1. In this case the accused, a European British subject, was placed on his trial before the Deputy Commissioner of Cachar on a charge of having voluntarily caused grievous hurt by means of a revolver to one Gangadhar Goala. The trial was by a Jury of five Europeans and resulted in the acquittal of the accused. The Local Government having destined to prefer an appeal, the case comes before us on an application in revision made on behalf of the complainant, Gangadhar.
2. This application is made substantially on the ground that the trial has been vitiated by serious irregularities in procedure, and by the failure of the presiding Magistrate to sum up the case to the Jury in any adequate manner.
3. The accused, one R.W.L. Reed, is the Assistant Manager of a Tea Garden named Khoreal. Gangadhar is a cooly in that garden and has a daughter named Hira, some 13 or 14 years of age. It fa said that on the 18th of May the accused made immoral proposals to this girl Hira, and also approached the father on the subject. The case for the prosecution then is, that having failed in his advances, eventually on the 25th of May at about 10 P.M. he went in person to the house of Gangadhar to call the girl. A disturbance ensued and the accused used his revolver, firing first at Hira's brother Nepal and then, on the arrival of the father, at the father, hitting him on the right arm and then on the chest.
4. The accused has made no statement, but as gathered from the deposition of the Manager, Mr. Grant, and the cross examination of other witnesses, the defense apparently is that on the night in question after dinner the accused taking the revolver went after a barking deer, and crossing a swamp, lost it in the thick jungle beyond. He was then near the coolie lines and the coolies finding him there, not understanding his language (he had arrived from England only two months before) and possibly misapprehending his purpose, set upon him with sticks and stones. In order to disperse them he used his revolver, filing in the air and upon the ground. One or more of his shots must have hit Gangadhar.
5. That the trial was characterised by grave irregularities cannot be gainsaid.
6. In the case of three Police witnesses, the evidence given by them in the course of the preliminary inquiry was read over to them and treated as their examination in chief on the first part thereof in the Trial Court.
7. A map or plan prepared by the investigating Superintendent of Police was not admitted in evidence on the ground that it had not been drawn to stale. The Jury were thus left without the assistance a map would have given them in their appreciation of the evidence.
8. Of the witnesses examined two are (l) Mr. Grant, the Manager of the garden living in the same bungalow with the accused, and (2) Kali Kumar Das, the garden clerk. The Public Prosecutor declined to treat these persons as witnesses for the prosecution. Apparently on the application of the defence they were then sailed by the Court, and no question having been put by the Court were cross-examined first by the prosecution, and next by the defence. The examination in this manner of two witnesses (and more particularly the examination of the Manager), who were essentially defence witnesses, was highly improper. In the course of the preliminary enquiry, when examined before the framing of the charge, the accused stated: 'I am not guilty. I will make a statement later.' In the Trial Court there was no further examination of the accused, under the provisions of Section 289 and Section 342 of the Criminal Procedure Code, though the present case is eminently one in which an opportunity of making a statement should have been given to the accused.
9. Lastly, we come to the charge to the Jury. The record of the heads of the charge begins thus: 'Matters of law laid down for the guidance of the Jury, the definition of hurt and grievous hurt and the applicability of sections concerning right of private defence.' Then follows a statement of the case for the prosecution and of the case for the defense practically as already set out in this judgment. The charge then concludes: 'You will have to consider whether the absurdities, contradictions and discrepancies in the prosecution evidence are such as would arise naturally or are due to the fact that that story is a fabrication.'
10. It is impossible from this reacrd to say how the law regarding the right of private defense was explained to the Jury. There was, it appears, no reference to the provisions of Section 80 of the Indian Penal Code, or of Section 105 of the Evidence Act. How the evidence was summed up, if at all, does not appear : we find, for instance, no reference to the medical evidence in respect of the injuries on the complainant, and we can only regard the concluding sentence as advocacy and not as a judicial utterance.
11. The absence of any proper charge to the Jury and the irregularities we have already noticed, constrain us to the conclusion that the trial of the accused was conducted in an atmosphere of prejudice, and that there has been in effect no trial at all.
12. We have been taken over the whole of the evidence. Upon its value, we do not wish to make any comment. It is sufficient to say that there is evidence proper for the dispassionate consideration of a Judge and Jury. We must, therefore, set aside the acquittal of the accused and direct that he be committed to this Court for trial.