1. The appellants Kalu Mandal, Yasin Mandal, Abdul Sattar Mandal and Fakir Ahmed have been found guilty of committing the offence of rioting and sentenced to rigorous imprisonment for one year. They have also been founds guilty of having committed culpable homicide punishable under the first portion of Section 304, Penal Code, and sentenced to undergo rigorous imprisonment for three years. The accused Golam Mandal has been found guilty of abetment of the aforesaid culpable homicide and sentenced to undergo rigorous imprisonment for three years. The appellants were tried by Sri N. Chakravarty, Sessions Judge of Nadia and a jury. Against this order of conviction and the sentences the present appeal has been laid.
2. The case for the prosecution briefly is as follows : On llth April 1949, the appellants together with one Hasim, who is absconding, came upon the land of one Maharani Bibi and forcibly plucked coconuts from the trees growing thereon. Maharani Bibi and a relation of hers called Ambar, since deceased, protested. Upon this Ambar was set upon and beaten with various weapons by some of the appellants and as a result of the beating he died. Immediately after the beating prosecution witness a Shamsul Huq went to the thana and lodged an information which was recorded in the General Diary by literate constable Prafulla Sen, 'prosecution Witness 9, there being no other officer there. This General Diary entry is Ex. 2. Ambar was attended by doctors but he died. Thereupon another information was lodged at about 3 A. M. which was treated as the first information report by Ramani Mohan Bhattacharjee the officer in charge. It is Ex. 3. Thereafter the investigation started. There was a post mortem on the body of Ambar and it was found that he died as a result of the injuries received. These in short are. the facts upon which the case for the prosecution depends. The defence taken is as follows: Maharani Bibi has only a very small share in the land. Eight annas of that land belonged to, one Panchkari Kazi. On his death it devolved upon his sister. That sister died and her daughter inherited a portion of the land and sold her share to Hasim, son of Kalu. Hasim as I have stated before, is absconding. The appellants went on the land legitimately and they were resisted by Ambai and others. There was a fight in the course of which Kalu got an injury on the head. Broadly speaking, the defence taken may be said to consist of a plea of the right of private defence of property and person. I may state here that no evidence was adduced on behalf of the defence either as regards the occurrence or as regards the claim of Hasim to a portion of the property with respect to which the occurrence is said to have taken place.
3. In view of the very unsatisfactory nature of the charge to the jury, we are of opinion that the order of conviction and the sentences must be set aside. We also think that having regard to the nature of this thoroughly bad charge it would serve no useful purpose to discuss the evidence in detail or to deal with the discrepancies in the evidence. We feel that after this charge it would be impossible for any jury to have a correct grasp of the evidence or of the points which they would have to decide before delivering their verdict. That being so, we think that the proper course would be to direct a retrial of the case.
4. I wish in this connection to point out certain glaring defects in the charge. It would be tidious and it would take a very long time if I were to point out all the defects in the charge; they are far too numerous. The first point which I would impress upon the learned Judge relates to the way in which he has treated the entries made in the General Diary and in the first information report. If the learned Judge had taken some slight trouble to acquaint himself with the important provisions of the Evidence Act he would have been aware of the fact that the General Diary entry and the first information report cannot be dealt with as substantive evidence. They may be considered if or the purposes of corroboration Under Section 157, Evidence Act, if all the provisions thereof are complied with. In this connection I would point out that they may be put in evidence to corroborate only the testimony of the person who gave the information incorporated in the General Diary or the first information report and not for the purpose of corroborating the evidence of any one else. They also may be considered for the purpose of contradicting the evidence of the person who gave the information incorporated in the General Diary or the first information report in accordance with the provisions of Section 145, Evidence Act.
5. Throughout his charge the learned Judge has dealt with the General Diary entry and the first information report as if they constituted substantive evidence. He has also committed a further error in treating these entries as corroborating the evidence of witnesses who had nothing to do with the making of these entries. It is regrettable that we have had to point this out to the learned Judge on more than one occasion and we trust that he will take some pains to understand the law of evidence regarding this point. Owing to this error which in our opinion is a very serious one the jury were hopelessly misguided and the verdict of a jury, so misguided cannot possibly be supported.
6. I would also point out to the learned Judge that when he is trying several accused persons he should tell the jury in clear terms that they should consider the case of each accused separately and independently. Further, he himself should deal with the case of each accused separately and place before the jury the evidence, the circumstances and the contentions of the prosecution and the defence with respect to each accused separately. This has also been pointed out to this particular learned Judge more than once. He has either not been able to comprehend what has been explained to him on previous occasions or he had deliberately failed to follow these directions. In the present case we find that he makes a mere pretence of following these directions by adopting a device which does not carry out these directions. What he does is this: He heads a particular paragraph with the name of a particular accused person and then instead of dealing with the case of that particular accused person he merely says that the jury should remember what ha has previously said about that particular accused person in the earlier part of his somewhat jumbled charge. This is not the way in which the case of an accused should be dealt with separately. These are a few of the defects of the charge but they are sufficient in our opinion to vitiate the findings of the jury.
7. We accordingly set aside the order of conviction and the sentences and send the case back for retrial according to law and in the light of the observations made above.
8. The appellants will continue on the same bail pending the retrial.