1. The appellants Sunil Chandra Roy and Satyendra Chandra Roy were convicted of offences which arose out of an incident which resulted in the death of Col. S. C. Mitra. These two appellants are brothers and they were charged alongwith a third brother Amalesh Chandra Roy who was acquitted.
2. Sunil Chandra Roy was charged with the murder of Col. S. C. Mitra and was further charged with causing simple hurt to Mrs. Sati Mitra. The appellant Satyendra Chandra Roy was charged jointly with his brother Amalesh Chandra Roy with causing simple hurt to Nirmal Kumar Mitra and all three were further charged with criminal trespass.
3. As I have stated Amalesh Chandra Roy was acquitted on both the charges made against him. Sunil Chandra Roy was acquitted of murder and of causing hurt to Mrs. Sati Mitra but was found guilty of causing grievous hurt under Section 325 of the Indian Penal Code. He was further found guilty of criminal trespass.
4. Satyendra Chandra Roy was found guilty of causing simple hurt 'to Nirmal Kumar Mitra and both Sunil Chandra Roy and Satyendra Chandra Roy were found guilty of criminal trespass. Sunil Chandra Roy was sentenced under Section 325 of the Indian Penal Code to two years' rigorous imprisonment and under Section 447 of the Indian Penal Code to one month's rigorous imprisonment, the sentences to run concurrently. Satyendra Chandra Roy was sentenced under Section 323 of the Indian Penal Code to pay a fine of Rs. 350/- and in default of payment to undergo rigorous imprisonment for one month and under Section 447 of the Indian Penal Code to pay a fine of Rs. 150/- and in default of payment to undergo rigorous imprisonment for fifteen days.
5. The charges arose out of an incident which occurred at a house known as 18 Bondel Road on the early morning of 11-8-1950. Living at 18 Bondel Road was Nirmal Kumar Mitra who was the chief witness for the prosecution. He was the owner of his house and also owned the adjoining house, 17 Bondel Road. The appellants and their brother Amalesh. Chandra Roy were tenants of the second-floor of 17 Bondel Road. According to the prosecution there was considerable ill feeling between the tenants and their landlord. Proceedings had taken place in the Court of the Rent Controller relating to rent and allegations had been made by the tenants that sufficient water was not being supplied to them by the landlord.
6. Somewhere about 6-15 a.m. on August 11, 1950, the appellants and their brother, it is alleged, began shouting abuses from 17 Bondel Road. Col. Mitra who was the father of Nirmal Kumar Mitra, the appellants' landlord, had come to stay with his son the evening before. These shouts, it is said, caused Col. Mitra to go outside 18 Bondel Road. The three Roy brothers it is said came into the compound and an altercation occurred between them and Col. Mitra. Col. Mitra's son Nirmal went out to see what the trouble was and it is alleged that he was seized round the waist by Amalesh Chandra Roy and assaulted by the appellant Satyendra Chandra Roy. Col. Mitra it is said expostulated whereupon Sunil, it is alleged, produced some kind of a rod from his clothing and proceeded to attack Col. Mitra. He hit him on the head with a rod and also, it is said, struck him on the side of the head one or more blows with his fist. Col. Mitra fell on the ground and the two appellants and their brother made good their escape. People rushed to Col. Mitra but found that he was dead.
7. According to the prosecution a telephone message had been sent to the police at the Karaya Police Station when the altercation took place between the Roy Brothers and Col. Mitra. Later, the police and others came to the scene and shortly afterwards the three Roy brothers were arrested along with certain other people.
8. The body of Col. Mitra was sent for post mortem examination and it was discovered that he had some cuts on the face and also his skull had been fractured. The cause of death was shock due to these injuries.
9. Eventually the three Roy brothers were committed to stand their trial in the Court of Sessions and they were tried upon the charges which I have already stated by a learned Additional Sessions Judge sitting with a jury.
10. The jury unanimously acquitted Amalesh Chandra Roy. They unanimously acquitted Sunil Chandra Roy under Section 302 of the Indian Penal Code, but by a majority of 6 to 3 found him guilty of an offence under Section 325 of the Indian Penal Code. He was found not guilty under Section 323 of the Indian Penal Code upon the charge of assaulting Mrs. Sati Mitra. By a majority of 7 to 2 Sunil was also found guilty under Section 447 of the Indian Penal Code.
11. Satyendra Chandra Roy was found guilty under Section 323 of the Indian Penal Code by a majority of 7 to 2 and was found guilty under Section 447 of the Indian Penal Code by a similar majority.
12. The learned Additional Sessions Judge accepted these verdicts of guilty, convicted the appellants and sentenced them as I have indicated. In his view however the unanimous acquittal of Amalesh Chandra Roy was perverse' and against the weight of evidence, and he has made a reference to this Court under Section 307 of the Code of Criminal Procedure recommending that the verdict of not guilty against Amalesh be set aside and that he should be convicted under Sections 323 and 447 of the Indian Penal Code and sentenced accordingly.
13. The State Government being of opinion that the sentences imposed on the appellants Sunil Chandra Roy and Satyendra Chandra Roy were inadequate have applied in revision for enhancement of the sentences. The application also included Amalesh Chandra Roy, but quite-obviously that was an error because the latter had been acquitted and no question of enhancing any sentence passed on him could possibly arise.
14. It will be convenient to dispose of the appeal, the reference under Section 307 of the Code of Criminal Procedure and the petition for enhancement of sentences in this one judgment.
