1. The accused was convicted before the learned Additional Sessions Judge of Midnapore of offences under Sections 326 and 324, Penal Code, for causing grievous hurt with a deadly weapon to two persons--Sarat Dutta and Bhaskar Pal--and for causing hurt to a third man named Nibaran Adhya. Objection is taken to the convictions on a number of grounds, but in the light of the conolusion at which I have arrived it is necessary to consider one ground only, namely, misdirection of the learned Additional Sessions Judge to the jury in regard to the evidence of Bhaskar Pal who gave evidence as prosecution witness 5 and who was one of the persons alleged to have been injured by the accused. It is not necessary to consider the whole of the evidence. Suffice it to say that the allegation was that the accused inflicted the injuries to the three persons mentioned above by means of a sword. In the course of the summing up to the jury' the learned Additional Sessions Judge referred to the evidence of Bhaskar Pal in this way. He said:
He has deposed entirely against the prosecution and it is necessary for us to see how far his deposition is true and how far it affects the case of the prosecution.
2. A little later:
P.W. 17 M.A. Aziz, the investigating officer has told us that not merely did he examine Bhaskar Pal, but he actually took down the statement under the provision of Section 161, Criminal P.C. This statement would not go in as evidence. Had Bhaskar Pal then made a statement before the investigating officer which was so entirely contrary to the prosecution case as the one he has made before you, do you think it likely that the prosecution would have put him in the witness box Then again this Bhaskar Pal told the doctor who examined him that Shital Dutta had rushed at him and dealt him a stroke with a sword.
3. The statement to which reference is made in the summing up is covered by and is made in accordance with the provisions of Sections 161 and 162, Criminal P.C. The language of the above statutory provision is mandatory and the statement cannot be admitted in evidence although it can or parts of it loan be used for the purposes which are indicated in Section 162, Criminal P.C. The statement which Bhaskar Pal apparently made to the investigating officer was undoubtedly covered by Section 162 and it was not admitted in evidence and it could not be admitted. Nevertheless although the learned Judge pointed out to the jury that the statement could not go in in evidence, he added, in effect, that had the statement of that witness not been favourable to the prosecution it was unlikely that the witness would have been called. Bhaskar Pal, although one of the injured in respect of whom a conviction was recorded against the accused, nevertheless testified in favour of the accused. The learned advocate who appears on behalf of the Crown in this appeal has conceded that if the evidence of that witness had been believed and accepted the verdict must have been one of not guilty. In his observations to the jury the learned Judge, in effect, directed that the evidence given to the jury was contrary to what he had previously stated to the investigating officer. He was, therefore, in effect telling the jury what was in the statement and that the evidence of the witness was different from what he had stated when the facts were being dealt with on another occasion.
4. The summing up in this respect in my view was a bad misdirection infringing in a somewhat serious way the mandatory provisions of Sections 161 and 162, Criminal P.C. He was putting to the jury matters for their consideration which in my view should not have been given to them. This misdirection in itself is sufficient to justify setting aside the conviction. I desire to add one further matter in regard to the last portion of the summing up which has been cited earlier, namely, the statement which Bhaskar Pal is said to have made to a doctor who gave evidence. In summing up the learned Sessions Judge told the jury that Bhaskar Pal had informed the doctor that the accused had rushed at him (Bhaskar Pal) and dealt him a stroke with a sword. When Bhaskar Pal was cross-examined he denied that he told the doctor that the accused was armed with a sword, and the doctor when dealing with that matter confined his evidence to stating that Bhaskar Pal had said that the accused had struck them meaning Bhaskar Pal and one other person. No reference was made to the sword in the evidence of the medical witness. Further, the effect of the evidence of the doctor was put to the jury as an established fact and was inaccurate in its detail and in addition there is no reference in the summing up to the denial of Bhaskar Pal of having made any such statement. In my view the learned Judge misdirected the jury in respects which I have mentioned earlier and the misdirection is such as to justify the convictions recorded against the accused being set aside, The result is that these convictions will be quashed. Under the provisions of Section 423(1)(a), Criminal P.C., the matter will be remitted to another Sessions Judge for a trial of the accused to be held in accordance with law.
5. I agree