1. This is an appeal by seven accused who were tried on a charge of rioting armed with deadly weapons under Section 148, Penal Code, one of them, Lakshman being also tried on a charge of murder, another Sufal on a charge under Section 324, and four of them Rasik, Makhan, Ananta and Dulal on a charge under Section 323.
2. The jury by a majority of 5 to 4 found all the accused guilty under Section 147, Lakshman guilty under Section 326, Sufal guilty under Section 324, and unanimously acquitted the four accused charged under Section 323.
3. Lakshman has been sentenced to four years, Sufal to one year and all the accused to six months' rigorous imprisonment, the sentences of Laxman and Sufal to run concurrently.
4. The prosecution case is that the riot took place at 7 A.M. on the morning of 12th September 1946. The deceased Gobinda is said to have run out after his cow and when he reached the dihi of the accused Rasik be was surrounded by the accused, struck in the abdomen by Lakshman, and struck on the shoulder by Sufal. Gobinda died on the spot. The occurrence was seen by a large number of villagers, including nine of the thirteen witnesses examined in the case.
5. The first information was lodged promptly at about 10 A.M., the thana being four miles away. The informant was Chandra Ghosh, uncle of the deceased, P.W. 1. The investigating officer went the same day to the spot. Ha held an inquest and examined some witnesses, sent Naren Ghosh (son of the deceased) and Kedar Ghosh, (P.Ws. 4 and 5) to the hospital as they also had some injuries. He says these two came to the thana after the first information had been recorded.
6. The first information gives substantially the story given in Court, except that there is no mention of the names of Naren Ghosh, or Kedar Ghosh, or that they received injuries. It names ten persona 'and others' as witnesses. Of these, six were examined in the case (Nos. 1, 6, 8, 10, 11, 12). The other witnesses to the occurrence examined in Court are Naren and Kedar Ghosh, and Ali Muhammad (P.W. 2), whom the investigating officer says he examined the same day at the village of occurrence.
7. The investigating officer, Sub-Inspector Bhownik, P.W. 13, was cross-examined and mentioned that he had examined Ali Muhammad and other witness, but was not specifically asked their names. He said he made notes of the statements of the witnesses, incorporated their statements in a general narrative in hi3 diary from memory, and destroyed his notes. Only two witnesses, Ali Muhammad P.W. 2, and Sambhu Karmakar, P.W. 12, were specifically asked in cross-examination whether they had been examined by the police. We have examined the diary, and have no doubt that all were so examined.
8. After the cross-examination of the Sub-Inspector, a petition was filed asking that the evidence of witnesses 2, 4, 5, 6, 9, 10, 11, 12 be expunged from the record as the defence had been unable to cross-examine them properly owing to the destruction of the notes. (The mention of witness 9 seems to be a mistake for witness 8 Gaffar Mandal. The latter was almost an eye-witness, the former unimportant witness) The learned Judge rejected the prayer, saying he would give necessary directions. In his charge the learned Judge commented un-favourably on the conduct of the police officer, pointing out that the accused had a valuable right to have copies of the statements of witnesses for the purpose of cross-examining them. He then merely added 'if, however, you can rely on the testimony of the witnesses examined before yon and whom you have seen, you can act on that'
9. Before us it is contended that the evidence ought to be expunged. Support for this is said to be found in Baliram v. Emperor 32 A.I.R. 1945 Nag. 1. That was an appeal from a trial by a Special Judge without a jury. The appellate Court acquitted a batch of the accused in the case who were alleged to be connected with outrages at a place called Maudha. They pointed out that the only question was that of complicity, the outragers themselves were Clearly proved They noted the case in such cases of mass uprisings-of including names falsely, and hence the value of records of early statements to test the evidence of witnesses identifying various accused. After discussing the evidence they held that the accused connected with the Maudha outrages-had not had a fair trial, and acquitted them. They laid some stress on the provisions of Section 138, Evidence Act. In a later case, Manganlal v. Emperor 33 A.I.R. 1946 Nag. 173 arising out of the same occurrences the same learned Judges appear to have qualified their remarks in the earlier case, which at places appear to state the proposition that the mere destruction of the notes vitiates the trial, and they laid emphasis on the terms of Section 138 as apparently in their opinion justifying a view that where there was some alternative material for cross-examination, the actual destruction did not have that effect.
