1. This appeal has been preferred on behalf of fourteen Kabulis, who have been convicted by a Jury in the Court of Session at Hooghly, of offences under Sections 148 and 325, read with Section 149 of the Penal Code, and the appeal is preferred on the ground that the verdict is vitiated by reason of misdirection by the Sessions Judge in his charge to the Jury.
2. The fourteen appellants were committed to the Sessions Court upon the following charges: 'First, that you, on or about the 20th day of April 1894, at Bhadresar P. S., Serampore, committed murder by causing the death of Khan Ghalib, and thereby committed an offence punishable under Section 302/149 of the Indian Penal Code, and within the cognisance of the Court of Session. Secondly, that you, on or about the same day and at the same place by causing death of Khan Ghalib, committed culpable homicide, and thereby committed an offence punishable under Section 304/149 of the Indian Penal Code, and within the cognisance of the Court of Session. Thirdly, that you, on or about the same day and at the same place, were members of an unlawful assembly, being armed with deadly weapons, the common object of which was, by means of criminal force, to compel Mir Azad to pay money, which he was not legally bound to do, and to use criminal force on Mir Azad and his party, and did in prosecution of the common object use criminal force, and thereby committed an offence punishable under Section 148/149 of the Indian Penal Code and within the cognisance of the Court of Session. Fourthly, that you, on or about the same day and at the same place, voluntarily caused grievous hurt to Khan Ghalib and Khan Sadik, and thereby committed an offence punishable under Section 325/149 of the Indian Penal Code, and within the cognisance of the Court of Session.'
3. In the course of the trial in the Sessions Court, at the close of the case for the prosecution, the Sessions Judge, under the provisions of Section 227 of the Code of Criminal Procedure, amended the third head of the charge by adding a sentence in the alternative, as to the common object of the illegal assembly. The charge as amended runs as follows:
Thirdly, that you, on or about the same day and at the same place, were members of an unlawful assembly, being armed with deadly weapons, the common object of which was either (1) by means of criminal force to compel Mir Azad to pay money, which he was not legally bound to do, and (2) to use criminal force on Mir Azad and his party, or else to punish Khan Ghalib for hating enticed the wife of one Sher Ali, and did in prosecution of the common object use criminal force and thereby committed an offence punishable under Section 148/149 of the Indian Penal Code and within the cognisance of the Court of Session.
4. It may be pointed out that none of the charges is very accurately framed. As regards the first, second and fourth heads there is nothing beyond the mere mention of Section 149 of the Penal Code to show that the accused were charged. with the offences therein named by virtue of the provisions of that section. In order that those charges may be intelligible, they must be read together with the third head of the charge, in which alone the accused are directly charged with being members of an unlawful assembly acting in prosecution of a common object.
5. As regards the third head of the charge the mention of Section 149 is meaningless, unless it is thought that where some members only of an unlawful assembly are guilty of rioting armed with deadly weapons, all the members of such assembly may be convicted under Section 148 by virtue of the provisions of Section 149.
6. The Jury acquitted the accused on the first and second heads of the charge, and convicted them on the third and fourth heads. The verdict, as recorded by the Sessions Judge, runs as follows:
Verdict of the Jury.
On the first charge, that of murder, we find all the accused not guilty.
On the second charge, that of culpable homicide, we find the accused not guilty.
On the third charge, that of noting armed with deadly weapons, we find* all the accused guilty.
On the fourth charge, that of voluntarily causing grievous hurt, we find all the accused guilty.
7. Mr. Ghose contends that this verdict is vitiated on three grounds which may be shortly stated as follows:
(1) That the Sessions Judge misdirected the Jury by adding to the third head of the charge an alternative allegation as to the common object of the unlawful assembly, and leaving it open to the Jury to convict on that altered charge, although there was no evidence on the record in support of such allegation.
(2) That the Sessions Judge misdirected the Jury in allowing them to treat as evidence in the case (i) the deposition of Bepin Behary Soor before the committing Magistrate, and (ii) the complaint of one of the accused at the Serampore thannah.
(3) That the Sessions Judge was wrong in treating as one of the admitted facts in the case the alleged giving of information of the intended attack at the Bhadresar outpost on the morning of the day of the occurrence.
