Smt. Nagindra Bala Mitraand Another v. Sunil Chandra Roy and… (1960)

PETITIONER:
SMT. NAGINDRA BALA MITRAAND ANOTHER
Vs.
RESPONDENT:
SUNIL CHANDRA ROY AND ANOTHER
DATE OF JUDGMENT:
12/02/1960
BENCH:
DAS, S.K.
SARKAR, A.K.
HIDAYATULLAH, M.
CITATION:
1960 AIR 706 1960 SCR (3) 1

ACT

Trial by jury-Charge to the Jury-Duty of Judge-Misdirection-

Verdict of the jury, when could be interfered with-Code of

Criminal Procedure, 1898 (Act V of 1898). ss. 162, 297, 323,

325.

HEADNOTE

In a trial by jury, the judge should in his charge to the jury be careful to lead them to a correct appreciation of the evidence so that the essential issues in the case may be correctly determined by them after understanding the true import of the evidence on the rival sides. Since a verdict of the jury depends upon the charge, if it fails to perform this basic purpose it cannot be regarded as a proper charge and if it contains also misdirections as to law, the verdict cannot be upheld; but if, upon the general view taken, the case has been fairly left within the jury’s province, the verdict cannot be set aside unless something gross amounting to a complete misdescription of the whole bearing of the evidence has occurred. Mushtak Hussein v. The State of Bombay, [1953] S.C.R. 809, Ramkrishan Mithanlal Sharma v. The State of Bombay, [1955] 1 S.C.R. 903 and-Arnold v. King Emperor, (1914) L.R. 41 I.A. 149, relied on. Per S. K. Das and Sarkar, jj.-Though the charge to the jury in the present case was lengthy, the length was due in part to a protracted narrative of facts and the many disputed questions of fact to which the attention of the jury had to be drawn, and as the judge did state the several disputed points arising therefrom and their bearing on the main qestions at issue, the jury were not misled. Held, that there was no misdirection and that the verdict of the jury could not be interfered with. Per Hidayatullah, J.-In his charge to the jury, in the present case, (1) the judge took each witness, turn by turn, paraphrased, his evidence, sentence by sentence and read out those portions which he did not paraphrase, without trying to draw the attention of the jury to the relevancy or materiality of the various 2 parts; and did not make any difference between the testimony of the eye witnesses and of the formal witnesses in the matter of treatment, (2) while telling the jury that they could give the benefit of the doubt on proof of any individual fact if they felt any doubt about the proof, the judge did not at the same time caution them that the totality of facts must be viewed in relation to the offence charged and that the benefit resulting in acquittal could be given only if they felt that when all was seen and considered, there was doubt as to whether the accused had committed the crime or not, (3) the judge while explaining the ingredients of the offence of grievous hurt under S. 325 of the Indian Penal Code failed to tell the jury that grievous hurt was only an aggravated form of hurt and that even if they held that the accused did not cause a grievous injury it would be open to them to hold that he caused a simple injury which would bring the matter within S. 323 Of the Code, and (4) omissions were treated as contradictions and placed before the jury in complete disregard of s. 162 of the Code of Criminal Procedure, Held, that these defects amounted to misdirections and that the verdict could not be accepted.

JUDGMENT

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 170 of

1956.

Appeal by special leave from the judgment and order dated

June 14, 1954, of the Calcutta High Court in Criminal Appeal

No. 13 of 1954, arising out of the Judgment and order dated

January 13, 1954, of the said High Court in Case No. 55 of

1953.

Purshottam Tricumdas, H. J. Umrigar and B. P. Maheshwari,

for the appellants.

N. C. Chatterjee, R. L. Anand and D. N. Mukherjee, for

respondent No. 1.

A. C. Mitra, A. M. Pal and P. K. Bose, for respondent No. 2.

1960. February 12. The Judgment of S. K. Das and Sarkar,

JJ., was delivered by S. K. Das, J. Hidayatullah, J.,

delivered a separate Judgment.

S. K. DAS J.-This is an unfortunate case in more than one

sense. So far back as August 11, 1950, there was some

incident in premises No. 18, Bondel Road in Calcutta in the

course of which one Col. S. C. Mitra, a Gynaecologist and

Surgeon, lost his life. Col. Mitra was the husband of

petitioner No. 1 and father of petitioner No. 2. In

connection with the Colonel’s death, Sunil Chandra Roy, at

present respondent No. 1, and his two brothers were placed

on their trial for offences under ss. 302, 323 and 447 of

the Indian Penal

Code. Very shortly put, the case against them was that they

had trepassed into 18, Bondel Road, following upon a quarrel

regarding the supply of water to premises No. 17, Bondel

Road which belonged to petitioner No. 2 and consisted of

several flats one of which on the second floor was in

occupation of Sunil as a tenant; that they had attacked Col.

Mitra and petitioner No. 2; that Sunil had inflicted a blow

or blows on the Colonel which caused his death and that one

of his brothers Satyen had inflicted some minor injuries on

the person of petitioner No. 2. There was also a charge

against Sunil for an assault alleged to have been committed

on Mrs. Sati Mitra, Wife of petitioner No. 2. The accused

persons were, in the first instance, tried by the Additional

Sessions Judge of Alipur with the result that Sunil was

convicted under ss. 325 and 447 and Satyen under ss. 323 and

447, Indian Penal Code. So far as the third brother Amalesh

was concerned, his case was referred to the High Court as

the learned Judge did not agree with the jury’s verdict of

not guilty.

