1. In this case eight persons have been tried and convicted under Section 302 read with Section 142 of the Penal Code, and have been sentenced to transportation for life. The circumstance out of which the case arose was a dispute concerning a piece of land and the crop which, at the time of the occurrence, was upon this land.
2. The first prisoner Jhubboo was originally charged under Sections 302, 326, 396 and 148 of the Penal Code. In the course of the trial two further charges were added, viz., that he, Jhubboo, was a member of an unlawful assembly in the prosecution of the common object of which, namely taking possession of certain crops by force, one of the members' committed murder by causing the death of one Ibrahim Hossein, and that he was thereby guilty under Section 302 read with Section 149 of the Penal Code; and secondly, that he was a member of an unlawful assembly in the prosecution of the common object of which, namely, in taking possession of the crops by force, one or more of the members caused grievous hurt to one Torab Ali, and that he had thereby committed an offence punishable under Section 325 read with Section 149 of the Penal Code.
3. Against the next two prisoners, Lukshman Mahton and Umrao Mahton, there were charges under Section 302 read with Section 149, Section 326 read with Section 149 and Section 396 of the Penal Code. The charge under Section 302 runs thus: 'That you were members of an unlawful assembly, by a member of which, to wit, Jhubboo, an offence, the murder of Ibrahim Hossein, was committed such as you knew to be likely to be committed, in the prosecution of the common object, to wit, the taking possession of the crops by force.' Lukshman is also charged with rioting armed with a deadly weapon, under Section 148.
4. Against the remaining five prisoners,--Harihur Mahton, Ramdehal Mahton, Sajwan Mahton, Mahabir Mahton, and Ramjiwan Mahton,--there are charges under Section 302 read with Section 149, Section 326 read with Section 149, and Section 396 of the Penal Code; and in these charges the common object is indefinitely stated to be 'the taking possession of the crops by force.' And the charges as to murder and grievous hurt allege that the accused persons knew these offences to be likely to be committed in the prosecution of the common object. There was also against Harihur Mahton an additional charge under Section 148.
5. Two observations may be made in respect of the prisoners other than Jhubboo: first, the charges against them did not allege that the offences of murder and grievous hurt were committed in the prosecution of the common object of the unlawful assembly, and yet the jury have found that these prisoners are guilty on the ground that the offence of murder was committed in prosecution of the common object of the unlawful assembly. The Judge gave no direction upon the matter of the charge as framed,--viz., that murder was such an offence as the members of the unlawful assembly knew to be likely to be committed in the prosecution of the common object; he summed up as if the charge alleged, which it did not, that murder had been committed in prosecution of the common object. It is reasonable to suppose that the Judge's misdirection led the jury into error. Secondly, the charges allege that the offences of murder and grievous hurt were committed by Jhubboo Mahton. These charges were not amended by the insertion of any such words as the following: 'or some other person unknown who was a member of the unlawful assembly.' The jury have found as a fact that Jhubboo Mahton did not commit the murder; and if Jhubboo did not commit the murder, it is not easy to understand how the prisoners other than Jhubboo could be constructively convicted of murder on the ground that murder had been committed by Jhubboo in prosecution of the common object of the unlawful assembly.
6. Five persons are said to have been injured in the course of the riot,--namely, Ibrahim Hossein, Imdad Ali, Gohur Ali, Torab Ali, and Abdul Karim. Of these, Ibrahim Hossein has since died, in consequence, as is alleged by the prosecution, of the injuries which he received on the occasion of the riot.
7. In the petition of appeal, which has been presented to this Court, a number of points have been taken; but as they have not all been pressed upon us, I shall, before proceeding to deal with the Judge's charge to the jury, notice those only which formed the subject of the arguments addressed to us.
8. The first point is, that the jurors who tried the case were not, as they should have been, chosen by lot from the persons summoned to act as jurors. Section 239 of the Code of Criminal Procedure directs that assessors shall be chosen by the Judge. Section 240 directs that the jurors shall be chosen by lot from the persons summoned to act as jurors. If, as is alleged in the petition of appeal, the Judge himself selected the jurora instead of choosing them by lot, he acted contrary to the provisions of Section 240. But as there is no serious contention that the appellants were in any way prejudiced by what the Judge is said to have done in this matter, I think the objection is not one which ought to be entertained for the purpose of interfering with the verdict, regard being had to the provisions of Section 283 of the Code of Criminal Procedure.
