1. This appeal arises out of a proceeding which commenced in August, 1950 and which has, in the course of its progress from stage to stage, suffered certain vicissitudes.
2. The proceeding had its origin in an incident which occurred on 11-8-1950 and involved the death of one Col. S. C. Mitra. In connection with that incident, the two appellants before us, Sunil Chandra Roy and Satyendra Chandra Boy, who are brothers, were sent up for trial along with a third brother named Amalesh Chandra Roy. Sunil was charged under Section 302, Penal Code for the murder of Col. Mitra and further charged under Section 323 of the same Code for causing simple hurt to Mrs. Sati Mitra, a daughter-in-law of the deceased Colonel. Satyendra was charged jointly with Amalesh under Section 323, I. P. C. for causing simple hurt to Nirmal Kumar Mitra, a son of Colonel Mitra. All the three were further charged under Section 447, I. P. C. for criminal trespass into premises No. 18, Bondel Road, Calcutta, the residence of Nirmal, where the incident was alleged to have taken place.
3. After the usual preliminary enquiry, the three accused persons were committed for trial to the Court of Session and were in due course tried by an Additional Sessions Judge of Alipore with the aid of a jury. The jury unanimously found Sunil not guilty of the charges under Sections 302 and 323, I. P. C. and Amalesh not guilty of either of the two charges against him. By majority verdicts, however, they found Sunil guilty under Section 325, I. P. C. and Satyendra guilty under Section 323, I. P. C. and both guilty under Section 447, I. P. C.
4. The learned Judge accepted the verdicts of conviction against Sunil and Satyendra and passed certain sentences on them. He also accepted the verdict of acquittal in respect of the charges under Sections 302 and 323. I. P. C. against Sunil. But he was unable to accept the verdict of acquittal in favour of Amalesh which he considered to be perverse and against the weight of the evidence and referred his case to this court under Section 307, Criminal P. C. with a recommendation that he should be convicted under both Section 323 and Section 447, I. P. C.
5. Against their conviction and the sentences passed on them, Sunil and Satyendra preferred an appeal to this court, while the State moved for and obtained a Rule for enhancement of the sentences. No appeal was preferred by the State against the acquittal of Sunil of the charges under Sections 302 and 323, I. P. C. The three matters, viz., the reference made by the learned Judge, the appeal preferred by Sunil and Satyendra and the Rule obtained by the State were heard and disposed of together by Harries C. J. and Das J.
6. The learned Judges rejected the reference against Amalesh and acquitted him in accordance with the verdict of the jury. They allowed the appeal of Sunil and Satyendra in the view that there had been serious mis-directions and directed them to be re-tried at the Criminal Sessions of the High Court on the charges of which they had been convicted. The Rule for enhancement of the sentences was discharged for the obvious reason that the convictions and the sentences having been set aside, no question of enhancing the sentences arose.
7. The appellants were thereafter tried at the second Criminal Sessions of 1952 by J. P. Mitter J. with the aid of a Special Jury, Sunil on a charge under Section 325, I. P. C. for causing grievous hurt to Col. Mitra, Satyendra on a charge under Section 323, I. P. C. for causing simple hurt to Nirmal and both on separate charges under Section 447, I. P. C. for committing criminal trespass by entering into premises No. 18, Bondel Road with intent to intimidate, insult or annojr col. Mitra or Nirmal and to commit the offence of voluntarily causing hurt. The jury unanimously found the appellants guilty of all the charges against them. The learned Judge accepted the verdict and sentenced Sunil to rigorous imprisonment for seven years under Section 325, I. P. C. and Satyendra to rigorous imprisonment for one year under Section 323, I. P. C. He further sentenced each to a fine of Rs. 500/- under Section 447, I. P. C.
8. Thereupon the appellants preferred the present appeal under Section 411A (1) (a), Criminal P. C. and also applied for leave to appeal under Clauses (b) and (c) of the section. The appeal under Clause (a) was admitted, but leave to appeal un-der Clauses (b) and (c) was refused. The appeal is therefore limited to matters of law.
9. Before dealing with the grounds urged in the appeal, it will be convenient to dispose of a point which was not taken by the appellants but which arose in the course of the argument. Some discussion took place as to whether the present appeal could be an appeal under Section 411A at all, in view of the fact that the convictions had not been made by a Judge of this Court trying persons committed for trial to the High Court Sessions, but by a Judge trying persons committed to a District Court of Session from which their case had been removed to this court. In that connection it came to be enquired in what form the order of removal had been made and whether it had been regular. There can be no question that Harries C. J. and Das J. heard an appeal from an Additional Sessions Judge, preferred under Section 410 of the Code and they dealt with it under Section 423. Under the latter section they could, after they had set aside the convictions and sentences, direct the accused to toe re-tried 'by a court of competent jurisdiction subordinate to such Appellate Court', as they were.
On a certain line of reasoning, it is arguable that the Court of Criminal Sessions of the High Court was not a 'court of competent jurisdiction' in the present case within the meaning of Section 423(1) (b), inasmuch as the offences were not committed within the local limits of the Court's ordinary, original civil jurisdiction, as required by Clause 22 of the Letters Patent and inasmuch as by reason of the provisions of Section 206(2) of the Code, the appellants, being triable by a Court of Session, could not be committed for trial to this Court. It is true that a person not triable at the Criminal Sessions of this Court under the ordinary provisions of law, can be tried there if his case is removed by this Court for trial by itself under the provisions of the Letters Patent or is transferred to itself under Section 526 of the Code, but it may be said that in respect of cases triable by a Court of Session, those provisions do not make this Court, exercising ordinary or extraordinary original criminal jurisdiction, a court of competent jurisdiction within the meaning of Section 423(1) (b), taken by itself.
On a narrow view of that section, it only con-templates a court which would have jurisdiction to try the accused without any special order be-ing made, such as the court of the same Judge or another Judge of the same Court of Session or the court having jurisdiction to try the accused where the court which originally tried him, had none. There is, however, impressive authority in favour of the view that competence under Section 423(1) (b) does not mean competence by way of territorial jurisdiction and there are numerous cases in the books where the High Court, when disposing of an appeal from a Sessions Judge under Section 423(1)(b), directed retrial by the Sessions Judge of another Sessions Division. See, for example, -- 'Dwarka Slngh v. Emperor' AIR 1915 Cal 743 (A).
But even assuming that 'court of competent jurisdiction' means only a court competent to try the offences concerned and the court of the Judge holding the Criminal Sessions of this Court was a court of competent jurisdiction in that sense, it had still to be a court, subordinate to the appellate court which ordered the re-trial. Harries C. J. and Das J. were sitting as a court of criminal appeal, exercising the jurisdiction conferred by Clause 27 of the Letters Patent, which is a jurisdiction to hear appeals from criminal courts in the Province in such cases as are subject to appeal to the High Court by virtue of any law which was in force at the time the Letters Patent were granted. The Code of Criminal Procedure in force at the relevant time was the Code of 1861 and what is now Section 410 was Section 408 in that Code and so . virtually the same law has continued. If so, to the Criminal Appellate Court hearing appeals preferred under Section 410 of the Code in exercise of the power conferred by Clause 27 of the Letters Patent, the court exercising the Original Criminal jurisdiction of the High Court is not subordinate.
We need not be detained in this process of reasoning by any doubt as to what 'subordinate' means, because the word has not been used in the section 'simpliciter'. The expression used in Section 423(1) (b) is 'Court subordinate to such Appellate Court' which can only mean a court from which appeals lie to the appellate court concerned. It is true that under Section 411A, an appeal now lies to the High Court from any order of conviction or acquittal made by the Court in the exercise of its original criminal jurisdiction, but such appeal does not lie to the Criminal Appellate Court functioning under Clause 27 of the Letters Patent, because not only was there no law in force in 1865, providing for an appeal to the High Court from an order passed at an original trial held by one or more of the Judges of the Court, but Clause 25 of the Letters Patent expressly provided that no such appeal would lie. The appellate court for the purposes of Section 410 of the Code is therefore not the same court as that for the purpose of Section 411A and, consequently, if the former court directs the accused concerned in an appeal before it to be re-tried at the High Court Sessions, as was done in the present case, it does not direct him to be retried by a court subordinate to it, as required by Section 423(1)(b).
10. It was, however, contended by the learned Standing Counsel that the Court might validly make the order under Clause 24 or Clause 29 of the Letters Patent or under Section 526 of the Code and must be deemed to have so made it. The learned Judges did not say under what provision of law they were making the order, but if it could be justified by any of the provisions to which the learned Standing Counsel referred, I would concede that it could properly be referred to that provision. The exact position as to the scope of Clauses 24 and 29 is not very clear, but it seems to have been held that the former, which provides for the exercise of extraordinary original criminal jurisdiction over all persons residing within the jurisdiction of any court, subject to the superintendence of the High Court, contains an implied power to remove a case from a subordi- nate court for trial by the High Court in the exercise of such jurisdiction; and the latter, which provides for the transfer of 'any criminal case or appeal from any court to any other court of equal or superior jurisdiction', authorises a transfer to the High Court itself. -- 'Sasa-dhar Acharjya v. Charles Tegart' : AIR1932Cal229 ; -- 'Queen v. Ameer Khan' 15 WR (Cr) 69 at p. 77 (C); -- 'Queen v. Nobo-deep Chunder Gossamee' 15 WR (Cr) FN 71 at p. 75 CD).
Rule 2 of Chapter 37 of the Rules of the Original Side also appears to have been framed on the same view of the two clauses. That Rule prescribes an application on the Appellate Side and the learned Standing Counsel stated that he had made an oral application before Harries C. J. and Das J. who were sitting as an Appellate Side Bench. But Clause 24 could have no application to the present case, inasmuch as there were no charges preferred by the Advocate-General or any Magistrate specially empowered in that behalf. Neither could Section 526 of the Code apply, because as pointed out by the Privy Council in -- 'Hari v. Emperor' , that section deals, with cases which are not in the High Court and which require to be transferred and it cannot be invoked for justifying an order for re-trial made by the High Court in an appeal when it is itself in seizin of the case.
Some doubt as to the meaning of their Lordships may be caused by the further observation made by them that the section is 'not necessarily to be exclusively confined to' such cases, but that observation only means that the section is not confined to orders for transfer but may cover other orders, such as an order made under Sub-section 1 (e) (i), authorising a particular court, not otherwise empowered, to enquire into or try an offence. The generality of the view that the section deals with cases which are not in the High Court is in no way affected by the observation and indeed an order for a re-trial by a different court, made by a High Court in an appeal, was expressly held to be not warranted by the section.
It is true that their Lordships were dealing with an order made for re-trial by a subordinate court and, therefore, besides making the general observation as to the scope of the section, they addressed themselves particularly to Clause (e) (ii) of Sub-section (1), out the language of Clause (e) (ii), which is the relevant clause in the present case, makes the inappropriateness of the section equally clear, because, obviously, no court can transfer a case from itself to itself. Section 526 of the Code being thus excluded, there remains Clause 29 of the Letters Patent which appears to be equally excluded by the considerations pointed out by the Privy Council in construing Section 526. That clause provides for a transfer 'from any court to any other court' and it is clear that if the first court where the case is pending be the High Court, the second court whereto the case may be transferred cannot be the High Court itself.
Mr: Banerjee contended that what was pending in the High Court in the present case was only the appeal, but the case has remained in the Court of Session at Alipore to which it had been committed. That argument cannot prevail in view of the decision of the Judicial Committee in the case already referred to, where also the High Court had before it an appeal in a sessions case, but their Lordships considered the whole case to be before the High Court and observed that before an order for transfer under Section 526 could be made, the case had first of all to be got back to some court.
11. It appears to me that the internal indications furnished by Clauses 24 and 29 of the Letters Patent and Section 526 of the Code are sufficient to show that they contemplate independent orders for removal or transfer and not orders for re-trial by a different court made in an appeal. Such orders can only be made under Section 423(1) (b) of the Code, as pointed out by the Privy Council . in the case already cited. Indeed, under that section such an order has got to be made in an appeal from a conviction, if the appellate court does not dismiss the appeal, but reverses the finding and sentence and yet does not acquit or discharge the accused. Till such an order is made, the appellate court's duties under the section are not completed. It follows that after the appellate court had set aside the convictions and sentences in the present case, it had the appeal still on its hands and the order for re-trial it made, could only have been made under Section 423 (1)(b) of the Code in the appeal itself. If so, it could only direct a re-trial by a court subordinate to it.
12. The learned Standing Counsel referred to a decision of a single Judge of the Madras High Court in the case of -- 'Emperor v. Manikka Gramani'. 30 Mad 228 (F), where it was held that the words 'subordinate to such Appellate Court' in Section 423 (1)(b) were not words of limitation and that an appellate court could, after setting aside the conviction and sentence, retry the case itself. I do not desire to distinguish the case on the ground that, there, the offence had been committed within the ordinary jurisdiction of the appellate court, a Sub-Divisional Magistrate, but the construction put by the learned Judge on Section 423(1)(b) by reading it.along with Section 528, must be held to be erroneous for the reasons pointed out by the Privy Council in the subsequent case.
13. But although in the view I have indicated above of the status of this Court, as exercising original criminal jurisdiction, the order for retrial made in the present case was irregular, it cannot be said that the re-trial was without jurisdiction and as such invalid. As I have already stated, the appellants did not contend that there had been no valid re-trial at all. They had not appealed from this order for re-trial. They had taken no objection to the jurisdiction of the court in the course of the re-trial and appear to have proceeded, as indicated by the minute recorded by the learned Judge on 9-6-1952, on the footing that a valid order for re-trial at the High Court Sessions had been made under Section 526 of the Code. Before us also, it was not contended that the trial held by Mitter J. had been without jurisdiction.
On the other hand, towards the end of the argument before us Mr. Basu, speaking on behalf of both the appellants, conceded that what had occurred was only a technical irregularity. The appellate court, sitting as it was on the Appellate Side, had power to make an order of transfer to this Court either under Clause 24 or Clause 29 of the Letters Faient or under Section 526 of the Code and if it had only made such an order the next day, after disposing of the appeal by an order for re-trial, or perhaps the next moment after the case had notionally gone back to the trial court, although the records might not yet have been sent down, the order would have been perfectly regular. No one contended that any prejudice had been caused to the accused by the mere fact of the re-trial having been held by this Court. In those circumstances, the irregularity was curable under Section 537(a) of the Code as an irregularity before the trial. That the Code regards a withdrawal of a case by a court for trial by itself without jurisdiction to do so as only an irregularity appears from Section 529 (i), al though that section is limited to Magistrates.
The learned Standing Counsel referred to Section 531 of the Code as also the decision in -- 'Emperor v. Sayeruddin Pramanik' : AIR1939Cal159 , and contended that all that had happened was that the trial had taken place in a wrong Sessions Division which, in the absence of prejudice, was immaterial. He was not right in assuming that a Presidency Town was a 'Sessions Division' which,. under Section 7 of the Code, it is not, but it is, in any event, a 'district'. Still, I do not consider the argument tenable, because the question here is not whether the trial had taken place in a court which had no territorial jurisdiction over the offences charged, but whether the order for re-trial by this Court had been properly made, having been made in the appeal itself and not under Clause 29 of the Letters Patent or Section 526 of the Code after the disposal of the appeal.
