1. The petitioner Kazem Sardar was placed on his trial along with his son Moslem for an offence of arson in respect of a hut belonging to one Narendra Haldar. Moslem is about 14 years of age. The allegation against him was that he actually set fire to the hut and the allegation against Kazem was that it was at his instance that Moslem did so. The trial was held by an Assistant Sessions Judge of Alipore with the aid of a jury and resulted in a verdict of guilty by a majority of 3 to 2. The learned Judge accepted the verdict and sentenced the petitioner to rigorous imprisonment for two years and also a fine of Rs. 250/- in default rigorous imprisonment for six months more. It was also directed that if the amount of line was realised, half of it was to be paid to the complainant as compensation. In the case of Moslem, the learned Judge took into account his extreme youth as also the fact that he had acted under the orders of his father and so he passed on him only a sentence of detention till the rising of the Court.
2. Against his conviction and sentence Kazem Sardar appealed to the Sessions Judge, Alipore, but the appeal was dismissed summarily. Thereupon the present Rule was obtained. The State did not appear to oppose the Rule, but the complainant appeared to oppose it.
3. In order to appreciate the grounds which were urged on behalf of the petitioner, it is necessary to state a few facts. The prosecution case was that Kazem Sardar became strongly desirous of acquiring a plot of homestead land, but the owner of the land, one Nilambar, settled it with Narendra Haldar, much to Kazem's 'chagrin'. To the west of this homestead land there is another, plot of land, about which also there was some dispute between Kazem and Nilambar. Narendra Haldar built a hut on the homestead land, already referred to, and began to live on it. The relations between Kazem and Nilambar had at one time been friendly, but because of these land disputes they had recently become strained to the point of a bitter quarrel. There had been litigation with respect to the homestead land, and there were two suits, one of which had resulted in Nilambar's favour and another in favour of Kazem or his benamdar and both were under appeal. These facts, according to the prosecution, formed the background of the occurrence which took place on 9-9-1949. On that day, so it was alleged, Kazem went to the plot of land lying to the west of the homestead land with a mob of about 100 or 125 men, variously armed, and carriedout an operation of 'Khopi' which has been explained as re transplantation of paddy seedings. After finishing that job, the mob marched back and while they were returning, Kazem halted near the hut of Narendra and ordered his son Moslem to set fire to it. Moslem did so, with the aid of a bundle of burning straw which he was carrying or which was handed over to him by his father. At the time Narendra was not at home, having gone to a 'hat', but a son of his, one Adrista, a boy of about 10 or 12 years, was at home. He had come back from school during the midday break for his meal and had not gone back and at the time the hut was set on fire, ho was seated in the varandah, engaged in conversation with three co-villagers. The thatch of the hut immediately caught fire, one thatch being completely burnt out and another partially gutted. Some of the articles inside the hut, but not very many, were damaged. On that very day Adrista lodged a First Information at the Police Station and thereupon Police Investigation started. Within a few days, however, Narendra began to think that the Police were not doing all that they should have done and he filed a petition of complaint on 24-9-1949. The police submitted a final report on the 20th of October and the case then proceeded on the basis of the petition of complaint. In due course Kazem and Moslem were committed to the Court of Session with the result I have already stated.
4. As regards the First Information, it is necessary to state a few more facts. It was lodged, as I have already stated, by Adrista, but it begins by saying that Narendra was among the men with whom Adrista had gone to the Police Station. In the petition of complaint filed a fortnight later, Narendra himself stated that he was present at the time the First Information was lodged. Subsequently, however, for reasons best known to them, Narendra and his son began both to prevaricate, and the son, after stating in the trial Court that Narendra came to the Police Station when the Inspector was recording the First Information, stated before the Sessions Court that Narendra came after the First Information had been recorded. Narendra himself in his evidence before the Sessions Court stated that he did not enter the Police Station at all.
5. As regards the contents of the First Information Report, it is noticeable that almost as much of it is devoted to elaborate details of the litigation that was going on between Nilambar and Kazem as to the actual occurrence. As regards the latter, Adrista only mentions Kazem and his son as the persons who had gone to the land lying to the west for re-transplantation of paddy and as the men who had come near the hut at the time it was set on fire. The time at which the incident took place was given as 2-30 or 3 p.m. Nothing was said about Kazem having gone with a mob of armed men to the land lying to the west and of returning with the same mob and of setting fire to the house in the course of the return journey. These details were introduced a fortnight later in the petition of complaint which Narendra filed in Court. Then for the first time the skeleton account given by Adrista in the First Information Report was padded over with a considerable mass of incriminating matter.
6. In support of this Rule Mr. Mukherjee urged four grounds, three of which can be disposed of at once. His first contention was that the learned Judge, in course of his charge to the Jury, had stated that if any particular witness was found to have spoken an untruth on a particular point, they should not reject the whole of his evidence but should scrutinise it minutely and accept only so much of it as tallied with the circumstances and the probabilities of the case and other evidence. I cannot imagine what possible objection one could take to that statement to the Jury. What the learned Judge meant obviously was that if a particular witness was found to have spoken an untruth with regard to one matter, the rest of his evidence did not necessarily become liable to be thrown out at once but was still to be judged on its merits. I do not think any exception can be taken to this statement of the law. In any event, this statement occurred in the general discourse with which the learned Judge prefaced his charge on the actual facts of the occurrence and I am not prepared to say that the misdirection, even if there was any, was such as influenced the verdict of the Jury unfavourably to the accused or caused any failure of justice.