10. The effect of Section 162, Criminal P.C., has been considered by their Lordships of the Privy Council in Kotayya v. King-Emperor 34 A.I.R. 1947 P.C. 67 where it was held that in the particular circumstances of the case no prejudice had been caused to the accused. It was also pointed out that the Courts in India had some times taken too narrow a view of the provisions of Section 537, Criminal P.C.
11. Section 161 of the Code as now amended requires that if an investigating officer makes any record of a statement of a witness, he must make a separate record. Section 162 of the Code provides that the accused may have copies of such statements, and use them to contradict witnesses for the prosecution. Failure to comply with Section 161 is an irregularity. If the accused' does not ask for copies there is no irregularity in the trial; their non-existence from whatever cause cannot prejudice him. If they are recorded in accordance with Section 161, and are lost, destroyed by accident or intentionally (for whatever reason, good or bad) and the accused asks for copies there is an irregularity in the trial for failure to comply with the provisions of Section 162.
12. The question is what is a Court to do when it learns that records of such statements have been destroyed. It seems to us that all it can do is to consider whether any and what presumption can be made against the prosecution in the circumstances of the particular case. We do not think it can be said that the evidence of an important witness of unimpeachable credit, intelligence and reliability is to be expunged or disbelieved merely because a pig-headed or foolish investigating officer has failed to comply with the terms of Section 161 of the Code, or has destroyed the record he made of the statements of the witness. On the other hand, in a doubtful case where the Court may be in two minds as to whether to accept the evidence of a rather unsatisfactory witness, the absence of the material that ought to exist for cross-examination might well turn the scale, particularly where the record had been deliberately destroyed. The Court may if it thinks fit presume that, where the records have been destroyed this has been done for a reason, for example because the police wanted to improve on the evidence. The acquittals in Baliram v. Emperor 32 A.I.R. 1945 Nag. 1 can be fully justified on this ground in the circumstances of that case. As we have noted, that was a trial by a Judge without a jury, and there was an appeal on facts. Similarly the refusal to consider the evidence of come witnesses in Kotayya v. King-Emperor 34 A.I.R. 1947 P.C. 67 shall be so justified.
13. Where a Judge, in a trial with the aid of a jury, meets a case of this sort, his proper course, in our opinion, is to direct the jury on the lines indicated above according to the circumstances of the particular case. He cannot exclude the evidence as inadmissible. In the present case the learned Judge gave no such directions; he merely commented unfavourably on the sub-inspector's conduct without directing the jury as to how they should deal with the matter as affecting the credibility of the evidence. His failure to do so, in our opinion, amounted to a misdirection.
14. The question then hero is whether owing to the misdirection there has been a failure of justice, and if so whether we should order a retrial or not. The decision in to Abdul Rahim v. Emperor makes it clear that we are entitled to look into the facts and determine whether there has been a failure of justice in the sense that innocent men have been convicted. It does not require us to do so, nor does it explicitly give any assistance in determining when a retrial is to be ordered and when not. The decision in In re Elahi Bakah. ('66) 5 W.R. Cr. 80: Beng. L.R. Sup. Vol. 459, is quoted by their Lordships with approval, as well as the view of Sir Barnes Peacock. That view has not been entirely endorsed by Jackson J. in the same case. His comment may be quoted:
But it seems to me that the simple test 'has there been a failure of justice?' may be applied in most case with perfect case and safety. In regard to the proposed rule that we should not interfere in ease of misdirection where the facts are such that if the trial had been held before a Judge and Assessors, we should have affirmed the sentence, I have only one misgiving. It is not always safe, I might say it . is rarely safe, for an Appellate Court, with papers before it, to put itself in the place of the Court below which has heard the witnesses; and it might be that in affirming the conviction on the faith, of some unnoticed circumstances of corroboration found in the evidence, we might be using that which the Judge and jury would not have relied upon. But this perhaps suggests caution in the application of the rule rather than in an objection to the rule itself.
