1. The nine appellants were triad by the Sessions Judge of Faridpur and a Jury. The Jury found them all guilty under Section 148 of the Indian Penal Code, and also under Section 304 read with Section 149. They further found four of the appellants guilty of substantive offences under Section 324. The Sessions Judge accepted the verdict of the Jury and sentenced the appellants to various terms of imprisonment. The appeal is based on the ground of misdirection in the charge delivered by the learned Sessions Judge to the Jury.
2. The first part of the charge deals at some little length with the difference between stories which are wholly true, stories which are partly true and partly false and stories which are wholly false. No exception can be taken to this part of the charge but it may be doubtful whether it gave the Jury very much assistance.
3. We have no desire in this connection to lay down any precise rule as to the form which a charge should take. The form and contents of the charge will vary, of course, with the circumstances of individual cases, with the nature of the evidence the Judge has to deal with and the mode in which' the case for the prosecution and the case for the defence are conducted. Generally speaking, however, it is usual to begin a charge by setting cut the offence or offences which the prisoner is charged with having committed and explaining the law relating to those offences. Then the case for the prosecution and the case for the defence may be referred to, and such comments made on the evidence adduced on either side as the Sessions Judge may think it desirable or useful to the Jury, to make. Care should be taken to place the defence 'set up fairly before the Jury and to ensure that the Jury appreciate the issue or issues which they have to try. The charge should, of course, include the usual warning as to the duty of the Jury to the prosecution on the one hand and to the prisoner on the other. Having said so much, I repeat that I by no means imply that a charge must necessarily take one form rather than another. We should certainly not have interfered in this case merely on account of the order followed by the learned Judge in the remarks which be addressed to the Jury.
4. A great part of the difficulty which we have experienced in this case arises from the fact that there is no clear statement in the charge as to the case for the prosecution. In that respect the learned Vakil who has appeared for the Grown has rendered; as, as he usually does, great assistance The case for the prosecution as he stated it is as follows:
There are 3 plots of land hearing numbers 340, 341 and 342. They lie contiguous to one another. In the settlement of the year 1315, plot No. 340 was recorded in the name of Julmat, the father of the accused Lokman, plot No. 341 in the name of the complainant Umarali and his brother, and plot No 342 in the name of Afiraddi, another of the accused. The plot in the complainant's name lies between the other two plots. Apparently nothing happened till 1918, when a dispute arose between the complainant's party and the party of the accused as to some of the lands covered by plot No. 341. The complainant's party informed the Sub-Divisional Magistrate that there was a dispute and applied for the demarcation' of the land. An Amin was sent out and he apparently found that the 3 plots had been sub-divided and that several parties were in possession. He made his report to that effect. Subsequently the complainant's party complained that the party of the accused had committed mischief on land in possession of the complainant. The accused also went before the Magistrate and moved him to take proceedings under Section 107 of the Code of Criminal Procedure. An enquiry was made and proceedings were in fact initiated under Section 145 of the Code. That was the state of things at the time of the occurrence which is the subject-matter of this case. Undoubtedly there was an encounter between the two parties. On the side of the complainant's party one man was killed and 4 men were seriously injured. The prosecution alleged that on Sunday, the 21st July, the complainant and his party had cut some jute on land comprised in plot No. 341. The accused came to know of that and went about collecting lathials. On Monday the complainant's party out more jute and the accused came to the place in a body, consisting of men variously armed with lathis, spears and so forth. Those men fell upon the complainant's party with the result which I have mentioned. Upon the case so stated, the question of possession undoubtedly arises, and one objection which, I think, may be properly made to this charge is that the learned Sessions Judge has not dealt clearly with that question. What he said to the Jury is this: 'In order to decide this case if it is necessary to see who grew that crop you will consider that evidence, but you are to remember that the actual question you are sitting here to decide is not 'who grew this crop' but did these accused do the things alleged against them in the charges.' As to that it may be that there is no actual error of law in the passage quoted. But as it stands, what is said is neither lucid nor very helpful.
5. As the learned Vakil for the Crown has put the case before us today, he has conceded that the evidence on this record on the question who was in actual possession of the land at or about the time of the occurrence is so conflicting that it would be difficult for the Jury to come to any satisfactory conclusion on the point. Then he says that the question of possession does not very much matter, because, if the case for the prosecution is believed that the principal accused collected lathials, went to the land, and assaulted the complainant and his party, they committed the offence of rioting inasmuch as they had ample time to obtain the assistance of the authorities. It may be so but so far as I can see, that was not how the case was laid before the Jury. It is very doubtful whether the Jury were so instructed that they- were able to appreciate the considerations which arose in such a state of things and the defence which seems to have been made.