14. I have proceeded above on the footing that a Judge of this Court, exercising original criminal jurisdiction, is not subordinate to the court hearing criminal appeals from the courts in the Province under Clause 27 of the Letters Patent. But it appears to me that a view is nov. possible under which he is so subordinate Clause 27 is concerned with cases which are 'subject to appeal to the said High Court by virtue of any law 'now' in force.' The relevant law in force at the date of the Letters Patent was Section 408 of the Code of 1861, but by the Code of 1872, the whole of the former Code was repealed. Even the Code of 1872 and also the next Code of 1882 are now gone. It would therefore seem that on a strict technical view of Clause 27 of the Letters Patent, it can no longer be held to be the source of the criminal appellate jurisdiction which the High Court exercises in respect of appeals from courts in the Province, because those appeals are now provided for by a law, i.e. the Code of 1898. which came into force subsequently to the Letters Patent.
This view receives support from the fact that the words
'or shall become subject to appeal to the said High Court by virtue of such laws or regulations relating to criminal procedure as shall be hereafter made by the Governor-General in Council',
which occurred in the corresponding clause of the first Letters Patent, have been omitted from the present clause. It may therefore be said that the criminal appellate jurisdiction which the High Court now exercises is derived entirely from the Criminal Procedure Code and if so, in so far as the High Court is concerned, the 'Appellate Court' contemplated by Section 423 is one and the same court, whether the appeal be one under Section 410 or Section 411 or Section 411A. As arranged in the Code, the first of the sections provides for an appeal from a Sessions Judge or Additional Sessions Judge, the second provides for an appeal from a Presidency Magistrate and the third, now inserted, provides for an appeal from '. Judge of the High Court and all lead up to Section 423 which provides for the disposal of those various kinds of appeals by the common 'Ap- pellate Court', i.e. the High Court.
It is to be noticed that the right of appeal from a High Court Judge, exercising original criminal jurisdiction, has not been given by amending Clause 25 of the Letters Patent, but by a new provision inserted in the Code itself, and therefore it would seem to be reasonable to hold that the forum of such appeals is intended to be the same 'Appellate Court' which is to hear other criminal appeals to the High Court for which the same Code provides. On that view, the appellate court hearing an appeal under Section 410 is not a different court from the appellate court competent to hear appeals under Section 411A. It is the same court and if that be so, the Court of a Judge of the High Court, exercising origi- nal criminal jurisdiction, is subordinate to the appellate court, hearing appeals under Section 410 within the meaning of Section 423(1) (b). I do not, however, desire to base my decision in the present case on this view of Clause 27 of the Letters Patent and Section 423 of the Code, since the matter was not argued and it may be contended that the last words of Clause 27 are severable.
15. As I have already pointed out, the above question arose only incidentally out of another question as to whether the present appeal could-be an appeal under Section 411A at all. The appeai-was preferred and also admitted under that section, but it was contended by the learned Standing Counsel that the section would not apply, because under whatever provision of law the case might have been removed to this Court, the learned Judge had exercised extraordinary original criminal jurisdiction which was outside the contemplation of Section 411A. The learned counsel-did not seem to contend that no appeal lay at all, but only to be anxious to exclude Section 411A so that he might have the benefit of Section 423(2).
In my opinion, the contention is not correct. Although the case came from a district and had been committed to a Court of Session, the learned Judge, in trying it on transfer, did not function as a Sessions Judge. He functioned as a Judge of this Court, exercising original criminal jurisdiction and if he did so, Section 411A(1) applies in terms to the order of conviction made by him. The learned Standing Counsel himself pointed out, very fairly, that the word 'ordinary' , did not occur in Section 411A which spoke only of 'original, criminal jurisdiction' and the result of that omission is that both ordinary and extraordinary jurisdictions are covered by the section. In my opinion, the appeal is an appeal under Section 411A(1) and consequently Section 423(2) cannot apply to it, so far as that section excludes reversal of the verdict of the jury on facts or on grounds of law other than misdirection and non- ' direction.
16. I may now pass on to deal with the grounds urged in the appeal, but before I do so, it is necessary to state briefly what the facts are.
17. It has already been stated that the prosecution concerns an incident which took place on 11-8-1950 and involved the death of one Col. S. C. Mitra. The Colonel owned premises No. 18, Bondel Road, but actually the house was occupied by one of his sons, Nirmal Kumar Mitra, who lived in it with his wife, Mrs. Sati Mitra. The Colonel himself lived at 25, Mandeville-Gardens. Just by the side of 18, Bondel Road, to the west of it, is a large house, numbered 17, Bondel Road, which is owned by Nirmal himself and which, at the material time, was in the occupation of several tenants, having been let out to them in flats. Among the tenants were the appellants who had been occupying flats Nos. 4 and 5 on the second floor of the building since December, 1948.
It appears that the relations between the landlord and the tenants were bitter, which is not unusual, inasmuch as differences had arisen over the usual subjects of controversy, such as a claim for reduction of rent, a continuous water supply and provision of certain other amenities. But according to the prosecution, the attitude of the appellants in particular was one of aggressive hostility and Sunil was given to uttering frequent threats to kill Nirmal. There had been a proceeding under the Rent Control Act, initiated toy all the tenants and an order had been made in that proceeding by which the rents were slightly reduced and certain hours were fixed during which the pump was to work.
According to the prosecution, Nirmal had been faithfully carrying out the directions given to him, but misbehaviour of tne appellants had not ceased. They had continued to shout filthy abuse at Nirmal and his servants, interspersed with threats on the part of Sunil to kill Nirmal. He had uttered such threats even in the presence of the Bent Controller on 12-10-1949 and subsequently too he had indulged in such threats on several occasions on the ground of an alleged inadequacy of the supply of water. On many of those occasions Nirmal had lodged an information with the police. The last time he had done so before 11-8-1950 was on 26-7-1950, when he informed the police of a particularly obnoxious outburst on the 24th July and another on that very day.
18. On 10-8-1950 Col. Mitra came with his wife to spend the night with Nirmal and was put up in the easternmost room on the first floor. The building has three rooms on the first floor, all facing south and the westernmost room was used by Nirmal as his bedroom. The intermediate room was a drawing room and had a telephone in it. The building at 17, Eondel Road has no doors but only windows on the eastern side and naturally the windows on the second floor overlook 18, Bondel Road. Nirmal's bedroom in the house at 18, Bondel Road also has several windows on the western side and from them the house at 17, Bondel Road is visible.
According . to the prosecution, in the early morning of the 11-8-1950, Nirmal was still in bed when he was roused by the noise of a row and recognising the voice of Sunil, he slightly opened the leaves of one of the windows to see what was happening. What he found was that the appellants were standing at a window, shouting abuse at the Mali for not getting water and soon they followed up that abuse with abuse of the Mali's master, referring to him as a swine, and then Sunil became even more violent and said that he was coming to kill him whereafter both disappeared from the window. Nirmal's wife had been up before him and already served tea to Col. Mitra, but she came into the room, as Nirmal was listening to the abuse, to call him to join his father at tea and went back to the Colonel and told him that the Roys had again started a row. Nirmal got alarmed at what he had seen and heard and passing into the drawing room, sent a telephone message to the Karaya Police Station, asking for help.
While he was still speaking on the phone, his wife rushed into the room and told him that the Roys had already entered the compound and his father had gone down. She had seen them enter from a window in the easternmost room. Nirmal hurriedly added a request to the police to come down in a taxi, saying that the Roys had already come in, and went down. He found the Mali in the grip of Amalesh and his father standing underneath the porch and remonstrating with the other two, particularly Satyendra. Nirmal immediately ordered them out of the house at which Satyendra and Amalesh fell upon him, Amalesh catching hold of him by the . waist and Satyendra dealing out fist blows on him from the front. That led the Colonel to remonstrate again whereupon he was attacked by Sunil who caught hold of him by the neck of his 'genji' and began to drag him towards the road along the passage to the gate. By that time Nirmal's wife, who had previously been watching the row from the verandah on the first floor, had come down.
The building at 18, Bondel Road, faces south, has a lawn to its south, alongside which runs a passage to the gate and near the western pillar of the gate, at a distance of about 18' inches from it, there is a letter box built into the compound wall. To the south of the lawn is a row or hedge of tube rose plants through which there is an opening, leading into the lawn. According to the prosecution, as Sunil started dragging the Colonel towards the road, Nirmal ordered the Mali to close the gate which he did. A boy-servant, named Abinash, went forward to help the Colonel, but Sunil warded him off by twisting his hand and he fell down on the ground. Sunil continued to drag the Colonel and when he reached near the gate, he dealt a fist blow on the left temple of the old gentleman. At that Nirmal's wife ran up and clasped her father-in-law with her arms. Sunil then turned on her, pulled her by the hair, gave her a blow and ultimately threw her down on the ground. She got up and ran to the gate before which some men had collected, shouting for help, but none came forward.
Sunil proceeded with the assault on the Colonel, dragged him past the western pillar of the gate and then through the opening among the tube rose plants into the lawn and there he struck a blow across the Colonel's face with a rod-like substance. On receiving that blow, the Colonel collapsed and dropped down on his back. Thereupon, Sunil stepped on to the letter box, scaled the wall and hurriedly made his escape, followed by his brothers who had so long been holding and assaulting Nirmal. Two of the neighbours, Sukhu Sen and Jiban Krishna Das, then came in & with their help and the help of the servants of the family, the Colonel's body was removed to the verandah on the ground floor and placed on a charpoy. Jiban who had a car with him rushed for a doctor and within a few minutes brought a Dr. Bose who examined the Colonel's body. He was already dead.
19. The above in brief was the prosecution case. The defence was an alibi as also a countercharge against Nirmal. The appellants' case, as suggested very fragmentarily in cross-examination, but expressed more fully in Sunil's statement under Section 342, Cr. P. C., was that on the day in question, they had gone out together for their usual morning walk and on returning about an hour later, found a large crowd in front of 18, Bondel Road and some women members of their family at the entrance to their own house who were in a state of agitation. The latter told them that Amalesh was being assaulted inside 18, Bondel Road and they had already sent the family cook, Ajit Narayan Missir, to the police station for help. Thereupon, the appellants began to proceed towards 18, Bondel Road but met Amalesh on the way who informed them that he had been asked to go to the house of the Mitras to inspect the pump and as soon as he had gone there, Nirmal had started assaulting him with the help of his servants after locking the gate. He added that on hearing his screams for help, some people had gone inside and a fight had ensued in the course of which he had managed to escape.
On hearing that story, the appellants proceeded further towards the gate of 18, Bondel Road in order to ask from Nirmal an explanation of his behaviour but were unable to reach the gate because of the crowd. Peeping over the shoulders of the people, Sunil saw a small crowd inside and shouted at Nirmal who looked up and said something which was not audible. At that point of time, someone in the crowd said that Nirmal's father had fallen unconscious and on hearing that, Sunil and Satyendra returned to their flats. As to the injury on the Colonel's person and his death, the defence suggestion was that he had fallen on the cemented passage by reason of an attack of coronary thrombosis or syncope or a seizure of the heart and had sustained the fatal injuries by the fall.
20. The appellants were arrested almost immediately after the incident. On receipt of the telephonic message, the officer-in-charge of the Police Station deputed a Head Constable, named Mathura Singh, to go to the spot but when he arrived, the incident was over. The ofificer-in-charge soon followed and after obtaining from Nirmal a brief oral statement of his version of the incident, proceeded towards 17, Eondel Road. At the stair-case of the house, he met one Sarat Banerjee, a priest of a neighbouring temple, who gave him some information and then he went up and arrested the three Roy brothers as also three other persons found in their flats who were their relations. The latter were subsequently let off.
21. It has been seen that the prosecution case included an accusation against Sunil that he had assaulted Nirmal's wife and an accusation against Amalesh that he too had trespassed into 18, Bondel Road and taken part in the assault on Nirmal. Of those respective charges Sunil and Amalesh had been acquitted at the first trial. A great deal of argument took place before us as to the legality of the prosecution re-introducing those parts of the story at the second trial, but that matter will have to be dealt with later.
22. The post-mortem examination of Col. Mitra's body revealed that he had sustained a linear fracture of the left temporal bone, vertical in character, a lacerated wound laid obliquely across the middle of the left eye-brow and three abrasions, one above the middle of the left eyebrow, across the left half of the forehead, one on the left cheek and one on the left external ear. There were also some clotted blood at the top of the membrane over the fractured bone, some more on the inner surface of the scalp and some serus fluid all over the brain in the top base.
In the opinion of the doctor who carried out the post-mortem examination, as recorded in the report, the death was due to the shock caused by the head injury on top of senile changes and the head injury was likely to have been caused by a fall on some hard substance. The report was made after receipt of the reports of the Chemical Examiner and the Pathologist for which the necessary viscera was not sent till 26-8-1950 and even then the material for the pathological examination also was sent to the Chemical Examiner who was not the right person. The report itself was not signed till 2-9-1950.
23. In support of its case, the prosecution examined Nirmal, his wife (Mrs. Sati Mitra), the Mali and Jiban who claimed to have witnessed the whole of the occurrence, as well as Mrs. Mahanti, a neighbour, Jiban's brother Panchu Gopal, also a neighbour and Bhagla Mahato, the Durwan of another neighbouring house, who claimed to have witnessed parts of it. Dr. Bose, who was the doctor called in immediately after the occurrence, was also examined, not as a medical witness but as a witness of fact as to what had been said to him and by whom. There were two medical witnesses, the doctor who had carried out the post-mortem examination and the Professor of Forensic and State Medicine at the Medical College, called in as an expert. In addition, three Police Officers who had been concerned with the investigation and the Head Constable who had first visited the scene of occurrence, were examined, besides certain formal witnesses to whom no particular reference is necessary. The defence examined no witness, but relied on the information lodged by Ajit Narayan Missir and certain previous statements of the prosecution witnesses, made either to the police or before the Committing Magistrate.
24. It was agreed by learned counsel for both the parties at the beginning of the trial that the procedure followed at the High Court Sessions would apply. Subsequently, Mr. Das Gupta who was appearing for both the accused drew the attention of the court to Section 526(2), Criminal P. C. but added that he did not desire to resile from the position he had taken up at the inception of the trial. The learned Judge considered the the point and, by an order passed on 9-6-1952, held that the procedure applicable was that followed at the High Court Sessions, although the case had come from a District Court on transfer. By a further order recorded on 18-6-1952, he held, overruling the contention of the State, that Section 154, Cr. P. C. would apply to any information lodged with the Police and Sections 161 and 162 would apply to statements made to them. No point was taken before us with regard to any of those matters.
25. The trial lasted 15 days, including a Saturday, and ended with the result I have already mentioned.
26. Before us, Sunil was represented by Mr. Das Gupta who had appeared for him at the trial and Satyendr'a by Mr. Basu who had not been in the trial court. Mr. Das Gupta addressed us on certain special points and generally on the alleged defects in the trial, but we were addressed more extensively by Mr. Basu.
