1. This is an appeal from a conviction by the Sessions Judge of Burdwan in a case tried with the aid of a jury. We can, therefore, interfere only on the ground of material misdirection.
2. In paragraphs 9 and 10 of his charge, the learned Sessions Judge seems to have told the jury that the trial before them was supplementary to one which had already been held, and he informed them of the course and the result of the former trial. It appears that on that occasion the jury were for acquittal, and the Judge referred the matter to this Court with the result that this Court concurred with the Judge and convicted the persons then on their trial. And having brought this to the jury's notice, the Judge proceeded to warn them that they must consider carefully whether there was any reason for coming to a different conclusion on the point of possession from that arrived at by this Court and himself on the former occasion.
3. It seems to us that the learned Sessions Judge ought to have referred to the previous trial only, if at all, in order to warn the jury that they were not bound by its result but were, on the contrary, bound to form an independent opinion on the evidence then before them; prima facie, therefore, there was, we think, a misdirection. But the remarks to which we take exception, appear to have been directed exclusively to the question of possession, and we find that no such question arose at the present trial. The defence of the appellants now before us was an alibi; and they never pleaded, much less discharged the onus of proving, that their possession of the land on which the riot took place, had been interfered with, and that they had acted in the exercise of the right of private defence. Although, then, the learned Judge was, in our opinion, wrong in addressing the jury on the lines indicated above, the misdirection can hardly, in the circumstances, be said to have occasioned a failure of justice, and we think it unnecessary to order re-trial. The evidence on the record shows that the case was a perfectly simple and clear one, and that there was ample evidence to support the finding of the jury, the learned Judge's charge was in all other respects unexceptionable; and the sentence seem appropriate and by no means too severe.
4. The result is that this appeal is dismissed.