Sunil and Satyen appealed to the High Court against their

convictions and sentences; the State of west Bengal obtained

a Rule for enhancement of the sentences passed on Sunil and

Satyen. The appeal, the Rule and Reference were heard

together. The appeal was allowed, and the High Court of

Calcutta directed that Sunil and Satyen be retried at the

Criminal Sessions of the High Court. The Reference in

respect of Amalesh was rejected and the Rule for enhancement

of the sentences passed necessarily fell through.

Sunil and Satyen were then tried at the Criminal Sessions of

the High Court by Mitter, J., with the aid of a special

jury. The jury unanimously found Sunil guilty under

sections 325 and 447, and Satyen under sections 323 and 447,

Indian Penal Code. The learned Judge accepted the verdict

and sentenced both Sunil and Satyen to various terms of

imprisonment and fines.

An appeal was then preferred by Sunil and Satyen. This

appeal was again allowed, and another retrial was directed

at the Criminal Sessions of the High Court.

The retrial was held by P. B. Mukherjee, J. Before the

commencement of the trial, the State withdrew the case

against Satyen on the ground of the state of his health.

Therefore, Sunil alone was tried, and the charges against

him at the third trial were two in number: one under s. 325

Indian Penal Code for vountarily causing grievous hurt to

Col. Mitra and the other under s. 447 Indian Penal Code for

criminal trespass into premises No. 18, Bondel Road with

intent to intimidate, insult or annoy Col. Mitra or his son

Nirmal, petitioner No. 2 herein. This time the jury, by a

majorit verdict of 7 to 2, found Sunil not guilty of the

charge under s. 325 Indian Penal Code’ and, by a majority of

6 to 3, found him not guilty of the other charge also. The

learned Judge accepted the verdicts and acquitted Sunil.

Then, the State of West Bengal preferred an appeal to the

High Court against the order of acquittal, but the High

Court summarily dismissed it on June 14, 1954, on the ground

that no case had been made out for the admission of the

appeal under the provisions of s. 411A(2) of the Code of

Criminal Procedure.

Then, on July 22, 1954, the petitioners herein made an

application to the High Court for a certificate under

Article 134(1) (c) of the Constitution that the case is a

fit one for appeal to the Supreme Court, and the grounds

alleged in support of the application substantially were-(1)

that in his charge to the jury, the learned Judge had failed

to marshall and sift the evidence properly so as to give

such assistance as the jury were entitled to receive ; (2)

that the learned Judge had misdirected the jury on several

points, both with regard to the evidence of the eye-

witnesses and the evidence of medical experts; (3) that the

learned Judge did not properly explain the law relating to

the charges; (4) that he admitted inadmissible evidence and

shut out evidence which was admissible and this had vitiated

the verdict of the jury; and (5) that the learned Judge had

not dealt with the prosecution and defence versions in the

same way and by the same standard and bad been guilty of

various non-directions which resulted in a manifestly

erroneous verdict. This application was dismissed by the

High Court on July 26, 1954, mainly on two grounds: (1) the

petitioner had no locus stand to maintain an application for

leave to appeal to the Supreme Court, and (2) no appeal lay

under Article 134 of the Constitution from an order of

acquittal. The High Court then said:

" In view of the opinion we have formed as regards the

competence of the present application, it is not necessary

for us to say anything on the merits, but for the sake of

completeness we shall observe that the grounds which have

been set out in the petition are all grounds which had been

taken in the appeal preferred by the State and we did not

think then and do not think now that those grounds would

justify us in either admitting the appeal from the order of

acquittal or giving leave to appeal from our order to the

Supreme Court."

The petitioners then applied for special leave from this

Court under Article 136 of the Constitution and

substantially pleaded the same grounds some of which were

elaborated by examples given which they had pleaded when

asking for a certificate from the High Court. This Court

granted special leave on February 20, 1956, and the present

appeal has come to us in pursuance of the special leave

granted by us.

In view of the special leave granted, the two questions

dealt with by the High Court in its order dated July 26,

1954, no longer require any consideration. The principal

question for consideration now is whether the charge to the

jury at the third trial is so defective that it has led to a

manifestly erroneous verdict, resulting in a failure of

justice. Therefore we intimated to learned counsel for the

parties that the arguments should be confined at this stage

to that question, and if counsel for the petitioners

satisfied us that the charge was so defective on the grounds

alleged, then the further question as to whether the case

should be remitted to the High Court or dealt with in this

Court on the evidence already recorded, would arise.

We proceed now to consider the principal question before us.

But before we do so, it is necessary perhaps to give a few

more details of the prosecution case and the defence.

Col. Mitra was the owner of 18, Bondel Road, but he did not

live in that house. He had his chambers on the ground floor

of 18, Bondel Road. His son Nirmal lived at 18, Bondel Road

with his wife. Just by the side of 18, Bondel Road and west

of it was No. 17, Bondel Road one of the flats of which was

in occupation of Sunil as a tenant. It was alleged that the

relation between landlord and tenant was not good and there

were proceedings between the two before the Rent Controller.

