Banerjee and Wilkins, JJ.
1. The appellant in this case was tried by jury before the Sessions Court of Dacca on charges of rape and assault to outrage female modesty, punishable under Sections 376 and 354 of the Indian Penal Code. The jury returned a verdict of guilty, and the learned Sessions Judge accepting the verdict has sentenced the accused to transportation for life. Against this finding and sentence the accused has appealed; and the appeal lies on a matter of law only (see Section 418 of the Code of Criminal Procedure) and also on the question of the seventy of the sentence which, as the section just referred to provides, is to be deemed a matter of law. Clause (d) of Section 423 further provides: ' Nothing hereinafter contained shall authorize 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,' Therefore, before a verdict can be interfered with, we must be satisfied that such verdict is erroneous owing to a misdirection by the Judge or a misunderstanding on the part of the jury as to the law laid down by him. In the present case, the law has been clearly laid down by the Judge, and no question can be raised as to the law laid down by him being misunderstood by the jury. The question, therefore, which really arises for our consideration here is whether the verdict is erroneous owing to a misdirection by the Judge; and that question resolves itself into two other questions, first, whether there was any misdirection by the Judge in this case, and, secondly, if there was any misdirection by the Judge, whether it can be said that the verdict was erroneous owing to such misdirection, or, in other words, whether within the meaning of Section 537 of the Criminal Procedure Code the misdirection has occasioned a failure of justice.
2. With reference to the first question, we observe that the learned Judge's charge to the jury is vitiated by this material misdirection, that it never once tells the jury that it is for them to consider whether upon the evidence adduced in the ease the offences are established as a matter of fact. After having explained the law to them, the learned Judge says to the jury: ' You will observe that in this case the sexual intercourse was against the girl's will and without her consent, or, at any rate, with only such consent as she gave under fear of the accused's threats of violence to her,' instead of saying, as he ought to have done, ' you will have to determine upon the evidence in this case whether the sexual intercourse was against the girl's will, etc.,' and the charge goes on in that same style of stating to the jury what has been proved, instead of leaving it to them to decide what, in their opinion, is proved. This amounts to a clear misdirection. The view taken upon this point is fully supported by the case of the Queen-Empress v. Bepin Biswas (1884) I.L.R. 10 Cal. 970, where the learned Judges observe: ' It was certainly open to the Judge to express his own opinion regarding it ' (that is, the evidence), ' and he did so when he stated that he was unable to attach any weight to it. He should, however, have been careful to add that it was for the jury to form their own opinion on this evidence; ' and we may add that the same view is taken by Phear, J., in the Queen-Empress v. Raj Kumar Bose (1873) 10 B. L. R. Ap. 36
3. Our attention was called by the learned Deputy Legal Remembrancer to the concluding sentence of the charge, in which the learned Judge says: ' You have seen the witnesses, and I have no doubt that you will return a just verdict.' Even that does not in our opinion satisfy the requestments of a proper charge. The learned Judge there does not tell the jury to form their own opinion upon the evidence. The passage just quoted in our opinion means no more than this, that the learned Judge expects the jury to return a verdict which, in his opinion, as indicated throughout the charge, was the just verdict, or, in other words, a verdict of guilty.
4. We are, therefore, of opinion that the first question, namely, whether there has been any material misdirection by the Judge, must, in this case, be answered in the affirmative.
5. Then there remains the question, whether, owing to such misdirection, the verdict is not erroneous, or, in other words, there has not been a failure of justice. On this point the view we take is this, that both clause (d) of Section 423, and Section 537 of the Code of Criminal Procedure, require that before the verdict of a jury can be reversed on the ground of a misdirection by the Judge, this Court must be satisfied that the misdirection was of a nature such that it may reasonably be supposed that the verdict was erroneous by reason of such misdirection; or, in other words, that there has been a, failure of justice by reason of such misdirection. But the two provisions of the law just referred to do not in our opinion require that this Court is to go through the facts, and find for itself whether the verdict is actually erroneous upon the facts. The view we take on this point is in accordance with that taken by this Court in the case of Wafadar Khan v. Queen-Empress (1894) I.L.R. 21 Cal. 955.
6. Having regard to the nature of the misdirection pointed out above, it is impossible for us to say that the verdict has not been erroneous, that is, is not vitiated, by reason of the misdirection. We must, therefore, set aside the finding and sentence and order the case to be retried.