27. The first point taken was that Mitter J. should not have presided over the trial at all and that by his so doing, the principles of natural justice had been violated. The basis alleged for that contention was that the learned Judge was privately acquainted with the Mitras, particularly Dr. Lalit Mitra, the eldest son of the Colonel and had even called at the Colonel's house to express his condolence; and it was said that in those circumstances he could not be expected to bring a dispassionate mind to bear on the case, as the events showed he could not. A Counsel who puts forward a contention of that kind takes upon himself a great responsibility and Mr. Das Gupta, when reminded of it by us, said that he would rely only on the facts stated by the learned Judge himself in two orders recorded by him on the 2nd and 6-6-1962 which he admitted he must accept as correct; and for the manner in which the proceedings had been conducted at the trial, lie would rely only on the record.
28. Having referred to the orders recorded by the learned trial Judge, I am clearly of opinion, as I intimated to Mr. Das Gupta quite early in the course of his argument, that it is not open to the appellants to take any ground of personal disability against the learned Judge. He did not keep back from the appellants such acquaintance as he had had with the Mitras, but on the other hand informed their Counsel of it and of the visit of condolence of his own accord before he fixed a date for the trial. He even offered to ask to be relieved of the case if the accused did not wish that he should try it. The learned Counsel, having taken time to consider the matter, informed the learned Judge that his clients, who had already been aware of the facts communicated to him by the learned Judge, desired that he should try the case and do so without any further postponement. The learned Judge knew not only Dr. Lalit Mitra, but some of the relations of the accused as well.
On the day the trial started, he called up the accused before him after the jury had been empanelled and asked them if they had any objection to his trying the case. They said they had none. The learned Judge then dictated an order in the presence of the accused and their lawyers in which he stated all that had happened in connection with that matter up to that time. Subsequently, when a typed copy of the order was made available to Mr. Das Gupta, he informed the learned Judge, that he did not remember having been told of the learned Judge's relations with Dr. Lalit Mitra, as stated in the order, but the learned Judge's own recollection was that he had mentioned it. He, however, asked Mr. Das Gupta if he desired to withdraw from the position he had taken up earlier, to which the learned counsel replied in the negative, although he asked the representation he had made to be noted. The trial then proceeded. In that state of the facts, it is impossible not to hold that the appellants, having given their consent to the trial being held by the learned Judge, both personally and through their Counsel, and having done so with full knowledge of the facts of which they had been already aware and of which they were also made aware by the learned Judge himself, are not now entitled to turn round and say that the trial should not have been presided over by the learned Judge. If any actual irregularities occurred at the trial, the appellants are undoubtedly entitled to complain of them, but they cannot be heard to say that the trial was bad, because the learned Judge presided over it. If a Judge who has made his acquaintance with one of the parties known, is asked to go on with the case and then attacked on the ground that he did so, he is not reasonably treated. No objection to his having held the trial at all, can be entertained at the stage of appeal.
29. I cannot, however, help observing that it would have been more in conformity with the correct judicial practice if the learned Judge had acted in accordance with his first impulse and not taken it upon himself to try the case. If a Judge's relations with one of the parties to a case have been such that he i'eels some embarrassment in trying it unless the other party consents to his doing so, it is better that he does not try the case than that he relieves himself of the embarrassment by asking for and obtaining consent. Consent in such circumstances can hardly be withheld; and particularly when a sessions trial has been assigned to a certain Judge, if the Counsel for the accused, bearing the responsibility of defending them against charges of serious offences, is asked by the Judge to say whether his clients will consent to being tried by him, he is put to a position of extreme delicacy and difficulty to which he ought not to be put.
I must add that if a Counsel does in fact find himself in such a position and if his clients too in fact have some misgivings about getting a fair trial at the hands of the Judge, it is his clear duty and also one of the privileges of his profession to act with courage and candour and submit, with due respect, that the Judge may be pleased not to try the case. He ought not to submit to the trial being held and reserve his objections for the court of appeal. But as regards the Judge, he will serve the cause he has at heart better and maintain more successfully the appearance of a trial by an impartial tribunal, if he does not at all enquire if the accused will object to being tried by him, but shuns the case altogether. I have not the slightest doubt that, in the present case, the learned Judge went out of his way to inform the accused of such slight acquaintance as he had had with the Mitras in order to avoid all possibility of their being tried by a tribunal which they might be unable to regard with a feeling of full confidence. But he would have made the better choice and done better justice to himself, if he avoided the case altogether and excluded all possibility of misunderstanding, whether genuine or purposefully created.
I have again no doubt that what little the learned Judge knew of the Mitras did not have the slightest effect on his mind in regard to the conduct of the trial, but for those who are charged with the administration of justice on behalf of the Courts, it is not enough to see that justice Is in fact done in the instant case before them, but it is also their responsibility to see that nothing is allowed to occur which might affect the appearance of justice being done and thereby impair the credit of the judicial system of the country, of which they are the guardians and custodians for the time being.
If a person who is in peril for his life or liberty is asked by the Judge in seisin of his case whether he would consent to being tried by him, there is a risk of its being regarded, or at least being represented, as an insidious form of coercion. It is farthest from my mind to suggest that the learned Judge intended to coerce and I am clear in my mind that he had no such unworthy intention, but having read the very unpleasant record, I feel bound to point out the risks of the procedure adopted by him, both to himself and to the cause of justice which he undoubtedly intends to serve and, on the other hand, the embarrassment caused by such procedure to the party concerned. More I do not desire to say on a point which has been an embarrassing one to deal with for this Court as well.
30. The next point urged was that there had been a mistrial in the case on account of over-interrogation of witnesses by the learned Judge. As an illustration, it was pointed out that out of 825 questions put to one of the medical witnesses, Dr. I. B. Majumdar, no less than 574 had been asked by the learned Judge himself. The complaint was not limited to the number of the questions asked, but concerned also the stage at which they were interposed and the form in which they were put. It was contended that, quite frequently, the learned Judge took a witness out of the hands of not only Counsel for the defence but also Counsel for the prosecution and pressed them with a series of questions to give the answer he wanted; and as regards the cross-examination, he destroyed its effect by intervening whenever any answer favourable to the defence was given and putting a series of suggestive questions to the witness till he retrieved himself and gave an answer favourable to the prosecution.
It was further contended that in so interrogating witnesses on his own account, the learned Judge often introduced new matters and at times brought on record evidence which was wholly inadmissible; and he completed the error of procedure by denying to the defence an opportunity for further cross-examination. The objection taken was a serious one. If unfounded, it was an improper objection to take; but if well-founded, the effect of the irregularity must be seriously considered.
31. The right of a Judge to put questions to witnesses is given to him by Section 165, Evidence Act. The section says that he may 'in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact, relevant or irrelevant'. The rest of the section and the provisos thereto are not material here. The history of the section shows that it was enacted in that wide form, because in 1872 it was thought that in many of the courts of the country where lawyers of the lower ranks practised, neither were cases properly prepared, nor witnesses properly examined, so that it was necessary to vest the Judge with an over-all power to get at the truth by asking any questions he liked. But although a great deal of time has since passed, the section has remained on the statute-book and its provisions are in substantial agreement with the English law on the subject.
The powers conferred by the section can therefore still be claimed and exercised. It is obvious that the Judge contemplated by the section is not a mere umpire at a wit-combat between the lawyers for the parties whose only duty is to enforce the rules of the game and declare at the end of the combat who has won and who has lost. He is expected, and indeed it is his duty, to explore all avenues open to him in order to discover the truth and, to that end, question witnesses on points which the lawyers for the parties have either overlooked or left obscure or wilfully avoided. It has been said that it is particularly necessary that the Judge should exercise this power in a jury trial, because it is his duty to aid the jury in obtaining a proper comprehension of the facts which they, as laymen, can do only if the facts are laid bare, with the implications not left as such but fully brought out and with the false suggestions eliminated. If therefore the Judge finds that the examination of a witness is not being conducted in such a way as to unfold the truth, it is not only his right but his duty to intervene with his own questions, particularly at a jury trial.
32. But while theoretically the powers of the Judges are limitless and unfettered, certain principles have come to be recognised which he must follow as to the manner in which he exercises the power. It need hardly be pointed out that he must not take side; but he must not also 'descend into the arena' and forsake the judicial calm for the zeal of a combatant. If he does so and questions witnesses in the spirit of beating them down or encouraging them to give an answer, his action may have an intimidating or inflatory effect upon them and their evidence may not be the evidence they would have given, if not so intimidated or encouraged. I do not think that the consideration that the Judge may, by indulging in a general examination of witnesses, disable himself to take a detached view of their demeanour, has much force in the case of a jury trial, because the ultimate judges of their credibility are the jujors who are left free to watch them. But the demeanour of the witnesses may itself be affected by the authority of the Judge, if he exercises it excessively in questioning them.
Again, although the law allows the Judge to put any question at any time, the time generally considered proper for an extended examination is when the lawyers for the parties have finished their questions or at least when the lawyer, examining the witness at the time, is passing on to a new subject. The Judge may always intervene, in the course of examination by Counsel, to put a question in a clearer form or to have an obscuse answer clarified or to prevent a witness being unfairly misled, but if he does more and stops Counsel again and again to put a long series of his own questions, he makes an effective examination or cross-examination impossible and diverts the trial from its natural course.
33. These principles which have been evolved put of practical experience will be found stated in several decisions, among which the leading authority now is -- 'Yuill v. Yuill' (1945) 1 All ER 183 (H). There is an early Calcutta decision in -- 'Noor Bux Kazi v. Emperor' 6 Cal 279 (I) and a recent decision of the Bombay High Court in -- 'Yusuf H. Abbas v. Bhagwandas P. Nangpal'. AIR 1949 Bom 346 (J & K). These decisions can be read in the books and I do not propose to refer to them further. But there had been two -recent decisions in England which have rot been reported in any legal journal and which concerned the same learned Judge who had been concerned in the earlier case of 'Yuill v. Yuill (H)'. I found references to them in the editorial notes of the 'Law Times' where it was stated that they had been reported in 'The Times' of certain dates and on my passing on the references to the Bar, the learned Counsel for the defence were able to trace one of them, viz., 'Harris v. Harris', decided by Singleton, Birkett and Hodson L. JJ., and reported in 'The Times' of 9-4-1952. As the decision, so far as I am aware, is not to be found in the reports, I shall take the liberty of quoting the observations of Birkett L. J. Being given in a newspaper report, they are in the form of an indirect narration :
'The transcript of the shorthand note of the evidence showed quite plainly that all the witnesses were questioned by the learned Judge in such a manner and to such an extent that the conduct of the case was virtually taken out of the hands of the Counsel altogether. The duty of the Judge to keep complete control at the proceedings before him was an essential part of the administration of justice in all our courts. He had a duty to intervene by way of questions or otherwise at any time that he deemed it necessary so to do. He might wish to make obscurities in the evidence - clear and intelligible; he might wish to probe a little further into matters that he deemed important and in a score of ways his interventions might be both desirable and beneficial. But it was safe to say that all his interventions must be overned by the supreme duty to see that a fair trial was enjoyed by the parties. His interventions must be interventions and not a complete usurpation of the functions of counsel.
The task of eliciting the truth was assigned to Counsel by the method of examination-in-chief and perhaps particularly by cross-examination. In performing this task, Counsel might be gentle or stern, hostile or friendly, as the occasion and the circumstances warranted. But the Judge best served the administration of justice by preserving the judicial calm and the judicial demeanour, aloof and detached from the arena of contention. In the present case, the parties came from comparatively humble walks of life. They had received legal aid in order to come to the courts at all. Such people were unaccustomed to the proceedings of the courts and they were likely to be overawed or frightened or confused or distressed when under the ordeal of prolonged questioning from the presiding judge. Moreover when the questioning took on a sarcastic or ironic note as was sometimes inevitable, the danger was not only that witnesses would be unable to present the evidence as they would wish but the parties might begin to think, quite wrongly it might be, that the judge was not holding the scales of justice quite evenly.
In the kind of case before the court where the issues were of very great moment to the parties, touching their future welfare and happiness, it was peculiarly incumbent on the learned Judge to exercise restraint and to avoid the criticism made in this case that he had debarred himself from the exercise of the judicial faculty by the part he played at the hearing.'
34. Having read the entire transcript of the evidence several times over in the light of the above principles, I am of opinion that no just exception can be taken either to the number of the questions put by the learned Judge, taken as a whole, nor except in a very few instances, to their nature, but unfortunately, the time chosen by him for his interventions and the number of questions asked at a time, did at times have the effect of interfering unduly with both the exa-mination-in-chief and the cross-examination and of putting the witness at an advantage or disadvantage.
As to the number of the questions asked, the learned Standing Counsel supplied us with a chart, the correctness of which was not disputed. According to it, the learned Judge's questions, in the case of Nirmal, were 139 against a total of 845, in the case of Mrs. Sati Mitra 35 against 284, in the case of Mr. Mahanti 21 against 171. in the case of Dr. Mahanti 28 against 147, in the case of Panchu Gopal Das 18 against 210, in the case of Jiban Krishna Das 10 against 165, in the case of Dr. Bose 8 against 81, in the case of Purnananda Sethi 17 against 195, in the case of Dr. I. B. Majumdar 574 against 825. in the case of Dr. Kabir Hqssain 180 against 423 and in the case of Puspa Pal 132 against 817.
35. These were all the material witnesses and except in the case of Dr. Majumdar and Dr. Hossain, it can by no means be said that the number of questions put by the learned Judge was usually or inordinately large. The reasons why the learned Judge found it necessary to question the two medical witnesses extensively have been given by him in an order recorded on 13-6-1952 where he has himself stated correctly the permissible limits of judicial interrogation. The reasons are fully borne out by the record. It appears that in the case of Dr. Majumdar, the learned Judge intervened before the cross-examination was over, because the learned cross-examining Counsel wanted a breal and in the case of Dr. Hossain, he did so before the cross-examination started, because the learned Counsel asked for time till the next day. Rather than rise, the learned Judge utilised the time in hand by putting to the witnesses questions of his own and it appears from the minutes that in the case of Dr. Hossain, he did so after ascertaining that the learned Counsel had no objection. In these circumstances, it cannot at all be fair to charge the learned Judge with having interrupted the cross-examination, so far as those two wit-nesses are concerned. Nor can any exception be taken to the number of questions asked.
There is no limit to the questions which the Judge may put and if he considers, as the learned Judge did in this case, that he has not yet got to the bottom of the matter or that the witness has not yet made his full meaning clear, there is no reason why he should not go on with the examination, whatever the number of the questions required to achieve the purpose of eliciting the truth.
Dr. Majumdar, in particular, was an exceptional witness in many ways. His delay in sending the viscera for chemical and pathological examination, the fact that he removed the pathological report and at least one other paper from the records of his office on the eve of his retirement and kept them with himself at his house for two months till his own examination before the committing Magistrate, his claim that he had removed the papers on granting a receipt to his successor which the successor denied and the way in which, after deposing during his examination-in-chief to an effect which did not militate against the prosecution case, he conceded various suggestions in the opposite sense made to him during . the cross-examination on the basis of various hypothesis of fact and various medical theories, clearly provoked a close and comprehensive examination of his answers.
In my opinion, no fault can be found with the learned Judge that he undertook such an examination. It appears further that the bulk of the questions put by the learned Judge to these two witnesses were after their cross-examination had been concluded. It is true that both were recalled and then also the learned Judge put some further questions, but whether or not the defence was given proper opportunities for further cross-examination, is a separate matter which I shall deal with under another head. So far as the number of the questions put to these two witnesses is concerned and the points of time at which they were put, I do not think there is any just ground for complaint.