An order made in these proceedings reduced the rent payable

by the tenants and fixed certain specific hours during which

the pump for water supply was to be worked. The prosecution

case was that on August 10, 1950. Col. Mitra came to spend

the night with Nirmal and was put up in the easternmost bed

room on the first floor. The building had three rooms on

the first floor all facing south, and the westernmost room

was used by Nirmal as his bed room. The intermediate room

was a drawing room and had a telephone in it. According to

the prosecution case, in the early morning on the 11th

August, 1950, Nirmal was still in bed when he was roused by

the noise of a row and recognising the voice of Sunil, he

slightly opened the leaves of one of the windows to see what

was happening. He found that Sunil amongst others, was

standing at the window, shouting abuse at Purna Mali (the

gardener who was in charge of the pump) for not getting

water which was followed up by further abuse of Nirmal.

After that Sunil disappeared from the window. Nirmal’s wife

had been up before Nirmal, and already served tea to Colonel

Mitra and she came into the room when Nirmal was listening

to the abuses. She came to call him, that is, Nirmal, to

join his father at tea, and went back to the Colonel.

Nirmal was greatly alarmed at-what he had seen and heard,

and passing into the drawing room sent a telephone message

to the Karaya Police Station asking for help. While Nirmal

was still speaking on the telephone, his wife Mrs. Sati

Mitra ran into the room and said that Sunil and his two

brothers who were also tenants at 17, Bondel Road, had

already entered the compound of 18, Bondel Road and his

father, the Colonel, had gone down. Nirmal

who was telephoning the police hurriedly added a request to

the police to come soon. Nirmal coming down found Purna

Mali in the grasp of Amalesh, and Colonel Mitra was standing

underneath the porch at 18 Bondel Road and remonstrating

with Sunil and his brother. Nirmal immediately ordered

accused Sunil and his brothers to get out of the house

whereupon Satyen and Amalesh, fell upon Nirmal. This led

the Colonel to remonstrate again whereupon the Colonel was

attacked by Sunil who caught hold of the Colonel by the neck

of his vest and began to drag him towards the Bondel Road,

along the passage to the gate at 18, Bendel Road. The

building at l8, Bondel Road faces south, has a lawn to its

south alongside which runs a passage to the gate, and near

the western pillar of the gate there is a masonry letter box

built in the compound wall. To the south of the lawn there

is a row of tube roses through which there is an opening

leading into the lawn. According to the prosecution case,

as Sunil started dragging the Colonel towards the road and

the gate, Nirmal ordered the Mali to close the gate.

Accused Sunil dragged the Colonel, according to the

prosecution case, and while near the Durwan’s room Sunil

dealt a fist blow on the left temple of the Colonel. The

prosecution case further was that Sunil proceeded to drag

the Colonel past the western pillar of the gate and then

through the opening among the plants in the lawn and there

he struck a blow on the left forehead of the Colonel with a

rod like object. On receiving the blow, the Colonel dropped

down and fell on his back on the lawn. Thereupon Sunil

stepped on to the letter box, scaled the wall and hurriedly

made his escape. Two neighbours, Jiban Krishna Das and Suku

Sen, then came by scaling into the compound of No. 18, and

with their help and with the help of the servants of the

family, the Colonel’s body was removed to the verandah on

the ground floor of 18, Bondel Road and placed on a "

charpoi". Nirmal was one of the persons who carried the

body of his father, the Colonel. Jiban had a car with him

and was asked to. rush for a doctor which he. did and within

a few minutes brought -Dr. Sachin Bose who examined the

Colonel and found him already dead. On receipt of the

telephone message from Nirmal, Pushpa Pal, Officer-in-

charge, Karaya Police Station, deputed a, Head-constable

named Mathura Singh, to go to No. 18 but when the constable

arrived, the incident was over. The Officer-in-charge,

Pushpa Pal, soon followed and after obtaining from Nirmal a

brief oral statement as to his version of the incident,

proceeded to No. 17, Bondel Road. On the staircase of the

house at No. 17, Bondel Road, Puspha Pal met one Sarat

Banerji, said to be a priest of a neighbourhood called

Shitalatala. Pushpa Pal then went up and arrested the

accused Sunil.

The postmortem examination of the Colonel’s body revealed

that he had sustained a linear fracture of his left temporal

bone, vertical in character, an abrasion laid obliquely

across the middle of the left half of his forehead, a

lacerated wound bone deep laid vertically across the middle

of the eye-brow, an abrasion on the left cheek and one small

lacerated wound near the left ear. There was some clotted

blood on the top of the membrane over the fracture of the

bone and some on the inner surface of the scalp. In the

opinion of Dr. Majumdar who carried out the postmortem

examination as recorded in his report, the death of the

Colonel was due to shock caused by the head injury, on top

of senile changes, and the head injury, which was ante-

mortem must have been caused by a fall on some hard

substance. The postmortem report was not signed till the

2nd September, 1950, and not until the pathological report

and the chemical report had been obtained.

The defence of Sunil was that he did not strike or assault

the Colonel, either by a fist blow or a blow with a rod like

substance. The defence further was that the fist blow on

the left temple of the Colonel was not specifically

mentioned by any material witness until after the postmortem

report showed a linear fracture of the left temporal bone

and it was suggested by the defence that the fist blow was

invented to make a case that such blow fractured the left

temporal bone of the Colonel. The main suggestion on behalf

of the defence was that the Colonel

was an old man with heart trouble and his pathological

condition was such that he was excited at the time of the

incident and fell down on a rough surface, either on the

passage or on the masonry letter box, and hurt himself. The

injury was such that it could s not be caused by one blow of

a rod or rod-like substance. The defence against the charge

of criminal trespass was that Sunil entered the compound of

No. 18, Bondel Road at the invitation of Purna Mali, who

asked Sunil to come and see if the pump was working, the

pump being within the compound of No. 18, Bondel Road.