9. The next point is, that although the police-officer, Ram Surrun Lal, was allowed to refresh his memory by looking at his diary, the Sessions Judge improperly refused to allow the counsel for the defence to see this diary. What really happened was this: The police-officer Ram Surrun Lal, when under examination, was asked whether he took down the statement made by the witness Leakat, and he replied that he did. He then read, or refreshed his memory by looking at the original statement so taken down by him. This was, as I understand it, a statement taken down under the provisions of Section 119 of the Code of Criminal Procedure, and was not necessarily a part of the diary which a police-officer is required to keen by Section 126. The particulars which Section 126 requires to be recorded in a police-diary do not include any written statement taken down under Section 119, and from the papers produced before us it would appear that as a matter of fact, the written statement was not an integral portion of the diary. Having looked at Leakat's statement the police-officer said in answer to a question put by the prisoner's counsel that it contained nothing about Jhubboo jumping on Ibrahim. The object of asking this question was to show that Leakat in his first statement to the police had said nothing about the prisoner Jhubboo jumping on the deceased Ibrahim. The medical evidence showed that Ibrahim had received internal injuries, and the theory of the defence was, that, after these injuries were discovered upon a post-mortem examination, the witness Leakat improved his testimony by adding a statement about Jhubboo jumping on Ibarhim with the object of accounting for the internal injuries discovered by the post-Mortem examination. As, however, the police-officer stated that Leakat had said nothing to him about Jhubboo jumping on Ibrahim, the object of the question was attained, and it was unnecessary for the prisoner's counsel to ask to look at the diary.
10. The police-officer then stated in answer to a further question that the statement taken by him did not record that Jhubboo had given orders. It appears from a note made lower down by the Sessions Judge that this question also was answered by the witness after looking at the written statements taken by him, when he questioned the persons afterwards called for the prosecution in the Court of Session, Here also as the answer of the witness was all that the prisoner's counsel could desire, there was no necessity for him to look at the original statement with which the witness refreshed his memory, and he did not ask to do so.
11. After this we have nearly a page and-a-half of the same witness's cross-examination, and then we find that the witness was asked--'Did Torab Ali say anything to you about his having seen Gohur Ali, Imdad Ali, and Abdul Karim being struck?' The answer was, 'I do not remember.' Before giving this answer it is not contended that the witness again looked at the original statements of the witnesses, and the Judge then makes this note--'The counsel for the defence wishes to see the diary and to make the witness refresh his memory therewith. The Court declined to do this.' It is now contended that because, before answering the two first questions above referred to, the witness had looked at the original statements in order to refresh his memory, the counsel was entitled to see the diary when at a later stage of the examination, the witness gave the answer, 'I do not remember.' I think that this contention is untenable. I have first to observe that although the term 'diary' has been used, I take it that what the Judge and the counsel were really alluding to, was the statement taken down by the police-officer under Section 119. Having regard to Section 161 of the Evidence Act, the prisoners' counsel was entitled to see the writing with which the police-officer refreshed his memory in order to answer the first two questions. This writing was, as to the first question, the original statement of Leakat. What the writing was with respect to the second question is not very clear.
12. Now the writing which the prisoners' counsel desired to see when the witness said 'I do not remember,' was not the statement of Leakat, but the statement of Torab Ali. I think that, as the prisoners' counsel did not exercise his right to look at the writing when the first or when the second question was answered, but allowed the examination to proceed, he lost his opportunity of claiming to look at the writing to which the witness referred before answering the first and the second questions. I do not assent to the argument that because counsel was entitled to see the writing which contained the statement of Leakat, he was, therefore, entitled to see other writings which contained the statements of persons other than Leakat and which had no connection with Leakat's statement except that they were taken in the course of the same enquiry by the police. Nor can I assent to the argument that counsel, having a right to look at a particular writing before or at the moment when the witness used it to refresh his memory in order to answer a particular question, and not then exercising this right, continued to retain it through the whole of the subsequent examination of the witness.