8. We will deal with the two latter points first.
9. As regards the deposition of Bepin Behary Soor, it appears that the witness was ill with small-pox at the time of the trial, and the Sessions Judge, therefore, allowed his deposition before the committing Magistrate to be put in evidence under the provisions of Section 83 of the Evidence Act. The witness was not cross-examined before the Magistrate. It is contended on the authority of the case of Pyari Lall ( 4 C.L.R. 504), that the deposition was not admissible, and we are of opinion that the contention is well founded. But at the same time, having regard to the provisions of Section 537 of the Code of Criminal Procedure, we are not prepared to say that its improper admission is sufficient ground for a new trial. The witness merely deposes to the fact of an affray between certain Kabulis, none of whom he could identify. There is plenty of other evidence to the same effect, and it cannot be supposed that this deposition had any effect on the verdict of the Jury as bearing on the guilt or innocence of any of the accused. Seethe concluding remarks of their Lordships of the Privy Council in Makin v. Attorney-General of New South Wales L.R. (1894) A.C. 57
10. As regards the complaint made by one of the accused at the Serampore police station, it has been referred to by the Judge in his charge as tending to discredit the story told by six of the accused, That story was that the affray arose out of the refusal of Wafadar Khan and his party to partake of sherbet at the hands of Khan Sadik. The complaint at the Serampore police station was made by one of the six accused who set up this story, and it was wholly silent as to that incident or as to the presence of Khan Sadik at the time of the affray. We think that the omission to mention these circumstances was a relevant fact under Section 11* of the Evidence Act as affecting the truth or otherwise of the story told by the six accused. And as regards the other accused the complaint does not seem to have been used as evidence against them, and it is not clear to us that they have been prejudiced by its admission in evidence in any way. They are not mentioned in the complaint, and the Sessions Judge seems to have told the Jury that their defence was not the same as that of Wafadar and the five other accused who adopted his story,
11. It is not quite correct to say that the Judge treated the information given at the Bhadresar outpost on the morning of the 20th April as an admitted fact in the case. On the contrary, the Judge speaks of it as a fact depending on the evidence of the Sub-Inspector Akhoy Kumar Chatterjee, and although he does intimate his own opinion that it is a fact placed beyond all reasonable doubt, he nevertheless discusses the evidence of the Sub-Inspector and his diary at length, and expressly leaves it to the Jury to say whether or not they believe his evidence.
12. We think, therefore, that the second and third grounds taken by Mr. Ghose afford no sufficient reason why we should disturb the verdict in this case.
13. It remains to consider whether the amendment of the third head of the charge, coupled with the remarks of the Sessions Judge thereon, amounted in law to a misdirection, and, if so, whether this Court ought to reverse the verdict and to order a new trial.
14. The fourteen appellants are all charged with having acted with the same common object; and it is obvious that they could not be convicted of any offence by virtue of the provisions of Section 149 of the Penal Code, unless that offence was committed in prosecution of the common object of all the accused. Queen v. Surroop Chunder Paul 12 W.R. Cr. 75. Now the common object alleged by the prosecution was (1) by means of criminal force to compel Mir Azad to pay money which he was not legally bound to pay, and (2) to use criminal force on Mir Azad and his party.
15. The Sessions Judge appears to have thought that the forcible levy of the small amount of money that was in dispute was an inadequate motive for the murderous attack of Wafadar and his party. He thought that something had been concealed or not truly told, and that there were facts which seemed to point to a different motive. He accordingly amended the third head of the charge by inserting the allegation of another and a different common object, and he inserted it as an alternative. That common object so inserted was stated to be 'to punish Khan Ghalib for having enticed the wife of one Sher Ali.'
16. In dealing with this matter the Judge charged the Jury as follows:
The first object is that which is definitely alleged by the prosecution. The second or alternative object is not alleged by the prosecution. If, however, you are convinced that the story of Wafadar and his party coming to the house and of their beating Khan Ghalib in such a way as to cause death is true, it will not be an unfair or unjust inference to make from the statements of some of the accused themselves, corroborated as it is by the evidence of some of the witnesses for the prosecution that Khan Ghalib is living with a woman who was Sher Ali's wife, and whom he is not proved to have married, that the common object of the band was to punish Khan Ghalib for enticing Sher Ali's wife. Whether you should draw that inference or not is a matter entirely for you to decide. I only point out that it is an inference that is possible on the evidence.