15. Sir Barnes Peacock himself said as quoted in Baliram v. Emperor 32 A.I.R. 1945 Nag. 1.
In determining whether the verdict ought to be set aside and a new trial granted for a defectivs summing up of the evidence, it appears to me that the question to be considered is not whether, upon a proper summing up of the whole evidence, a jury might possibly give a different verdict, but whether the legitimate effect of the evidence would require a different verdict.
But in a case such as the present with a number of eye-witnesses, the legitimate effect of the evidence, if believed, is conclusive. The question is whether it is to be believed or not. The misdirection here directly relates to the question whether the witnesses are to be believed or not. The verdict being a majority one of 5 to 4 indicates, that a slight difference in directions might have altered the view of those hearing the witnesses and therefore in the present circumstances, in the best position to determine the legitimate effect of the evidence, by determining whether the evidence was to be believed or not. This seems to us therefore to be a case where there should be a retrial for determination of the question of the credit to be attached to the evidence of the eye-witnesses.
16. As regards, however, the accused other than Lakshman, they have already suffered a substantial sentence of imprisonment, and we do not think it is necessary in their cases that' we should order a re-trial.
17. The result is that we allow the appeal We set aside the conviction and sentences passed on the accused Lakshman and direct that he be re-tried. The other remaining accused are acquitted, and we direct that they be get at liberty or if on bail be released from their bail.
18. Pending the disposal of the case the accused Lakshman Chandra Ghose alias Lakshman Ghosh will be released on bail to the satisfaction of the District Magistrate of Murshidabad.
19. I agree, but would like to add a few observations on the questions of law raised by Mr. Talukdar.
20. One further fact requires to be stated. There nothing on the record to show that the accused ever asked for copies of statements made by the witnesses to the police. Section 16a, Criminal P.C. requires such copies to be furnished only 'on the request of the accused.' It is thus clear that if the accused does not ask for copies, it is immaterial that they were not supplied and the accused cannot complain of irregularity in the trial on the ground that no copies were supplied to him or that copies could not have been supplied inasmuch as the originals had been destroyed. Prima facie, therefore, it would seem that no question under Section 162 could arise in the present case. Mr. Talukdar, however, stated that in practice no formal application was made for copies and what happened was that in most cases the Public Prosecutor himself handed over the copies at the beginning of the trial and where he did not do so and a request had to be made, it was done verbally. Mr. Taluqdar added that if in the present case the accused had not asked for copies, the learned Judge would surely have mentioned the fact when dealing with the application for expunging the evidence of certain prosecution witnesses. The section, it is to be noticed, speaks only of a request and not of an application. My learned brother, who has a wide experience of criminal trials in the District Courts, informed me that the practice was as stated by Mr. Talukdar and that in the circumstances of the present case it could properly be assumed that a request for copies had in fact been made. If so, a question under Section 162 of the Code does arise.
21. Mr. Talukdar conteded that in much as certain of the prosecution witnesses could not be cross-examined as to the statements made by them to the police, because copies of such statements had not been supplied to the accused, the evidence of these witnesses ought to have been excluded as inadmissible. It was urged that if the investigating officer failed to record the statement of a witness in proper accordance with Section 161(3) of the Code or, having so recorded it, destroyed the original record and substituted a boiled statement so that the accused could not get a copy for the purposes of cross-examination, the evidence of such witness could not be admitted. In support of this contention, reliance was placed on Section 138, Evidence Act, and the decision of the Privy Council in Kotayya v. King-Emperor 34 A.I.R. 1947 P.C. 67 and also two decisions of the Nagpur High Court in Baliram v. Emperor 32 A.I.R. 1945 Nag. 1 and Manganlal v. Emperor 33 A.I.R. 1946 Nag. 173.