15. I have already set out the salient facts of this case as presented by the prosecution and it will be seen that it was a simple case. The issues of fact involved were in no way complicated. But the case seems to have been converted into a cause celebre. The trial before the learned Additional Sessions Judge and the jury commenced on April 23, 1951 and continued without a break until May 31, 1951. The Public Prosecutor began his address to the jury after the luncheon adjourment on May 16, 1951 and did not conclude his address until May 21, 1951, May 20 being a Sunday with no sitting. It seems astounding that it took the learned Public Prosecutor this length of time to perform his duty, that is of presenting the facts of the case fairly to the jury. It is no part of a Public Prosecutor's duty to attempt to obtain a conviction at all costs. His clear duty is to present to the Jury the plain facts of the case without any bias or without any undue emphasis on any aspect of the case. Having put the facts fairly before the jury, he must leave it to the jury to arrive at their conclusion. The facts of the present case could be stated to the jury in the matter of a few minutes and all that the Public Prosecutor would have to do beyond that was to deal with the probabilities and with the inherent defects, if any, in the defence case. Yet, as I have said, this gentleman proceeded to speak to the jury from after the luncheon adjournment on May 16 to May 19 and again for a considerable portion of May 21.
16. Counsel for the defence commenced his address on May 21, 1951 and continued until May 26. There were no sittings on May 27 and he did not conclude his address until May 28. How he could possibly have taken all this time in addressing a jury on a simple case of this kind is entirely beyond my understanding. It seems that the two Counsel did not address the jury as that phrase is ordinarily understood. The learned Additional Sessions Judge continually refers in his charge to the arguments of Counsel. Counsel in a criminal case addressing a jury should not argue. They must address the jury on what they think are the salient and important points in the case. However, they proceeded to address the jury at an inordinate length, as I have indicated.
17. The matter does not rest there because the learned Judge commenced to charge the jury on May 28, 1951 and continued with his charge until noon of May 31, 1951. What surprises me about this case is that after such a spate of oratory and after this charge of inordinate length the jury were able to arrive at any con-elusion whatsoever. They must have been completely muddled and the facts of a simple case have been made about as difficult as the facts of any case could possibly be made. It seems to me that a new trial in this case would be essential, if there were no other grounds beyond the fact that the jury must have been completely muddled by the course which this case took. The case, as I have said, was a simple one and should not have lasted beyond a few days. Yet it took over five weeks, the Court sitting from day to day including Saturdays.
18. The case for the defence was that Col. Mitra had not been attacked by Sunil. It was suggested that the Colonel who was a man of sixtyeight was suffering from senile changes and that he became over excited and had some form of seizure & dropped on the ground. The injuries to his face and head were said to have been caused by the Sail which would in the circumstances have been a fairly heavy one.
19. The appellants denied that they had attacked either Nirmal Kumar Mitra or Mrs. Sati Mitra and in fact it was suggested that the two appellants were not on the scene at all. Amalesh, it is said, came to 18 Bondel Road to protest about the water supply and he was assaulted by the servants at the instance of Nirmal. He got away and according to the defence neither of the appellants came on to the scene.
20. It will be seen therefore that the issues in the case were simple. Did the appellants and their brother Amalesh come to 18 Bondel Road, and if they did, did they commit the assaults alleged or any of them? Lastly, if Col. Mitra was assaulted were his injuries caused by the assault or were they caused by a fall as suggested by the defence?
21. The only difficult point in the case was whether the injuries found on Colonel Mitra were caused by blows or by a fall and on that question two doctors called by the prosecution differed. Dr. Majumdar who conducted the Pst mortem examination seemed to have thought that the injuries were caused by a fall. Whereas Dr. Kabir Hussain who was brought into-the case at a later stage to consider the post mortem report and the findings, was of opinion that the probabilities were In favour of the injuries being caused by direct violence. He appears to have thought that, the injuries to the face could have been caused by some flexible rod. whereas the fracture of the skull could have been caused by fist blows.
22. On this medical aspect of the case both Counsel and the Judge dwelt at inordinate length and the charge contains repeated quotations from text books on Medical Jurisprudence. The learned Judge also refers to the evidence and in his charge, as submitted to this Court no attempt is made in many places to explain the scientific terms used by the witnesses or to explain the scientific terms used by those text books writers to which I have referred. In fact portions of the charge dealing with the medical aspect were quite unintelligible to my learned brother and myself who are laymen with no knowledge of anatomy and particularly anatomy of the brain and heart. Of course it is impossible to say what language the learned Judge used in charging the jury because he charged them in Bengali. Further, it appears to me he must have told the jury considerably more than is contained in the heads of charge submitted to this Court. The heads of charge run to 68 pages, but that must be a somewhat compressed precis of what he told the jury over a number of days.
23. A charge of this length is an extremely vulnerable document and it is practically impossible for a Judge to discuss the facts and the law of a simple case of this kind for the length of time which this learned Judge took without misdirecting the jury in some way or another.
24. Mr. Das Gupta who appeared for Sunil Chandra Roy and Mr. Santosh Kumar Basu who appeared for Satyendra Chandra Roy have suggested a number of misdirections in this charge. Some of them it is urged are serious. We are compelled to arrive at the same view and much as this Court deplores the waste of public time and money it is essential, we think, in the interests of justice that this case be reheard, as the misdirections to which I will refer were serious and therefore must be held to vitiate the verdict.