36. There is another reason why, I think, no mis-trial can be made out from the manner in which the learned Judge interrogated the medical witnesses. The conception of the function of medical evidence on which the two doctor witnesses were cross-examined, appears to me to have been entirely mistaken and even if some over-interrogation by the learned Judge took place on irrelevant matters introduced by the defence itself, such over-interrogation cannot be said to have affected the merits of the trial.
Where there are alleged eye-witnesses of physical violence which is said to have caused a person's death, the value of medical evidence adduced by the prosecution in support of its case is only corroborative. It proves that the injuries could have been caused in the manner alleged and death could have been caused by the injuries so that the prosecution case being consistent with matters verifiable by the medical science, there is no reason why the eye-witnesses should not be believed. The medical evidence does not itselt prove the prosecution case. The use which the defence can make of medical evidence is to prove by it that the injuries could not possibly have been caused in the manner alleged or death could not possibly have been caused by the injuries and if it can do so, it discredits the eye-witnesses. More it is not required to do, but less is of no use to it. If it can only prove that the injuries or the death could also have been due to other causes, it proves nothing, because thereby the version of the eye-witnesses is not dislodged and they are not discredited. But if it can prove that the injuries or the death could not possibly have been caused in the manner alleged, it is wholly irrelevant to try to prove in what other way or ways they could have been caused.
In the present case, the evidence of Dr. Majumdar in his examination-in-chief was that a fracture of the temporal bone might be caused by a blow, that the facial injuries were likely to have been caused by some rough substance and death could have been caused by those injuries in the other conditions found. In cross-examination he said that the particular fracture could not have been caused by a fist blow, that the facial injuries could not have been caused by a rod and that all the injuries were due to one and the same cause which was likely to have been a fall. So far, the cross-examination is intelligible.
Dr. Hossain who said that the facial injuries could have been caused by a flexible rod and the fracture could have been caused by a fist blow, admitted in the cross-examination that the latter could also have been caused by a fall. That cross-examination, although the result does not help the defence, is also intelligible. But why anybody should go further and introduce coronary thrombosis or syncope or a seizure of the heart, it is wholly impossible to see. If the fist blow and the rod blow were excluded, the prosecution case was falsified and it was then immaterial to the defence in what other ways the injuries or the fall might have been caused, because their case was an 'alibi' and not a case that there had been an altercation with the appellants in the course of which the Colonel had suddenly dropped down. Most of the questions of the learned Judge were directed at eliminating the irrelevan-lies and I do not think it can be said that the merits of the trial were affected. Nor can any complaint be made that he himself introduced a theory of counter-coup action, because he made the suggestion only when Dr. Majumdar, after saying that all the injuries were caused by a fall, required a theory, to explain an impact on one side of the head causing a fracture on the other.
37. I have already pointed out that in the case of the other witnesses, the number of the questions put to them by the learned Judge is not by itself such as to provoke comment. Nor, I think, is their nature on the whole such as to open to criticism. By 'nature' I mean subject-matter and not the form or the manner in which the questions were put. Mr. Das Gupta cited certain instances in which, according to him, the learned Judge had intervened to extricate a witness from a difficult position, such as when Nirmal was being asked as to whether, he had spoken of his father's heart-trouble to Puspa Pal or mentioned fist blows to him or when Mrs. Sati Mitra was being asked as to whether she had not previously said that her father-in-law had. been struck in front of the letter-box or Haola-dar was being asked as to whether he had not examined Mrs. Mahanti on the 11th August when she had denied having seen anything.
It was also said that on several occasions the learned Judge had introduced new matters not thought of by the prosecution. I do not think there is any point in this criticism, because, if the prosecution omits to bring out a material fact or the cross-examining counsel brings a wit- ness to a state in which he cannot make his meaning clear. I do not think the defence ac-quires a vested right in such omission or confu- sion which the Judge is not entitled to disturb. It is precisely for use on such occasions that the Judge's powers under Section 165, Evidence Act are intended.
Having considered the instances cited by Mr. Das Gupta and some more cited by Mr. Basu, I do not think that the matters which the learned Judge took up for elucidation were foreign to the scope of Section 165. Only once or twice he seems to have over-stepped the limits. For example, when Mrs. Sati Mitra was being questioned as to whether she had said to the Police that her father-in-law had been wearing a shirt and she was. insisting that she had spoken of a 'genji', the learned Judge was not justified in intervening and suggesting to the witness that she might have used the word 'jama'. No Bengali, by the way, would use the word 'jama' for a 'genji'. The same witness, when re-called, was sought to be provided with corroboration from her statement to the Police, but the learned Judge was reminded by the learned Standing Counsel of the provisions of Section 162, Cr. P. c. whereupon he dropped the matter. Such instances, however, were rare and cannot by any means be said to have caused a mistrial. Nor do I find that any inadmissible evidence was introduced by the learned Judge's questions.
38. I must, however, say that many of the questions were not put in that neutral and de-tatched form which accords properly with the position of a Judge and the manner in which they were put does furnish some ground for the defence criticism that the learned Judge laid an undue emphasis on the prosecution case. It is greatly to be regretted that this should have been so, for many of the questions of the learned Judge are extremely illuminating, such, for example, as those put by him to Puspa Pal at the end of his cross-examination. But the fact remains that many of the questions are stamped with a strong belief in the truth of the prosecution case and seem designed to clear everything. else out of the way. I do not say that the learned Judge was not entitled to be impressed by the truth of the prosecution case, but I hope I do not do him an injustice if I say that, in the form of the questions put by him, the appearance of a perfect judicial balance was not always present.
It also appears that Instead of reserving his examination for the stage after the parties had finished and intervening only to clarify a particular question or answer, the learned Judge interposed again and again a succession of questions of his own, so that it looks as if two Counsel were examining the witness at the same time. Such interruption appears to have been caused not merely to the Counsel for the defence but also the Counsel to the prosecution and must have embarrassed them both in carrying out their own schemes of examination or cross-examination. I do not say that this is sufficient for writing off the trial, for no re-trial can be ordered merely on the ground of over-interrogation by the Judge, unless actual or substantial prejudice is proved which I do not think can be established in the present case but the manner in which the learned Judge exercised his powers under Section 165 does leave a somewhat disturbing impression on the mind. No one can deny that he asked his questions solely with the object of probing into a matter to the bottom and eliciting the truth, but unfortunately he appears to have permitted himself to be carried away at times by the momentum of the questions and created an effect which he overlooked.
39. I have dealt with the two general points at such length, because throughout the prolonged argument before us, they were used as a kind of constant refrain. I may now pass on to the specific points urged.
40. It was contended that the trial had been bad by reason of the admission of inadmissible evidence. Among such evidence, the whole deposition of Dr. Kabir Hossain was first included, on the ground that he had inspected the locality and done so long after the occurrence, but that contention was ultimately abandoned. It wab, however, strongly urged that Sunil having been acquitted at the previous trial of the charge of an assault on Mrs. Sati Mitra and Amalesh having been acquitted of both an assault on Nirmal and trespass, the prosecution was not entitled to re-introduce those parts of its story as it did. The learned Judge, it was contended, was wrong in allowing evidence of those parts of the story to be given and in telling the jury that it was to be treated like any other evidence, the only consequence of the previous acquittal being that the persons concerned could not be tried again for the offences of which they had been acquitted. Reliance was placed on the decisions in -- 'Emperor v. Noni Gopal Gupta', 15 Cal WN 648 (L) and -- 'Sambasivam v. Public Prosecutor, Federation of Malaya', (1950) AC 456 (M).
41. I shall deal with the point of misdirection later and confine myself here to the objection to the admissibility of the evidence. It appears that at the time when witnesses spoke to parts of the story now objected to, no objection was taken, but that omission may be disregarded. Speaking for myself, I cannot imagine how a witness, who has sworn to tell 'the whole truth' and is asked to say 'what happened next', can omit to give the whole story which he still maintains to be true, although a previous prosecution in regard to a part of it may have failed. But it was contended that the effect of an acquittal was not merely that the offence charged had not been proved by the evidence called but it established the innocence of the accused and the acts on which the charge was founded could not again be laid or proved against him for any purpose. So it appears to have been held in 15 Cal WN 646 (L) where, evidence of statements made by a person in reference to the common intention of a conspiracy was not allowed to be given at a trial of certain other persons for the same conspiracy, when the maker of the alleged statements had already been acquitted of the conspiracy charge at a previous trial.
For excluding such evidence, support was drawn from some general observations in --'Rex v. Flummer' (1902) 2 KB 339 (N), which, on the facts, was an entirely different kind of case. There, three persons being arraigned at the same trial for a conspiracy with one another, one pleaded guilty and was convicted forthwith on that plea, but the other two having pleaded not guilty, the trial proceeded as against them and they were acquitted. The Court then set aside the conviction of the first man on the ground that if the other two had not conspired with nim, as must be taken to have been established by their acquittal, he could not have conspired with them and in that connection it was said that the acquittal did not merely mean that the offence had not been proved, but meant that the men were innocent.
With great respect, I do not think that that general proposition was sufficient to warrant the , course adopted in -- 'Emperor v. Noni Gopal Gupta (L)', (ante) but, in any event, the correctness of the general proposition itself has been coubted in England, as appears from the annotations in 'Russell on Crimes'. The learned Standing Counsel contended that the reason for the decision in 'Emperor v. Noni Gopal Gupta (L)', was to be found in Section 10, Evidence Act, but I do not consider that contention correct. The case, however, appears to me to be distinguishable on the ground that, there, the declarations of the acquitted person were sought to be proved as evidence of the offence for which the subsequent accused were being tried, which was the same offence as that of which the maker of the declarations had been acquitted, whereas, in the present case, the assault by Sunil on Mrs. Sati Mitra and the assault by Amalesh on Nirmal were not introduced as evidence of the assault by Sunil on the Colonel and the assault by Satyendra on Sunil or of the criminal trespass by either of them.
The learned Standing Counsel referred us to the decision of the Privy Council in -- 'Malak Khan v. Emperor' , where evidence of the recovery of some stolen properties was given against an accused, charged with robbery and murder, and it was held that although the accused was acquitted of the charge of robbery by the trial court which did not accept the story of the recovery of the articles and although no appeal was preferred against the acquittal, the High Court was entitled, in an appeal by the accused against his conviction for murder, to take into account the evidence of the recovery of the articles and weigh its value as corroboration of other evidence of the murder charge. This, it was held, the High Court could do, even if the trial court had found the whole story of the recovery of the stolen properties to be baseless and not merely the 'crime not proven.'
Mr. Basu sought to distinguish the deci-sion on the ground that the High Court, having the appeal from the conviction before it, could alter the finding as to the recovery of the articles, but that does not dispose of the fact that the acquittal of the charge of robbery which stood unquestioned, was not allowed to exclude evidence of the facts on which that charge was based, from consideration as evidence of the other charge.
In the second case cited by Mr. Basu himself, (1950) AC 458 (M), the accused was first tried on a charge of possession of ammunition and another charge of carrying fire-arms in connection with a street fight in the course of which a man was fired upon and killed and on being acquitted of the first charge, he was re-tried on the second and convicted. At the second trial, evidence of possession of ammunition was also given and an alleged confession in which the accused had admitted the truth of both the charges was put in. Although the Privy Council said that the acquittal was binding and conclusive in all subsequent proceedings between the parties and the prosecution was precluded from taking any step to challenge, it at the second trial, their Lordships did not say that the evidence given was inadmissible, but set aside the conviction on the ground that the trial Judge had not given adequate directions as to the fact and the effect of acquittal which appeared not to have been brought to the notice of the assessors at all and was perhaps even not known to the Judge. The result of the decisions does not seem to me to establish that the alleged assault by Sur.il on Mr. Sati Mitra or the alleged acts of Amalesh could not be introduced even as parts of the prosecution story.
42. In any event, it appears to me impossible to say that the introduction of the matters complained of affected the trial in any way. Those matters are not evidence of any of the offences charged and therefore it cannot, strictly speaking, be said that the convictions were based partly on inadmissible evidence. Mr. Basil submitted that as the prosecution case was that Amalesh held Nirmal by the waist while Satyendra dealt blows on him, the part alleged to have been taken by Amalesh probabilised the prosecution case and therefore the introduction of the alleged act of Amalesh had prejudiced the defence. I do not think there is any substance in that submission.
As I have already pointed out, the impugned evidence is not evidence of the offence charged. Besides, in the case from Malaya where also the facts relating to the possession of ammunition and the carrying of fire-arms were inter-connected, the Judicial Committee did not regard the question as one of the admissibility of the former facts, but as one of the acquittal thereon reducing the weight of the case made on the latter facts.
I would hold further that even if the facts were evidence of the offences charged and even if such evidence was inadmissible, it was of so small and trivial a character that, in view of the other evidence in the case, the trial cannot be said to have been in the slightest degree affected. The same remark applies to one or two small bits of statements to the Police which were of even less con-sequence. as they were all put to the witnesses subsequently during their cross-examination on behalf of the appellants.
43. The remaining grounds, except a small one which I shall deal with in due course, and the point about the refusal of an opportunity for further cross-examination, were all directed against the charge delivered by the learned Judge. Those may now be taken up one by one. The major complaint was that there had been no proper summing up, but that ground I shall deal with at the end.
44. It was first contended that the learned Judge had failed to give adequate, and in certain cases any. directions as regards the non-examination of material witnesses. The persons who should have been called but were not and with regard to whom directions were necessary were said to be Suku Sen. Moni Dutt, Sudhangshu Battachar-jee, Sarat Banerjee, Dr. Lalit Mitra, Gcpal Bis-was and the Civil Surgeon, 24 Perganas.
45. The question of giving anv directions to the jury as to the presumption which they may draw from the non-examination of a witness arises only if the witness is a material one. The language of Illustration (g) to Section 114, Evidence Act is 'evidence which could be called and is not produced' but that does not mean all available evidence. It is now settled law that although the prosecution must call all witnesses essential to the unfolding of the narrative on which the prosecution is based, whether the effect of their testimony in the result be for or against the prosecution case, it is not bound to call witnesses, irrespective of considerations of number and reliability and cannot be excepted to discharge the functions of both the prosecution and the defence. It cannot be considered bound to call witnesses whose reliability it doubts, nor to call witnesses simply because their names appear on the information, nor every one of the witnesses who could speak to the same facts which it desires to prove. From them it may choose some at its discretion. -- 'Stephen Seneviratne v. The King' AIR 1936 P. C. 289 (P); -- 'Adel Muhammed El Dabbah v. Attorney-General of Palestine' AIR 1845 P. C. 42 (Q) and -- ' '.
It is only in the last case i.e. when the prosecution exercise its discretion of not calling some of the witnesses of the material facts, either on the ground that they are superfluous or on the ground that they cannot be trusted, that the question of considering the absence of witnesses whose testimony would be excepted and of drawing or not drawing a presumption arises. As I have said on another occasion (-- 'Dhirendra Nath v. State', : AIR1952Cal621 (R)) in such a case, the prosecution should place before the Court some explanation of why the witnesses have not been called and the Judge should leave it to the jury to consider whether the reason given is a good and credible reason. If they find the reason good and sufficient, no other question would arise. But it they are unable to accept the reason, the position would be that material witnesses had been withheld and it would be for the jury then to consider whether they would draw an adverse presumption, bearing in mind the rule that the prosecution is not bound to call every one of the witnesses who could speak to the same facts and also the persuasive effect of other evidence in the case. .