22. In my opinion, this extreme contention of Mr. Talukdar cannot be accepted. As regards Section 138, Evidence Act, it does not deal with admissibility of evidence at all, but merely lays down that a witness shall first be examined-in-chief, then (if the adverse party so desires) cross-examined and lastly, (if the party calling him so desires) re-examined. In other words, the section only lays down three processes to which a witness may be subjected in order to obtain from him his full evidence. It says nothing as to the consequence if a witness, after being examined-in-chief, cannot be cross-examined. There is undoubtedly the general rule that uncross-examined evidence cannot, as a rule, be admitted, but some light as to when such evidence is admissible can be derived from Section 33 which deals with cases where a witness, who gave evidence on a previous occasion, cannot be produced and which covers a case where a witness, after being examined-in-chief, becomes unavailable for cross-examination. According to the section, one of the conditions of the admissibility of the evidence of such a witness is 'that the adverse party had the right and opportunity to cross-examine.' Assuming that this principle applies to the case before us, where the witnesses were physically available, there can be no question that the accused had the right to cross examine them. As regards 'opportunity,' I shall assume that it does not mean mere physical opportunity, but covers proper facilities as well, e.g., such assistance as a party is entitled to under the procedural law of the country. If, therefore, an accused person cannot cross-examine a prosecution witness as to his statement made to the police, because he cannot obtain a copy of such statement to which he is entitled under Section 162, Criminal P.C., he is certainly deprived of a part of his due opportunity to cross examine the witness. Even so, however, it is impossible to hold that the evidence of the witness becomes inadmissible. It is true that if a witness cannot be cross-examined at all by reason of some deliberate act of the party calling him, his evidence may be struck out altogether. It may also be conceded that an investigating officer being an agent of the prosecution through whom it collects the evidence led at the trial, an act of such officer in destroying the statements made to him or recording them in such form that copies cannot be asked for, is an act of the prosecution. The act clearly bears on the opportunity to test the evidence which the prosecution wishes to lead. But there can hardly be a case where the statement made to the police is the sole material for cross-examining a witness. In fact, witnesses may be and are cross-examined as to numerous other matters, as the prosecution witnesses in the present case were. Such a case is clearly not one where the adverse party had no opportunity to cross examine the witness, but only a case where he had not the full opportunity. It would thus follow that even under Section 138, Evidence Act, read with Section 33, it is impossible to throw out as inadmissible the evidence of a prosecution witness who can be and is cross-examined by the accused as to all other matters but cannot be cross-examined as to the single matter of his statement to the police.
23. As to the decisions relied on by Mr. Talukdar that of the Privy Council in Kotayya v. King-Emperor 34 A.I.R. 1947 P.C. 67 does not support his contention, but, on the other hand, negatives it. That was a case where certain prosecution witnesses were examined by the police twice, once by a Sub-Inspector and again by a Circle Inspector. The accused were furnished with copies of the statements made to the latter officer, but when they asked for copies of the statements made to the Sub-Inspector, the Public Prosecutor stated that no statements were recorded by the Sub-Inspector and no record of any such statements existed. When, however, the Sub-Inspector himself went to the box, which he did after the principal prosecution witnesses had been examined and discharged, he produced his note-book, containing statements of the witnesses examined by him. Copies of those statements were then supplied to the accused, it was too late to use them in cross-examination.
24. The case was thus one where the accused were unable to cross-examine the prosecution witnesses by reference to their statements to the police, because the prosecution wrongly refused to supply them with copies of such statements. Yet, the Privy Council did not hold the evidence of the witnesses to be inadmissible. Had they so held, they would have applied Section 167, Evidence Act and examined the balance of the evidence In order to see if it was sufficient to justify the verdict, Abdul Rahim v. Emperor . What their Lordships did was that they treated the case as one of irregularity and proceeded to enquire whether the irregularity was cured by Section 537 of the Code. In the end they held that no failure of justice had occurred, inasmuch as the statements made by the witnesses to the Sub-Inspector and the evidence given by them in Court were substantially the same and it had not even been alleged that the statements made to the Sub-Inspector were in any way different from those made to the Circle Inspector, by reference to which the witnesses had in fact been cross-examined. This case, therefore, lends no support to the contention that in the circumstances of the present case, the evidence of the witnesses examined by the police is inadmissible.
