1. This appeal is by one Tenaram Mondal, who has been convicted tinder Section 304, Indian Penal Code, and sentenced to five years' rigorous imprisonment.
2. He was tried with the aid of the Jury, and the Jury returned a unanimous verdict of guilty under the second portion of Section 304. The Judge, agreeing with the Jury, convicted the appellant and sentenced him as stated above.
3. The appeal to this Court, therefore, is upon the ground of misdirection to the Jury.
4. The two principal points on which the Judge is said to have misdirected the Jury are as follows: The first is that certain material witnesses named in the First Information and also in the evidence, who were examined by the Police Sub-Inspector on the day following the date of occurrence, were not examined at the trial and that the Judge did not tell the Jury that they might infer that the evidence of these witnessed, who could have been but were not called would have been, unfavourable to the prosecution.
5. It was stated in the First Information that one Rajani Mondal held the deceased by the waist when the accused struck Natabar Mandal, and that Nepal, Kristo, Madan, Babu Ram and others were present on the spot at the time when the deceased was actually struck by the accused.
6. The learned Sessions Judge has, no doubt, pointed out to the Jury that 'Kristo, Nepal, Madan, Rajani, who are said to have been present on the Occasion, have not been examined. Rajani is, according to one of the witnesses, dharmabhai of the accused.' But he did not tell the Jury that they could presume that the evidence of these witnesses, if they had been examined, would have been unfavourable to the prosecution. In this connection we may refer to the following observations of Sir Francis Maclean, C.J., in the case of Fanindra Nath Banerji v. Emperor 1 Ind. Cas. 970 : 36 C. 281 at p. 284 : 9 C.L.J. 199 : 13 C.W.N. 197 : 5 M.L.T. 97 : 9 Cr. L.J. 452: 'Then it is said that the Judge did not sufficiently warn the Jury that the omission of the prosecution to sail certain witnesser, and particularly the palki bearers, raised a presumption that their evidence would be unfavourable to the prosecution, and reference is made to Section 114, illustration (g), of the Evidence Act, It is perfectly true that in his charge we do not find the word 'presumption,' but again and again the Judge has pointed out to the Jury that they might properly draw any inferences they pleased from the fast that these witnesses were not called. There is no substance in this point.'
7. It is to be observed that in that case the Judge sufficiently pointed out to the Jury that they might properly draw any inference from the fact that those witnesses were not called, and the only defect was that the word 'presumption' was not used in the charge to the Jury.
8. In the present case the Jury were not told that they could draw any inference unfavourable to the prosecution.
9. The next ground is that the Judge, in summing up the evidence to the Jury, omitted to draw attention to certain discrepancies in the evidence of the principal witnesses for the prosecution,
10. Of the seven witnesses who had been examined for the prosecution, only witnesses No. 1. Gungadhar Mandal, and No. 3, Dasarathi Mandal, brothers of the deceased, deposed to having witnessed the actual striking of the deceased by the accused. Witnesses Nos. 4, 5 and 6 did not actually see the blow being struck and the remaining witnesses are not witnesses to the occurrence at all. The evidence for the prosecution, in so far as it relates to the actual striking of the blow on the deceased, therefore, rests upon the testimony of these two witnesses, Gungadhar and Dasarathi.
11. Gungadhar's statement in examination-in-chief was put to the Jury. He stated that he saw the accused strike the deceased. But in cross exmination the witness stated: 'I did not notice accused striking Natabar; when a fight goes on, it is difficult to say where one stands,' There was thus a disorepanoy between his statements made in his examination-in chief and these in cross examination, and this ought to have been put to Jury.
12. Witness No, 3, Dasarathi, stated in his examination-in-chief that he also saw the accused strike the deceased, In cross-examination, however, he stated: 'When Natabar fell, I did not go there directly. But as Kuteswar same up and said something about Natabar having fallen, I went up to Natabar. I caught hold of accused's benki dao after Natabar had fallen,' The statements of this witness are also to a certain extent at variance with those made in his examination-in chief.
13. As stated above, they are the only two eye-witnesses to the actual striking of the deceased by the accused and any discrepancy in their statements, we think, ought to have been placed before the Jury. The omission to place before the Jury the matters pointed out above constitutes material misdirection to the Jury. We are of opinion that this misdirection has prejudiced the accused. In these circumstances, the conviction of the petitioner and the sentence passed upon him must be set aside and a re trial ordered. We direst accordingly.
14. The learned Pleader for the appellant asks us to state that there should be a re-trial only if the prosecution desires to have a re-trial, but when a retrial is ordered, it is always open to the prosecution either to proceed or not to proceed, as it may be advised.
15. The appellant applies that he may be released on bail. This application should be made to the Sessions Judge.