25. It appears to me that there were four alternatives in this case relating to the death of Col. Mitra. All the injuries, namely, those on the face and the fracture of the skull might have been due to direct violence on the part of Sunil Chandra Roy. In the second place, they may have been due to a fall caused by temporary unconsciousness brought about by a state of undue excitement. The third alternative is that Sunil Chandra Roy may have struck the deceased on the face with this rod causing the deceased to fall and the fall may have caused the fracture of the skull. The fourth alternative is that Sunil Chandra Roy may have hit the Colonel on the side of the head, fractured his skull causing him to fall and thus sustain the injuries on his face.
26. If Sunil Chandra Roy caused all the injuries, then he might been guilty under Sections 302, 304 or Section 325 of the Indian Penal Code. If all these injuries were caused by a fall due to excitement then clearly Sunil Chandra Roy was guilty of no offence at all. If the fractures were caused by direct violence but the facial injuries were caused by a fall, then of course Sunil Chandra Roy might have been convicted under any of the three sections already indicated. However, if the facial injuries only were caused by a direct blow and the fractures were caused by a fall, Sunil Chandra Roy might only be liable under Section 323 of the Indian Penal Code, namely, for voluntarily causing hurt. Though grievous hurt may be caused in an assault, it does not at all follow that the person who assaulted is guilty of causing grievous hurt under Section 325 of the Indian Penal Code. A person is only liable under Section 325 of the Indian Penal Code if he voluntarily causes grievous hurt and voluntarily causing hurt according to Section 322 of the Code means if he intends to cause grievous hurt or knew himself to be likely to cause such hurt.
27. Now a man striking another with a rod might have no intention of causing grievous hurt and it might be said that he would have no knowledge that he was likely to cause grievous hurt. In such a case if grievous hurt was caused owing to a fall after the blow, the person guilty of assault might well not be liable for causing grievous hurt. On the other hand,; if the nature of the blow was such that the jury could attribute to the person committing the assault knowledge that he was likely as at result of the blow to cause grievous hurt, then the conviction under Section 325 might be sustained.
28. However, it is clear that on the facts of this case a possible verdict, if the jury accepted any part of the evidence for the prosecution, was a verdict of guilty under Section 323. But the jury in this very lengthy charge, which as I have said took over a number of days, were told nothing as to the possibility of an offence under Section 323 being established. The learned Judge in considerable detail charged the jury as to what amounted to murder under Section 302, and then went on to say that if the jury were not satisfied that it was a case of murder, they might be satisfied that it was a case of culpable homicide not amounting to murder, that is offence under Section 304 of the Indian Penal Code. He explained the two classes of offences under Section 304 of the Indian Penal Code in great detail and then told the jury that if they were not satisfied that an offence under Section 304 had been committed, they would still have to consider whether an offence of causing grievous hurt under Section 325 of the Indian Penal Code, had been committed. He then explained to the jury in detail what an offence under Section 304 amounted to. But there he stopped. The jury were therefore left with four alternatives, either to convict under. Section 302 or Section 304 or Section 325 of the Indian Penal Code or acquit the appellants altogether. The jury were never directed as to what they should do, if they had arrived at the conclusion that Sunil Chandra Roy had been guilty of assault; but had only inflicted the facial injuries. That was quite a possible result of the deliberations of the jury. But if they arrived at that result, the charge only gave them the alternative of convicting under Section 325 or acquitting altogether. It appears to me that in a case of this kind the failure to direct the jury that a conviction under Section 323 instead of under Section 325 of the Indian Penal Code was possible amounts to a very serious misdirection. The jury might have been satisfied that Sunil Chandra Roy had attacked the Colonel with a rod in which case they would have been extremely loath to acquit him altogether. Yet they might not have been satisfied that this attack with a rod caused the fractures and indeed the suggestion of the prosecution was that the fractures were not caused by a blow from the rod but by some fist blows. The jury might have come to the conclusion that fist blows on the skull would not be very likely to cause a fracture because there is nothing to suggest that Colonel Mitra had what is known as an egg shell skull, that is one easily. fractured by a light blow. It appears to me that the jury were not therefore given the proper alternatives in this case and were deprived of the opportunity of returning a verdict on a lesser charge if they had thought that only facial injuries had been caused by Sunil Chandra Roy. This failure to charge the jury on Section 323 of the Indian Penal Code is enough to vitiate the charge.