45a. In view of the principles above stated, I do not think there is any substance in the contention of the appellants. The learned Judge did direct the jury as to the omission of the prosecution to call Suku Sen and Sarat Banerjee and the direction given was sufficient. The prosecution did give a reason for not calling Suku Sen which was that he was related to the accused. The learned Judge did not place that reason before the jury, but proceeded on the ground that he was not a material witness, since there was nothing to show that he had seen the occurrence and nothing to indicate how much or what he knew. All that appears from the other evidence in the case is that Suku Sen came into the grounds of the house after the occurrence and helped to carry the body of the Colonel from the lawn to the varandah.
Since there was a controversy in the case as to whether the Colonel had fallen on the lawn or on the passage, Suku Sen would be a witness of the site where he found the body, but as to from where the body has been removed, there were several other witness, more competent to speak, as they had seen the body from the beginning. I therefore think that the learned Judge was right in considering Suku Sen not to be a material witness, but in any event he left the question wholly to the jury and asked them to draw an adverse presumption if they thought it proper to do so.
Mr. Basu contended that there was nothing but hearsay evidence of the fact that Suku Sen was a relative of the accused, but it does not appear to be necessary that such matters are to be proved by legal evidence. If the prosecution is not obliged to call witnesses whom it cannot expect to give unbiassed evidence, as held by the Privy Council, materials sufficient to cause a bona fide belief in the prosecution must be enough. In any event, since the learned Judge did not ask the jury to excuse the failure to call Suku Sen on this ground, it is of no practical importance in the case. About Sarat Banerjee nothing is known except that he said something to the Sub-Inspector Puspa Pal when he was going to 17, Bondel Road and that thereafter three other persons, besides the Appellants and their brother, were arrested. The learned Judge still asked the jury to draw an adverse presumption from the omission to call Sarat Banerjee, if they liked and has clearly given no cause for complaint.
46. I do not consider that any directions were necessary as regards the other persons. Moni Dutt and Sudhangshu Bhattacharjee were tenants, occupying Eats at 17, Bondell Road, who had made common cause with the appellants in the dispute with Nirmal and when an appeal was made to them to come for help, both by Nirmal and his wife, as they were found standing outside the gate, they did nothing. There is nothing to show how long they stood and how much they saw. Dr. Lalit Mitra was not at the place at all but -came after the occurrence on receipt of a telephone message from Nirmal and I do not think the prosecution was obliged to call him to prove whether Nirmal had mentioned the appellants to him, when speaking on the phone.
The case of the Civil Surgeon who had countersigned the post-mortem report was not pressed, As regards Gopal Biswas, I think it would have been better if the prosecution had called him, but still the omission to call him was not an omission to call a material witness. His importance is that he took down the telephone message which Puspa Pal received from Nirmal just before the occurrence and all that is stated in the entry he made in the General Diary is that 'some men are creating disturbance'. Puspa Pal who actually received the message stated before the committing Magistrate that Nirmal had mentioned 'some tenants', but before this Court he deposed that what Nirmal had said was 'Roy tenants', meaning thereby the appellants and their brother, and he explained the entry in the Diary by saying that the literate Constable, Gopal Biswas, who was asked to record the information, recorded only the gist. In those circumstances, Gopal Biswas, if called, might have said whether in fact he had recorded only the gist of the message.
The entry as to the subsequent information lodged by Ajit Narayan Missir, about the time of which there are certain corrections in the Diary, is also in the handwriting of Gopal Biswas. I do not think the latter entry made it necessary or proper for the prosecution to call Gopal Biswas. but as regards the first entry, he was. from the prosecution point of view, a proper witness. But still he would only corroborate or contradict Puspa Pal. The man who actually received the message was examined and if he gave evidence which was not in conformity with the written record and he gave an explanation of the discrepancy, the position resulting from the omission to call Gopal Biswas was not that a material witness had not been examined, but only that the explanation given by Puspa Pal remained uncorroborated. Gopal Biswas being a person who could only have corroborated or contradicted the evidence of another witness on an ancillary matter, I do not think any directions regarding his non-examination were called for.
47. It was next contended that the learned Judge had misappreciated the medical evidence, mixed up coronary thrombosis with affection of the heart and charged the jury on that basis so as to misdirect them as to the medically possible causes of a fall and discredit Dr. Majumdar unwarrantably in the eye of the jury. In the passage objected to, the learned Judge suggested to the jury that Dr. Majumdar knew, as he had ultimately admitted, that the pathological report had something to do with the heart and indicated that there was no serious degeneration and that it was for that reason that he had secreted the report, because 'that document would have excluded the theory of a fall due to coronary thrombosis or syncope or any kind of temporary seizure.'
About the mass of medical evidence introduced as to the possible causes of a fall, I have already indicated my opinion that it was utterly irrelevant and could only obscure the real issue. Apart from that, the evidence given by Dr. Majumdar, as he was led from hypothesis to hypothesis, was so jumbled and indecisive that the defence has itself to think if any confusion was caused. But I do not think the learned Judge's charge is open to the criticism levelled against it. Whatever the want of connection between coronary thrombosis or syncope and a bad heart in actual fact, Dr. Majumdar himself accepted the suggestion that the pathological report had a bearing on all the three and that was all that the learned Judge placed before the jury with the comment which he considered proper to make.
Q. 804 was in the following terms : 'And therefore that pathological report had something to do with seizure, syncope or coronary thrombosis?' The answer was: 'Or failure of the heart.' The three affections suggested by the learned Judge xvere accepted by the doctor who added a fourth matter. In those circumstances. I do not think it can justly be said that the learned Judge misappreciated the medical evidence or misdirected the jury. Indeed, if I may say so with respect, the learned Judge's analysis of the medical evidence appears to me to toe a most admirable piece of work, although the defence may criticise its tenor as making short work of the alternative theories suggested by them.
48. On the subject of the medical evidence. it was further contended that in view of the fact that Dr. Kabir Hossain had inspected the place of occurrence and done so long after the event, the value of his evidence, which must have been coloured by impression he had formed at the inspection, was nil and the learned Judge should have so directed the jury. I do not know why Dr. Hossain thought it necessary or proper to visit the site of the incident. A medical witness, called in as an expert, is not a witness of fact. His evidence is really of an advisory character, given in the form of an opinion on the facts submitted to him and not to be given by reference to facts collected independently by himself. It appears, however, that while Dr. Hossain admitted having taken the local inspection into consideration in drawing up the report he had submitted to the Government, the evidence given by him in Court was based entirely on the materials placed before him, viz., the post-mortem report, the Chemical Examiner's report and a document he was shown for the first time, the Pathologist's report.
The learned Judge was particularly careful to limit the doctor to those materials which he did by Q. 362, and the questions of Counsel on both sides were also directed at eliciting his scientific opinion on the record of the injuries and the result of the examination of the organs to which his attention was drawn. In those circumstances, I can find no substance in the point urged.
49. It was next contended that the learned Judge had brushed aside the defence of 'alibi' by suggesting to the jury that if the appellants had not been at the spot at all, Nirmal could not possibly have taken the risk of implicating them as they might even have gone away on a train journey, but he had forgotten that the appellants had, when they had gone up to the gate of 18, Eondel Road after returning from their morning walk, spoken to Nirmal and Nirmal had replied. But apart from a statement of Sunil, made in the course of his examination under Section 342, Cr. P. C., there is no evidence of such morning walk or conversation. I do not therefore think that the learned Judge was precluded from making the observation he did.
It is true that answers given by the accused under Section 342 may be taken into consideration, but strictly speaking, what may be taken into consideration is only the explanation given of the circumstances appearing against the accused in the prosecution evidence and not any fresh facts stated by him. Such facts could be stated by him if only he was a competent witness himself which he is not. But however that may be, the learned Judge does not appear to have overlooked the statement under Section 342, for, elsewhere in the charge, he observed as follows :
'But the law allows, and this is the only exception, that they can say what they like and that you can take what they say into account, either in their favour or against them; for instance, in this case if you believe that these two brothers had gone out for a morning walk and had nothing whatsoever to do with any incident which had taken place inside the compound, it is your privilege to do so.'
In view of what the learned Judge thus stated to the jury and the fact that what an accused person states under Section 342 is not evidence, I do not think any grievance can be made of the manner in which the learned Judge presented his criticism of the defence of 'alibi'.
50. A great deal of argument took place before us as to whether the deceased was wearing a 'genji' at the time or a shirt and a complaint was made that the learned Judge helped the witnesses in getting out of their previous statements about a shirt and did not explain to the jury properly the significance of the discrepancy which showed an improvement of the prosecution case. If the Colonel was really wearing a shirt, by which he could equally be pulled, I do not see why any body should falsely substitute a 'genji' for it, unless it is said that he was not pulled by anything at all and in making a false case, the prosecution had failed to maintain consistency. Puspa Pal, however, said that even in his report, he had mentioned a 'genji' and it appeared from the inquest report, to which we referred, that such indeed was the fact. The inquest report was not made an exhibit in the case, but as the maker of the report spoke to it and it was on the record, we thought a reference to it could properly be made. The report completely disposes of the point about the 'genji', as it was made by the Sub-Inspector at the earliest point of time from his own observation of the body, before any question of 'genji' 'versus' shirt had arisen.
51. It was next contended that the learned Judge had made a simple scar on the eye-brow into a grievous hurt by answers extracted from the medical witnesses by himself and that he had done so after the jury had given an indication by certain questions of the Foreman that they might hold the fracture of the temporal bone to have been caused not by a fist blow, but by a fall. It was also said that the learned Judge's exposition of grievous hurt, as constituted by the injury on the eye-brow, was defective, inasmuch as it was not made clear that in order to be a disfiguration and so a grievous hurt, there would have to be not only a scar, but also a scar uncovered by hair and exposed to view. It was said further that Dr. Majumdar's evidence was that although no hair would grow on the scar itself, it would be covered up by the neighbouring hair, while Dr. Hossain's evidence was no worse than that it might or might not be covered up. ,To that evidence, it was said, attention had not been drawn.
52. As I told the learned counsel, the allegation that the learned Judge manoeuvred the doctor witnesses into speaking to some sort of a grievous hurt on the eye-brow when he found that the fracture was failing, was a most unworthy one and ought never to have been made. The questions of the Foreman do not suggest anything more than that they were having their ideas as to the defence theories clarified. Even if they suggest that the jurors were beginning to think that the fracture might have been caused by a fall, there is no reason which could make it proper to suggest that the questions of the jury caused the learned Judge alarm and such alarm was the cause of his questions about the cut on the eye-brow. After all, the cut was there and if the learned Judge asked the doctors, -- what consequences would follow from it -- might be with the object of punishing the appellants for grievous hurt if the cut was such a hurt, there was nothing improper in what he did.
A Judge does not preside at a criminal trial merely to see that no innocent man is punished but also to see that a guilty man does not escape punishment. As regards disfiguration, it may be that nothing is disfiguration which is not visible and the learned Judge's charge might have been fuller if he had reproduced the evidence of the doctors that no hair would grow on the site of the wound but that according to one of them, neighbouring hair would cover it up while according to the other, it might or might not. I do not, however, think that the learned Judge was really required to go so far in view of the nature of the injury and other evidence of the doctors. The measurements of the injury which was bone deep and lay mostly across the superciliary ridge were 1' x 1/4' and Dr. Hossain's evidence was that after the wound had healed up, a permanent scar of 3/4ths of an inch would remain.
Dr. Majumdar himself said in answers to the learned Judge that the scar over the eye-brow would permanently disfigure the face 'to a certain extent' and, again, that the wound would inevitably leave a permanent disfiguration and it was only when the learned Judge asked him if there would be any hair on the scar that he said that although no hair would grow on the scar itself, other hairs would cover up the mark. Even then he added that there would be 'very little disfiguration', not that there would be none. When the matter was put to Dr. Hossain, he said that he did not think that the scar would be covered up in course of time and, again, that the wound was of such breadth that a gap would remain and also that hair might not completely cover it. It was only when still pressed, that he said that it might or might not cover it up completely.
In view of that evidence of the doctors and the further evidence of Dr. Hossain that there would be a permanent depression, I do not think the learned Judge's charge can be said to suffer from any deficiency. He did not say that the scar would have to be a visible scar where hair would never grow and invited the jury to consider the evidence of the doctors and its effect on the question whether the Colonel's face would have been permanently disfigured, if he had survived. That, in my view, was correct and sufficient.
53. It was next contended that the learned Judge committed an error of fact by stating to the jury that, according to the evidence, no effort had been made to find the rod while, in fact, there was evidence that the rod had been searched for. I do not think that the learned Judge misrepresented the evidence. All that Puspa Pal, the Sub-Inpector, said was that when he went into 17, Bondel Road in the morning of the 11th August and arrested the accused, he looked round the place in a casual manner and when asked if he was looking for anything particular, he replied that he was looking for the rod and when asked the next day why he had not made a proper search, he gave the somewhat extraordinary answer that he had not done so, because he had not the details about the type of the rod. It is quite clear that what the learned Judge placed before the jury as the effect of the evidence was not different from what it actually was.
54. It was next contended that the learned Judge's directions about the evidence of Mrs. Mahanti were inadequate and he should have pointed out first that she had not identified the appellants and, secondly, that no test identification had been held in the case. It is difficult to understand what the complaint was Mrs. Mahanti was a resident of 76, Bondel Road, a house just on the opposite side of the road and her evidence was that in the morning in question, she came to the varandah of her flat, which was on the first floor, because of something her children had cried out to her and then she saw two men holding Nirmal and a third man standing behind, that thereafter she went back to her kitchen because she had left some milk boiling and that on returning to the verandah, she saw a man dragging the Colonel by his 'genji' and while dragging, bring cut something like a rod and that the man dragged the Colonel into the lawn.
She said further that she did not see the Colonel being hit but later saw his body being removed from the lawn. The lady did not identify either of the appellants. If she had done so. there would be something to tell the jury to the effect that identification in court was useless and that the jury should bear in mind that no test identification, at which only the witness ability to identify could really be tested, had taken place. Still, the learned Judge did remind the jury that no test identification had been held. With regard to no other witness was a test identification of any importance because they all knew the appellants. It was said further that while the learned Judge told the jury that the evidence of Mrs. Mahanti, if believed, would have tremendous corroborative value, he did not remind them that the appellants had not been identified by her. The complaint seems to me to be pointless.
The prosecution case was that the Colonel had been felled by a blow with a rod and that he had fallen on the lawn. The case persistently suggested by the defence was that he had not been taken to the lawn at all, but had fallen on the passage and this was done in order to make it probable that the fracture of the temporal bone had been caused by a fall, which would be likelier in the case of a fall on a cemented path than on the soft soil of the lawn. When the learned Judge spoke of the corroborative value of Mrs. Mahanti's evidence, he was referring expressly to this part of the prosecution case to which the identity of the assailants was not relevant. Elsewhere in the charge, when dealing more fully with the evidence of Mrs. Mahanti, the learned Judge told the jury in the clearest possible terms that she had not identified the appellants and had not seen any blow being struck.
