1. The two appellants before us, Hurry Churn Chuckerbutty and Gopal Chunder Chuckerbutty, gomasfchas of two co-sharer zamindars, have been tried on charges of culpable homicide not amounting to murder under Section 804 of the Indian Penal Code, voluntarily causing grievous hurt under Section 325, and voluntarily causing hurt under Section 323. The jury unanimously acquitted them of the offence of culpable homicide not amounting to murder, and by a majority of three to two convicted them on the second charge. The Judge, in accepting this verdict, expressed his disapproval of the acquittal on the first charge, but in view of the unanimity of the jury in respect of that acquittal accepted the verdict under both heads, and accordingly sentenced the prisoners to the extreme sentence of imprisonment allowed by the law, and also inflicted a fine.
2. There are many objections which have been taken to, and are indeed patent in, the Judge's proceedings, both as regards those during the trial and his summing up to the jury.
3. It appears that at the close of the evidence for the prosecution, and before rising for the day, the Sessions Judge inquired and learnt from the attorney for the accused that he meant to adduce evidence for the defence. When the trial was resumed on the following day, the attorney intimated that, upon re-consideration, he did not intend to adduce any evidence. On this the Sessions Judge apparently informed him that the prosecutor would nevertheless have the right of reply, and on its being claimed, in spite of an objection raised, he conceded it.
4. Now, no doubt the strict interpretation of the terms of Sections 289 and 292 would warrant this, but we think that this was never contemplated by the Legislature, and certainly should not have been allowed by the Judge, when in fact no evidence was produced for the defence. The object of the law evidently is to let each side have an opportunity of commenting on the evidence of the other, and not to give an additional advantage to the prosecutor simply because the pleaders for a prisoner may, after consultation during an adjournment, have had an opportunity of considering what was best for the interests of their client. The incautious reply of the attorney at the end of the day should not have prejudiced his client on the resumption of the trial, and can properly be regarded only as the expression of an intention then entertained subject to further consideration.
5. Then, again, we think that when the attorney for the defence wished to read such a well-known book as Taylor on Medical Jurisprudence on a point so obscurely and unsatisfactorily determined by the medical evidence in this case, the Sessions Judge would have exercised a wise discretion if he had allowed a reference to that book to be laid before the Court. The case relied upon by the attorney of Hatim v. The Empress 12 C.L.R. 86 is an anthority for referring to such a treatise, and although it may be that in an unreported case a single Judge sitting on the Original Side of the Court may have held an opinion to the contrary, we think that in accordance with the usual practice the Judge should have followed rather the reported case, especially as it had been decided by a bench of two Judges.
6. Next we regret extremely to find that, in spite of repeated judgments of this Court on appeal against orders passed by the Sessions Judge, he should still persist in the practice of conducting what is nothing else than a cross-examination of the prisoners. Section 342 of the Code of 1882 requires a Sessions Judge to put such questions to an accused generally on the case as he considers necessary after the witnesses for the prosecution have been examined, but that is to be done only for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him. Now, in the present case, we find every long cross-examination of the prisoner Hurry Churn Chuckerbutty. The questions are so put as to extend over the entire transaction relating to the present case, and, more than that, they are so directed as to obtain from him answers on matters really irrelevant to the matters in issue, but calculated seriously to prejudice him before the Jury, and also to incriminate the co-accused, Gopal Chunder, by connecting him with the execution of the decree which forms the foundation of the present case. Many of the questions are certainly what we should expect to find from a Counsel cross-examining an adverse witness. For instance, the accused was asked 'how was Jadub hurt?' Answer: 'How can I say.' Question: 'Are you of opinion then that Behary got Jadub hurt?' Answer: 'No.' Question: 'If neither you nor Behary was instrumental in getting him hurt, while the Doctor maintains that Jadub was wounded severely, how then came he to be hurt?' Answer: 'That I do not know.' Question: 'Why does the pleader say that he saw you, the Peadah, and Jadub go to his lodgings?' Answer: 'He is Behary Sen's pleader; at the instance of Behary he says so.' Then, again, the Judge asks many questions which are extremely irrelevant. Question: 'After the deceased was brought to the Court did you pay his diet money, or was the amount of decree realised?' Answer: 'He was neither sent to the jail nor was the amount realised.' Question: 'If he was not sent to the jail, and at the same time the amount of the decree was not realized, then tell me what followed?' Such questions are not, in our opinion, questions which are contemplated by the law for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him. The tenor of the questions is clearly to entangle the accused, and so to prejudice him with the Jury.
