1. In this case the three appellants were charged with abduction and sentenced to long terms of imprisonment. The woman abducted was aged about 22 and was the wife of a chaukidar. Her husband was away from time to time and she lived with her brother-in law who was an invalid. The case for the prosecution was that on one night the accused with a number of others entered the hut, dragged her out and took her away. They moved her from place to place and eventually took her to a prostitute. There seems to be some suggestion that she was to be sold for purposes of prostitution. While with this woman, she came across a daffadar to whom she told her story and eventually she was brought home.
2. The case for the defence was that two of the accused were not there at all and that the first accused Kamiraddi had gone with her at her own wish, because she was not happy with her husband. The case for the defence is confirmed in rather a startling manner by the diary of a daroga to whom the daffadar took her. In that it is stated that she went away of her own free will, because she was unhappy in her husband's house. This evidence, if believed, obviously destroys the case for the prosecution. We have been handicapped in dealing with this appeal, because a considerable part of the copy of charge of the Assistant Sessions Judge of Faridpur is unintelligible. The time and energies of this Court cannot be wasted by having to interpret into English charges which, according to the rules, are supposed to be already in that language. Many of the charges which we have to deal with now-a-days are written in such imperfect English that it is only with great difficulty that an Englishman can understand them. This, in my opinion, is a particularly bad case. Literally I have not been able to understand either the case for the prosecution or the defence. Greater care must be taken to see that the copy of the Judge's charge is written in understandable English so that we may be able to ascertain without puzzling ourselves what was the meaning of the Judge which he intended to convey to the jury. Further, the copy must be split up into sentences and paragraphs and properly punctuated, to enable one to read it easily. This copy does not offend so much as many in that way, because some attempt has been made to divide it into paragraphs. But some of those paragraphs are of such inordinate length that it is almost impossible without a good deal of trouble to grasp what the paragraph is intended to convey. The charge itself suffers from various defects. In a sense it is better than some charges which come before us: in another sense it is worse.
3. The learned Judge has not followed any system or sequence or plan, which not only makes the charge difficult to understand when read, but must have made it still more difficult for a jury to understand when it was spoken to them, without the possibility of pausing to consider what had been said-pauses such as are possible for us to make when reading the record. Some sequence must be adopted by a Judge in charging a jury. As was said by one learned Judge, any sort of sequence will do, preferably chronological, but even alphabetical sequence is better than none at all. In this charge the learned Judge has gone forward with the story, and then broken off, and then retraced his steps in a way so confusing that his charge cannot have been of much assistance to the jury. However he has triumphed over these difficulties by summing up so strongly in favour of the prosecution that the jury took only three minutes to consider their verdict. As I have said before, there is nothing wrong in the Judge expressing his own opinion to the jury. On the contrary, if he has got an opinion, he ought to express it. But he must tell the jury that they are the sole judges of fact, that they must form their own opinion independently, after a consideration of the facts and circumstances in the case, and that they need not accept or follow his opinion but must follow their own. It is not sufficient for the Judge to give them this warning in a formal way either at the beginning or at the end of the charge. The warning must be given at the moment when he has forcibly or otherwise expressed his own opinion to the jury. There is nothing wrong in a Judge forming a strong opinion of the case either of the prosecution or of the defence, and as strongly expressing it to the jury. But he ought not to form such a strong opinion, nor express it, when the evidence is such that any reasonable person ought to be in reasonable doubt about which story they ought to believe. In our opinion, this is such a case. On the evidence of the entry in the Daroga's diary, strongly corroborating and confirming the story for the defence, it was most dangerous for the Judge to express himself strongly one way or the other, and whatever opinion he happened to form, he ought studiously to have left the decision to the jury and not to have tried to influence them in favour of a verdict of 'guilty'.
4. Beyond these imperfections in the charge there are many places where the Judge's treatment of the law and the evidence has not been at all happy. His statement about the burden of proof, if read carefully, is fairly accurate, but it is put in such a confused way that I am doubtful whether the jury realized that the onus of proof lies always upon the prosecution and cannot be shifted from the prosecution. He says that 'the burden of proof is mainly on the prosecution' and that 'the burden of proof is divided in this case.' Strictly speaking, both these statements are inaccurate, although what he really meant was that when the jury were considering the alibi set up by the defence, they must remember that the burden of proving that lay upon the defence, which, of course, was true. The learned Judge says that he has explained Sections 362 and 366 to the jury. This is not sufficient. He must set down in his charge what, in fact, he said to the jury about the law. Otherwise, we are not placed in such a position as to be able to decide whether his statement of the law was correct or not. There is no necessity to draw the attention of the jury to the question what 'proof' consists of, or to read to them sections from the Evidence Act. So long as he explains to the jury the law affecting the charges with which they have to deal it is sufficient. In many places the learned Judge has sought to discount the evidence which went in favour of the accused. This he has done by considering arguments which seem to have been drawn from the speeches of the Public Prosecutor and which were not based on any evidence before the Court. Further, he has dogmatically asserted with regard to certain of the charges made by the defence that they cannot stand, and that the jury must not place any faith in them, and remarks of that description. This again is not the proper way to charge them. He must leave the matter to the jury though he may express his own opinion about it.
5. Again, when there was a question between the petition of complaint and the evidence given at the trial, it was pointed out by the learned Judge that in the latter certain witnesses said that lathis and then daos had been used, whereas they found no place in the petition of complaint, and he directed the jury that this did not affect the case at all. On the contrary, it was a most important piece of evidence. The petition of complaint having been put in evidence either to corroborate or to contradict the witness, the discrepancy between the subsequent evidence and the petition of complaint on this important point was obviously not to be brushed aside by the statement of the Judge, and he ought to have left it to the jury with a careful direction about how they ought to deal with a matter of that kind. Again in dealing with the evidence of Monoranjan for the prosecution and Siddique Ahmed for the defence, he says dogmatically that
neither of them can be relied on. It is safe to discard their evidence altogether. But in discarding the evidence of Monoranjan there is nothing to afiect the case for the prosecution.
6. All these are matters for the jury, and not for the Judge categorically to assert. On a further question arising as to whether certain witnesses ought to have been called or not, the learned Judge failed to direct the jury properly on the question of the presumption which may arise under Section 114. Instead of giving them a proper direction, he con-fused them by referring to a certain case decided by this Court, the facts of which he did not take the trouble to explain to the jury. Finally, the most important evidence was the diary of the Daroga, which is disposed of by the learned Judge suggesting to the jury that they may well get rid of it by applying certain 'hints,' What the 'hints' were it is impossible to ascertain from the charge. We understand from the learned advocates appearing in this case that it is intended to refer to 'bribes' given to the police. There is not a shred of evidence to support this suggestion. The learned Judge has no right to make suggestions of this kind which are absolutely without foundation upon the record. The charge, for the reasons which I have mentioned, is altogether unsatisfactory, and in face of the evidence given by the daroga, it is unsafe to allow the conviction to stand. We accordingly set aside the conviction and direct a retrial of the case by the Sessions Judge. The appellant will continue on the same bail as he is on now, pending further orders by the Sessions Judge,
7. I agree.