55. The rest of the points taken against the charge must, I am afraid, be accepted.
56. It was contended that the learned Judge had misdirected the jury in telling them that for the purposes of the present case, the evidence as to the assault by Sunil on Mrs. Sati Mitra and that as to the part taken by Amalesh in the assault on Nirmal must be treated as any other evidence, and that the only effect of the previous acquittal was that the persons acquitted could not be put to peril a second time. It was further contended that the learned Judge had also erred in presenting the case as if the particular assaults by Sunil and Amalesh were proved facts which had to be taken into consideration. Reference was specially made to a passage in which the learned Judge had dealt with the question of the intent of Sunil and asked the jury if they thought that a man, who had caught hold of a much older man and was capable of handling roughly a lady of the house, had not become desparate and was not determined to do the other man bodily injury, no matter what happened.
57. I find myself constrained to hold that neither the direction given by the learned Judge, nor the manner in which he himself presented the case as regards these parts of the prosecution story was correct. I have already discussed the question whether evidence of the assault by Sunil on Mrs. Sati Mitra and that of Amalesh on Nirmal could at all be given and I have held that it could be, as evidence of facts necessary to make the prosecution story complete. But the use which could be made of such evidence is a very different matter. This is not a case like 'Malak Khan v. Emperor (O)', (ante) where the same facts were proved as evidence of two different offences at the same trial and the accused being acquitted of one of the offences, it was held that the facts concerned could still be taken into consideration by the appellate court as evidence of the other offence.
The present case is more akin to -- 'Samba-sivar. v. Public Prosecutor, Federation of Malaya (M)', (ante) where the accused being once tried for two offences and acquitted of one, was retried for the other and a question arose at the second trial as to the effect of the acquittal. As I have pointed out already, the Privy Council did not hold that evidence of the facts on which the first charge had rested could not be given, but their Lordships pointed out that those facts could not be used at the second trial as proved and true and, further, that the facts concerning the two charges being inter-connected, the acquittal would reduce the weight of the case on the second charge. 'The effect of a verdict of acquittal pronounced by a competent court', observed Lord Macdermott, --
'on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication. The maxim 'Res judicata pro veritate accipitur' is no less applicable to criminal than to civil proceedings. Here, the appellant having been acquitted at the first trial on the charge of having ammunition in his possession, the prosecution was bound to accept the correctness of that verdict and was precluded from taking any step to challenge it at the second trial. And the appellant is no less entitled to rely on his acquittal in so far as it might be relevant in his defence. That it was not conclusive of his innocence of the tire-arms charge is plain, but it undoubtedly' reduced in some degree the weight of the case against him, for at the first trial, the facts proved in support of one charge were clearly relevant to the other, having regard to the circumstances in which the ammunition and the revolver were found and the fact that they fitted each other.'
58. In the present case also, the facts relating to the charges of which Sunil and Amalesh were acquitted and those relating to the present charges are inter-connected, though not to same extent as in the Malayan case. The former facts could be introduced in the present case, because without stating them, prosecution witnesses could not tell what according to them was the whole truth, as they had sworn to do. But neither the prosecution, nor the court could proceed on the basis that Sunil had in fact as-,saulted Mrs. Sati Mitra or that Amalesh had in fact taken part in the assault on Nirmal. To do so would not be to use the facts for a collateral purpose, but would be to use them as if the two persons had committed the offences of which they had been acquitted.
The proper way to deal with those facts would be to allow them to be introduced in the evi-dence, since that was unavoidable and then to warn the jury that that part of the prosecution case which was constituted by them, could not be accepted and that the effect of the acquit-tal on the charges based on those facts was to reduce to a certain extent the weight of the pro-secution case at the present trial, though to what extent it was reduced, it would be for the jury to consider. They might still accept fully the rest of the prosecution case. The learned Judge did not deal with the matter in that manner. Both in his own treatment of the evidence, as he gave his view of the facts, and in his directions to the jury, the learned Judge proceeded as if the acquittal did not count at all, except that Sunil and Amalesh could not again be prosecuted for the acts in question. It must be held that in doing so, he was not right.
59. The next point taken was that not only had the learned Judge not conducted himself Judicially, in the course of the trial, in regard to the contradictions sought to be brought out by the defence between the evidence of the prosecution witnesses in court and their statements to the Police but he had also, in his charge to the jury, destroyed the effect of such contradictions as had still been proved by suggesting that the record made by the Police of the statements made to them was not dependable.
It was contended that whenever a contradiction was brought out in the course of the cross-examination, the learned Judge immediately intervened, either to suggest to the witness that he had not made the statement put to him or to suggest explanations, instead of leaving it to the witness to reconcile his present and previous statements, if he could; and that instead of leaving it to the jury to consider the contradictions for themselves and come to what conclusions they liked as to the credibility of the witnesses concerned, the learned Judge sought to eliminate the contradictions by discrediting the Police records as likely to be incorrect.
It was also said that assuming the Police records deserved the criticism made of them by the learned Judge, he ought to have told the jury that by reason of the records not being acceptable as correct, the defence had been deprived of the opportunity of cross-examining the prosecution witnesses properly on their previous statements to the Police and had been substantially prejudiced.
60. Before dealing with this point, I consider it necessary to refer to the manner in which the Counsel for the defence actually used Section 162, Criminal P. C. in this case. What was done was that a witness was first asked in tha Counsel's own language whether he had said a certain thing to the Police. The object might be either to suggest that he had not said something which he was now saying but said something different or that he had said something which he was now omitting. On the witness denying the suggestion, the relevant passage in the statement to the Police was put to him, sometimes in the actual language in which the statement had been recorded and sometimes in the form of a paraphrase. But in no case was the passage concerned tendered and made a part of the record, with the result that except where the passage had been put in its own words and appeared in the record of the deposition within quotation marks, there was no means of knowing what actually the contradiction was.
Throughout the argument, therefore, we had the greatest difficulty in understanding and assessing the value of the submissions made to us on the alleged contradictions. I must add that Dr. Das Gupta very fairly admitted that he had omitted to pay full regard to the requirements of Section 162 of the Code, read with the provisions of the Evidence Act.
61. Section 162, Criminal P. C. is expressed in a form which makes its practical application a matter of some difficulty. It says that any part of a statement made by a prosecution witness to a Police Officer and reduced to writing,
'if duly proved, may be used to contradict such witness in the manner provided by Section 145, Evidence Act, 1872.'
It would seem to be suggested by that language that before a statement can be put to a witness, it must be duly proved. If, when asked Whether he had made a certain statement to the Police, the witness admits having made it, no difficulty would arise. In such a case the statement is proved by the admission of the maker and it can thereafter be put to him which will be in strict accordance with Section 162. But if the witness denies having made the statement, it can only be proved by the Police Officer who recorded it, but that officer cannot be called in the middle of the cross-examination of the witness, just to be asked that one question. In actual practice, the investigating officer comes at the end, because if the examination of the prosecution witnesses began with him before the case had been unfolded, nobody would be able to follow what he was speaking of and what he had investigated.
In a case, therefore, where the witness denies having made the statement, it has got to be put to him before it is duly proved. Curiously enough, that is the sequence suggested by Section 145, Evidence Act to which Section 162 of the Code expressly refers. Section 145. so far as is material, provides that a witness may be cross-examined as to previous statements made by him and reduced to writing,
'without such writing being shown to him or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.'
It will appear that under s. 145, proof of the statement follows the putting of it to the witness. It is curious that Section 162 of the Code should say 'that a previous statement to the Police can be used to contradict a witness, 'if duly proved' and at the came time refer, for the mode of contradiction, to Section 145, Evidence Act which seems to place use for the purpose of contradiction before the proof of the statement The only way in which the two sections can perhaps be reconciled is by taking 'contradiction' under both the sections to mean, not contradiction in the course of the cross-examination by way of putting the statement of the witness as against his evidence in court, but subsequent use by way of contradiction when assessing the value , of his evidence.
62. Mr. Easu referred to the decision of the Supreme Court in the case of -- 'Bhagwan Singh v. State of Punjab (I)', : 1952CriLJ1131 (S) and submitted that all that Section 162 of the Code required was fair treatment of the witness and the way in which his statements to the Police had been put to him under the section was to be considered from the point of view of substance and not form. I am afraid he missed the point. The question in the present case is not whether the witnesses themselves had been cross-examined as to their statements to the Police fairly and in a correct manner, but whether the alleged contradictory statements had been properly brought on the record.
In my opinion, they were not. If use is sought to be made of previous statements made to the Police for contradicting a witness, not only should such statements be put to him and put in a manner which affords him a reasonable opportunity for explanation, but care should also be taken to see that the statements so put and intended to be relied upon for impugning the evidence given in Court, are brought on the record in a proper form. The best way of putting a statement is to put it in the actual words in which it stands recorded. If it is so put and is shown in the record of the cross-examination within quotation marks, no complaint can b3 made, but the better procedure is to tender the relevant part, duly marked, so that the original itself can be seen. If it is desired to avoid putting in the whole statement, the relevant portions tendered can perhaps be put in in the form of certified copies with the leave of the Court. But unless the previous statements put to the witnesses are brought on the record in one form or another, the appeal court can have no means of seeing what the statements actually were, unless it refers to the originals and tries to find out for. itself, which can neither be easy, nor convenient.
It was said by Mr. Das Gupta that when the cross-examiner's point was that a statement made in court had not been made to the Police at all, there would be difficulty in putting to the witness a previous statement to a different effect, since there would be none and there would be an equal difficulty in tendering any thing. I think, in such a case, the statement to the Police may be handed over to the witness and he may be asked to point out where he said the thing concerned and if he fails to do so, the cross-examiner may get a note made of the failure.
63. Reverting now to the points sought to be made against the learned Judge under this head, I have already found it necessary to hold that his interventions did, on many occasions, unfortunately occur at such points of time as were crucial for the cross-examiner and such intervention by way of a succession of questions had the effect of disrupting the cross-examination. Unfortunately again, several of such occasions were when the cross-examiner was putting to the witness his or her statement to the Police. It will be wearisome to set out here specific instances, but they will be found in the record of the cross-examination of almost all the witnesses, particularly Nirmal, Mrs. Sati Mitra and Prof. Mahanti. I have already held that, except in a few cases, there was nothing in the nature or the subject-matter of the questions asked by the learned Judge to which exception could justly be taken, but, unfortunately again, those few cases occurred when the witness was being confronted by his or her statement to the Police.
I must repel the suggestion, as I have already done, that the learned Judge deliberately intended to suggest explanations to the witnesses or suggest to them to say that they had not made the statement put to them; but the effect appears to have at times been in that the witnesses got some indirect help from the learned Judge, either because they saw a line of answering the question put to them by the cross-examining counsel or because they got some respite from him by reason of the number of the learned Judge's questions, during which they were able to collect their thoughts. To a certain extent, the cross-examining counsel appears to have been hampered in putting to the witnesses their statements to the Police, effectively from his point of view.
64. The other ground taken under this head was against the charge. It was said, as I have already pointed out, that the learned Judge had misdirected the jury by suggesting to them that the record of the statements made to the Police was not dependable and that in any event, he had misdirected them by not adding that if the record was not dependable, the defence had been deprived of a valuable means of testing the truth of the evidence given in Court. The observations objected to were made by the learned Judge in a general form when he was dealing with the evidence of Panchu Gopal Das, but more specifically and more forcibly when he was dealing with the evidence of Prof, and Mrs. Mahanti.
The point in connection with Panchu Gopal Das was that according to the Police records, he had stated to the Police that he had never seen the Colonel being assaulted and did not know who had assaulted him, while he deposed in court that he had seen Sunil dragging the Colonel by his 'genji' and giving him fist blows, including a blow on the left temple. He had also seen the assault on Nirmal by Satyendra and 'another person' whom he did not find in court. The point about the Mahantis was that according to the Police Diary, Mrs. Mahanti had been examined on the very day of the occurrence when she said that she had seen nothing, but according to the evidence in court of both husband and wife and also of J. C. Haoladar, the Police Officer who had himself made the entry of the 11th August, Mrs. Mahanti had not been seen by the Police on that day at all.
Admittedly, she was examined on the 14th August by Puspa Pal, the Investigating Officer at the time, but, again, the record of her statement to Pal contained assertions which she repudiated in the court as not made by her. Such repudiation of statements, recorded as made to the Police, was not limited to the above-mentioned witnesses. As the learned Judge put it to the jury,
'it is most extraordinary that in the case of ' every witness you find there is some discrepancy between what he says he told the Police and what the Police recorded.'
He referred to the fact that the Police Officer had examined several witnesses on a day, one after another, but applied himself to making a record of their statements several hours later and the learned Judge asked the jury to consider whether in those circumstances they would hold that the witnesses stood discredited by what they were said to have stated to the Police, remembering, however, that there was a presumption of correctness attaching to official records.
65. It has been held in this court that to suggest to the jury that previous statements made to the Police are not necessarily true and may have been false is misdirection, as that would defeat the whole object of Section 162, Cr. P. C. which is contradiction by such statements. See --'Fazlur Rahaman v. Emperor' : AIR1947Cal192 . But the observation was made in a case where there was nothing to show that the Police record was incorrect and the Judge had given the direction merely on the ground that, before the Police, witnesses were not on oath. It is true that if it is suggested that what was put as a previous statement might not be the real previous statement of the witness at all, as the record made by the Police might be incorrect, the resuit is equally to defeat the object of Section 162; but I am not prepared to say that if it does appear from the circumstances that the record of the previous statement was not dependable as a correct record, it must nevertheless be accepted as unquestionable and that the Judge is not entitled to tell the jury that they should take into consideration the probability of inaccuracy in the record in deciding whether a witness stood discredited by it. The correctness of official records is only a presumption and the object of a trial at law is a decision in accordance with truth and not a decision in accordance with a formula
In view of the circumstances of the case, I am not prepared to hold that the learned Judge had no reason to make on the record of the statements to the Police the comment he made, but I think he might also have pointed out to the jury that if the record was not dependable, the result of that condition of the record was that one could not be sure as to what the previous statements had actually been and therefore the defence had been handicapped in testing the evidence given in court by statements made to the Police. The omission to do so is not of much practical importance in the present case, because the record of statements to the Police, as it stands, is in favour of the defence. It is not a case where the record is against them on the points canvassed and where it can be said that if the correct record had been available, it might not have supported the evidence given in court.
The only consequence of probable inaccuracy in the record was absence of proper material for cross-examination or rather loss of the advantage of such material as existed, but the evidence given in court could not be discarded merely for that reason. The only effect, so far as I can see, was that if the jury found a witness otherwise unsatisfactory or of doubtful credit, they might consider whether, in the absence of pro-per material for his cross-examination by reference to his previous statement to the Police, they should not hesitate to accept his evidence in court. The principles are explained in ---'Jjaxman Chandra v. King' : AIR1948Cal278 , decided by Roxburgh J. and myself, which was cited, but on the facts that was a very different case.
66. A complaint was made that the learned Judge had not dealt with the individual cases of the two appellants separately. It is true that the orthodox pattern of talking to the end of the charge a summary of the evidence against each accused was not followed and so far as the second appellant is concerned, he was hardly mentioned, except at the beginning when the prosecution case was stated. Mr. Basu submitted that his client had gone practically unnoticed and left to stand or fall with his brother, whereas he was entitled to have the case against him separately put to the jury, particularly as he was charged with having committed a different assault on a different person. The submission is not unfounded.