Sunil did not, however, assault the Colonel in any way.

It is in the context of the aforesaid two versions that we

have to consider the charge to the jury and examine the

criticisms made thereto. We must make it clear that we are

not called upon at this stage to give our findings on any of

the disputed questions of fact. That was the function of

the jury, and the jury had given their verdict. The limited

question before us is whether that verdict is vitiated by

reason of any serious misdirection by the Judge or of any

misunderstanding on the part of the jury of the law laid

down by him, which in fact has occasioned a failure of

justice. This Court said in Mushtak Hussein v. The State of

Bombay (1) : "Unless therefore it is established in a case

that there has been a serious misdirection by the Judge in

charging the jury which has occasioned a failure of justice

and has misled the jury in giving its verdict, the verdict

of the jury cannot be set aside." In a subsequent decision,

Ramkishan Mithanlal Sharma v. The State of Bombay (2) this

Court observed that s. 297, Criminal Procedure Code, imposed

a duty on the Judge in charging the jury to sum up the

evidence for the prosecution and defence and to lay down the

law by which the jury were to be guided; but summing up for

the prosecution and defence did not mean that the Judge

should give merely a summary of the evidence; he must

marshall the evidence so as to give proper assistance to the

jury who are required to decide which view of the facts is

true. This Court

(1) [1953] S.C.R. 809 at 815.

(2) [1955] 1 S.C.R. 903 at 930.

referred with approval to the following observations made by

the Privy Council in Arnold v. King Emperor

" A charge to a jury must be read as a whole. If there are

salient propositions of law in it, these will, of course, be

the subject of separate analysis. But in a protracted

narrative of facts the determination of which is ultimately

left to the jury, it must needs be that the view of the

Judge may -not coincide with the view of others who look

upon the whole proceedings in black type. It would,

however, not be in accordance with usual or good practice to

treat such cases as cases of misdirection, if, upon the

general view taken, the case has been fairly left within the

jury’s province. But in any case in the region of fact

their Lordships of the Judicial Committee would not inter-

fere unless something gross amounting to a complete

misdescription of the whole bearing of the evidence has

occurred."

Bearing the aforesaid principles in mind, we proceed now to

consider the criticisms made on behalf of the petitioners

against the learned Judge’s charge to the jury. We had

earlier classified the criticisms under five different

heads, and we shall deal with them one by one. We shall

refer to the main points urged under each head, avoiding a

detailed reference to the evidence on minor points which do

not advance the case of the petitioners any further.

The first criticism is that the charge to the jury, read as

a whole, is nothing but a summary of the evidence witness by

witness and a summary of the arguments of counsel which the

jury had already heard;. that the learned Judge did not

state the points for decision under separate heads, nor did

he collate and marshall the evidence topic-wise so as to

assist the jury to come to their conclusion one way or the

other, but left the jury with a mass of unnecessary details

which was more likely to confuse than to help them. Learned

counsel for the petitioners has pointed out that in the

appeal from the judgment of Mitter, J., in an earlier stage

of this very case,

(1) [1914] L.R. 41 I.A. 149.

Chakravarti, C. J., had said in Sunil Chandra Roy and

Another v. The State (1):

" But I feel bound to say that the function of a charge is

to put the jury in a position to weigh and assess the

evidence properly in order that they may come to a right

decision on questions of fact which, under the law, is their

responsibility. The charge must therefore address itself

primarily to pointing out what the questions of fact are,

what the totality of the evidence on each of the questions

is, how the different portions of that evidence, lying

scattered in the depositions of several witnesses, fit with

one another, what issues or subsidiary questions they raise

for decision and what the effect will be according as one

part or another of the evidence is believed or disbelieved."

It was argued that what was condemned in an earlier stage of

this case has happened again.

We are unable to accept this line of criticisms as

substantially correct. It is indeed, true that the learned

Judge followed the method of placing the evidence witness-

wise rather than topic-wise. He started his summing-up by

stating: " I now propose to take up the prosecution

witnesses individually with a view to sum up the evidence of

each witness and the suggestions made to each by the counsel

for the accused." But the real point for consideration is

not whether the learned Judge followed one method rather

than another: the real point is-did he properly discharge

his duty under s. 297, Criminal Procedure Code by giving the

jury the help and guidance to which they were entitled ? Did

he marshall the evidence in such a way as to bring out the

essential points for decision and the probabilities and

improbabilities bearing on the disputed questions of fact on

which the jury had to come to their conclusion ? The learned

Judge gave a lengthy charge to the jury; and in summing up

the evidence of each witness, he did state the disputed

points arising therefrom and their bearing on the main

questions at issue, viz. whether Sunil had trespassed into

18 Bondel Road and had assaulted the Colonel in the manner

alleged -by the prosecution.

(1) 57 C.W.N. 962 at 10001.