7. Lastly, the manner in which the verdict was taken is, in our opinion, objectionable. The summing of the Judge, to which reference will presently be made, clearly contemplates a conviction for culpable homicide, and it was so understood by all the members of the Jury except the Foreman, for they informed the Judge that they thought that they had only to consider this charge. This necessitated a further explanation from the Sessions Judge. The Jury then, after a short retirement, came back and said that they were unanimous on the first charge, but not on others, their verdict on the first charge being one of acquittal. The Judge thereupon asked: 'How are you divided on the charge of grievous hurt?' Answer: 'We are three to two on both the remaining charges.' Question: 'What is the verdict of the majority on the charge of grievous hurt.' Answer: 'Guilty.' Judge.--'I need not, therefore, take your verdict on the remaining charge.' Now Section 301 declares that when the Jury have considered their verdict, the Foreman shall inform the Judge what is their verdict, or what is the verdict of a majority. Section 302 says: 'If the Jury are not unanimous, the Judge may require them to retire for further consideration,' After such a period as the Judge considers reasonable the Jury may deliver their verdict, although they are not unanimous. Section 303, no doubt, empowers the Judge to ask the Jury such questions as are necessary to ascertain what their verdict is, but it was never, in our opinion, contemplated that on ascertaining that the Jury were not unanimous, the Judge should make minute enquiries to learn the nature of the majority, and its opinion, so that he should have the opportunity of accepting or refusing that opinion as a verdict according as it coincides with his own opinion or not. The manner in which the Judge has acted on the present occasion raises much doubt 'in our minds whether that was not the motive for the course he took, and inclines us to think that, if he had been told that the verdict of the majority was for acquittal on those charges, he would have accepted it. If we are wrong in concluding this, we think that we are at least bound to express our opinion on the matter so as to prevent any misconception regarding what we consider to be the proper practice. Whatever may have been the individual opinion of the Judge in this matter, if he went so far as to ask the Jury what was the exact majority and what was the opinion of the majority, we think that he ought to have received that verdict without hesitation; and if he differed from it, he should have proceeded as directed by Section 307. If the Jury, in the present instance, had been required to retire without having informed the Judge as to the exact result of their deliberations, it is quite possible that on further discussion what was the majority might have become the minority, and we think that in all fairness to the prisoners the course indicated by us should be followed.
8. It next becomes necessary to consider the nature of the charge made by the Judge to the Jury. The general impression left by such a charge cannot be other than a painful impression that it is rather an address of the Counsel for the prosecution than a fair and impartial summing up of the evidence for and against the prisoner. None of the weak points in the evidence for the prosecution have been mentioned to the Jury, and many important considerations and inconsistencies have been entirely overlooked. One point in the case and a most material point, seems to have been altogether misapprehended, by the Judge, and this notwithstanding that it was prominently brought to his notice by the attorney for the defence when the case had closed. The point in question is the exact time at which the deceased was found by his relative, Adari, and taken to her house, and the time of his death. This is an extremely important point, because from the unusual character of the injuries from which the deceased is said to have died it would seem doubtful on the medical evidence as recorded whether the ribs were broken before or after death. Although the medical officer states his opinion that these injuries were caused during life, he also intimates that they were recent; and if it had been pointed out to him (as it ought to have been) that it was alleged that these injuries were inflicted eight days before death, it is not improbable that he would have modified his opinion both as to the time at which they had been inflicted, and as to whether they caused the death of the deceased. The woman Adari is very positive in stating that she found the deceased lying under the Tal tree on Monday, the 4th Bysack. We find that this date was also stated in her examination in the Magistrate's Court given within about ten days from the death, so that at that time at least, whatever may have happened in the interval before the Sessions trial, her memory was probably clear. In the Sessions Court, too, she not only repeats that statement but gives reasons for fixing the date. It is quite possible, as the Sessions Judge remarks in his charge to the Jury, that she has made a mistake, and that when she says the 4th of Bysack or 16th April she must have meant the 18th of April, the medical evidence showing that the deceased must have died on the 19th, but this discrepancy was never properly laid before the Jury. It is a most important allegation for the defence that the ribs were broken after death, for the interval