13. The grounds upon which the opposite party is permitted to inspect a writing and to refresh the memory of a witness are three-fold: (i) to secure the full benefit of the witness's recollection as to the whole of the facts; (ii) to check the use of improper documents; and (iii) to compare his oral testimony with his written statement. The opposite party may look at the writing to see what kind of writing it is in order to check the use of improper documents; but I doubt whether he is entitled, except for this particular purpose, to question the witness as to other and independent matters contained in the same series of writings. I think, therefore, that, at the particular stage at which the prisoners' counsel asked to see what he called the diary, by which I presume he meant the whole series of writings containing the statements of all the persons examined by the police-officer, he was not entitled to exercise the right claimed in the particular way claimed by him. I further think that the Sessions Judge was not bound to compel the witness to look at the so-called diary in order to refresh his memory; and that it was wholly within his discretion whether he should do so or not.
14. The third point is, that the deposition of the medical officer was taken by the Magistrate when only three prisoners,--namely, Jhubboo, Lukshman, and Umrao,--were before him and that, as regards the remaining five prisoners, this examination of the medical officer was improperly used as evidence in the Court of Sessions, inasmuch as it was not taken by the Magistrate in their presence.
15. Under the provision's of Section 323 of the Code of Criminal Procedure, 'the examination of a Civil Surgeon or other medical witness, taken and duly attested by a Magistrate, may be given in evidence in any criminal trial, although the person examined is not called as a witness, but the Court may summon such Civil Surgeon or other medical witness if it sees sufficient cause for doing so.' I take it that in order to be admissible under this section as evidence against any individual accused, the examination must have been taken by the Magistrate in his presence. In the present case, I think it exceedingly probable that the examination of the medical witness was not taken in the presence of the five prisoners other than Jhubboo, Lukshman, and Umrao. At the same time I cannot say that this is a point upon which there is no possible doubt. No specific objection to the admissibility of the medical officer's examination was taken upon this ground in the Court of Session. If such objection had been taken, it is just possible that matter might have been forthcoming to show that the other five accused were present in person or by agent (Section 191,1 Criminal Procedure Code) when the medical officer was examined by the Magistrate.
16. The medical officer was called in the Court of Session, and it has been contended before us, that, as he was called, his deposition taken by the Magistrate was absolutely inadmissible. I do not assent to this argument. I think that a deposition, properly taken, may be put in, and that the medical officer may then be called and further interrogated upon any points upon which there had not been a sufficient examination by the Magistrate. In the present case the medical officer was called and was cross-examined by the prisoners' counsel. It is true that this cross-examination was expressly, stated to be on behalf of one of the prisoners only, but it is equally true that counsel had an opportunity of cross-examining on behalf of all the prisoners. One important reason why a deposition not taken in the presence of a person sought to be affected by it is inadmissible is, that such person had no opportunity of cross-examining the witness. In this case all the accused were afforded this opportunity in the Court of Session. Then, further, it has not been contended, that if the medical officer had been examined again in chief in the Court of Session, any advantage would have accrued to the appellants which they could not have obtained by cross-examining him when he was called by the Sessions Judge.
17. Under these circumstances, I think it has not been shown to us that the prisoners were prejudiced by the irregularity, if committed; and, with reference to Section 283 of the Code of Criminal Procedure and Section 167 of the Evidence Act, I think that this objection would not justify us in interfering with the verdict.
18. Having disposed of these preliminary questions, I now come to consider the Judge's charge to the jury, and as the conclusion to which I feel myself constrained to come is, that this charge is radically defective in at least two essential particulars, I shall set out the essential portions of the charge and state somewhat fully the grounds upon which I am led to this conclusion.
19. After some preliminary observations the Judge proceeds to say: 'The first question which you have to decide is--Was there a disturbance in the village of Sopowan and plot called Jhikitia Kunda on the morning of Monday the 28th November last and were Ibrahim and four others wounded there? There can be no doubt that Ibrahim is dead, and I do not think that there can be any reasonable doubt that he was killed. The medical evidence shows that he had a severe and dangerous wound on the left arm. The ulnar artery had been cut and the ulnar bone broken and comminuted, and this wound appeared to. have been inflicted with a sword. The medical evidence shows that death was the result of hemorrhage and shock.'
