1. The appellant was tried at Khulna by Mr. Simpson, the Additional Sessions Judge and a jury of seven convicted by their unanimous verdict of murdering Sita Nath Das on 15th June 1928, and on their plea for mercy sentenced to tranportation for life.
2. There is no doubt that Sita Nath Das was murdered ; the question is whether the appellant murdered him.
3. Sita Nath and one Manindra Nath were neighbouring shop-keepers at Kapilmuni. The appellant was Manindra's servant.
4. On the night of 15th June at about 9 p.m., Sitanath went to the shop of Kalibor Pramanik and there drank intoxicating liquor in the company of Manindra, Bansiram Pramanik, Mono Karmokar and Bhagoban Nath.
5. Sita Nath was going to Calcutta the next morning and had left his son-in-law Mono Mohan Das and his nephew Surendra Nath Das aged about 14 in his shop counting money which he needed to take with him.
6. He was not anxious to stay drinking, but Bansiram over-persuaded him and they all went on to the house of a prostitute named Susila where further drinking took place. At length Sita Nath escaped and set out for his shop. While on his way, some one coming out from underneath the thatch of a shop attacked him with a dagger, and after a short struggle in which Sita's left elbow and right wrist were injured, stabbed him in the abdomen, so severely that his entrails were exposed.
7. He shouted for help. In his dying declaration he says that he called for Upendra, Mojahar Gazi and others, held his hands to his wounded abdomen, and went to his shop. This was only a short distance away. Moni Mohun Das says that he heard Sita Nath shouting out that Nagen was killing him. Surendra. Nath Das says that he heard Sita shout out 'Moni, Suren come at once, Nagen is killing me.' They understood him to mean the appellant. They ran out, Surendra with a hurricane lantern was first and says that he saw Nagendra running, and called after him and saw him enter Manindra's shop. It was a dark night and there was no moon. Surendra in cross-examination said that he told these facts to Mojahar, the Union Board Clerk, but he admits that he told the doctor only that his uncle had been stabbed without mentioning any name. Surendra also says that immediately prior to hearing Sita Nath's shouts he had heard Nagendra reading aloud his part in a theatrical performance, he being a member of theatrical troupe. Mani and Surendra say that they found Sitanath standing and holding his abdomen. He did not speak and they brought him to his shop, and having laid him on a taktaposh gave the alarm. Mojaharali Gazi, the clerk of the Kapilmuni Union Board came with others. He asked Sitanath what had happened and he said that it was the doing of Manindra. He could not say any more. Surendra and Mani confirm this. The doctor was sent for and when he came, he asked Sita Nath how he had got into that condition. Sita Nath then said that he had been drinking with Manindra, Bhagaban, Bashiram and Mona Kumar and on his return had been stabbed at Manindra's shop. The doctor then asked him who had stabbed him, and he indicated that he was in too great pain to say any more. After attending to him and giving him a stimulating draught the doctor and Mojahar left, the others including a number of neighbours remained.
8. Then it is said that Sitanath for the first time named Nagendra as his assailant. Mojahar says this was 10 or 15 minutes after the doctor left before he, Mojahar, returned. Moni says that this was after the doctor had gone, but seems to suggest that it was in the presence of Mojahar. Surendra does not make it clear when first the appellant's name was mentioned, but in cross-examination he said that the doctor was not present, and he suggests that Mojahar was. Mojahar says that on his return Sitanath said that Nagendra had struck him with a dagger; whether this was the first time the name had been mentioned is not clear, but it is evident from Mojahar's and the doctor's evidence that the doctor was not present and Mojahar in his cross-examination says that he was recalled by Moni who told him that the wounded man named his assailant. He also says that the compounder told him that Sita had said to him (the compounder) that Naga had stabbed him, and immediately afterwards Sita himself mentioned Naga's name in the hearing of Mojahar. But Moni and Surendra in cross-examination said that Sitanath was unable to speak and therefore Mojahar asked him to write in the Union Board book. Mojahar says that he wrote the four names Manindra Bhagaban, Bashiram and Moni Kamar, and the words 'Naga had stabbed me with a dagger' and signed it in the presence of a number of witnesses who also signed their names. But Moni in cross-examination said that all that Sita Nath could write at first was the four names and that it was 45 minutes later, after being stimulated with medicine and upon further pressure by Mojahar to name his assailants that he first mentioned Naga and wrote about him in the book and signed it. Surendra in cross-examination also agreed with this story. The doctor's evidence is that having returned to his quarter Bonomali came and said that Sitanath was naming the person who stabbed him. He went, and Sita Nath told him that Naga stabbed him and Mojahar showed him the entries which had been made by Sita in the Union Board book. Mojahar's evidence is that Sita Nath said that Naga who lived with Manindra had stabbed him.