29. The matter however does not rest there because the learned Judge, I think, failed to put to the jury correctly the defence case as to the cause of the fall of Colonel Mitra. As I have said, the defence suggested that Colonel Mitra due to excitement became unconscious & fell and the suggestion was supported on a number of grounds. It was said that he might have had a coronary thrombosis which would of course cause him to fall and die instantaneously. It seems clear however from the post mortem report that Colonel Mitra did not have coronary thrombosis and that disposed of that suggestion of the defence. The defence further suggested that Col. Mitra due to excitement might have had a serious cerebral haemorrhage or what is popularly known as a stroke or a seizure and that he fell dead or practically dead as a result of such a seizure. The post mortem report and the medical evidence generally might be said to have been against that possibility. But the defence advanced a third possibility, namely, of temporary unconsciousness caused by either anaemia of the brain or some cardiac condition. They did not Suggest that such a temporary state of unconsciousness would be serious. But what they suggested was that it would be sufficient to cause a man to fall and that the fall might have had serious results, such as head injuries and such like. Dr. Majumdar was of opinion that the general condition of Col. Mitra was such that excitement might have induced this state of temporary unconsciousness or what the ordinary man would possibly describe as a very slight stroke or possibly a fainting fit. Dr. Kabir Hussain also admitted that if the arteries were diseased such was a possibility, and according to Dr. Majumdar who conducted the post mortem report the arteries did show signs of arterio sclae-rosis, that is, general hardening of the same. The learned Judge in his charge at page 319 of the paper book does refer to the suggestion of a temporary attack of unconsciousness, but he does so in a most involved way. He mentions that Dr. Majumdar on being questioned, and the question he refers to is an extremely long and involved one, agreed that this might have been a case of Col. Mitra being rendered temporarily unconscious. The learned Judge then mentions that Dr. Kabir Hussain was put the same question and that he in the lower Court had stated that such could not occur unless the arteries were diseased. However, immediately afterwards the learned Judge observes :
'The learned Public Prosecutor contends that thrombosis means clotting of blood inside the lumen of the blood vessels, and that, as Dr. I. B. Majumdar does not state that he found any clotting of blood inside the lumen of the coronary or cerebro-vascular arteries, the defence contention that Col. Mitra had any coronary or cerebro-vascular spasm, that he collapsed and dropped down due to an attack of coronary thrombosis or cerebro-vascular thrombosis must be discarded.'
30. He then adds:
'Gentlemen, from the above facts & circumstances, including the medical evidence, you are to consider if Colonel Mitra was suffering from high blood pressure and heart disease and if. while altercating excitedly with the people standing outside the locked up iron gate, Col. Mitra had any attack of coronary or cerebro-vascular spasm and if he collapsed and dropped down unconscious due to coronary thrombosis or cerebro-vascular thrombosis as contended by' the learned defence lawyer.'
31. In other words, he asks the jury to consider whether as contended by the defence lawyer the Colonel dropped down unconscious due to coronary thrombosis or cerebro-vascular thrombosis, that is due to a blockage of the coronary artery or due to' a serious haemorrhage on the brain. As I have said, the defence put forward a third possibility and although the learned Judge had referred to that earlier what he eventually asked the jury to consider is whether or not he was rendered unconscious by one of two very serious conditions. Those two conditions might not have existed, but he might still have been rendered unconscious by the third condition. But that he does not leave to the jury. As such an enormous amount of time was given to the medical aspect in this case and as such great importance appears to have been attached to it, this failure to put the medical aspect, as put forward by the defence, properly before the jury might have had very serious consequences.
32. Mr. Das Gupta also contended that the learned Judge had not pointed out to the jury that there were indications in this case that the case for the prosecution had been added to and strengthened as the case advanced. It is true that certain additions were made and these are pointed out by the learned Judge in dealing with separate items of evidence. Mr. Das Gupta's complaint is that he did not warn the jury that these additions indicated that the case for the prosecution was being added to and trimmed in order to obtain a conviction. For example, Mr. Das Gupta pointed out that when this incident began Nirmal Kumar Mitra telephoned the police at Karaya. In that telephone message he never stated that the Roy brothers were there, but according to the police merely stated that some men were there. Nirmal, it is true, says that he told the police that the Roy brothers were there, but the General Diary entry supports the evidence of the police that no such statement was made. It was put to witnesses in cross-examination that when they were interrogated by the police under Section 161 of the Code of Criminal Procedure they made no reference whatsoever to fist blows. Yet when they came to give evidence they all mentioned fist blows on the side of Colonel Mitra's head. The suggestion is that Dr. Kabir Hussain when he was brought into the case about two months after the occurrence first suggested that the fracture of the skull might have been caused by fist blows and that it is said caused the witnesses to change their version and attribute fist blows to Sunil.
33. Further, it is said that in their earlier statements witnesses stated that the incident took place between the gate of 18 Bondel Road and a letter box. But when they came to give evidence they stated that the incident took place 7 ft. or so inside the lawn in front of the house. What is suggested is that if the incident took place between the gate and the letter box there were plenty of sharp projections nearby upon which Col. Mitra could have fallen. This was realised, so it is said, by the prosecution witnesses and the actual scene of the assault was therefore shitted to safer ground for the prosecution, namely, a lawn consisting of grass and soft earth.
34. There was also evidence that immediately after this occurrence a message was sent to Dr. Lalit Mitra by Nirmal. Dr. Lalit Mitra was Col. Mitra's second son and the only thing he was told in this message was that his father had dropped down unconscious. Counsel for the appellants complains that Dr. Lalit Mitra was never called, though Nirmal admitted that that is all he said on the telephone.
35. This conduct of the prosecution does suggest that the case was being improved and that damaging evidence was being kept out. I think the learned Judge should possibly have warned the jury to take into account all these incidents and to ask themselves whether it really meant that a false case was being bolstered up. However, as I have said the learned Judge did deal with each of these incidents separately and therefore I do not think that there is very much force in Mr. Das Gupta's criticism of this point.