20. He then proceeds to remark upon the injuries said to have been caused to Torab Ali, Imdad Ali, Gohur Ali, and Abdul Karim; and after this he says: The next questions which you have to decided are: Were the prisoners present at that disturbance? Did they take part in it? Was that disturbance a riot? Did the prisoners take part in the riot? Was the common object of the rioters to take possession by force of a crop of paddy, and were the killing of Ibrahim Hossein and the wounding of the other four men done in prosecution of the common object of the rioters? The question of the presence of the prisoners and of their participation in the riot must be considered by you separately for each prisoner. You must consider if the evidence shows that each of the prisoners was present and took part in the riot. If you have any doubt as to the presence or participation of any one of the prisoners, you will give him the benefit of it. If you find that there was a riot and that the prisoners took part in it, then you have to consider under what circumstances the riot was committed. It is evident that the dispute was about the cutting of a crop of paddy. A most important question here arises,--namely who cultivated the land and sowed the paddy?'
21. After this he discusses the question as to who sowed the paddy; and he then continues:
You will ask yourselves who sowed the land? Was it Jhubboo or Leaket? If you find that Leakat sowed the lands, then Jhubboo's right of private defence is gone The soundness of this direction is very questionable. Note by Field, J. whether the land was really his or not. For if he allowed It is said that there is no evidence that he allowed him; that no such case was made; that the prisoners did not rely upon the right of private defence, but denied the transaction as stated by the prosecution; & that the Judge, assuming for the prisoners a defence based on the exercise of the right of private defence misled the jury with supposing that they admitted the facts and sought to explain away their criminality. Note by Field, J. Leakat to take possession in Assar, he had no right to resist the cutting in Aghran. If Leakat sowed the land in Assar even though wrongfully, his cutting the crop in Aghran was not theft, &c;, so as to give Jhubboo a light of private defence This also is questionable. It can scarcely be said that if A wrongfully sows a crop on B's land A is entitled to reap this crop, and B has no right to prevent him. Note by Field, J.. If you find that Leakat sowed the crops, and that the prisoners were present and took part in the riot, I think that you must find them guilty Of murder. Note by Field, J.
If again you find that the crop was sown by Jhubboo, then the question which you have to ask yourselves is, if he and his party exceeded their right of private defence. The 4th exception to Section 99 declares that the right of private defence in no case extends to the inflicting more harm than it is necessary to inflict for the purpose of defence. Did the prisoners or any of them exceed this limit? The evidence shows that there were some 200 Kurmis armed with swords and latties, while there were only four or five Mahomedans, and that they were unarmed. I do not think that it can be said that they needed to wound three persons and kill a fourth in order to preserve the paddy It might with equal truth have been pointed out that two hundred men did not need to wound three persons and kill a fourth in order to achieve the common object of getting possession of the crop. Note by Field, J. The case is rather one of killing and wounding under grave and sudden provocation The Judge does not say, and it is not easy to understand, what constituted the grave and sudden provocation here referred to. Note by Field, J., and therefore punishable under Sections 304, 334, and 335. Here it will be necessary for you to consider the evidence against each prisoner.