The length of the charge was due in part to a protracted

narrative of facts and the many disputed questions of fact

to which the attention of the jury had to be drawn. The

principle laid down by the Privy Council in Arnold’s case

(3) and accepted by this Court as correct is that it would

not be in accordance with good practice to treat a case as a

case of misdirection if, upon the general view taken, the

case has been fairly left within the jury’s province, and

this Court will not interfere unless -something gross

amounting to a complete misdescription of the whole bearing

of the evidence has occurred. Learned counsel for the

petitioners has taken us through the entire charge to the

jury and while we may agree that some unnecessary details

(e.g. how the spectacles of Mrs. Sati Mitra fell down) could

have been avoided by the learned Judge, we are unable to say

that the method followed by the learned Judge did not focus

attention of the jury to the questions of fact which they

had to decide or did not give help and guidance to the jury

to arrive at their conclusion oes and as the accounts were kept on a

mercantile basis, the amount of commission accrued as and

when the sales took place and paragraph 5 of agreement was

only a machinery for quantifying the amount. It was also

argued that the Managing Agents by entering into an

agreement with the Mills had voluntarily relinquished a

portion of the amount of commission which had accrued to

them and therefore the whole of the income from commission

which had already accrued was liable to

income-tax; and reference was made to the cases reported as

Commissioner of lncome-tax, Madras v. K. R. M. T. T.

Thiagaraja Chetty and Co. (1), E. D. Sassoon & Company Ltd.

v. The Commissioner of Income-tax, Bombay City (2) and to an

English case Commissioners of Inland Revenue v. Gardner

Mountain & D’ Ambrumnil Ltd. (3). But these cases have no

application to the facts of the present case. In the

Commissioner of Income-tax, Madras v. K. R. M. T. T.

Thiagaraja Chetty & Co. (1), the assesses firm was, under

the terms of the Managing Agency Agreement, entitled to a

certain percentage of profits and in the books of the

Company a certain sum was shown as commission due to the

assessee firm and that sum was also adopted as an item of

business expenditure and credited to the Managing Agents’

commission account but subsequently it was carried to

suspense account by a resolution of the Company passed at

the request of the assessee firm in order that the debt due

by the Firm might be written off. The accounts were kept on

mercantile basis and it was held that on that basis the

commission accrued to the assessee when the commission was

credited to the assessee’s account and subsequent dealing

with it would not affect the liability of the assessee to

income-tax. It was also held that the quantification of the

commission could not affect the question as it was not a

condition precedent to the accrual of the commission. At

page 267 Ghulam Hassan J., observed:-

" Lastly it was urged that the commission could not be said

to have accrued, as the profit of the business could be

computed only after the 31st March, and therefore the

commission could not be subject to tax when it is no more

than a mere right to receive. This argument involves the

fallacy that profits do not accrue unless and until they are

actually computed. The computation of the profits whenever

it may take place cannot possibly be allowed to suspend

their accrual. In the case of income where there is a

condition that the commission will not be payable until the

expiry of a definite period or the making up of the account,

it might be

(1) [1954] S.C.R. 258 at 267.

(2) [1955] 1 S.C.R. 313, 344.

(3) 29 T.C. 69, 96.

said with some justification, though we do not decide it,

that the income has not accrued but there is no such

condition in the present case ".

This passage does not help the appellant’s case. The

question there decided was that the accrual of the

commission was not dependent upon the computation of the

profits although the question whether it would make any

difference where the commission was so payable or was

payable after the expiry of a definite period for the making

of the account was left undecided . In the case before us

the agreement is of a different nature and the above

observations are not applicable to the facts of the present

case.

The next case is E. D. Sasoon & Co., Ltd. v. The

Commissioner of Income-tax, Bombay City (1). But it is

difficult to see how it helps the case of the appellant. If

anything it goes against his contention. In that case the

assessee Company was the Managing Agent of several Companies

and was entitled to receive remuneration calculated on each

year’s profits. Before the end of the year it assigned its

rights to another person and received from him a

proportionate share of the commission for the portion of the

year during which it worked as Managing Agent. On the

construction of the Managing Agency Contract it was held

that unless and until the Managing Agent had carried out one

year’s completed service, which was a condition precedent to

its being entitled to receive any remuneration or commission

it was not entitled to receive any commission. The facts in

that case were different and the question for decision was

whether the contract of service was such that the commission

was only payable if the service was for a completed year or

the assessee Company was entitled to receive even for a

portion of the year for which it had acted as a Managing

Agent. It was held that it was the former.

As was observed by Lord Wright in Commissioners of Inland

Revenue V. Gardner, Mountain & D Ambrumenil Ltd. (2), " It

is on the provisions of the contract that it must be

decided, as a question of construction and therefore of law,

when the commission was earned The contract in, the present

case in para-

(1) [1955] 1 S.C.R. 313, 344.

(2) 29 T.C. 69, 96.

57,

graph 2 shows that (1) the company was to pay each year; (2)

that the Managing Agents were to be paid 5 per cent.

commission on the proceeds of the total sales of yarn and of

all cloth sold by the Company or three pies per pound’

avoirdupois on the sale, whichever the Managing Agents

chose; thus there was an’ option to be exercised at the end

of the year; (3) they were also to be paid at 10 per cent.

on the proceeds of sales of all, other materials; and (4)

the Mills were to pay to the Managing Agents each year after

December 31, or such other dale which the Directors of the

Company may choon those questions. We -are

far less satisfied that anything amounting to a complete

misdescription of the whole bearing of the evidence has

occurred in this case. As to the observations which

Chakravarti, C.J., had made, it is well to remember that

they were made in respect of an earlier charge to the jury

which, to use the words of the learned Chief Justice, was "

all comment or mere comment in the main." Having carefully

perused the present charge to the jury, we think, on a

general view, that the case has been fairly left within the

jury’s provinces in spite of the criticism so strenuously

made that the charge to the jury contained a mass of details

which need not have been placed before the jury. In a

protracted narrative full of details, it is perhaps easy to

find fault with a charge to the jury on the ground of

prolixity. The question before us is not whether the charge

to the jury is perfect in all respect: the question is-has

something gross occurred amounting to a complete

misdescription of the whole bearing of the evidence ? We are

unable to say that there has been any such gross misdirec-

tion by the learned Judge.