36. There is however another very serious misdirection or non-direction and that relates to Dr. Kabir Hussain's evidence. As I have stated earlier, Dr. Kabir Hussain was called by the prosecution to consider the post mortem report and findings of Dr. Majumdar and he came into the case a considerable time after this incident. This medical gentleman gave it as his opinion that the injuries were not caused by a fall and that the facial injuries were probably caused by a blow from a flexible rod and the fracture of the skull was caused by a fist blow or blows. He stated that his opinion was stren-thened by this fact, namely, that there was nothing in the compound which could have caused these injuries, if Col. Mitra had fallen as suggested by the defence. He found no projections or anything of that kind which might have caused the facial injuries in particular and the fracture of the skull. There can be no doubt that the absence of any projections or anything of this kind in the ground of the compound is a very material fact. But what the learned Judge entirely overlooked was that Dr. Kabir Hussain did not examine this compound until over two months after the incident. The jury should have been warned that the state of the compound when Dr. Kabir Hussain examined it might, have been very different from its state when this incident occurred, particularly when it is remembered that throughout the compound was in the possession o.f the main prosecution witness. I am not suggesting that anything was done to the compound, but projections could have been removed and the jury should have been told that when considering the value of Dr. Kabir Hussain's evidence they would have to take into account the fact that he could give no evidence as to the state of the compound at the time of the incident and that all he could say was that over two months after the incident he saw nothing at the scene of the occurrence which could have caused these injuries. In the absence of that warning the Jury may, for aught I know have given undue weight to the opinion of Dr. Kabir Hussain. Had that warning been given their view might have been different. On the other hand it may not. However, it is impossible to say that this failure to warn them that Dr. Kabir Hussain only saw the scene of the incident two months or so afterwards might not have influenced the minds of the jury.
37. The matter however does not rest there because the learned Judge was guilty of admitting evidence Which was clearly inadmissible and that is in spite of repeated warning of this Court.
38. On May 16, the jury apparently went to view the scene of the occurrence and on their return the Public Prosecutor, tendered the evidence given in the Court of the committing Magistrate by Nirmal Kumar Mitra, Mrs. Re-nuka Mahanti, who was a neighbour, and Puspa Kumar Pal, one of the investigating officers, under the provisions of Section 288 of the Code C Criminal Procedure. The order sheet me-lely shows that these depositions were put in tinder Section 288 at the instance of the Public Prosecutor.
39. Section 288 of the Code of Criminal Procedure provides:
'The evidence of a witness duly recorded in the presence of the accused under Chapter XVIII may, in the discretion of the presiding Judge, if such witness is produced and examined, be treated as evidence in the case for all purposes subject to the provisions of the Indian Evidence Act.'
These depositions if accepted and put in evidence in the Court of Sessions became pieces of substantive evidence. In other words, the statements of these witnesses in the Court of the committing Magistrate became substantive evidence in the Court of Sessions. It will be seen that this section is discretionary and time and again this Court has stressed that the discretion should be exercised with great caution and very sparingly. The statements cannot be put in merely for the purposes of contradiction or corroboration. If they are admissible and put in as evidence, they are put in for all purposes as pieces of substantive evidence.
40. A Bench of which I was a member had to consider this very matter in the comparatively recent case of 'GOPAL KHAITAN v. KING, AIR (36) 1949 Cal 597, in which it was held that the prosecution has no right to put in the deposition of a witness taken in the Court of the committing Magistrate under Section 288 of the Code ef Criminal Procedure & the deposition can only be admitted if the presiding Judge in the exercise of his discretion permits the deposition to go in as part of the evidence. Where the deposition was put in merely because the Public Prosecutor required that it; should be put in evidence and there is nothing to show that the Judge ever considered the matter or ever thought that he had to decide whether the deposition should be admitted or not there was no exercise of discretion by the Judge at all. It was further held that the discretion must be exercised judicially and further must be exercised very sparingly and very carefully and for very good reasons. The prosecution must make a strong case for its admission before the Judge should allow it to be admitted.
41. As I have stated the order sheet shows that these depositions which include the deposition of the principal prosecution witness and of the investigating officer in the Court of the committing Magistrate, were put in at the instance of the Public Prosecutor. The . learned. Judge does not state why the Public Prosecutor wanted them to put in, or why he allowed the Public Prosecutor to put in these depositions as evidence.. The learned Judge in spite of the serious warning issued in 'GOPAL KHAJ-TAN'S CASE', AIR (36) 1949 Cal 597, and that case only followed earlier cases, admitted, these depositions merely at the request of the Public Prosecutor. If the Public Prosecutor wanted these depositions in evidence in order to corroborate, as I imagine he must have, then clearly they should never have been admitted. Where a witness in the Court of Sessions has resiled from his earlier deposition in the Court of the Magistrate and in the view of the Judge is obviously prevaricating in the Court of Sessions there may be ground for admission of his previous deposition in the Court of Sessions under Section 288 of the Code of Criminal Procedure. But there is no suggestion in this case that Nirmal Mitra was prevaricating and going against the case for the prosecution. The defence might have suggested. that Nirmal Mitra was not telling the whole truth. But there is no suggestion that he had resiled, from his earlier deposition and further how could it be said that the investigating officer had resiled from anything that he had said earlier. Nevertheless, these depositions were put in without demur. Once they are put in the Jury may think that they afford abundant corroboration of the evidence given by these witnesses in the Court of Sessions. But that is not a reason why they should be admitted under Section 288. The admission 31 the depositions of these three witnesses might have had very serious consequences.