between the assault and death would go very far to weaken the medical evidence given without knowledge of the fact that the beating was administered some eight days before the death. Then, again, supposing, as the Judge intimated to the Jury, that the woman did make a mistake, and that she really meant 18th when she said 16th of April, there was a previous interval certainly of two, if not more, days during which the movements' of the deceased are altogether unexplained. The Judge has cursorily endeavoured to explain this away by referring to the evidence of Adari, that during this time the deceased was at Jehanabad, but even supposing that the deceased had stated to her that he had been kept at Jehanabad, it was the duty of the Judge to put it more prominently to the Jury so as to enable them to determine what weight was due to it, There are other very important points in the medical evidence to which reference might be made, which have been similarly overlooked or misapprehended by the Sessions Judge in his charge to the Jury. At all events, with such evidence before him given by a comparatively inexperienced medical officer, it is much to be regretted that the Sessions Judge having present in his Court the Civil Surgeon, did not think fit to examine him as an expert regarding the value of the testimony of his subordinate. But not only are the details of the Judge's charge to the Jury, and the manner in which he has presented the evidence to them objectionable, but the manner in which he has presented the entire case in its different parts is, in our opinion, one which cannot but have seriously prejudiced the prisoner under trial. Before laying the evidence before the Jury in detail, he asks the Jury to consider whether, having regard to the previous relations between the deceased and the prisoner arising out of previous litigation, the accused were not likely to have committed the offence charged. This was certainly reversing the order in which such matters are usually laid before a Jury It is the practice of our Courts first of all to lay before the Jury the direct evidence against the prisoners, and then to tell them that in determining the value of that evidence they should consider the evidence of the motive which is attributed as the cause of the offence. In presenting the case in the manner in which he has done, the Sessions Judge cannot but have seriously prejudiced the accused, because they are represented as decidedly inimical to the deceased, and, therefore, as prima facie guilty. As the Judge puts it: 'This is important as supplying a possible motive for the subsequent treatment of the deceased as deposed to in the evidence.' There are also several parts of the evidence which materially affect the appellants now before us which have not been laid before the Jury; for instance the evidence, of the pleader describing what the deceased said when he was being brought under arrest to the Civil Court. In explaining to the pleader the treatment he had received, the deceased nowhere mentioned the prisoner Gopal as one of those who had been concerned in the assault. The Sessions Judge, however, has altogether overlooked this point, which was of very great importance to the prisoner Gopal. Next, in dealing with the evidence of Bhooth Nath Adhieari and Kedar Bagdi, the Sessions Judge pointed out that 'Bhooth Nath Adhieari speaks from the point of the beating of the deceased under the eaves of his house, and Kedar from the point of deceased being brought to the bank of his own tank.' The Sessions Judge adds, 'I need not refer to the evidence of these witnesses at length.' Now if we refer to the evidence of these two witnesses, it is to be found that the one man Bhooth Nath says that when he arrived he saw the deceased lying under the eaves of his house, and that neither then nor at any other time did he see the deceased beaten, although he saw him removed thence to the tank and on to the Chowkeydar's house in the village. Kedar, on the other hand, speaks to beating on the bank of the tank and also to the further carrying off the deceased. Kedar's evidence, therefore, so far as regards the beating at the tank, is inconsistent with that of Bhooth Nath.
9. As regards the taking of the deceased in a dooly to the Civil Court, the case of the prosecution is that that was necessary in consequence of the severe beating that he had received; while for the defence it is alleged that the infirm state of health of the deceased prevented his walking to Jehanabad, a distance of five cos. The Judge, in reference, to this point, says: 'The next stage of the case is the acknowledged hiring of a dooly to take the deceased to Jehanabad as he could not walk. This i9 acknowledged even by the defence.' This was hardly a fair way of putting this part of the case to the Jury. Then the return that the peon made of the arrest of the deceased on the 14th of April mentions the fact that he was taken in a dooly. The Judge in referring to this matter states: 'It is to be observed that the return itself mentions that the man had to be brought in a dooly,' but at the same time he omits to suggest to the Jury and leaves it for their consideration, as he should have done, whether it was likely, if a severe beating had been administered as stated by the prosecution, that the peon would have mentioned the fact of the deceased being carried in a dooly to corroborate, as it were, any complaint that might be made of such ill-treatment by himself.