25. As regards the other two decisions relied on by Mr. Talukdar, it was undoubtedly held in Baliram v. Emperor 32 A.I.R. 1945 Nag. 1 that where the investigating officer took notes of the statements made to him by certain witnesses and then destroyed the notes after incorporating the statements in the case diary in the form of a compressed memorandum, the evidence of those witnesses given in Court was inadmissible, since copies of statements, as made by them to the police, could not be and were not given to the accused. The learned Judges referred to Section 138, Evidence Act and commented strongly on what they called a fraud upon the Criminal Procedure Code, committed with the object of depriving the accused of valuable material for cross-examination. Mr. Talukdar contended that the proposition laid down in this case was good law, inasmuch as, in Kotayya v. King-Emperor 34 A.I.R. 1947 P.C. 67 the Privy Council had referred to this decision with approval. The judgment of the Privy Council, however, shows that, their Lordships referred to this case, as also another case, merely as instances where the Indian Courts had regarded a breach of Section 162 of the Code as a matter of such gravity that they had quashed the convictions. The proposition that the evidence of a prosecution witness is inadmissible, in the absence of a copy of his statement to the police being supplied to the accused, was not endorsed, either expressly or by implication. On the other hand, as already pointed out, their Lordships regarded a failure to comply with the provisions of Section 162 as an irregularity. In the other case cited by Mr. Talukdar, Manganlal v. Emperor 33 A.I.R. 1946 Nag. 173 the learned Judges who had decided Baliram v. Emperor 32 A.I.R. 1945 Nag. 1 themselves modified their previous statement of the law by holding that where the statement made to the police was the only material for cross-examining a witness on a particular point, his evidence, as bearing on that point, would be excluded, if a copy of the statement was not supplied to the accused; and, further, that where there was other material on the record by which the witness could be cross-examined on the same point, his evidence would be admissible. It would thu3 appear that oven according to the learned Judges of the Nagpur High Court, failure to supply to the accused a copy of the statement made by a witness to the police is not, by itself, sufficient to exclude the latter's evidence in Court, but there must be a total impossibility of cross-examination by reason of such failure. Speaking for myself, I am unable to conceive of a case where a witness cannot be cross-examined at all, simply because the accused has not been provided with a copy of the statement made by the witness to the police. The only point on which he cannot be cross-examined is whether he stated to the police what he has been now saying. In practice, therefore, even the Nagpur view, as finally explained, would not make the evidence of a witness inadmissible in any case, except so far as he may say, if allowed to do so at all, that he stated to the police what he is deposing in Court, as to which he cannot be cross-examined in the absence of a copy of the statement. But the matter, in my opinion, is concluded by the decision of the Privy Council in Kotayya v. King-Emperor 34 A.I.R. 1947 P.C. 67.
26. Looking at the matter as a practical question, it seems clear that an accused person will seek to exclude the evidence of a prosecution witness on the ground that he has not got a copy of his statement to the police only when he has otherwise been unable to shake his credit. But it may often be that he succeeds in shaking the witness by cross-examination from other materials or elicits from him facts which disprove the charge or mitigate the offence. If the extreme proposition contended for by Mr. Talukdar is to be conceded, in such cases too the evidence of the witness must be excluded, because in the absence of a copy of the statement to the police being furnished to the accused, the evidence is wholly inadmissible. No accused person, I presume, will ever like to take up such a position. He will insist, with perfectly good reason, that the evidence is legal evidence and ho cannot be deprived of its benefit. In my opinion, it is no more the law that if the witness remains unshaken and contributes nothing useful to the accused, his evidence must be excluded as inadmissible. If it is insisted that whenever there is a failure to supply copies of statements made to the police or at least a deliberate continuance to prevent supply, the evidence of the witnesses concerned would be inadmissible, the logical course to adopt would perhaps be to object to the witnesses going to the box at all, though I do not say the objection would be valid. Bat to allow the witnesses to give evidence, to cross-examine them at length from other materials and then to turn round and say that the evidence cannot be admitted, seems to me to be utterly impossible.