42. Further I note that the depositions of certain other prosecution witnesses were put in as required by the defence, and again I must point out that the learned Judge should not have allowed these depositions to have been put in under Section 288. It may be that the defence now cannot have any real complaint because the evidence was put in at their instance; nevertheless I must point out that a Judge should not allow, inadmissible evidence to be given on behalf, of the defence merely because the defence was requesting him to admit such evidence. Presumably Counsel for the defence, put these depositions in for the the purposes of contradiction. The depositions may have shown some small contradictions. But what Counsel for the defence entirely overlooked was that when these depositions were put in, they were put in for all purposes as the section says and therefore were made substantive evidence. The section in terms says that if these documents are put in they must be treated as evidence in the case for all purposes subject to the provisions of the Indian Evidence Act. The defence should be warned that putting in these depositions under Section 288 might have- serious consequences that would far outweigh any possible contradictions in the evidence for the prosecution which they might show.
43. We are not bound to set aside a verdict where inadmissible evidence has been adduced. Section 167 of the Indian Evidence Act provides that if there is sufficient evidence left to maintain a conviction after eliminating the inadmissible evidence, the Court might still convict. However in jury trials where inadmissible evidence which may have had considerable effect on the mind of the Jury has been introduced it may be necessary and often is necessary to set aside the verdict and order a retrial; because who can say how the jury would have decided a case if the inadmissible evidence had been excluded. Here the admission of these depositions in the Court below was an invitation to the jury to come to the conclusion that Nirmal Mitra, for example, was a truthful witness because his evidence in the Court of Sessions was practically identical with the evidence which he had already given in the Court of the committing Magistrate. I have already said that the deposition cannot be put in for that purpose. That being so, it appears to me that this also is a serious defect in the trial.
44. I must also refer to an incident which occurred whilst the Public Prosecutor was addressing the jury. It will be remembered that the prosecution suggested that the appellant Sunil Roy struck Colonel Mitra with a rod which the former produced from his clothing. It seems to have been agreed by the medical witnesses that the facial injuries could not have been caused by a rigid rod and Dr. Kabir Hus-sain appears to have thought that a rod if used must have been a- flexible one. No rod, flexible or otherwise, was found at the scene of the occurrence? or in the possession of the Roy brothers.
45. The Public Prosecutor however during the course of his speech to the jury suddenly produced a small flexible rod from his clothing and proceeded to demonstrate how such facial injuries could be caused by such a rod. The rod was handed to the jury who were invited to examine it.
46. This flexible rod was not an exhibit in. the case and had, according to the Public Prosecutor, been obtained after great difficulty though what he intended to convey by that observation is difficult to understand.
47. It appears to me that such use should never have been made of an article which was not an exhibit and which had not been put to any witness. No witness had stated that the rod produced by Counsel was similar to the rod which Sunil was said to have used and Dr. Kabir Hussain who suggested that a flexible rod might cause the facial injuries was never shown this rod in the witness box and asked whether a similar rod could have caused the injuries on the face of the deceased.
48. Demonstrating this rod was therefore highly improper and the defence protested and filed a petition setting out the facts which are not denied. The jury might well have thought that a similar rod must have been used though there was no evidence to that effect. No mention whatsoever is made in the charge of this somewhat extraordinary incident & no warning was given to the jury which might have prevented them from being misled. The learns ed Judge should not have permitted this demonstration'1 as there was nothing to show that the rod which the Public Prosecutor produced was similar to that alleged to have been used by Sunil. Any suggestion to that effect by the Public Prosecutor was highly improper and may have had far reaching effects.
49. This incident suggests that presiding Judges at jury trials do not exercise that degree of control over the proceedings which they should. Learned Judges must see to it that inothing but matters in evidence are dealt with in addresses to the jury.
50. I do not think it is necessary to consider the charge any further because the defects that I have pointed out are sufficient in my view to vitiate the verdict. They are misdirections and non-directions on points of substance and may well have influenced the Jury in arriving at the conclusion they did. That being so the verdict of guilty against Sunil Chanra Roy under Section 325 and Section 447 of the Indian Penal Code must be set aside.
51. With regard to Satyendra Chandra Roy I have been somewhat troubled. Most of the misdirections concerned the case of Sunil. But the inadmissible evidence which I have pointed out which was admitted under Section 288 also concerned Satyendra. Further it appears to me that any misdirection in the case of Sunil would be bound to have its re- , percussions in the case of Satyendra. If Sunil was found guilty then there was a far greater chance of Satyendra being found guilty; and that being so if the verdict against Sunil Chandra Roy must be set aside, it must also be set aside as against Satyendra.
52. As the verdict of guilty against these two appellants must be set aside, the question arises as to what this Court should do. In the case of 'ABDUL RAHIM v. EMPEROR', 73 Ind App 77 (P C), their Lordships of the Privy Council pointed out that the appellate Courts in India had greater powers than the Courts, for example, in England. Having come to the conclusion that the verdict was vitiated by misdirection the Court was not baund to order a retrial. If the Court was satisfied that the misdirection did not in fact occasion a failure of justice, then the Court could refuse to interfere with the conviction under Section 537 of the Code of Criminal Procedure.
53. This however is not a case to my mind in which we can say' categorically that these misdirections have not occasioned a failure of justice. They may or they may not have. The case is not so crystal clear that we could say that even if the jury had been properly directed they would have been bound to arrive at the same result. Properly directed the jury might in this case have arrived at a quite different result and that being so, it appears to me that we cannot take the course which the Court took in the case of 'ABDUL RAHIM v. EMPEROR', 73 Ind App 77 (PC) and maintain the verdict and conviction in spite of misdirections.