(1) (1954] L.R. 41 I.A. 149

The second criticism relates to certain misdirections

alleged to have been committed by the learned Judge in

placing the evidence of the eye-witnesses as also of medical

witnesses. No useful purpose will be served by referring to

each and every example given before us; we shall confine

ourselves to some of the salient points and state the

general impression we have formed. In placing the evidence

of each eyewitness, the learned Judge referred to the

suggestions made by the defence. The comment is that he

placed the suggestions in such a way as to create the

impression in the minds of the jury that they were true,

even though they had been repudiated or explained by the

witness. We may give some examples. Nirmal telephoned to

his brother Dr. Lalit Mitra immediately after Col. Mitra

was pronounced to be dead. The suggestion to Nirmal was

that he had not told his doctor brother then that his father

had been beaten, but had said only that his father had

"fainted ". This suggestion was placed before the jury with

reference to Nirmal’s deposition before the committing

Magistrate. Nirmal said before the committing Magistrate

that he did not use the English word I fainted’ but had said

in Bengali that ’father has become unconscious’. The

complaint of the petitioners is that Nirmal’s explanation

has not been properly placed before the jury. But the

learned Judge says in his charge that the jury had seen the

earlier deposition of Nirmal, and if that is so, the dis-

tinction between I fainting’ and ’becoming unconscious’ in

explanation of the suggestion made to Nirmal does not assume

any great importance. It was next suggested to Nirmal that

he had told the Police that his father had heart trouble.

This suggestion was put before the jury in the following

way:

" The case was put by the defence that the Colonel had heart

trouble and that Nirmal was confronted with contradiction

that he told the Magistrate and the police that his father

had heart trouble. Nirmal had denied it."

Nirmal’s explanation was that he did not tell the Magistrate

or the police that his father had heart

trouble he merely said that his father used to have

occasional palpitation of heart when he ate too much or took

irregular meals. Pushpa Pal, the investigating police

officer, understood this to mean heart trouble and he

recorded " heart trouble " in Nirmal’s statement. Pushpa

Pal admitted that even if Nirmal had stated that Col. Mitra

had palpitation of heart, he would have recorded it as heart

trouble. This part of the evidence of Pushpa Pal also the

learned Judge placed before the jury. It cannot, therefore,

be said that the learned Judge misled the jury in any way or

left the jury with the impression that Nirmal had admitted

that his father had heart trouble.

Similar comments were made with regard to the placing of the

evidence of other eye-witnesses, but their general effect is

the game. They do not, in our view, establish that the jury

were misled on any of the points in dispute. We must,

however, mention two more points, one in connection with a

person called Sarat Banerji and the other with regard to

Mrs. Nagendra Bala Ghose. Sarat Banerji, it appears, was a

priest who brought some holy water, and there was some

evidence to show that - such water was sprinkled on the

Colonel soon after the incident. Sarat Banerji was not

examined in the case, and the question naturally arose

whether he was present at the time of the incident and if

so, when did he come to 18, Bondel Road ? A number of

prosecution witnesses were crossexamined on this point, and

the learned Judge repeatedly referred to this matter in

summing up the evidence of those witnesses. We do not agree

with learned counsel for the petitioners that the learned

Judge committed any misdirection in drawing the attention of

the jury to this matter.

As to Mrs. Nagendra Bala Ghose, the criticism was that the

learned Judge usurped the function of the jury. About this

witness the learned Judge said:

" Now, gentlemen, in cross-examination she was cross-

examined on her eyesight. She did succeed in pointing out

to an old man in Court. That is in answer to Q. 30. But

further ahead she could not see properly. She is far too

old a woman on whom any reliance can be placed having regard

to her state of

health and having regard to her state of vision and her

power of memory. Shew as called by the prosecution only to

meet the defence suggestion that she was there at the time

of the incident in Prof. Mahanti’s place and was being kept

back.

It was submitted before us that Mrs. Ghose was no doubt old,

but she was a respectable and reliable witness who was

staying in a neighbouring house from the verandah of which

the place of incident was visible; therefore, it was argued

that the learned Judge was not justified in expressing

himself so strongly against this witness, and in doing so,

he improperly dissuaded the jury from forming their own

opinion about her evidence. Having examined her evidence,

we are unable to hold that the comments of the learned Judge

were unjustified or that he wrongly influenced the jury

against the witness. It must be stated here that the

learned Judge had cautioned the jury that they were not

bound by his opinion on a question of fact and were free to

act on their own opinion.

This brings us to the medical evidence. The two doctors of

importance who were examined in the case were Dr. Majumdar,

who made the postmortem examination, and Dr. Kabir Hussain,

Professor of Forensic and State Medicine in the Calcutta

Medical College. Those two doctors expressed widely

divergent views as to the probable cause of the injuries

sustained by Col. Mitra and also of his death. The learned

Judge rightly placed before the jury those divergent views.