22. The Sessions Judge then discusses the part which Jhubboo took in the occurrence, and adverts to the fact that the witnesses in their statements before the police, and the deceased Ibrahim in his dying declaration, said nothing about Jhubboo giving orders or jumping upon Ibrahim when down. The direction of the Judge upon this part of the evidence was particularly favourable to the prisoner Jhubboo. In order to enable the jury to consider the effect of the evidence against each of the other accused, the learned Judge says that he here summarized' the evidence of each witness; but the charge does not contain this summary. The Judge then proceeds: 'If you find that the crop was sown by Jhubboo and that he and the other prisoners had a right of protecting the crop from being cut and carried away by Torab and Leakat's party, but that the limits of the right of private defence were exceeded, you shall consider what, in your opinion, each prisoner did. Jhubboo is said to have ordered the killing of Ibrahim, and to have aided in doing so by stamping on his chest, etc. He is also said to have wounded Torab, an old and feeble man. It could scarcely have been necessary for him to do this in order to defend The common object charged was not to defend or maintain possession, which would not come within the purview of Clause 4, Section 141 of the Penal Code, which says, 'take or obtain possession.' Note by Field, J. his property. Lukshman is said to have wounded Gohur Ali with a sword and Harihur to have wounded Abdul Karim with a sword. The other five are all said to have used their latties. If you believe that they did, and that they exceeded their right of private defence by doing so, then you can find them guilty of causing hurt. You will also remember that if all the prisoners joined together in assaulting the other side, and if they were not justified by the law of private defence in doing so, or if they exceeded that right by striking the other party, then they were an Unlawful assembly, and each is liable for the acts done by the assembly or any member thereof. You will also remember the law. that an assembly not originally unlawful may become unlawful after wards. If the crop was Jhubboo's, and he and the other prisoners went to protect it, they did not commit a riot by assembly; but if they went on and attacked the other party, and in doing so exceeded the limits of their right of private defence, they became an Unlawful assembly.'
23. Now there are parts of this charge, and particularly of this last passage, more especially the words 'if they exceeded that right by striking the other party, then they were an unlawful assembly, and each is liable for the acts done by the assembly, or any member thereof,' which appear to me wholly defective and misleading, but I do not propose to comment upon every portion of this charge which appears to me open to observation. I shall notice only two defects, which appear to me so serious that I feel constrained to express my opinion that the appellants have not had a fair trial upon the grave charge upon which they have been convicted. These defects are: (i) No explanation of, or direction as to, the law relating to murder was given by the Sessions Judge to the jury; (ii) the jury were misdirected with respect to that portion of the charge which was concerned with Section 149 of the Penal Code.
24. It was properly pointed out by the Sessions Judge to the jury that the seven prisoners other than Jhubboo were not charged with having themselves done any act which could constitute the offence of murder. The charge against them was that Jhubboo had committed murder, and that inasmuch as they were, with Jhubboo, members of an unlawful assembly, and Jhubboo, while with them a member of that unlawful assembly, committed murder, they were, by virtue of the provisions of Section 149, guilty of murder, because they knew it to be likely that murder would be committed in prosecution of the common object of the unlawful assembly. Upon this charge, the first essential question was, whether murder had been committed by Jhubboo? There was no amendment charging in the alternative that the offence of murder had been committed by some person other than Jhubboo. The second essential question was, did the prisoners other than Jhubboo know it to be likely that the offence of murder would be committed in the prosecution of the common object of the unlawful assembly
25. As to the first point, the jury found that the murder was not committed by Jhubboo, and this being so, it is not easy to understand how, upon the charge as drawn, the other seven 751 prisoners could have been convicted under Section 302 read with Section 149. The Sessions Judge appears to have assumed throughout the whole of his charge that the act by which Ibrahim lost his life was murder. As to what constitutes murder, I find no direction whatever. It is the duty of a Judge to give a direction upon the law to the jury so far as to make them understand the law as bearing upon the facts, and if he does not give them an explanation of the law sufficiently comprehensive to enable them to decide the particular issue, it is a misdirection. In this case the medical evidence goes to show injuries of three kinds: (i) there were injuries about the head and congestion of the brain--on this point nothing whatever was said to the jury; (ii) there were injuries to the small intestines; and (iii) there was a sword-cut on the arm. The opinion of the medical officer as to the cause of death was, that death was due to shock following the injuries of the small intestines and to haemorrhage from a wound in the arm. He gave no opinion, and apparently was not asked his opinion, as to whether death did, or could, result from the injury to the arm alone. If the jury believed that Jhubboo inflicted the wound on the arm and also caused the injuries to the intestines, this was not very material. If, however, the jury did not believe that Jhubboo caused the injuries to the intestines, but believed that he inflicted the wound on the arm, this became very material. The jury appear to have disbelieved the evidence as to Jhubboo jumping upon the deceased and so causing the injuries to the intestines. If this were so, the question at once arose, whether a shock sufficient to cause death was, or could have been, the result of hemorrhage from the wound in the arm.