54. On the other hand, we do not think that this is a case in which we should forthwith acquit. There is material worthy for the consideration of the jury and even in spite of the course this case took, I still think that, the issues in this case are pre-eminently issues for decision by a jury. To decide this case on depositions in cold hard print is to my mind practically impossible. A jury would have the advantage of seeing the witnesses and studying their demeanour and in a case of this kind much would depend upon the impression which witnesses would give to a tribunal when they are in the witness box.
55. I do not wish to express any opinion whatsoever upon the merits of this case. All I wish to say is that this is a case in which there are materials worthy of a jury's consideration and that being so, I feel that this Court has no alternative but to order a retrial. 1 have arrived at this conclusion with the greatest reluctance because I fully realise that a great amount of public time and money has already been wasted. However the interests of Justice demand that this case be reheard and we must therefore order a retrial.
56. Mr. Sankar Banerjee on behalf of the State contended that if we order a retrial we should have to order a retrial upon all the charges preferred against these appellants. As I have said Sunil Chandra Roy was originally charged with murder under Section 302 of the Indian Penal Code but was unanimously acquitted by the jury. Mr. Banerjee's argument, is that once we set aside the conviction of Sunil under Sections 325 and 447 of the Indian Penal Code the whole matter is at large and that he must again be tried for murder upon which he has been acquitted. Reliance has been placed upon two decisions of this Court which undoubtedly support the. view urged by the Senior Standing Counsel. The first case is 'KRISHNA DHAN v. QUEEN EMPRESS', 22 Cal 377, in which it was held that the word 'verdict' as used in Cl. (d) of Section 423 of the Code of Criminal Procedure in cases where an accused person is tried for various offences arising out of a single act or series of acts, as contemplated by Section 236, means the entire verdict on all the charges, and is not limited to the verdict on a particular charge upon which an accused may have been convicted and appealed against.
57. The same view was taken comparatively recently by another Bench of this Court in the case of 'KAMALA KANTA v. EMPEROR,', 41. Cal W N. 1112, in which it was held that the High Court, on setting aside the verdict of the jury in an appeal by the accused, has power to direct his retrial on all the charges originally framed, including those of which he was acquitted, at any rate when the latter do not relate to distinct offences constituted by distinct acts. Henderson, J, in delivering the judgment of the Bench at page .1115 observed:
'Now it might be argued that in an appeal from a conviction the only matter before the Court is the charge upon which the appellant has been convicted; but to give the words this rather artificial interpretation would unnecessarily narrow the scope of the words 'order him to be retried by a Court of competent jurisdiction.' It is only commonsense that, when once the conviction and sentence have been set aside and a retrial ordered, the whole matter should be reopened.'
58. With very great respect to this very experienced learned Judge I find .it rather difficult to accept this proposition. Why should it be only commonsense when once a conviction for causing grievous hurt had been set aside that the accused should be retried for murder upon which he had already been unanimously acquitted? I venture to think that whatever it is, it certainly is not commonsense.
59. I am aware of the fact that these two cases are binding upon us though Lort-Williams,. J. in another Bench decision disagreed with them. If I felt that I had to follow these cases I should have unhesitatingly referred the question to a Full Bench because it appears to me to be most unjust that in a case of this kind where Sunil Chandra Roy was unanimously acquitted on a charge of murder that he should fee retried on that charge merely because he had succeeded in showing that his conviction for a far lesser offence was not justified. Why should that be a ground for reopening the acquittal on the charge of murder? It is to be observed that the State Government have not appealed against the verdict of acquittal on the charge of murder. If they had, they would have had to satisfy the Court that there were good grounds for setting aside the verdict of acquittal. Nevertheless, if these cases are lightly decided even if there are no grounds at all for setting aside the acquittal for murder, the acquittal would have to be set aside because the accused had shown very good grounds for setting aside the conviction for a much lesser offence.
60. However it appears to me that even if I have to regard these cases as rightly decided the Court has a discretion in the matter. The Court may order a retrial and I think that involves that the Court should direct what matter has to be retried. It seems to me that all that we can order in this case even if we could order more, is that Sunil Chandra Roy should again be tried upon a charge under Section 325 of the Indian Penal Code and under Section 447 of the Indian Penal Code, and that Satyendra Chandra Roy should be retried on the charges under Section 323 and Section 447 of the Indian Penal Code.
61. The question now arises where these-two persons should be retried. As I have already pointed out, the case at Alipore had proceeded in the most leisurely fashion and I am not inclined to allow this case to go back for a trial similar to the last one. This case, I think, could be tried expeditiously by a High Court Judge and a jury sitting in High Court Sessions and was direct that the retrial should take place at the next High Court Sessions before a learned Judge of this Court sitting with a jury. I am conscious of the fact that it is often said that costs incurred by cases at High Court Sessions are greater than the costs incurred in Sessions Courts such as Alipore. But I feel sure that this case will be disposed of quickly in this High Court and the costs of about a month's hearing will be obviated altogether. That being so, we direct that the rehearing take place at the next Sessions of the High Court.
62. As We have set aside the convictions and sentences no question of enhancement can therefore arise and the Rule asking for enhancement is accordingly discharged.
63. There is only one other matter and that is the reference made by the learned Additional Sessions Judge under Section 307 of the Code of Criminal Procedure. In his view the verdict of not guilty as against Amalesh Chandra Roy was perverse and should be set aside.
64. The charges against Amalesh in the first place were not of a very serious nature. He was charged with assaulting Nirmal Kumar Mitra along with his brother Satyendra Chandra Roy. It is to be observed that no blow is specifically attributed to Amalesh. All it is said is that he seized Nirmal round the waist whilst Satyendra assaulted Nirmal. Later it is said that both assaulted, but the actual blows are again attributed to Satyendra. The injuries to Nirmal were not very serious and I should in any. case be rather reluctant to interfere with a verdict in such a matter.