27. In reality, the question which arises in such a case is not a question of the admissibility of the evidence at all, but a question of its weight. Where the accused could not got copies of statements made to the police, it cannot be gainsaid that in one material particular the evidence remains uncross-examined. The failure to obtain copies may be duo to the fact that the originals were accidentally lost or it may be that they were destroyed or that the statements were recorded only in a boiled form. In the first case, the Court will assess the weight of the evidence by its inherent character and by reference to such other materials as may be on the record, remembering that the evidence has not been, in regard to one vital matter, cross-examined. In the second and the third cases, the position is in essence one where the prosecution is withholding material evidence. If a police officer records statements in a boiled form in the face of Section 161 (3), Criminal P.C., or deliberately destroys the statements recorded by him, resulting in either case in loss of valuable material to the accused, there can be no doubt that he acts with gross impropriety and may be presumed to have acted from design. In such a case, the prosecution fails to produce material which it was its legal duty to produce for the benefit of the accused and accordingly it lays itself open to a presumption under Section 114, Illust. (g), Evidence Act that if the statements made to the police were produced', they would be found to be contrary to the evidence given in Court. The Court is not bound to raise such a presumption and will not, it may be assumed, do so when the witness concerned is an inconsequential one or the subject-matter of his evidence is not such that its credibility depends upon whether he said the same thing in his statement to the police. But in other cases, the Court cannot disregard the circumstance that the statement made to the police has not been produced and, in view of the fact that the accused has been deprived of his right to cross-examine the witnesses as to such statement, it must consider whether in judging the worth of the evidence given in Court, it will not weigh against that evidence a presumption under Section 114. When the trial is by jury, the Judge must direct the jury fully and properly on the bearing of the omission on the credibility of the evidence and on their right to raise an adverse presumption, if they think fit to do so.
28. As my learned brother has pointed out, no such directions were given by the learned Judge in the present case. There was thus both an irregularity at the trial in that copies of statements to the police were not made available to the accused and a misdirection.
29. It is perhaps necessary to make one point, clear with regard to the irregularity. Nothing can be an irregularity in a trial which does not affect the proceedings in Court. The fact that the investigating officer did not act in accordance with Section 161 of the Code, that is to say, though recording the statements of witnesses, did not record them in the form enjoined, did not in itself amount to an irregularity in the trial. The; officer was acting outside the Court. If for example, the prosecution killed a person who could have established a perfect alibi for the accused or kidnapped a witness of the occurrence who would have spoken in his favour, the trial would not thereby be vitiated. It is the breach of Section 162 of the Code, caused by the breach of Section 161, which constitutes the irregularity. The same is the position with regard to the destruction of the notes. Both are responsible for the result that the accused could not have a trial in the form provided for in the first proviso to Section 182, viz., he could not have access to the statements made by the witnesses to the police and could not use them to contradict the witnesses in the box, It may be added that if the disadvantage was caused to the accused by an innocent loss of the statements, the irregularity would still occur, because there would still be a departure from the statutory mode of trial and a denial of statutory facilities.
30. Some question was raised as to whether notes made by the police officer in the present case were 'statements reduced into writing' within the meaning of Section 162 of the Code. In my opinion they were. It is true that they were only notes and were made in a note-book. But the section speaks of 'any such statement or any record thereof, whether in a police diary or otherwise;' and it is worthy of note that in Kotayya v. King-Emperor 34 A.I.R. 1947 P.C. 67 too the statements were recorded in a note-book.
31.The next question is, on irregularity and misdirection being found, what course or courses are open to this Court to adopt. In the view we have taken of a non-compliance with Section 162, that irregularity amounts to no more than with holding of material evidence and could have been met by adequate directions to the jury. It is not therefore necessary to regard the irregularity as something separate from the misdirection and the case may properly be treated as one of misdirection only.
32. My learned brother has dealt with this question of the High Court's powers in great detail. I only wish to supplement what he has said by one or two observations.
33. As far as I could understand Mr. Talukdar, he did not contend that once, in an appeal from a conviction, the High Court found some misdirection of some kind, it was bound to reverse the verdict and acquit the accused. His only contention was that in view of the nature of the misdirection in the present case which born on the proper valuation of the evidence, the verdict ought to be set aside and that in view of the condition of the evidence and the conduct of the prosecution which was responsible for that condition, there ought to be an acquittal and not a retrial.