6. It is perfectly true that in the statements which they made when examined by the Court the appellants simply denied that they had gone to the land or had had anything to do with any riot. They were, however, represented by a learned Pleader at the trial and the cross-examination of the witnesses shows that at any rate ore of the defences set up was that the accused were acting in the exercise of the right of private defence of property,
7. The guilt of the accused had also to be considered with reference to the common object alleged in the charges.
8. All we need say now, however, is that it does not appear to us that the Jury were made fully acquainted with the nature of the case for the prosecution and the nature of the case for the defence.
9. What I have said relates to the charge under Section 148 and to the other charges in which Section 149 of the Code is mentioned.
10. There remains the charge against some of the accused under Section 324. As to that charge the Sessions Judge says this: 'Certain persons are charged with causing certain wounds. If you find they gave those wounds, they cannot plead right of private defence because they have not admitted giving those wounds.'
11. It is conceded and very properly conceded by the learned Vakil for the Crown that those words, as they stand, do not correctly represent the law. The Judge was entitled to tell the Jury that when a prisoner is charged with wounding another, the burden of proving that the wound was inflicted in the exercise of the right of private defence lies on the prisoner The Judge might have gone further and said that a plea in this form, 'I was not present and did not strike the complainant but if I did strike him, I acted in self-defence,' is not very convincing. Nevertheless it is open to a prisoner to adopt such a defence in the alternative, and if he cannot satisfy the Jury that he did not strike the complainant but can satisfy them, either by the cross-examination of the complainant's witnesses or by adducing evidence on his own behalf, that in striking the complainant he acted in self-defence, then he is entitled to an acquittal.
12. In our opinion the mode in which this case was placed before the Jury is defective and the conviction of the appellants and the sentences passed on them must be set aside. We consider that a fresh trial should be held and it seems advisable that the trial should be conducted by another Judge who will come to the case with a fresh mind. We accordingly direct that the case be retried by the Additional Sessions Judge of Faridpur.
13. I cannot leave this case without making one or two observations as to comments made at the Bar on the mode in which the Sessions Judge prepared and delivered his charge. He tells us that he wrote one part of it in English and obtained a Bengali translation of that part from an officer of his Court. Another part was also written in English and a translation of that was obtained from the Public Prosecutor. If the charge was to be delivered in Bengali and the Sessions Judge was not himself sufficiently acquainted with that language to prepare the charge in Bengali himself, it was, in my opinion, open to him to obtain such assistance as he required from the officer of his Court. It may be suggested, however, to the learned Sessions Judge that it is not desirable that he should have resort to the services of the Public Prosecutor for this purpose. The remainder of the charge, the Judge tells us, was delivered in English and 'was translated sentence by sentence to the Jury by an officer of his Court. If the Sessions Judge found a difficulty in addressing the Jury in Bengali there was, as it seems to me, no alternative open to him except to employ an interpreter, and no valid exception to the proceedings can be taken on this ground.
14. I entirely agree. I should like to add that it was difficult for me to follow the case from the Judge's charge. I did not understand the case for the prosecution until the learned Vakil for the Crown placed it before us. The Jury may have found it more difficult to follow it, as the Judge's charge was delivered through interpreters. No doubt the Jury are responsible for their verdict and are the sole judges of fast-; but it is to be remembered that the Judge's charge is not only for the purpose of stating the law and explaining it to them, but also of helping the Jury to find facts. He has to advise the Jury as to the logical bearing of the evidence admitted upon the matters to be found by them. He ought to do that to limit the chances of error of the Jury. It is a privilege granted to Judges of our Courts and a duty cast upon them. The learned Judge says that he 'placed the evidence of the witnesses before the Jury reminding them of the nature of the offence and dealing with same of the principal points.' That hardly helps us to understand the manner in which he did so. In a case of this character it is absolutely essential that the principal points should be clearly placed before the Jury and it should appear from the Judge's charge that he did so. The law requires that in rioting cases, the common object should be clearly stated in the charge which the accused have to meet. He should explain it in his charge. Having regard to the large number of persons and plots of lands concerned in this case, the different kinds of title which were apparently set up and the question of possession involved, the case for the prosecution and the defence should have been set nut in the Judge's charge in greater detail, to enable us to judge whether the point's requiring consideration had been clearly put before the Jury. Two points strike us as very important, namely, the point of time when the accused knew that their crops were going to be cut, and whether they could have sought the assistance of the Police in time to prevent the alleged aggression, but there is hardly any indication in the charge that these points were put before the Jury. It is no use referring to colour charts in dealing with evidence. They may confuse the Jury. I do not doubt that the learned Judge tried his very best to put the matters he considered necessary before the Jury, but judging from the charge alone we consider it unsatisfactory. It is inconvenient to have the charge delivered through interpreters. It may be worse than that. Bat upon the explanation given by the learned Judge that he corrected and supervised the interpretation, I do not think the manner in which the charge was delivered in this case is open to serious objection. But for the reasons above given I agree in directing that a re trial be held by the Additional Sessions Judge of Faridpur.