Dealing with the evidence of Dr. Majumdar, the learned Judge

said:

"Suggestions were made to Dr. Majumdar in cross. examination

that in case a fist blow was given on the left temporal

region whether any external injury was to be expected. He

said that external injury was expected and there was no

external injury mentioned in the postmortem report in this

case. Then Dr. Maumdar’s opinion is that such a man cannot

be expected to talk. It is also Dr. Majumdar’s opinion that

the injury was due to a fall and he does not think that the

injuries Nos. 1, 2 and 3 could be caused by a lathi blow or

a blow by a rod. According to his opinion, the fracture was

also due to a fall.

It is contended that this must have misled the jury in

thinking that there was no external injury on the site of

the fracture on the left temporal region and therefore it

could not have been caused by a fist blow. Our attention

was drawn to the evidence of Dr. Kabir Hussain, who opined

that the haemorrhage on the inner surface of the scalp near

the site of the fracture was an external injury. The point

to be noticed in this connection is that the learned Judge

did not omit to place before the jury what Dr. Kabir Hussain

had said regarding what he thought to be the presence of an

external injury at the site of the fracture; he placed in

extenso the questions put to Dr. Kabir Hussain and the

answers given by him on this point. Tile jury were,

therefore, properly placed in possession of the views of

both the doctors, and it was for them to decide which view

should be accepted.

Both the doctors were asked questions as to whether the

injuries sustained by Col. Mitra could be caused by a fall

on a rough substance like a masonry box or by a blow of a

hard weapon like a flexible rod . On this point again the

two doctors disagreed ; the learned Judge did place before

the jury the different views expressed by the two doctors.

A grievance has been made before us that in summing up the

evidence of Dr. Kabir Hussain the learned Judge failed to

draw the attention of the jury to the answers given to ques-

tions 73, 74 and 75 by which the doctor categorically

negatived the suggestion of the defence that a fracture of

the temporal gone of the kind sustained by the Colonel could

be caused by a fall on a hard substance. It is true that

the answers to questions 73, 74 and 75 we’re not

specifically placed before the jury, but reading the charge

relating to the medical evidence’ as a whole, we find that

the learned Judge sufficiently indicated to the jury the

disagreement between the two doctors on the main questions

of fact and the reasons which each doctor gave for his

opinion. It was the province of the jury to accept one

opinion or the other. The learned Judge concluded his

summing up of the medical evidence in these words:

" Now, gentlemen, when a medical witness is called in as an

expert he is not a witness of fact. Medical

evidence of an expert is evidence of opinion, not of fact.

Where there are alleged eye-witnesses of physical violence

which is said to have caused the hurt, the value of medical

evidence by prosecution is only corroborative. It proves

that the injuries could have been caused in the manner

alleged and nothing more. The use which the defence can

make of the medical evidence, or any medical evidence which

the defence might itself choose to bring, is to prove that

the injuries could not possibly have been caused in the

manner alleged and thereby discredit the eye-witnesses.

Therefore, you must remember this particular point of view

that if you believe the eye-witnesses, then there is no

question of having it supported by medical evidence; unless

the medical evidence again in its turn goes so for that it

completely rules out all possibility that such injuries

could take place in the manner alleged by the prosecution

and that is a point which you should bear in mind, because

if you accept the evidence of the eye-witnesses, no question

of further considering the medical evidence arises at all.

The only question in that case when you consider the medical

evidence is to test the eye-witnesses’ version as to whether

any of the particular injuries shown in the report can be

caused in the manner alleged by the prosecution. But if you

don’t believe the eye-witnesses, then consideration of the

medical evidence in any manner becomes unnecessary. "

We do not think that any exception can be taken to the

observations made above in the context of the two versions

which the jury had to consider. One version was that the

Colonel had been assaulted and thereby sustained the

injuries; the other version was that he had sustained the

injuries by a fall on a rough surface like the masonry

letter box. None of the two doctors were giving direct

evidence of how the injuries were caused; they were merely

giving their opinion as to how in all probability they were

caused. The learned Judge was, therefore, right in

directing the jury in the way he did about the medical

evidence in the case. We may also point out here that the

learned Judge drew the attention of the jury also to the

evidence of Dr. Suresh Sinha, who said that the

fracture on the temporal region could be the indirect effect

of the other injuries sustained by the Colonel.

We now go on to third head of criticism viz., the ,learned

Judge’s exposition of the law relating to the two charges on

which Sunil was tried. These charges the learned Judge

correctly explained with reference to the relevant

provisions of the Indian Penal Code. But be made one error.

Dealing with the word ’ voluntarily’ in s. 325, he said:

"The word ’ voluntarily’ means what it says; it means ’of

one’s free will’." Perhaps, the learned Judge forgot that

the word is defined in s. 39, Indian Penal Code, and that

definition should have been placed before the jury. We do

not, however, think that this minor lapse misled the jury in

any way or occasioned a failure of justice. There is one

more point in this connection. The learned Judge did not

tell the jury that it was open to them to return a verdict

of guilty for an offence under s. 323, Indian Penal Code, if

they came to the conclusion that Sunil gave a blow to the

Colonel with a flexible rod, but did not cause the fracture.