67. I now turn to the principal attack made on the charge which was that there had been no proper summing up of the evidence and no marshalling of the facts at all. It was pointed out that Section 297 of the Code required the Judge to sum up the evidence for the urosecution and the defence. In what manner the evidence was to be summed up and the case presented to the jury, had been, it was said, laid down in countless decisions and one of them, -- ' : AIR1952Cal621 (R)' was chosen as an illustration, probably for the reason that it was a decision of Sinha, J. and myself.
68. I feel constrained to hold, with great respect to the learned Judge, that the complaint made is justified. He seems to have expected too much of the jury and assumed too much as regards their capacity to view the different portions of the evidence in their true perspective and to remember them all. I feel all the greater regret in having to say so, because the charge is very different from an insipid recital of facts and statements, but is a powerful and admirably expressed deliverance, with the impress of a personal consideration of the case stamped on every sentence of it. But the one defect that it omits to state, arrange and discuss the evidence in its bearing on the controversial points in the case is fatal. Nor does it view the defence fully and seems to overlook that even if the principal defence of an 'alibi' deserved summary rejection, there was a minor defence too which required consideration at the hands of the jury for what it was worth. That defence was that the criminal acts of the first appellant were of a lesser degree of seriousness than alleged.
I do not propose to discuss the essentials of a proper charge to the jury, for to do so in an appeal from a Judge of this Court, would be otiose. But I feel bound to say that the function of a charge is to put the jury in a position to weigh and assess the evidence properly in order that they may come to a right decision on questions of fact which, under the law, is their responsibility. The charge must therefore address itself primarily to pointing out what the questions of fact are, what the totality of the evidence on each of the questions is, how the different portions of that evidence, lying scattered in the depositions of several witnesses, fit with one another, what issues or subsidiary questions they raise for decision and what the effect will be according as one part or another of the evidence is believed or disbelieved. Comment on the credibility of the witnesses and the quality of the evidence may then be added as also sagges-tions as to the conclusion or conclusions to which the evidence, in the Judge's view, tends. But the charge cannot be all comment or mere comitment in the main.
Unfortunately, except in the case of the medical evidence, the learned Judge's charge to the jury in the present case is open to the criticism that it does not deal with the questions of fact arising out of the prosecution and the defence cases as such questions at all, nor attempts to bring the evidence into order and present to the jury, in a properly arranged form, the raw materials which they were to utilise or reject in framing their decision.
69. The present case was peculiarly one which required careful directions on the evidence, not because there was any great complexity about the facts, but because of the course which the trial had taken. Some of the witnesses were recalled more than once and their evidence, which reads continuous on paper, was not continuous in fact. They stepped out of the box, but only to step in again after some days, to depose further as to facts about which they had already deposed and on which they were this time questioned from some new point of view. Mrs. Sati Mi-tra. Dr. Hossain & particularly Dr. Majumdar were all handled in that fashion. In those circumstances, it was essential to help the Jury to co-relate the different parts of the evidence by reminding them of its content and pointing out how the different parts stood to one another and what the total effect was. This could not be done without referring to the contents of the evidence.
There were again a number of subsidiary points to be disposed of in one way or another before a finding on the main questions could be arrived at. The main questions were: (i) did the appellants trespass into 18, Bondel Road in the morning of 11-8-1950? (ii) did the first appellant deal a fist blow on the left temple on the Colonel and a blow with a rod-like substance across his face? (iii) if he did, could the injuries found on the person of the Colonel have been caused by those blows and were they in fact so caused? (iv) if they were, did they amount to grievous hurt? and (v) did the second appellant assault Nirmal, as alleged ?
Because of the nature of the defence attack on the evidence for the prosecution, a number of ancillary questions, bearing chiefly on the credibility of the witnesses, arose for consideration. They, to mention only the more important of them, were; did Nirmal mention the appellants directly or indirectly in the course of his telephonic message to the Karaya Police Station? Did he mention them in his message to Dr. Lalit Mitra? Did Jiban Krishna Das mention 'tenants' as the assailants of the Colonel to Dr. Bose? Was Jiban himself mentioned by Nirmal to the Police on the first day? Was the rod-blow which was said to have felled the Colonel dealt on the cemented passage or was it in the lawn? Did the Colonel fall on the lawn at all or did he fall on the passage? Was the fist blow mentioned to the Police? Was the lawn mentioned? Where was the fist blow struck? Were all the persons who claimed to have been eye-witnesses, particularly Jiban, Panchu Gopal and Mrs. Mahanti really so? Had they made statements to the Police to the same effect as their evidence in Court? If they had not, were the discrepancies such as to show that the fist blow and the fall on the lawn had been subsequently invented?
Each one of these questions which were in active controversy at the trial and, of course, each one of the main questions I have mentioned, required the evidence bearing on it to be properly marshalled and the effect of the finding on it, whether in the positive or the negative, to be pointed out. Speaking for myself, but speaking from no very-great experience of Jury trials, I should venture to think that it, was only by leading the jury along such lines, pointing out to them what had been represented to be obstacles on their way as they proceeded to the stage of the final decision and pointing out all the facts relevant to each in a judicially, balanced, setting, that they could be ultimately put in a position to view the case as a whole, as it emerged from the evidence, and come to a proper finding. That could not be done without a detailed and orderly presentation of the evidence.
70. The method followed hy the learned Judge was, if I may repeat an expression I used during the argument, that he proceeded witness-wise rather than topic-wise. Except in the case of the medical evidence, he, in the main, took the witnesses one by one and asked the jury whether in view of their position in life, the opportunity they had had to see the occurrences they were speaking to and the proved enmity between the appellants and the Mitras, they were going to disbelieve them, simply because it was alleged that they had said something different to the Police which they denied or because some unworthy suggestions had -been made against some of them. If the learned Judge had also reminded the jury of what each witness had said on the material parts of the case, even his method of treatment, witness by witness, might have served the purpose of summing up the evidence and directing the jury. But, unfortunately, he said only too often that the evidence must be fresh in the minds of the jury and so must be what the Counsel had said.
Reading the charge with the utmost desire to do it justice, I have been unable to ascertain from it what the actual evidence in the case at all was. Necessarily, there is no direction as to what matters are to be considered in assessing the evidence given on any of the particular points. The main ground of the attack on the credibility of the witnesses appears to have been an alleged discrepancy between their statements to the Police and their evidence in court. According to the record of the statements, no one had mentioned to the Police a fist blow on the head and only one witness had mentioned the lawn. The learned Judge dealt with the question on general lines, taking the contradictions as proved if the Police records were to be accepted, but throwing doubt on their accuracy.
That method of dealing with the question appears to me to have been an over-simplification which was not calculated to lead the jury to a correct rinding or, at any rate, to assist them properly in considering the matter. If a witness has denied having made to the Police a statement put to him, it is necessary for the jury to consider first whether they will believe the denial; then, if they do not believe it, whether there is any real contradiction, and lastly, if they find contradiction, whether it is such as discredits the witness, either with regard to the matter to which the contradiction relates or altogether. Whether or not the Police record is dependable may be taken into account in deciding whether the denial of the witness should be believed. Again, where a witness admits having made to the Police the statement put to him but offers an explanation, the jury has to consider ,whether the explanation explains the inconsistency and if it does not, whether the inconsistency is such as makes the witness unreliable, either as regards that part of his evidence which was affected by the inconsistency or wholly, as not a witness of truth. In order that a charge to the jury on the subject of inconsistencies between the evidence in court and statements made to the Police may be useful, it is necessary that directions on the above lines should be given and in order that they may ba properly given, it is necessary to refer to the inconsistencies specifically and point out the effect on the prosecution case if they dislodge the relevant part of the evidence given in court. Merely to refer to all the contradictions in general terms or merely to say of each that there is a contradiction, without stating what it is and to ask the jury to consider whether they will believe or disbelieve the witness or witnesses, cannot be sufficient.
Unfortunately, the directions of the learned Judge are mostly of the latter kind. Both as regards the actual content of the evidence and the considerations favouring or affecting its credibility, there is almost a complete absence of direction. If I may commit the impropriety of quoting myself, I would adopt my own language to state what I conceive to be the proper form and function of a charge. In : AIR1952Cal621 . (R), cited at the Bar, I observed as follows :
'It seems to me that the duty of summing up is not discharged by merely placing before the jury the greatest common measure of the evidence of the several prosecution witnesses. What the Judge is required to do is, I conceive, to dissect the whole prosecution case into its component parts and concentrate on each part the evidence bearing upon it and having done so, he has to draw the attention of the jury to the relevant evidence regarding each part of the case point out to them the effect of the evidence, if it is believed, and then add, if he likes, whether in his opinion the evidence ought to be believed or not. At ths end of a protracted trial and after the partisan speeches of the counsel for the prosecution and the defence, all that will remain in the untrained minds of the jury must often be only a general impression of the evidence. It is therefore that the Code requires the Judge to intervene at that stage and remind the jury of the essential points of the evidence which might by that. time have become a little blurred by reason of the addresses they had heard of by passage of time. The Judge is therefore required at that stage to sift the evidence, collect out of it portions bearing on the different parts of the case, to relate each portion to the facts which it is intended to prove, comment on its quality, if he chooses, and then leave the jury to come to their own conclusion.'
71. I feel bound to say, with respect, that lucid and powerful as the learned Judge's charge was, it did not deal with the actual evidence in the case in the manner which, I think, was required.
72. In view of the general character of the-charge which I have indicated, I do not consider it necessary to deal with the few specific omissions which Mr. Basu pointed out. If it had only been that the learned Judge had not mentioned the infirmities of the evidence of Bhagalo Mahto or not mentioned the fact that he had not even identified the appellants or any small detail of that kind, I would not have found it possible to hold that there had been any material non-direction.
73. Nor do I attach any importance to the-criticism that the learned Judge, having questioned Sunil on the technical points in the medical evidence, which he should not have done, ought at least to have told the jury that they must not draw any adverse presumption against the accused on account of his refusal to answer the questions. I am inclined to agree that it was not proper to press Sunil for his explanation of the medical evidence against him, even after he had said that he did not wish to say anything about the medical aspect of the case. I also agree that it would have been better if the learned Judge had put in a word of caution to the jury. But I do not think any prejudice was caused by the learned Judge's omission to do so, as the jury perhaps had not the faintest notion of Section 342(2) of the Code.
74. The criticism that the charge was heavily over-loaded in favour of the prosecution has some-substance in the circumstances of the case -- not because the learned Judge gave strong expression to his own opinion which, in my view, he was perfectly entitled to do, but because he did so without recounting the evidence, as it was. The result may have been that with their remembrance of the evidence somewhat blurred by reason of the length of the trial and their ideas confused by the partisan addresses of Counsel, they were unable to subject the suggestions of the learned Judge to the test of their own valuation of the evidence and were, therefore, unable to resist them. In one instance, when dealing with the hour '7/10' entered in the Police Diary against the information lodged by Ajit Narayan Misir, the learned Judge appears also to have made suggestions on a matter which, was not satisfactorily covered by the evidence in the case.
75. I may now deal, as the last point, with the question of a refusal of opportunity for further cross-examination which I reserved for later consideration in an earlier part of this judgment. The question concerns one witness only, Dr. Majumdar. He was interrogated by the learned Judge at length immediately after his re-examination and when Dr. Das Gupta asked for leave to put some further questions to the witness in order to clear up, as it was said, some matters arising out of the examination by the Court, the learned Judge ruled that he could ask questions on matter elicited in re-examination, but to ask questions on matters arising out of examination by the court would be a 'novel procedure'. The views of the learned Judge were placed on record by two orders, dated respectively the 12th and the 13th June, in the latter of which was also stated what the facts were.
It is pointed out in the last order that though not allowed in the first instance to put any questions himself but directed to suggest questions which the Court might put on his behalf, Mr. Das Gupia was subsequently given an opportunity to put questions, when he asked Question No. 753. I also find from the record that after some more questions had been- asked by the learned Judge on the 13th June, Mr. Das Gupta asked Questions Nos. 822-835 on matters arising out of the learned Judge's questions. At least on that day he was not disallowed to cross-examine the witness after questions had been put to him by the learned Judge.
I feel bound to say, however, that the learned Judge must have overlooked the clear provision in Section 165, Evidence Act when he described the procedure of asking questions on matters arising out of questions by the Court as 'novel'. It is true that leave of the Court is required, but further cross-examination with leave of the Court on matters arising out of the Judge's questions is not unknown to the Act. Leave was duly asked for. I do not, however, regard the matter as one of any practical importance in the case. The subject-matter of the learned Judge's questions was the group of alternative theories as to the cause of the colonel's fall which the defence had introduced and which, as I have already pointed out, Were utterly irrelevant. By the inability of the defence to put more questions as to them, no prejudice was caused.
76. I have now finished my consideration of all the main points urged in the case, though I cannot pretend that I have touched on every small detail referred to at the Bar on one side or the other. The result of such consideration is that a few irregularities at the trial have been established and the charge to the jury has been found to be not what it should have been and not calculated to serve the purpose of a charge. But no error, omission or irregularity during trial can be a ground for setting aside the convictions and sentences unless substantial prejudice was thereby caused to the accused. Equally, the verdict of the jury cannot be set aside on the ground of misdirection or non-direction unless it is found that the verdict is erroneous & it is so on account of the misdirection or non-direct!on. Or it must be found that the misdirection or non-direction has, by causing the erroneous verdict, occasioned a failure of justice in fact. These matters must now be considered.
77. In my view, the irregularities which I have fully discussed earlier, though sufficient to make an appellate court feel uneasy, are not sufficient by themselves to entitle as to hold that there was a mistrial and the convictions and the sentences ought not to be sustained. The most substantial of the Irregularities was that the interrogations by the learned Judge took place, on occasions, at such times and in such forms as to embarrass the cross-examining counsel and create an unfortunate appearance that the accused were not getting the necessary freedom to bring out from the prosecution witnesses the truth of their defence, if they could.
It is true that the need of maintaining an appearance of justice being done cannot be emphasised too strongly. With that aspect of the matter I have already dealt. But in considering whether the result of the trial should be discarded on the ground of overinterrogation by the trial Judge, it is not enough to see whether his interventions were excessive or unfortunately framed or inconveniently timed, but it is necessary to enquire further whether, by such interventions alone, any substantial prejudice was caused. I am unable to find such prejudice in the present case. The irregularity which did occur did not occur to any substantial extent in the case of the more important witnesses of the actual occurrence. The most extended questioning by the learned Judge took place in the case of Dr. Majumdar, but it was on certain matters introduced by the defence which, in my view, were useless and irrelevant and did not in any way affect the real issue in the trial. For many of the questions, the witness himself gave sufficient provocation by his statements and conduct.
In the case of the really important witnesses, such as Nirmal, his wife and the Mali, though there were undoubtedly, brief phases during which the learned Judge appeared to have taken them over from Counsel, I cannot say, having read the whole of the depositions many times over, that in the end the defence was prevented from exploring them as fully as it desired. Such advantage as the witnesses might have occasionally derived from the interventions of the learned Judge were on mailers of minor importance ana themselves of a minor character. I am therefore not prepared to hold that the interventions of the learned Judge themselves make out a case for holding the trial to have been a mistrial, although it might not have been the best-looking trial.