65. It is quite clear that we cannot interfere under Section 307 because we might have arrived at a conclusion different from that arrived at by a jury. Before this Court can interfere under Section 307 of the Code of Criminal Procedure we must' be satisfied that the verdict of the jury was perverse and that it is essential in the interests of justice that we should interfere.
66. Dealing with this section Sir John'Beau-ment who delivered the judgment of their Lordships of the Privy Council in 'RAMANUGRAH SINGH v. KING-EMPEROR', 50 Cal W N 906 (P C) observed at p. 909:
'Under Sub Section (1) two conditions are required to justify a reference. The first, that the Judge must disagree with the verdict of the jury, calls for no comment, since it is obviously the foundation for any reference. The -second, that the Judge must be 'clearly of opinion that it is necessary for the ends of justice to submit the case' is important, and in their Lordships' opinion provides a key to the interpretation of the section. The legislature no doubt realised that the introduction of trial by jury in the Mofussil would be experimental, and might lead to miscarriage of justice through jurors, in their ignorance and inexperience, returning erroneous verdicts. Their Lordships think that the section was intended to guard against this danger, and not to enable the Sessions Judge and the High Court to deprive jurors, acting properly within their powers, of the right to determine the facts conferred upon them by the Code. If the jury have reached a conclusion upon the evidence which a reasonable body of men might reach, it is not necessary for the ends of justice that the Sessions Judge should refer the case to the High Court merely because he himself would have reached a different conclusion upon the facts, since he is not the tribunal to determine the facts. He must go further than that and be of opinion that the verdict is one which no reasonable body of men could have reached upon the evidence.'
67. Later at page 909 Sir John Beaumont points out that the Courts in India had differed in their view of Section 307. Some Courts had held that the 'High Court will only interfere with the verdict of the jury if it finds the verdict 'perverse, in the sense of being unreasonable', 'manifestly wrong' or 'against the weight of evidence.'' Sir John Beaumont then refers to the other class of cases in which the High Courts had held that they must act upon their own view of the facts in a reference and that a High Court was not bound to accept the opinion of a jury even if such opinion was not shown to be unreasonable. Sir John Beaumont concludes:
'For the reasons already given their Lordships agree in substance with the reasoning in the former line of cases, but they would emphasise that the requirements of the ends of justice must be the determining factor both for the Sessions Judge in making a reference and for the High Court in disposing of it.'
68. It is clear therefore that we should not interfere in this case unless we are satisfied that nine reasonable men could not have arrived at the conclusion at which the jury arrived in Amalesh's case.
69. As I have said in the first place no blows were specifically attributed to Amaiesh and the jury might have come to the conclusion that he played a very minor if any part at all in this affair, whatever it was. Further Amalesh in his statement had stated that he had come to the compound of 18 Bondel Road to complain about the shortage of water and according to him he was assaulted by the servants of 18 Bondel Road at the instance of Nirmal and there can be no doubt that Amalesh had suffered certain injuries, trivial as they might be. Somebody had assaulted Amalesh. The case for the prosecution undoubtedly was that any injuries which he suffered were either self-inflicted or had been caused in a scuffle with Nirmal. On the other hand his statement was that he had been assaulted by Nirmal or his servants. The jury might have thought that there was a good deal in Amalesh's version. In any event they might have come to the conclusion that they could not say with certainty which of , the versions was true, in which case they were bound to acquit Amalesh.
70. It is urged that the Jury should have rejected Amalesh's explanation because according to him the other brother never came to the compound. That portion of his statement may or may not be false but the jury might well have come to the conclusion that the portion exonerating his brother might have been false and made to protect them, whereas the statement about himself being assaulted might well be true. Having regard to the fact that he had injuries on his person, the jury might have come to the conclusion that his own explanation of how these injuries were received was true or that such explanation may have raised, a doubt in their minds which could not be said to be an unreasonable doubt and, as I have stated, if the Jury had any reasonable doubt they were bound to acquit. I do not think it can be said that the verdict of the jury with regard to Amalesh is so perverse that the interests of justice demand, that, we should set it aside. In one sense it might be said that the interests of justice demand that any erroneous verdict or finding should be set aside. But their Lordships, have stressed that the powers of this Court under Section 307 are only to be exercised when the conscience of the Court is shocked by the perversity of the jury's verdict. If that verdict can be justified and if the Court is unable to say that nine reasonable men could not have arrived at it, then the verdict must stand. That being so we reject this reference and affirm the acquittal of Amalesh Chandra Roy on both the charges.
71. The result therefore is that the appeal of Sunil Chandra Roy and Satyendra Chandra Roy is allowed. Their convictions and sentences are set aside and we direct their retrial upon the charges on which they were convicted at the next Sessions of the High Court. The petition of the State for enhancement is discharged and the Reference of the learned Additional Sessions Judge is rejected.
72. Amalesh Chandra Roy's bail bond is discharged and he need not surrender to his bail.
73. Sunil Chandra Roy and Satyendra Chandra Roy will continue on the same bail until the disposal of the case at the next High Court Sessions.
74. At the request of the' appellants who desire a little time to obtain money for the expenses of the retrial, the case should be listed in the lower half of the calendar for the next Sessions.
75. I agree.