34. In my opinion, the question of the powers and the duty of an appellate Court in dealing with an appeal from a jury trial wherein misdirection had occurred, is now concluded by the decision of the Privy Council in Abdul Rahim v. Emperor except as to one matter presently to be mentioned. That was a case of an appeal under Section 449 of the Code which gives a right of appeal on facts as well as on law, but their Lordships considered it expedient to make a wider pronouncement so as to cover appeals under Section 418 as well. It is only necessary to refer to an appeal from a condition and the decision of their Lordships, as I understand it, is as follows: A misdirection is an order of law. Once the appellate Court finds that there has been such an error, a case arises for consideration whether it may and ought to interfere with the verdict, but it does not become bond to do so. The misdirection may have been of a trivial character, in no way affecting the soundness of the verdict. The appellate Court must at that stage consider whether the misdirection affords sufficient ground for interfering with the verdict and the test it must apply is to sea whether the verdict is erroneous, and erroneous owing to the misdirection [Section 423 (2)] or whether the misdirection has in fact occasioned a failure of justice [Section 537 (d)]. If neither can be predicted, the appellate Court has no right to interfere with the verdict, but if either consequence has occurred, the statute plainly indicates, though it is expressed in a negative form, that a case for interference has arisen. In deciding whether there has been in fact a failure of justice on account of the misdirection, the Court is entitled to go into facts and even entitled to determine for itself whether there has been a failure of justice in the sense of a conviction of an innocent man or, as Sir Barnes Peacock put it in In re Elahi Bakah. ('66) 5 W.R. Cr. 80: Beng. L.R. Sup. Vol. 459, at p. 94, the Court has to consider not whether on a proper summing-up of the evidence, the jury might possibly return a different verdict, but whether the evidence was such that the only proper verdict would be a different one. When, on applying these tests, the Court decides that interference with the verdict is called for, it will proceed to consider in which of the various ways provided for in Section 423 (1)(b) of the Code it will interfere, viz., whether it will merely alter the finding or direct a re-trial or acquit the accused altogther. The form of in terference must depend on the facts of each case and there is no absolute rule that it must order a re-trial or that it must acquit.
35. The one matter which the Privy Council left undecided is the true meaning of the expression 'erroneous verdict' in Section 423 (2) and the manner in which that provision could stand alongside Section 537. Their Lordships preferred to decide the question before them solely by reference to the terms of Section. 537 which speaks of failure of justice in fact. They did not decide whether the appellate Court would be entitled to interfere with a verdict under Section 423 (2) only if it was erroneous in the sense of being wrong on the merits or whether it was sufficient if the verdict was erroneous in the sense that it was vitiated by misdirection and therefore not dependable as correct. But it is necessary to point out that even in dealing with Section 537, their Lordships, while emphasising that the appellate Court could go into facts, did not say that the only failure of justice on which it could interfere was failure of justice in the form of conviction of an innocent man and that nothing less would entitle it to interfere. All that they said was that the Court would be entitled to go to the length of looking for that degree of failure of justice before it decided to interfere, not that it must in every case come to a positive decision on the evidence that an innocent man has been convicted.
36. In what other cases will then an appellate Court be entitled to interfere with the verdict? If less than a certain conviction of an innocent man is also covered by the phrase 'failure of justice,' there will not be, as my learn ed brother has pointed out, any difficulty in actual practice in determining in what cases the verdict ought not to be maintained. There will be equally little difficulty in determining whether a retrial should be ordered or the case finally decided in the appeal. The Court may find itself able to hold that on the evidence the verdict is plainly wrong, but even if it cannot form such a definite opinion, it may find that the misdirection was of such a character that the accused has not had a fair trial and it cannot with confidence be said that the verdict has been justly suffered. A large factor in shaping the opinion of the Court will be an almost instinctive feeling, caused by all the facts of the case. Similarly, in determining whether there should be a retrial, the Court will not find much difficulty in deciding whether the evidence is such that it can safely or properly take the responsibility of judging it for itself. It is, however, necessary to enquire what or how much is authorized by the actual words of the Code, though it is always difficult to extract full and accurate guidance to such matters from a theoretical construction of a procedural statute.