78. But the defects and deficiencies of the charge are, in my view, serious enough to be fatal. I cannot agree with Mr. Basu that Section 423(2) of the Code has no application to an appeal under Section 411A and that once misdirection or non-direction is established in such an appeal, the verdict must be set aside without any further enquiry as to whether the verdict was erroneous and had been caused by the misdirection or non-direction. Mr. Basu's argument was that the occurrence of the words 'notwithstanding anything contained in Section 418 or Section 423, Sub-section (2)' in Section 411A(1) clearly indicated that Section 423(2) was eliminated altogether.
I am unable to accept that argument. Section 411A(1) deals only with the grounds on which an appeal shall lie. How the appeal shall be dealt with is laid down in Section 423, The effect of the words on which Mr. Basu relied is only to provide that although under Section 418(1) an appeal lies in the case of a jury trial on matters of law only and although under Section 423(2), the verdict of the jury cannot be interfered with in such an appeal unless it has been erroneous on account of misdirection or non-direction, still in cases coming under Section 411A, an appeal shall lie on all matters of law and, with leave of the trial Judge or the appellate court, on matters of fact as well. The exception does not mean or imply that even where the ground of law is mis-direction or non-direction, the verdict must be set aside on mis-direction or non-direction being found, without any error in the verdict caused by such mis-direction or non-direction being established. It is true that where leave to appeal on facts has been given, the verdict may be set aside on the ground of its being erroneous in fact, whether or not it was caused by misdirection or non-direction and whether or not there was any mis-direction or non-direction at all. But where there is no such leave, an error caused by mis-direction or non-direction is required in order that the appellate court may be entitled to set aside the verdict.
79. What the expression 'erroneous verdict' in Section 423(2) means was not decided by the Privy Council in the case of -- 'Abdul Rahim v. Emperor' . In the case of 'AIR 1948 Cal 273 (U), I attempted an interpretation which I still think is the most appropriate. The expression is not easy to construe, because of the other provision contained in Section 537(d) of the Code which says that no finding, sentence or order shall be reversed or altered in appeal on account of mis-direction in any charge to the jury, unless such mis-direction 'has in fact occasioned a failure of justice'. If 'erroneous verdict' in Section 423(2) means erroneous on the merits and 'failure of justice in fact' in Section 537(d) means a wrong conviction or a wrong acquittal, the two would mean the same thing and there would seem to be no reason why the Legislature, after providing for an examination of the verdict on the merits in the former section, should have duplicated the provision in the latter.
Mr. Basu submitted that Section 423(2) was concerned with the verdict of the jury, while Section 537(d) was concerned with the conviction or acquittal. That does not appear to be correct, for, the word' 'finding in the latter section can only mean the verdict in the case of a jury trial. In those circumstances, ib appears to me that 'erroneous verdict' in Section 423(2) is best interpreted by taking the words in their natural sense of a verdict wrong on the merits, while the less exact expression 'failure of justice in fact' in Section 537 (d) can be taken to cover not merely such failure by reason of a wrong conviction or a wrong acquittal but also failure in other ways, as when a fair & proper trial, in accordance with the rules required to be observed for the safe administration of criminal justice, has not been held. This view would exclude duplication but, at the same time, the appellate court would be entitled on that view to interfere with the verdict, not only on the strict ground contained in Section 423 (2), but also on the wider ground contained in Section 537 (d).
That the two sections are really alternatives is warranted by the decision of the Privy Council in 'Abdul Rahim's case (V)' (ante) where their Lordships observed that
'the court must proceed to consider whether the verdict is erroneous owing to the mis-direction 'or' whether the mis-direction has in fact occasioned a failure of justice.'
Nor is the meaning I have given to 'failure of justice' inconsistent with the decision, because all that their Lordships said was that in deciding whether there had been a failure of justice in fact, the appellate court was 'entitled to' determine for itself whether there had been a failure of justice in the sense that a guilty man had been acquitted or an innocent man had been convicted. In other words, the court would be entitled to go to that length, not that it must go. It is generally overlooked that the whole of 'Abdul Rahim's' case (V) is devoted to repelling the contention that the appellate court, on finding mis-direction, could only direct a retrial and could not itself decide the case on the evidence.
80. I would therefore hold that Section 423(2) is not wholly excluded from an appeal under Section 411A (1) (a), but applies to such an appeal, so far as its disposal is concerned, when leave under Clause (b) has not been given and that, therefore, under that section, a verdict of the jury cannot be interfered with on the ground of mis-direction or non-direction unless by reason of such mis-direction or non-direction, the verdict has been erroneous on the merits. But I would hold, further that the verdict can also be interfered with on the ground of mis-direction or non-direction under Section 537(d), if the mis-direction or non-direction has been such that by reason of it there has been no just and fair trial in accordance with, law.
81. Non-direction, as is well settled, is a variety of mis-direction. In the present case, there has been mis-direction in both forms, though misdirection by way of a wrong direction has been far less serious than mis-direction by way of omission. The only mis-direction of the former type, worth notice, was about those parts of the prosecution case in respect of which a prosecution had failed at the previous trial, but in itself it was of a trivial character. As to mis-direction by omission, I have pointed out some specific instances which, again, were not very serious. But the almost complete omission to direct the jury on the evidence in the case, which I have already discussed at length, makes it impossible, in my view, to uphold the verdict.
The tribunal of fact in a jury trial is the jury. The Code requires and practical considerations made it imperative that in order that the accused may have a fair and intelligent trial, the laymen composing the jury should have the evidence marshalled for them and should be properly directed thereon by the Judge before they proceed to consider their verdict. Where the evidence has not been properly summed up and proper directions thereon have not been given, the tribunal of fact has not been properly instructed and inasmuch, as one of the fundamental rules necessary for the safe administration of criminal justice through the agency of juries had not been observed, the verdict, . as such, cannot be upheld. The verdict in the present case must therefore be set aside.
82. As to the next course open to us, there was some legal argument at the Bar. Mr. Banerjee contended that there could be no order for a retrial in an appeal under Section 411A and the court was bound to proceed to consider the evidence for itself, whether, in the result, it convicted the accused or acquitted them. The conten- tion of Mr. Basu on the other hand was that once the verdict of the jury was set aside in an appeal under Section 411A (1) (a), the appellate court could only order a re-trial and was not entitled to decide the case for itself on going into the facts. It was added that there was also a special disability in the present case, inasmuch as leave to appeal under Clause (b) had been refused to the accused and the court could not, after declining to allow the accused to make submissions on facts, go into the facts itself. I may place it here on record that both Mr. Das Gupta and Mr. Basu expressly stated, both at the commencement of their addresses and at the end, that they only asked for a retrial and could not expect an acquittal by us.
83. I am unable to agree with Mr. Banerjee that no order for retrial can be made in an appeal under .Section 411A of the Code. The learned counsel first referred to Sections 4 and 5 of the English Criminal Appeal Act, 1907 Which define the powers of the Court of Criminal Appeal in England and do not include power to order a retrial. But the comparison, instead of favouring the contention of Mr. Banerjee, really goes against it, because the Indian section, while re-producing in Sub-section (1) the provisions of Section 3 of the English Act which relates to the grounds of appeal, has not adopted the provisions of Sections 4 and 5 which lay down in what manner an appeal may be disposed of. For the manner of disposal, appeals under Section 411A are governed by Section 423, equally with appeals under Sections 410 and 411. Section 423 (1) clearly provides for an order for retrial.
Mr. Eanerjee next addressed himself to Section 423 (1) and contended that no retrial could be ordered under that section in an appeal under s. 411A, because there was no court of competent jurisdiction subordinate to the appellate court, a retrial by which could be ordered. In support of his argument Mr. Banerjee referred to the decision in -- 'Jnanendra Nath v. Nilmony Dey' : AIR1939Cal701 and -- 'Debendra Nath Das v. Bibudhendra' AIR 1916 Cal 973 (X) where it was held that a Judge of the High Court, sitting singly, was not subordinate to the Appellate Division or an appellate Bench of the High Court, Those decisions are, to my mind, entirely beside the point, because what Section 423 (1) clearly contemplates is a court which is subordinate to the appellate court, 'qua' court of appeal -- in other words the court from which appeals lie to the appellate court which is directing the re-trial. I have discussed this question in another context at the beginning of this judgment and need no repeat the considerations on which I there relied
Since Section 411A leaves appeals preferred under it to be dealt with under Section 423 (1) and since one of the ways in which an appeal may be disposed of under the latter section is by ordering a retrial by a court of competent jurisdiction subordinate to the appellate court, there must be some court in contemplation of the section by which the case may be directed to be retried in an appeal under Section 411A. Since appeals from a Judge exercising original criminal jurisdiction lie under Section 411A to the High Court and in fact the very appeal in which an order for retrial may require to be made must be from such a Judge, there can be no reason at all why such Judge should not be regarded as subordinate to the appellate court and why a re-trial by him or another Judge, exercising the jurisdiction of the same original court, cannot be directed under the section. Whatever difficulty there may be in regarding the court of the Judge holding the High Court Sessions trials as subordinate to the criminal appellate court, hearing appeals from the criminal courts in the districts, I can see none in regarding the former court as subordinate to the criminal appellate court, hearing appeals arising out of trials at the High Court Sessions.
Mr. Banerjee also referred to Sections 439 and 526 of the Code in order to point out that no action could be taken under those sections by an appellate Bench of the High Court against a Judge, sitting singly, but he himself conceded after some argument that the sections cited by him contemplated courts other than the High Court. In my opinion, it is unarguable that no order for re-trial can be made in an appeal under Section 411A, as there is no court of competent jurisdiction subordinate to the appellate court to which the case can be sent for retrial. Nor is the fact that an appeal on facts has been provided for in Section 411A an indication that no retrial was contemplated, as was argued. Section 423 (1) applies to appeals on facts as well and an order for re-trial, provided for in Section 423 (1) in common for all appeals, can be made even in appeals which are wholly appeals on fact.
84. One more word is necessary with regard to the case of ''. That case, properly understood, only lays down that upon misdirection being established, the appellate court is entitled to go into the facts to the extent of deciding the merits of the conviction or acquittal and is not bound, as was contended, to direct a retrial in every case. It does not say that it must go into the facts in every case,
85. While I cannot accept the extreme contention of Mr. Banerjee that no order for re-trial can be made in an appeal under Section 411A, neither can I accept the extreme contention of Mr. Basu that an order for retrial is the only order that can be made in such appeals, if the verdict of the jury is set aside. His contention, as I have already indicated, was that the effect of the opening words of Section 411A (1) was to eliminate Section 423 (2) altogether and the next step in his reasoning was that if the evidence could not be considered for the purpose of seeing if the verdict, effected by the misdirection, was erroneous on the merits, the only other course left was to send the case back for a re-trial. I confess I am entirely unable to follow that argument. I have already given my reasons for holding that so far as it concerns the disposal of a ground of misdirection, the operation of Section 423 (2) is not excluded from an appeal under Section 411A, at least an appeal only under Clause 1 (a) of the section.
But assuming Mr. Basu was right and Section 423 (2) would not apply, there would still remain Section 423 (1) (b) which would apply in any event as Mr. Basu conceded. If it would, it is not easy to see why, among the various kinds of orders mentioned in the section, the appellate court could only make an order for retrial and why if, for the purpose of making of any of the other kinds of orders it found it necessary to go into the facts tor itself, it could not do so. Even in a case where leave under Clause (b) of Section 411A (1) had been refused, there would be no bar, because a refusal of such leave only involves that the accused him-self will not bo allowed to canvass matters of fact as grounds of his appeal, but not also that the appellate court will be equally debarred from going into facts even if it finds it necessary to do so for the purpose of disposing of the case. It is, however, obvious that if the appellate court does go into the facts in such a case, it will give an opportunity to the accused to make submissions on the facts in his defence, although leave to appeal under Clause (b) has been refused.
86. Although we are entitled under the law either to decide the case on the facts or to direct a re-trial, to make up our minds as to which of the two courses we ought to adopt in view of all the facts in this case, has not been an easy task. It is this part of the case which has caused us the greatest anxiety There have been two trials already, one of an inordinate length and another very strenuous, and we have been acutely conscious of the fact that to direct a third trial now, will be to impose on the accused an awful burden. On the other hand, most of the witnesses for the prosecution have already deposed three times, once before the committing Magistrate and then successively at two Sessions trials. Besides, almost three years have elapsed since the date of the occurrence and passage of time must have done its work on their memory of the events. To direct the prosecution now to prove its case again by those witnesses End to consign the witnesses themselves to possible cross-examination by reference to three or four previous statements, is a course which ought not to be adopted, unless there is compelling necessity to do so.
The learned Standing Counsel submitted, in accordance with the high traditions of Prosecutors for the State, that he would have nothing to complain of, if on judging the evidence for ourselves, we acquitted the accused. But on the record, as it stands, there is strong and a large body of evidence which, if believed, would make an acquittal impossible. The learned Counsel for the appellants did not themselves ask for an acquittal. Nor can there be an acquittal merely on the ground that two trials haying miscarried, the accused should not be put in peril a third time, because if the prosecution case be true, the crime was one of a shocking and gross brutality which ought not to go unpunished, however long a chase the law may require to track down the offenders. In those circumstances, we have given long and anxious thought to the question whether we ought to undertake the responsibility of deciding the case finally on the evidence before us. The conclusion we have reached is that it will not be fair and safe to do so.
The evidence is such that much of its value depends on the credibility of the witnesses whom we have not seen. The conditions under which that evidence was obtained at the trial were at times a little unusual and although, in our view, those conditions did not by themselves cause any prejudice, the accused have a feeling that they did. Again, the record of the evidence is incomplete, since the statements to the Police on which the case for the defence largely turned, were not properly brought on the record, although the responsibility for that omission lies on the accused themselves. In all those circumstances, we have come to the conclusion that the present case is not one which ought to be decided on paper evidence such as it is.
The consideration which has also weighed with us is that even more important than justice on the facts of a case is the cause of justice according to law in general. No man, however black the crimes charged against him, forfeits the right to a trial in accordance with the due forms and process of the law, in appearance as well as in fact, and the primary duty of the Courts, we think, is to provide such a trial, not merely in the interest of the accused but also in the interest of the judicial system which the country maintains. It is for that among other reasons that although we have felt the pressure of the evidence we have ultimately reached the conclusion that the proper course will be to order a re-trial. The appellants should therefore be properly tried by an adequately directed jury, as they were ordered to be.
87. It was conceded, by Mr. Basu, speaking for both the appellants, that if a re-trial was ordered, such re-trial could only take place at the Criminal Sessions of this Court. That concession is in accordance with our view of the law .and also in conformity with the order for re-trial, previously made, which remains to be carried into effect.
88. In the result, the appeal is allowed. The convictions and the sentences of both the appellants are set aside and they are directed to be retried on the same charges at the Criminal Sessions of this Court.
89. I desire to express pur obligations to the learned Counsel for both sides for the very full assistance they rendered and the admirable spirit maintained by them throughout the hearing of this somewhat long and trying case. A word of praise is also due to the office and the Bench staff of the trial court for the absolute accuracy of the record of the proceedings and the careful manner in which the paper-book has been prepared.
90. The appellants will remain on the same bail till the 4th May next by which date they must furnish fresh security and execute fresh bonds of the same nature and the same amounts to the satisfaction of the Registrar, Original Side, for their appearance at the trial. In default, they will be taken into custody.
91. I agree.