9. During all this commotion no one saw the appellant. But according to Mojahar, Manindra came to Sita's shop and stayed some time. The same night the Choukidar, the President and Dafadar were called and the Dafadar remained on guard over the house of Manindra, the south door of which was locked. But after he had called Nagendra twice the latter opened the door and sat at the door with the Dafadar. The next morning at dawn Mani went to lodge the first information report at the thana which was 8 miles away.
10. In this report Mani said that Manindra Nath and his servant had been quarrelling with Sita Nath, that Nagendra in collusion with Manindra had tried to kill him and that Sita Nath stated that Nagendra gave him hurt. No one else has suggested that any enmity existed between Nagendra and Sita Nath. Later in the morning the Dafadar arrested Nagendra, and found a dagger behind Manindra's shop just below an opening in the split bamboo wall. No human blood was found upon it. At about 10 O'clock Sita Nath was on the point of death and very weak, and his dying declaration was recorded by Mojahar, in the presence of others. Sita Nath was able to speak in whispers. The doctor asked questions and Mojahar wrote down what Sita Nath said ; then it was read over to him and he signed it. The Naib and the doctor both asked him how he recognized the person who stabbed him when the night was dark. This declaration contains a full and detailed story of the events leading up to Sita Nath's death. He states quite definitely that Nagendra stabbed him and that he had no difficulty in recognising him as the place was open. He also suggests that the motive was enmity between Manindra and himself over his foster daughter Noni, whom Manindra was keeping as his mistress. The story told by Nanibala and confirmed to some extent by Mani is very confused. She said that Sita Nath had been very kind to her and had brought her up as his foster daughter in his mistress Mono's house. He had her married to one Suklal Das. The latter was sent to jail and Mani returned to Sita Nath. Manindra enticed her away and concealed her. She lived with Manindra for some five months. Sita protested and this led to proceedings in Court. Then she went to live in one of Sita Nath's houses in the prostitute's quarter but she was not in the keeping of Sita Nath. Later Manindra, Banshiram and Satya again enticed her away and concealed her. A month or so before Sita Nath's death, Manindra entered her house. She refused to accede to his importunities and a scuffle ensued. Sita Nath took her to Khulna to file a complaint but Manindra met them on the way and the matter was compromised. A few days later Manindra went to her house again and said that if she did not obey him he would kill both her and Sita Nath.
11. Aswini Kumar Dey says that the night before his death Sita Nath was drinking at his shop with Manindra Bejoy, Mona Kamar, Kali Dasi, Nanibala and another prostitute. Moni says that Sita Nath was in the habit of borrowing money from Manindra and that he did so only a few days before his death. Sushila is another prostitute. She says that Sita Nath and Manindra were on good terms and often drank together at her house and wandered about in company. That Nanibala was in Manindra's keeping at the time of Sita Nath's murder but with this permission she also says that Satya Charan Das enticed Nani away from Manindra and kept her in Sushila's house. That in consequence Suklal prosecuted Satya and herself and Nani was taken away and returned to Manindra. The President speaks of another prosecution in which Suklal was complainant and Manindra, Rames Sikdar and Sitanath were defendants. This was just before Sita Nath's death. Kalibar mentions a quarrel between Sita Nath and Suklal over Nanibala. He says that he saw Suklal in the village 7 or 8 days before Sita Nath's death. Champa another prostitute who has become a Sadhu was brought from Calcutta by Sita Nath and lived as his mistress for a time. She came to her shop on the night of his death at 7 O'clock and again at 11 O'clock; according to her evidence Sita Nath said that as a result of Manindra, Bashiram, Mona Kamar and Bhoja had been the cause of his wound and that Nagendra actually struck him. He did not say definitely that the other four had any hand in the stabbing. Sita Nath had no ill-feeling with any one except with Manindra in connexion with Nanibala. He mentioned 20 or 25 times that Nagendra had stabbed him. No one suggested Nagendra's name to him. Krishnadhone Seal the compounder said in cross-examination that at first Sita Nath said that he was not able to say who had stabbed him, that it was in answer to his question that Sita Nath said that Nagendra was of the shop of Manindra and that he mentioned Nagendra's name some 20 minutes before he mentioned the names of the four others. Banshiram says that both he and Sita Nath were in an abnormal condition that night as a result of drink and could not walk steadily.
12. Abinash, Sub-Inspector of Police, says that Mojahar told him that Sita Nath cried out ' I am being murdered Mojahar come' and later said that he was not in a position to say who had stabbed him. Also that the doctor told him that when he questioned Sita Nath as to who had stabbed him he said that he could not fix him well. That is the evidence. Manindra and Nagendra were brought before the Magistrate. Manindra was discharged and Nagendra was committed to the Sessions on a charge of murder-his defence was a simple denial and he refused to explain anything.