10. Another very important part of the case seems to have escaped proper attention. The deceased was brought under arrest to the Civil Court at Jehanabad on the 13th or 14th April. The prisoner, Hurry Churn Chuckerbutty, in his first examination before the Magistrate, stated that the deceased had compromised the decree against him by executing a kabuliat in his favour, which was registered on the same date. No enquiry was made in the Registration Office regarding what took place on this occasion. The Judge seems to have thought it sufficient to comment on the position of the men who were witnesses to the registration, and to have made the Registrar's endorsement on the document a means of explaining the movements of the deceased between the 14th of April, the date of the presentation of the document for registration, and the 16th, when the registration being completed the document was returned. The Judge has assumed merely from these proceedings that the deceased remained all this time at Jehanabad with the prisoners. It is quite possible that this may have been the case, but in the absence of evidence on this point it was not a fair presumption, for it is quite as likely that if the gomashta desired to obtain the kabuliat after its registration, he should have attained this end by getting from Jadub, the executant of the deed, what is called the ticket or receipt of the registration office, a good return of which would entitle the holder to obtain the document after its registration.
11. Mr. Amir Ali, who appeared for the Appellants, next objects, and we think, with good reason, that in laying the evidence in this case before the Jury, if the defence did not have an opportunity to cross-examine his witnesses who had been examined in the Magistrate's Court, and had deposed 'in favour of the prisoners, it was the duty of the Sessions Judge at least, to notice this matter for consideration by the Jury. We would next remind the Sessions Judge that in the case of Dhunno Kazi I.L.R. 8 Cal. 121, which was an appeal from his own decision, as well as in a more recent appeal, two Division Benches of this Court have pointed out to him that the prisoner or his counsel is at liberty to offer evidence or not as he thinks proper, and no inference unfavourable to him can be drawn because he takes one course rather than another. Notwithstanding this instruction the Sessions Judge has taken to task the accused, or those who conducted the case for them, for having at one time stated that they meant to adduce evidence, and having on a subsequent occasion stated that they had changed their minds and intended to offer no evidence. The Judge says on this part of the case that the accused not having called such witnesses, 'you,' that is the jury, are entitled to presume that they could not contradict the prosecution as to this.' It was, however, entirely open to the defence to adduce no evidence at all, but to rely upon the evidence of the witnesses for the prosecution, and certainly in this case there was room for forming two opinions. The Judge next states: 'The only parts of the prosecution story which are denied are what incriminate the accused, the trespass into the house, the dragging out and beating, the carrying off, the meeting with the pleader,' but all these 'if not true are capable of contradiction, and the accused had witnesses in attendance for some such purpose, yet they did not call a single one.' He also comments on the fact that amongst these witnesses were present the Civil Surgeon and the Deputy Magistrate himself, who were not examined. Our regret has already been expressed that the Sessions Judge, in the exercise of his discretion in this case, did not for the ends of justice examine the Civil Surgeon. His evidence would have been important as an expert to test the evidence of the Assistant Surgeon. The reason for which the Deputy Magistrate was called is not apparent. However that may be, the Judge was not at liberty to draw a presumption adverse to the accused from the circumstance that these witnesses were not examined. For these reasons we think that there have been serious misdirections in this case by the Judge to the jury which have caused a failure of justice, and that the prisoners must be retried on the charge on which they have been convicted. The proceedings in the Sessions Court of Hooghly are accordingly hereby set aside, and the appellants may be at large on bail pending retrial. Lastly, having regard to the very strong opinion which the Sessions Judge of Hooghly entertains in this case, we think it desirable that a new trial should be held by some other officer, and we accordingly direct that the case be tried by the Sessions Judge of the 24-Pergunnahs.