I have stated that the first information given by Mir Abdullah, directly after the disturbance, differs in one particular from the story now told. The name of the person, to whom Mahomed Amir is said to have lent the money, is stated in the first information to be Afzal Khan. The Public Prosecutor thinks that is only a mistake for Mir Azad-a mistake caused by the difficulty of catching the exact pronunciation of names as made by these up country men, of which you had many illustrations in Court. That is an explanation which might be accepted in default of any other, were it not for the fact that, among the persons living in Abdullah's lodging, there is one whose name is given by 'Mir Abdullah in Court as Mir Afzal Khan.' Afzal Khan' is much more likely to be a mistake for Mir Afzal Khan than for 'Mir Azad.' If this view is correct, there is still greater room for doubt whether the story about Mahomed Amir entrusting Azad with the collection of his dues is correct. I have, however, before pointed out that money matters were even before the riot referred to as the cause of animosity on Wafadar's part. I have also pointed out that Mir Abdullah had hardly time for concocting an altogether false story, and that he was more likely to have distorted a true story. These considerations raised in my mind a suspicion whether the person to whom Mahomed Amir entrusted his collections was not Khan Ghalib himself. If that were so, the variation as to Afzal and Azad would be accounted for, viz., by the desire to avoid all mention of Khan Ghalib, whose adulterous intercourse, if there was such, it would be natural for his friends to endeavour to screen. It would perhaps account for the conduct on the part of Wafadar and his companions. They did not want him to collect Mahomed Amir's dues, and their object would be both to prevent him from doing so and to punish him for his behaviour. As I have said, however, this is only a suspicion, unsupported by direct evidence, and arising from some of the aspects of the case and of the evidence put forward by the prosecution. It is not inconsistent with the alternative common object alleged in the charge.
17. Now upon this matter Mr. Ghose contends (1) that from the verdict on this head of the charge it is impossible to say whether the Jury intended to find that the accused acted with the common object alleged by the prosecution, or with that inserted in the charge by the Judge, or with both, or some with one and some with the other; and (2) that if, and so far as, the Jury intended to find that the common object of the assembly was that inserted in the charge by the Judge, the verdict is bad, inasmuch as there is no sufficient evidence of any such common object. He contends, therefore, that the verdict must be set aside.
18. There can be no doubt that the Judge's proceeding in this matter was, to say the least, most unfortunate. If he was of opinion that there was ground for charging the accused with a common object, different from that alleged by the prosecution, he should have added a separate count or counts to the charge upon which a separate verdict could have been taken. Section 236 of the Code only authorises a charge in the alternative, when it is doubtful which of several offences the facts which can be proved will constitute,-not, as in this case, when there may be a doubt as to the facts which constitute one of the elements of the offence. The result of the Judge's action has been, as pointed out, to introduce uncertainty into the verdict upon a most material point, and thereby, as we think, to vitiate it. It is to be regretted that the Judge did not even take the precaution to put such questions to the Jury, under the provisions of Section 303 of the Gods, as were necessary to make it clear what their verdict was.
19. But Mr. Ghose further contends that the Judge was not justified in asking the Jury to use the statements of some of the accused as evidence against the others, and in charging all the accused with the common object of punishing Khan Ghalib for his adulterous intercourse upon the statements of some of the accused only and in the absence of specific evidence on the point. The Judge himself says: 'You have in the first place the fact that Khan Ghalib was living with the wife of Sher Ali, a fellow-countryman of the parties. Whether . Sher Ali had divorced the woman and Khan Ghalib had married her, we have no evidence to determine one way or the other; but you have this fact from the mouth of the accused themselves that Khan Ghalib's behaviour in living with Sher Ali's wife was considered by Wafadar, and the five others who admittedly accompanied him, to be adulterous, and that it aroused so much irritation and animosity in their breasts that they would consider it an insult to be offered water by Khan Ghalib's son.'
20. It is necessary to see what the statements of the accused and the evidence in regard to this matter really amount to. In his statement before the Sessions Court, Wafadar Khan stated as follows: 'Khan Sadik said to us, Drink sherbet. We all of us said, We won't drink at your hands. Khan Sadik said, Why not '? I said, Your father has brought another man's wife without marrying her, that's the reason,' and further on: 'Khan Ghalib has run away with Sher Ali's wife.'