7. The next ground urged by Mr. Mukherjee was that the learned Judge did not stop the Public Prosecutor when he started making allegations against the Police. With regard to this ground again, I do not see what the learned Judge could actually have done. The Public Prosecutor made certain allegations against the Police, presumably in the course of his address to the Jury. The learned Judge, when dealing with that matter, gave careful directions so that the Jury might not be misled into thinking that there was some kind of collusion between the Police and the accused and that if the Police had not done their duty, it was because the accused had influenced them. He specifically and expressly directed the Jury to eschew all suspicion from their minds, and the passage to which Mr. Mukherjee took objection was rather strongly in favour of the accused and likely to do him good than the contrary.
8. The third objection urged was that the learned Judge ought not to have referred to the litigation between the parties, at any event, ought not to have mentioned the result of the civil suits, collected from oral evidence, in the absence of the decrees which had not been produced. Once again, I fail to see any substance in the objection of Mr. Mukherjee, The allegation of the prosecution was that the accused had set fire to the house, because of the enmity existing between him and Narendra and Narendra's landlord Nilambar. The litigation was the expression of that enmity and I cannot see how the learned Judge acted improperly in referring to the fact of the litigation. As regards the result of the two suits, there again, the learned Judge merely stated the fact that the suits had ended in a particular way and it was not alleged by Mr. Mukherjee that the statement he made was a misstatement. Inasmuch as the prosecution had alleged the litigation and the enmity arising therefrom as the reason which had moved the accused to commit the offence alleged against them, reference to that litigation was, in my judgment, inevitable. This ground urged by Mr. Mukherjee must also fail.
9. The fourth ground urged by Mr. Mukherjee, however, requires serious consideration. As I have stated already, what was given in theFirst Information Report was an extremely thin story and by itself hardly credible. The story put forward was that Kazem and his son, man and boy, had openly retransplanted paddy in one of the fields belonging to Nilambar and thereafter had openly come in broad daylight at about 3 p.m. to Narendra's hut and set fire to it in the presence of witnesses. If the 'prosecution story remained, as it was put in the First Information Report, it is not difficult to imagine what its fate would have been at the hands of any Jury. But subsequently care was taken to supplement the account by an elaborate story of a march of armed men to the land lying to the west of the hut, the exultant return of those men after completing the re-transplantation and the setting fire to the house while they were returning triumphantly and still in a mood of exultation. The effect of the addition of that story was certainly to make credible what would otherwise be almost incredible and to bestow at least a semblance of probability on what was otherwise an improbable story. Mr. Mukherjee's complaint was that in his charge to the Jury, the learned Judge had not referred to this discrepancy between the First Information Report and the petition of complaint. It was pointed to him that the learned Judge had in fact mentioned the matter and Mr. Mukherjee then urged that, in any event, he had not placed that discrepancy before the Jury in the manner in which he ought to have done it. In my opinion, this criticism is well-founded. As I have stated already, the importance of the supplementary story which was introduced by the petition of complaint cannot be overestimated. It goes to the very root of the credibility of the prosecution case and it was certainly the duty of the learned Judge to remind the Jury forcibly of the belated introduction of details which only made the prosecution story credible. It is true that he has referred to the omission of any reference to the armed mob in the First Information Report, but he has done so only by way of making a bald statement of facts. The manner in which he put it before the July was not, in my opinion, calculated to bring home to their minds the importance of the discrepancy between a First Information Report and the petition of complaint by which the supplementary story was introduced. They were not directed as they ought to have been, that it was important to consider whether the story of the expedition to the paddy field was not a deliberate invention, thought of much later, for the reason that, without it, the original story might not receive any credence at all and that if the Jury found that it was after thought, they would then have to consider to what condition the prosecution case was reduced and whether they would still believe it. It was certainly not the duty of the Judge to press upon the Jury any particular view of the facts, nor was it his duty to over emphasise any of the elements of the particular story or any of the defects in it. But it was certainly his duty to help the Jury in making a proper arrangement of the facts in their minds in accordance with their relative importance so that they might view the incidents in their true perspective and draw therefrom the inference that commended itself to them. That is the task of the Judge, to furnish skilled direction to laymen in the handling and assessment of facts. In my opinion in that task the learnedJudge failed, although his charge in other respects was an admirable one.
10. In my opinion, the omission of the learned Judge to draw the particular attention of the Jury to the importance of the new story introduced by the petition of complaint and its bearing on the credibility or otherwise of the original story given in the First Information Report was a misdirection which affected the verdict of the Jury. The case, as the learned Judge himself says, was not free from difficulty. His charge gives ample indication that he was feeling considerably oppressed by the various improbabilities of the case, and it is important to remember that the verdict of the Jury was only a majority verdict, a verdict of 3 to 2. In such a case, where the verdict of the Jury was precariously poised on a very delicate balance, any omission to draw attention to some essential fact which might have tilted the balance on the other side, must be treated as a material misdirection. In my opinion such a misdirection occurred in the present case and in consequence thereof the verdict of the Jury cannot be upheld.
11. Having regard to the evidence as a whole, I am also of opinion that not only has the misdirection 'affected the verdict of the Jury, but it has also caused failure of justice in the sense that the accused did not get a just and proper trial under a proper direction from the Judge. The conviction and sentence of the petitioner cannot, therefore, be upheld. In the circumstances of the case I do not think that this is a fit case in which a retrial should be ordered. The Rule is accordingly made absolute. The conviction and sentence of the petitioner are set aside and he is acquitted. He will be discharged from his bail bond and will be set at liberty forthwith. The fine, if paid, will be refunded.
S.R. Das Gupta, J.
12. I agree.