37. Only two provisions are relevant. Section 423.(2) of the Code forbids the appellate Court to interfere with a verdict on the ground of misdirection unless an 'erroneous verdict' has been caused thereby and Section 537 (d) forbids it to interfere unless the misdirection has in fact occasioned a failure of justice. Though both the sections are expressed in a negative form, the Privy Council has pointed out that they are 'pregnant negatives', implying that where there has been an erroneous verdict or a failure of justice, the appellate Court can and ought to interfere. If, therefore, ' erroneous verdict' in Section 423 (2) is synonymous with 'failure of justice' in Section 537 (d), the latter section, so far as it concerns misdirection, is superfluous and it is not easy to see why it should have been enacted. Again, if 'erroneous verdict' in Section 423 (d) means erroneous on the merits, failure of justice in such a case is patent and it is not easy to see why it should have been necessary to provide again in Section 537 (d) that the Court would be entitled to interfere in a case of failure of justice, unless the section was intended to cover other forms of failure. The only way in which the two sections can be reconciled is, I think, by holding that Section 537 (d) is, in one sense, restrictive of Section 423 (2) and, in another sense, an extension. The Privy Council did not decide the meaning of the term 'erroneous verdict', but it seems to me that in view of the general provision contained in Section 537 (d), it is not necessary to attribute to the term any wider meaning than that of a verdict, wrong on the merits. If the misdirection caused a wrong verdict, Section 423. (2) authorises the appellate Court to set it aside but Section 527 (d) intervenes to say that, nevertheless the verdict cannot be reversed, unless it has in fact occasioned a failure of justice. If, for example, it is found that the verdict of guilty under Section 148, Pennal Code is wrong and there should have been a conviction only under Section 147, it may still be that the sentence awarded is not excessive for an offence under Section 147 and there has, therefore, been no failure of justice. In such a case, Section 537 (d) would prevent the appellate Court from interfering with the verdict, although it is erroneous and would operate as a limitation on Section 423 (2). On the other hand, there may be a case where it cannot definitely be said that the verdict is wrong, but the misdirection is such that there has been a failure of justice in the sense that the accused cannot be said to have been justly and fairly tried. In such a case, Section 537 (d) would entitle the appellate Court to interfere with the verdict, though it cannot positively be said to be erroneous and would operate as an extension of Section 423 (2). It is true that the failure of justice is required to be a failure in fact, but if the expression is taken in a wider sense which the Privy Council decision does not forbid., it is not difficult to find actual failure in a case where the accused has not had a fair trial by reason of the fact, as in the presents case, that 'a neglect of the fundamental rules of practice necessary for the due protection of prisoners and the safe administration of criminal-justice ' and its bearing on the credibility of the evidence were not properly pointed out to the jury, or where the offence charged was not fully or correctly explained, or where circumstances in favour of the accused were disregarded, or where no regard was paid to the cardinal rules of evidence.
38. It is to be noticed that besides misdirection, Section 537 (d) mentions error, omission or irregularity as well and authorises the Court to set aside the finding or order, if failure of justice has been occasioned by either of these. In the case of the latter, there can be no question of failure of justice being synonymous with an erroneous verdict and the conclusion is irresistible that even in the case of misdirection the phrase bears a wider sense. It was a case where justice has failed, because the accused has not been justly and fairly tried, the requirement that justice must be seen to be done has not been fulfilled.
39. As regards the order to be made in the present case, I agree with my learned brother that in view of the length of time for which they have been in jail, it is not necessary in any event to direct a re-trial of the accused other than Lakshmana. As regard Lakshmana, the evidence, if believed, would prove him to have been guilty of a more serious offence. But the evidence, although uncross-examined as to one material point and even in the absence of proper directions from the Jude as to the effect of non-compliance with Section 162, failed to convince four of the jurous who saw and heard the witnesses. In the circumstances, it is not possible for us, juding by the written evidence alone and weighing against it the non-production of the statements to the police, to say positively that the accused is guilty, though we cannot say either that he is not. In my opinion, though it cannot positively be said in the present case that the verdict is erroneous, failure of justice has occurred. The verdict should accordingly be set aside and the accused Lakshmana directed to be retried, as my learned brother has proposed.