1. The appellant was tried by the Assistant Sessions Judge (1st Court), Dacca, and a jury for the commission of offences mentioned in Sections 458 and 148, I. P. C., and on the unanimous verdict of the jury has been convicted and sentenced to rigorous imprisonment for five years and two years respectively, under the above provisions of the law, the sentences so passed running concurrently. The case for the appellant has been argued before us by Mr. Jatis Chandra Guha, Advocate, with care and ability, and various points were raised in support of the appeal relating to the learned Sessions Judge's misdirection to the jury in matters of law and fact. The material portions of the evidence on the record bearing upon those points were also placed before us for our consideration.
2. It was in the first place, argued generally that the Judge has expressed his own views on the evidence in the case too strongly. It appears that there are expressions of opinion by the Judge at places, on matters of evidence; but we are not satisfied that expression of opinion was of such a nature as to leave nothing to the jury for their consideration, so far as matters of evidence were concerned. The jury, it would appear, were distinctly told by the Judge that they were not bound to accept his opinion on questions of fact which they were to decide independently of his opinion. Exception was taken to the Judge's reference to the arguments in the case as part of the charge. It must however be noticed that the Judge asked the jurors to consider the arguments after having summarized the material portions of the evidence before the jury. Argument was advanced before us that the law applicable to the case was not properly explained. With regard to the provisions contained in Section 458, I. P. C, the argument cannot be said to be well-founded in view of what was exactly said by the Judge in his charge to the jury. The attention of the jury waft pointedly drawn to the position that it was necessary to arrive at the conclusion whether the appellant had a knife in his hand, and whether he committed housebreaking by night, having made preparation for causing hurt or for assaulting Abdul Gani Khundkar or his wife. On the statements referred to above taking them along with the other part of the charge explaining the law to the jury, there was no misdirection in law contained in the charge to the jury. No misdirection could be pointed out with reference to the Judge's explanation of the law so far as the provisions of Section 148 were concerned.
3. A point was made of the Judge having placed before the jury a part of the evidence in the case which had a bearing upon the cause of death of Abdul Gani Khundkar. The medical evidence, on this point was referred to in detail as also other evidence. The charge against the accused placed before the Court for trial was not for commission of a murder; and the Judge after placing the material portion of the evidence relating to the death of Abdul Gani Khundkar stated as follows: From the circumstances noted above it is for you to consider whether it is not probable that the death of Gani Khundkar was due to shook of the attack with such a small knife injury on him when he was in such weak state of vitality with such a diseased body. So far as reference to the death of the man Abdul Gani Khundkar and to the cause of death are concerned we are not in a position to hold that there was any misdirection to the jury by the Judge or that reference to the evidence in the case bearing upon the cause of his death amounted to misdirection.
4. The omission to examine some witnesses by the prosecution was dealt with by the Judge in his charge to the jury. The non-examination of the chaukidar was expressly referred to, and it was stated to the jury that it was for them to consider whether they would think his absence as a witness for the prosecution was material. There was, in our judgment, nothing improper in the charge relating to the question of non-examination of the chaukidar or any other witnesses on the side of the prosecution, regard being had to the facts and circumstances referred to by the Judge in this connexion. The differences between the first information report and the evidence in the case were expressly noted by the Judge in his charge to the jury, and these differences were not sought to be explained away by the Judge as has been suggested before us.
5. It must be said that care has been taken by the learned advocate for the appellant in selecting passages from the Judge's charge to the jury against which criticisms might be levelled on the score of the direction or non-direction ; but we are not at all satisfied on the charge to the jury, taken as a whole, and on examination of the same in the light of the evidence placed before us, that there was any such misdirection or non-direction contained in the Judge's charge to the jury which could lead to any prejudice or injustice, so far as the appellant was concerned. The conviction of the appellant and the sentences passed on him must be upheld and we direct accordingly. The appeal is dismissed.