21. Wafadar's statement was adopted as their own defence by five other of the accused, namely, by Maza Khan (3), Sap Khan (4), Latif Khan (5), Abdur Rahman (6) and Surrendaz (7), and another of the accused Sikandar Khan (8) made the following statement: 'Khan Ghalib has enticed away Sher Ali's wife to this country, while his own wife, Khan Sadik's mother, is living in her own country. Wafadar is no retainer of Sher Ali. Khan Ghalib brought the woman three or four months ago. I don't know whether there was any disturbance on account of the woman.' Accused No. 13 Nakibullah said: 'I don't know Khan Ghalib. I have not heard that he enticed away Sher Ali's wife.' None of the other accused said anything about the matter,
22. As regards the witnesses for the prosecution, four of them appear to have been cross-examined on the point. Mir Abdullah said: 'Khan Ghalib had a separate lodging of his own. That was because he had a wife. I don't know her name. I know Sher Ali, my wife's brother. I heard that Sher Ali put away his wife, and Ghalib Khan married her. I can't say whether that wife is at Bhadresar or has gone back to her home. Khan Sadik is the son of another wife. * * * * It is not true that the quarrel arose from the refusal of those persona to drink sherbet at the hands of Khan Sadik because his father was living in adultery without nikah with a woman.'
23. Mir Azad said: 'Khan Ghalib did not put up with us. He had a separate residence. I have heard of Malika Bibi, who lives with Khan Ghalib. I have never seen her. I don't go to Khan Ghalib's bari. It is not true that on the Friday I went to his dwelling and had a talk with Malfka Bibi that brought Khan Ghalib into my lodging. I don't know Sher Ali who was husband of Malika Bibi. I know that Khan Ghalib brought a woman from our country. I hear she is his wife. 1 don't know that she is any one else's wife * * * It is not true that Wafadar and five others came into our lodging on being invited to drink sherbet.'
24. Khan Sadik says: 'There was a woman living with my father. I don't know whether her name was Malika or Malka. She had been divorced by her husband and my father had married her. I was not present at the marriage. My father told me he had married her. Warrants did not come from Peshawar for their arrest. * * * My father brought the woman to Bhadresar seven or eight months before his death.'
25. Matabdin says: 'I know Malka Bibi: she is living at Bhadresar. I have never seen her in this country. I have seen her in our own country. She was the wife of Mir Abdullah's brother-in-law, Sher Ali. He was alive when I left my country. Khan Ghalib brought the woman from our country. She was living with him at Bhadresar. * * * It is considered very bad in our country for a man to run away with another man's wife.'
26. This appears to be all the evidence on the point, and we think Mr. Ghose is right, therefore, when he says that there is no evidence that the attack upon Mir Abdullah's house was made with the object of chastising Khan Ghalib. Khan Ghalib's adulterous intercourse was referred to by Wafadar as being the* cause of his refusing to drink sherbet at the hands of his son, which refusal he says was the immediate cause of the quarrel, and it is obvious that the cross-examination was directed to establish this point. It was not fair, therefore, to use a part of Wafadar's statement only and to convert a fact which he put forward in his defence into a motive for the attack. The statement, even as against those who made it, should be taken in its entirety and not a part of it only for the purpose of being turned against the accused; and, further, the statement was certainly no evidence against any of the accused other than those who made or adopted it. Yet the Judge has used it against all the accused without distinction. We agree, therefore, with Mr. Ghose that there was no evidence is support of the common object charged against the accused in the alternative allegation added by the Sessions Judge, and as the verdict of the Jury leaves it uncertain whether they did not intend to find that this was the common object which actuated the accused, that verdict is bad in law.
27. It is necessary, however, to consider whether, having regard to the provisions of Section 423, Clause (d) of the Code, we are bound to reverse the verdict of a Jury, unless we are of opinion that it is erroneous, or, in other words, wrong. The point was argued at the bar, and Mr. Leith, on the part of the Crown, further invited our attention to Section 537 of the Code, which prescribes that, 'subject to the provisions hereinbefore contained, no finding * * * passed by a competent Court shall be reversed * * * on appeal * * * on account of any misdirection in any charge to a Jury unless such * * * misdirection * * * has occasioned a failure of justice.' Mr. Leith accordingly asks us to go into the evidence and to decide upon the facts whether or not the accused have been rightly convicted.
