namely, to read out to the jury a sort of very full resume of the evidence which has boon given, simply by putting the word ' that' before each sentence, giving no sort of direction or guidance to the jury as to how they are to approach that particular piece of evidence or whether they are to give to it any attention or how it affects each particular part of the case or how it affects each, particular prisoner. I cannot imagine that this record which we have before us is remotely like what the Judge said to the jury. There are sentences here, many of them--I have counted several--which are 400 words in length. It is inconceivable that a sentence of such length should be spoken to any jury, and it is quite clear that a sentence of that length can convey absolutely nothing to the persona to whom it is addressed. The learned Judge has failed entirely to point out strongly, as he ought to have done, the discrepancies in the evidence of the witnesses for the prosecution or to give the jury any warning about accepting such evidence as true. He has told them in the most humble way that if he expressed any opinion ho hoped that they would not take the slightest notice of it. If they were not to take notice of his opinions what was the good of expressing them. He might just as well have remained silent. It is quite unnecessary for me to deal at length with this charge, which consists of 22 pages filled with the kind of repetition of the evidence which I have already described.
5. For these reasons we are of opinion that such a charge is not only quite useless, but more likely to confuse the jury, rather than elucidate the matters which have been placed before them. Bearing in mind the discrepancies and contradictions in the story told by the witnesses for the prosecution, especially the evidence of the girl, and in view of the fact that there was only a majority verdict of 3 to 2, we are of opinion that it is useless to send the case back. This appeal must be allowed, and the reference accepted, with the result that all these five persons are acquitted. The convictions and sentences are set aside and all the accused are discharged from their bail bonds.
S.K. Ghose, J.
6. I agree.