26. If the wound on the arm alone did not or could not cause death, it is impossible to say that Jhubboo committed murder. If death were the result of the combined effect of the wound on the arm and the injuries to the intestines, and the jury believed that Jhubboo inflicted the wound on the arm and some other person unknown caused the internal injuries, Jhubboo might be liable for murder by reason of the provisions of Section 34 of the Penal Code, which provides that when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. But it may be a question whether in this case Jhubboo, being thus constructively guilty of murder, could be said to have committed the offence of murder within the meaning of Section 149, so as to make the other prisoners by a double construction guilty of murder.
27. On these essential points no direction whatever was given to the jury.
28. Then in the next place, when the jury had made up their minds as to whether Jhubboo had inflicted both injuries or one of them or neither of them, if they believed that he inflicted one or both, they should have been directed to consider what offence was committed thereby; and to enable them to do so, the law relating to murder should have been explained to them, There is apparently nothing to suggest that the infliction of injury was, with reference to the first Clause of Section 300, an act done with the intention of causing death. It then became necessary to consider whether there was an intention of causing bodily injury; and if so, whether Jhubboo knew this bodily injury to be likely to cause the death of Ibrahim (cl. 2, Section 300). If the jury found that Jhubboo intended to cause bodily injury, but did not know this bodily injury to be likely to cause death, they ought then to have considered whether this bodily injury was sufficient, in the ordinary course of nature, to cause death, and upon this point the opinion of the medical witness would have been very material. If the jury found that it was not so sufficient, they should further have considered, with reference to the fourth Clause of Section 300, whether Jhubboo knew that his act was so imminently dangerous that it must in all probability cause death or such bodily injury, etc. (cl. 4, Section 300). As to whether the act was so imminently dangerous, the opinion of the medical officer would again have been material. If the jury found that the act of Jhubboo did not come within any of the four clauses of Section 300, they could not have found that Jhubboo committed murder.
29. But Jhubboo's act, though not falling within any of the clauses of Section 300, might, with reference to Section 299, have been done with the intention of causing such bodily injury as was likely to cause death, or with the knowledge that he was likely by such act to cause death. As to whether the bodily injury was likely to cause death, the opinion of the medical witness would again have been material. If the jury found that Jhubboo's act came under the portion of Section 299 just referred to, this act would have been culpable homicide not amounting to murder.
30. The same observations are applicable if for Jhubboo some person or persons unknown had been substituted in the charge by alternative language or otherwise.
31. On all these essential points no remark or observation was made to the jury; and I entertain no doubt that the appellants have been seriously prejudiced by this misdirection or want of direction. If the jury had been properly directed upon these points, it is quite possible that they would have found that the act by which Ibrahim lost his life was not murder, but the lesser offence of culpable homicide in the person who committed that act. They might even have found that this act did not amount to culpable homicide, but constituted grievous hurt only.
32. I may further here remark that although there were charges under Sections 326 and 396, no instruction whatever appears to have been given by the Sessions Judge as to these charges.
33. I now come to the second point. The Judge records the following note of what passed between him and the jury after they had retired to consider their verdict: 'After about three-quarters of an hour the jury returned and stated, that four of them, including the foreman, found all the prisoners guilty. The fifth juryman, Baboo Kesho Ram Bhuth, doubted the guilt of the prisoners and would acquit them. The foreman stated that they found the prisoners all guilty of the charges under Section 149. They did not find that Jhubboo himself killed Ibrahim Hossain, and that therefore he was not guilty under the charge under Section 302, which charged him with having personally murdered Ibrahim Hossain. But they found that Ibrahim Hossain was murdered by some member of the unlawful assembly, and that the murder was committed in prosecution of the common object of the assembly. They found that all eight prisoners were present and took part in the riot, and that all eight were therefore guilty, under Sections 149 and 302, of having murdered Ibrahim Hossain. In reply to a question from the Court, four of them stated--i.e., the four who were unanimous stated-that they found that the crop was sown by Leakat Hossein.