28. We are of opinion that it is not open to us to adopt this course, and we are not aware of any case in which it has been followed. Section 418 of the Code provides that, where the trial is by jury, an appeal shall lie on a matter of law only. It is quite clear, therefore, that we have no power to try the accused in this appeal on matters of fact. Clause (d) of Section 423 runs as follows: Nothing herein contained shall authorise the Court to alter or reverse the verdict of a Jury, unless it is of opinion that such verdict is erroneous owing to a misdirection by the Judge, or to a misunderstanding on the part of the Jury of the law as laid down by him.' In this clause, as it seems to us, the word 'erroneous' is not to be read as meaning 'wrong on the facts;' it must rather be read in connection with the words that fellow as meaning that the verdict has been vitiated and rendered bad or defective by reason of a misdirection or a misunderstanding of the law. The effect of the clause is evidently to prevent the Appellate Court from reversing the verdict of a Jury on account of any misdirection by the Judge or any misunderstanding on the part of the Jury of the law as laid down by him, unless such misdirection or misunderstanding of the law is on a point material to the verdict, so that the verdict can be said to be tainted with error in the process by which it has been arrived at. It throws on the Appellate Court the duty no doubt of ascertaining whether the processor method which the Judge directed the Jury to follow as to the acceptance or discarding of evidence or as to the view taken of the law was erroneous on any material point, but not certainly the duty of determining for itself whether the verdict, as a conclusion of fact, was right or wrong. To hold otherwise would be tantamount to holding that an appeal would lie upon the facts from the verdict of a Jury in the face of the provisions of Section 418, and that the Legislature intended to give this Court the same powers in respect to an appeal from the verdict of a Jury as it has in respect of a judgment by the Sessions Judge in a trial with assessors. In his contention that this was the object of the Legislature Mr. Leith has referred to Section 307 of the Code, under which section the High Court is authorised to go into the facts. But it is to be observed that that section expressly and designedly confers upon the Court higher powers than it can exercise on appeal under the provisions of Section 423.
29. A very similar point was recently before the Judicial Committee of the Privy Council in the case of Makin v. Attorney-General for New South Wales already referred to. In that case, the question was raised whether, under the proviso to Section 423 of the Criminal Law (Amendment) Act of 1883, where the Judge who tries a case reserves for the opinion of the Supreme Court the question whether evidence was improperly admitted, and the Court comes to the conclusion that it was not legally admissible, the Court can, nevertheless, affirm the judgment if it is of opinion that there was sufficient evidence to support the conviction, independently of the evidence improperly admitted, and that the accused was guilty of the offence with which he was charged. The proviso in question runs as follows : Provided that no conviction or judgment thereon shall be reversed, arrested or avoided on any case so stated, unless for some substantial wrong or other miscarriage of justice.' The Privy Council held that the words of the proviso could not be given the construction contended for. To quote the words of the Lord Chancellor: 'It is obvious that the construction contended for transfers from the Jury to the Court the determination of the question, whether the evidence,-that is to say, what the law regards as evidence-established the guilt of the accused. The result is that in a case where the accused has the right to have his guilt or innocence tried by a Jury, the judgment passed upon him is made to depend, not on the finding of the Jury, but on a decision of the Court. The Judges are in truth substituted for the Jury, the verdict becomes theirs and theirs alone, and is arrived at upon a perusal of the evidence without any opportunity of seeing the demeanour of the witnesses, and weighing the evidence with the assistance which this affords.
30. 'It is impossible to deny that such a change of the law would be a very serious one, and that the construction, which their Lordships are invited to put upon the enactment, would gravely affect the much cherished right of trial by Jury in criminal cases. The evidence, improperly admitted, might have chiefly influenced the Jury to return a verdict of guilty, and the rest of the evidence which might appear to the Court sufficient to support the conviction might have been reasonably disbelieved by the Jury in view of the demeanour of the witnesses. Yet the Court might, under such circumstances, be justified, or even consider themselves bound to let the judgment and sentence stand.
31. 'These are startling consequences, which strongly tend in their Lordships' opinion to show that the language used in the proviso was not intended to apply to circumstances such as those under consideration.
32. 'Their Lordships do not think it can properly be said that there has been no substantial wrong or miscarriage of justice, where on a point material to the guilt or innocence of the accused the Jury have, not with standing objection, been invited by the Judge to consider, in arriving at their verdict, matters which ought not to have been submitted to them.
33. 'In their Lordships' opinion substantial wrong would be done to the accused, if he were deprived of the verdict of a Jury on the facts proved by legal evidence, and there were substituted for it the verdict of the Court founded merely upon a perusal of the evidence.'
34. For these reasons we are of opinion that, having come to the conclusions that the verdict of the Jury in this case has been vitiated by the misdirection of the Sessions Judge, we have no option but to set aside that verdict and to direct that the accused be retried.
* When facts not otherwise relevant become relevant.
[Section 11: Facts not otherwise relevant are relevant:
(1) if they are inconsistent with any fact in issue or relevant fact;
(2) if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable.]