1. In this case the appellants were charged with two others under Sub-section 364 and 302/120-B, I. P. C. 'Two of the accused were acquitted by the jury and the others, who are the present appellants, were found guilty under both sections by a majority of 6 to 3. This is a case in which, though it cannot be said that there is a actual misdirection of the jury, the Judge has failed almost entirely to give the jury the help and guidance which they are entitled to expect from the Judge, and which it is his duty to give. The charge consists of a long, rambling repetition of the evidence, without any attempt to marshall the facts under appropriate heads, or to assist the jury to sift and weigh the evidence, so that they will be in a position to understand which are the really important parts of the evidence and which are of secondary importance. Especially, the learned Judge has failed altogether to deal with the case of each of the accused separately, that is to say, he has omitted to point out to the jury exactly the evidence against each of the accused separately. Almost the last words of his; charge were that they would consider the case of each accused separately. That however is not sufficient, It is his duty to consider the case of each accused separately and to describe to the jury the evidence against each of the accused. It is of course necessary in every criminal case for the Judge carefully, properly and efficiently to charge the jury, but if there is any case in which it is more important that this duty should properly be performed, it is in a case of murder, and especially, in this case was great care necessary on the part of the Judge, because it was a case in which the police had originally reported against any proceedings being taken, and after a Naraji petition had been filed, the case was inquired into by a Deputy Magistrate who dismissed it under Section 203, Criminal P. C. Thereupon the complainant moved the Sessions Judge and it was not until the third attempt made by the complainant that he succeeded in getting the case sent back for a fresh inquiry out of which the present prosecution resulted.
2. In addition to failing to give any assistance to the jury, the learned Judge handicapped them by going into unnecessary details with regard to certain aspects of the case, which were really of very little importance. Yet he told the jury that it was necessary for them to come to a finding with regard to these secondary matters. With regard to the evidence generally, all that the learned Judge did was to repeat shortly what each witness had said, and then to tell the jury again and again ad-nauseum that it was for them to consider whether they would believe or disbelieve that witness, without attempting to guide or help them in considering what facts there were in his evidence which would lead them either to one conclusion or the other.
3. The facts shortly were that Kazi Sarip Hossain was a Collectorate Amin and he was the complainant. He had purchased a property and a rent decree against the accused Nabi Khan and had purchased Nabi Khan's homestead in execution and attached his moveables. There had been resistance to the peon who went to attach the goods, and Nabi Khan, Mofez, Ful Khan and others were implicated in a criminal case for resisting the peon, and Nabi Khan, Mofez, Chinta Haran Das and one Kasemali had threatened the complainant. This Kasemali seems to be intended for the accused Hashemali, though there is no explanation in the charge about this discrepancy. The complainant's son, Momin, gave evidence against these accused in the criminal case. After stating these facts to the jury, the Judge then went on to describe certain letters written by one Abdul Kader to the complainant, in which he stated that Nabi Khan, Mofezaddi, Khorshed and Chintaharan, the accused, and others were conspiring to kill him. These letters were admissible only in corroboration under Section 157 of the statement of Abdul Kader, that some of the accused had offered him money to murder the complainant. Nowhere in the charge has the Judge explained this to the jury. He has left them to imagine that this was substantive evidence of a threat by these accused to murder the complainant, or substantive evidence of a conspiracy on their part to murder him. This, in itself, was a non-direction which amounted to misdirection.
4. On 7th December 1933, the complainant's son, Momin, went out to buy some provisions and his father became anxious about him when he did not return by nightfall. The complainant and his sons wont out and searched in the neighbourhood and discovered that Momin had been to the shop and purchased the things he was sent to get. This was at about 8 o'clock at night. When near Ful Khan's house the complainant heard whispers in the houses of Hashem and Ful Khan and, in the light of the room, he saw all the accused in the yard, carrying lejas and lathis. He also heard a groaning sound coming from Hashem's ghar. The learned Judge, throughout the charge, repeatedly told the jury that the complainant heard the voice of his son Momin groaning in Hashem's bari. There is no evidence to show that it was Momin groaning. It was a mere inference to be drawn from other evidence. But the statement repeated to the jury that it was actually Momin who was heard groaning, was undoubtedly sufficient to mislead the jury upon this part of the evidence. After that the learned Judge went into a somewhat rambling account of the attempts of the complainant to get the police to take the matter up, and a great deal of unnecessary detail was gone into by him in describing the various steps by which the complainant eventually got the police to take up the enquiry.
5. There was a great deal of evidence to show that the police were very negligent over the matter, and their negligence may have been one of the causes of the death of this unfortunate man, because if it be true that Momin was groaning when the complainant was outside Ful Khan's house, there might have been time to save him if the police had taken action immediately. But this was not a, matter for the jury to enquire into. The learned Judge however told them that they would have to decide whether the police had been negligent in the matter, a question which it was quite unnecessary for them to consider, except perhaps, upon the point whether the complainant was guilty of any delay in making a complaint. On the next morning, one of the accused, Chinta Haran Das, made a complaint at the thana that there had been a burglary in his house and that he had stabed a thief with a dao. On the following Sunday morning, a dead body was found floating in the Kalijira river, and later some blood was found near Hashemali's bhita, and two legs were found amputated at the knee near Kashemali's bhita, which were identified by the complainant as those of his son, Momin. The learned Judge then went on to say that these accused were parties to a criminal conspiracy, meaning all the seven accused. Immediately afterwards, he stated the evidence in the case shortly and said that Kashemali and Apserali saw these-accused throwing a gamcha around Momin's neck and dragging him towards Hashem's house. Presumably, he meant all the seven accused.
6. This Kashemali was a witness, but no attempt was made to draw a distinction between Kashemali, mentioned as an accused, and Kashemali, the witness. Another witness saw Momin being assaulted in the house of Hashemali in the evening. The Judge does not say by whom the assault was made. One Baseraddi saw the accused Tomejuddin and Mofez carrying a dead body near Majid, and Amjadali saw these accused, (presumably, the Judge meant Tomejuddin and Mofez, carrying a dead body in a boat and going towards Raipura. All this kind of description appears to have been very carelessly done, and lacks the precision which is most necessary in a criminal case and, especially, in a case of murder. It leaves me, and probably left the jury, in considerable doubt about which of the accused were referred to, whenever the Judge mentioned the word 'accused', without making any reference to specific accused persons. It is unnecessary for me to describe the case in further detail. I have indicated sufficient to show that the learned Judge failed properly to direct the jury. There was however considerable evidence upon which if a proper direction had been given and, if believed by the jury, these men or some of them might have been convicted under these charges. In these circumstances, the only appropriate course is to set aside the convictions and send the case back for retrial.
7. I agree.