34. The fifth juryman, in reply to a question, said that he doubted who had sown the crop. The Court concurred with the verdict. The Court had not itself felt quite certain as to who had sown the crop. But that point having been once found by the majority in favour of Leakat, it followed that the crime of the accused was murder. The Court was not prepared to dissent from the opinion of the majority that Leakat had sown the crop. That was a point on which they were the best judges, and as the Court remarked in the charge, once it was held that Leakat sowed the crop, Jhubboo's plea of private defence was gone. As the jury did not find that Jhubboo personally murdered Ibrahim, the Court could not regard him as more guilty than the others, nor did it think that capital sentences should be passed on eight men.'
35. The Court sentenced each of the eight prisoners under Sections 302 and 149 to transportation for life.
36. The Court did not pass any sentence under the other sections.
37. I may here observe that when the jury were not unanimous as to their verdict, the Judge would properly have required them to retire for further consideration see Section 263, Code of Criminal Procedure. Again, this same section allows the Judge to ask the jury such questions as are necessary to ascertain what their verdict is, and directs that such questions and answers shall be recorded. The learned Sessions Judge has not complied with this direction of the law by recording the questions and answers, but has given the substance of them merely.
38. It will appear from the extracts above made from the Judge's charge, and from the above record of what took place between the Judge and the jury, that the jury were directed to consider whether the murder was committed in prosecution of the common object of the assembly, and that the jury found that the murder was committed in prosecution of the common object. Now the charge against the prisoners other than Jhubboo did not allege that murder was committed in prosecution of the common object of the unlawful assembly. What it did allege was that the prisoners knew it to be likely that murder would 7 5 5 be committed in prosecution of that object, and upon this, the language of the charge, I find no direction. It appears to me that the jury were in consequence misled to find in the affirmative something which was not alleged in the charge.
39. The prisoners other than Jhubboo could not, upon the charges as drawn, have been convicted of murder, unless they knew that it was likely that murder would be committed in prosecution of the common object of taking possession of the crops by force. The circumstances from which the jury could infer that the prisoners knew this to be likely, were not placed before them. They were told to find that which was not in the charge, viz., whether murder was committed in prosecution of the common object of taking possession of the crops by force.
40. Having regard to the law as laid down in the case of The Queen v. bed Ali 11 B.L.R. 347: s. c 20 W.R. F.B. C. R(sic). 5 I think the observations of the Judge upon this point, even assuming that the charge alleged murder to have been committed in prosecution of the common object, were meagre and defective, and not calculated to give the jury that assistance, which they ought to have had in order to enable them to understand clearly the circumstance under which they would be justified in convicting the prisoners other than Jhubboo constructively of the serious offence of murder.
41. The case has, I observe, occupied no less than eight days of the Sessions Judge's time, and I should be extremely reluctant to send it back to be tried again if I saw any other way in which the interests of justice could be satisfied. Having regard to the defects which I have pointed out, I cannot satisfy myself that these prisoners have had a fair trial. At the same time their absolute innocence is not so clearly doubtful or beyond doubt that I feel justified in saying that the body of evidence which is to be found in the case should not again be submitted to a jury.
42. I am, therefore, of opinion that the only proper course is to set aside the conviction and sentence and direct a new trial, and I think that before the new trial is commenced, the charges ought to be redrawn more exactly with reference to the facts which have appeared in evidence.
43. As to whether the prisoners should be admitted to bail pending the second trial, we express no opinion, this being a matter for the discretion of the Sessions Judge.
44. I concur in the decision arrived at by my learned brother. I hold that the misdirections to the jury are such as to compel us, in the interest of justice, not only to set aside the conviction and sentence, but to direct a new trial. The Judge appears to have assumed throughout the whole trial that the act by which Ibrahim lost his life was murder, unless the accused could establish the plea of right of private defence.
45. The difference between murder and culpable homicide was apparently never explained to the jury, and even if one of the unlawful assembly committed culpable homicide amounting to murder, I do not think that the jury were instructed sufficiently as to the circumstances under which they would be justified in convicting the accused other than the one who committed the act constructively of the offence of murder.
1[Section 191: The complainant and the witnesses for the prosecution shall be examined in the presence of the accused person, or of his agent, when his personal attendance is dispensed with and he appears by agent.
Examination to be in presence of accused.
The accused person or his agent shall be permitted to examine and re-examine his own witnesses and to cross-examine the complainant and his witnesses.]
Accused may cross-examine.