13. Seventeen grounds of appeal were filed on his behalf, of which the majority have been abandoned during the discussion, The truth being that the learned advocate who has argued them has been at a loss to indicate any specific instance of misdirection. Having carefully read the evidence and the charge of the learned Judge I am not surprised.
14. According to the strict letter of the Code of Criminal Procedure and the decisions grafted upon it, the charge is eminently correct. The learned Judge has done all those things which he ought to have done and left undone all those things which he ought not to have done.
15. Neverthless I have no doubt that the result amounts to both misdirection and non-direction. The mere recital of the evidence when properly marshalled, is sufficient to show that this was a case in which it was absolutely essential that every particle of the evidence should have been carefully scrutiniszd and compared or contrasted and that substantial help and guidance should have been given to the jury to avoid any possibility of a miscarriage of justice. Something more is required than the strict letter of the law. The perfect Code is but a dull and lifeless treatise without the enlivening and enlightening spirit with which it must be quickened by those imperfect human agents whose duty it is to practise and expound it. It is not sufficient as the learned Judge has done, merely to re-count and repeatchronologically the evidence as it has been given in Court by the various witnesses. It is necessary to sift, and weigh and value the evidence. The final weighing is of course for the jury, but the Judge ought to see that all essential facts go into the scales of justice, and on the proper side of the balance. Further, facts must be marshalled by the Judge under separate heads and in distinct compartments, as they affect each separate incident in the story. Otherwise the evidence is to the jury simply a confused mass of discrepant, disconnected and contradictory details.
16. There must be some light and shade in every charge. Such matters for example as the darkness of the night, the drunken condition of Sita Nath, the uncertainty about the naming of his assailant, the inadequacy of any sufficient motive, the curious behaviour of Nagendra if guilty of murder, should have been brought into especial prominence and the jury's attention drawn and directed to the crucial points in the case, and not obfuscated, to use the learned Judge's own expression by a cloud of unnecessary detail, an exalted verbiage.
17. It is worse than a waste of time to spread fine language and lofty homilies before a jury, because not only do they fail to understand, but it confuses them. Nor will long and abstruse dissertations upon law enlighten them. This should be stated in the shortest and simplest terms and without reference to the numbers of acts and sections of which they havenever heard.
18. The effect of a medical man's evidence about a simple fracture on the mind of a layman is comparable to a learned discussion of the law on the mind of a jury.
19. That the crime amounted to murder was obvious and unquestioned and the law might have been disposed of in a very few words. The important issue in the case to and upon which the whole attention of the jury should have been directed and concentrated was the identity of the murderer. Yet page after page has been devoted to explaining the law about murder and culpable homicide and the distinctions and difficulties which surround those sections of the Indian Penal Code and. about the exact meaning of the word 'intention' which is described in the words:
we linger in the shadowy light and feed on the silent images which no eye but our own can gaze upon....These are the objective effects of the subjective processes, certain circumstances and certain lines of con-duct.
20. Such language is out of place and useless for its purpose. Nor was it necessary to implore the jury to concentrate their attention and address their minds to the solution of the puzzling enigma whether Sita Nath was dead or not and what he died of. It was obvious that nothing could have been more dead than this unfortunate man. Quite a large assembly of witnesses had seen him die, others had taken his dying declaration and medical witnesses had spoken both as to his mode of death, and his condition post-mortem.
21. To advise a jury about the necessity of spending their virgin efforts in a critical analysis of the obvious was to bring the law into ridicule and disrepute and to divert their attention from matters which are essential.
22. The learned Judge's abjuration to disregard and his anxious care to avoid suggesting even the faintest suspicion of his own opinion about the facts to the jury was entirely misconceived. A Judge (if he has got an opinion at all). ought to tell a jury what it is, so long as he makes it clear that they are at liberty to regard or disregard it as they please. A charge which succeeds in avoiding any expression of opinion must generally amount to a most colourless and unhelpful direction.
23. Under curious system which prevails in this country the responsible and. somewhat horrible power of life and death is given to Judges in the Mofusil who are often comparatively young and generally without any practical experience of the profession of the law.
24.The responsibility, therefore, which devolves upon this Court is far greater than that upon other Courts of criminal appeal.
25. It is imperative that we should be satisfied in every case and especially in murder cases that the Judge's charge was adequate. We are of opinion in this case that it was inadequate. Therefore, the conviction must be set aside and the case remitted for retrial.
26. I agree that the appeal should be allowed and the case should be retried.