In the circumstances of the case, however, we do not think

that the failure to direct the jury that it was open to them

to return a verdict of guilty on a minor offence occasioned

any failure of justice. If the eyewitnesses for the

prosecution were believed, it would be undoubtedly a case

under s. 325 Indian Penal Code; if on the contrary, the eye-

witnesses were not believed and the defence version was

accepted that the Colonel sustained the injuries by a fall,

then there would be no case even under s. 323 Indian Penal

Code.

A grievance was made before us under the fourth head of

criticism that admissible evidence was shut out and

inadmissible evidence was let in. It was submitted that

Nirmal’s statements to Pushpa Pal on his arrival at No. 18,

Bondel Road or at least his statements to the Head Constable

Mathura Singh, before the arrival of the investigating

officer, were not hit by s. 162 Criminal Procedure Code and

were clearly admissible in evidence. The learned Judge said

in this connection:

" I would like to remind you that if any person makes any

statement to the police, that is not admissible evidence as

a rule unless in the case of contradictions which are

formally proved, as you have seen the counsel for the

accused has proved contradictions in some cases; but you

must bear in mind that except such cases, this is no

evidence."

In the opinion which we have formed it is unnecessary to

consider whether the learned Judge was right or wrong:

because we are of the opinion that even if those statements

of Nirmal were admissible, they would not be substantive

evidence of the facts stated therein ; and if Nirmal’s

evidence in Court was not accepted, his statements to the

police officers concerned would hardly make any difference.

As to the admission of inadmissible evidence, learned

counsel for the petitioners placed before us those parts of

the charge to the jury which dealt with the cross-

examination of prosecution witnesses on their police

statements. Ho submitted that a large part of that cross-

examination was inadmissible in view of the decision of this

Court in Tahsildar Singh v. The State of Uttar Pradesh (1).

That decision dealt exhaustively with s. 162 Criminal

Procedure Code and laid down certain propositions to explain

the scope of that section; it was, however, observed that

the examples given therein were not exhaustive and the Judge

must decide in each case whether the recitals intended to be

used for contradiction satisfied the requirements of the

law. We agree that on the principles laid down in Tahsildar

Singh’s decision (1) some of the statements put to the

prosecution witnesses were not really contradictions and did

not, therefore, fall within what is permissible under s. 162

Criminal Procedure Code. We may take, by way of example,

what was put to Nirmal. The learned Judge placed the

following contradictions in Nirmal’s evidence to the jury:

"He was also -cross-examined on his statement to the

police. The main point made in his cross-examination on his

statement to the police, are firstly, that the fist blow on

the left temple was not mentioned by him and then he only

said assault with blows before

(1) A.I.R. 1959 S.C. 1012

the police and that he also said that the Colonel was hit

near about the gate of the house and not beside the boundary

wall. It was also suggested to him in defence that the

Colonel did not fall on the lawn at all but fell on the

letter box. The further suggestion to him was that the fist

blow was a false invention and it was intended only after

the postmortem report was out. He was also told that he did

not mention to the police that the Colonel was lying on his

back. He was also criticised for not having mentioned the

names of persons who carried his father after he had fallen

down. Nirmal’s answer was that he was not asked and that it

was physically impossible for him alone to carry his father.

Then there was crossexamination as to whether the fist blow

was before or after Sati Mitra had clasped the Colonel."

Now, on the principles laid down in Tahsildar Singh’s

decision (1) Nirmal’s failure to mention before the police

that his father was lying on his back was not a

contradiction; but his failure to mention that a fist blow

on the left temple was given to his father was a

contradiction. Therefore, the point before us really is

this : assuming that some of the statements admitted in

evidence were not really contradictions, do they materially

affect the verdict ? In our opinion, they do not. By and

large, the important statements made before the police were

admissible under s. 162 Criminal Procedure Code; but some

minor statements were not. We do not think that the verdict

of the jury can be said to have been vitiated on this

ground.

Lastly, we come to the defence evidence. Here the complaint

is that the learned Judge has summed up the defence evidence

by adopting a different standard. We are unable to agree.

Even with regard to the prosecution witnesses, the learned

Judge had emphasised points in favour of the prosecution.

For example, dealing with the evidence of Purna Mali, the

learned Judge said:

" Now, gentlemen, these questions are important because he

does not improve the case or try to improve the case by

suggesting that he saw a fist blow on the left temple and it

is a matter for you to

(1) A.T.R. I959 S.C. 1012

consider in this connection whether this is a witness whom

you would consider a liar because you will have to consider

the suggestion that if he were then he would have probably

tried to improve the case by suggesting to say that he did

see a fist blow on the temple."

Dealing with the evidence of Pushpa Pal, the learned Judge

pointedly drew attention of the jury to a circumstance which

was partly in favour of the prosecution and partly of the

defence:

" You also remember that Pushpa Pal held an inquest at about

9 a.m. on the 11th August, 1950. He says that he examined

the compound, the lawn, the boundary wall, the gate, the

masonry letter box, the bricks on edge and the whole spot of

18, Bondel Road including the pathway, but he found no blood

marks anywhere."

We have examined the charge to the jury carefully; it may

suffer from a plethora of details and also perhaps a

meticulous statement of the divergent views of the two

doctors; but we have found no trace of the adoption of a

double standard, or of a serious misdirection on any

question of fact or law.

We have, therefore, come to the conclusion that on the

principles which this Court has adopted for interference

with a jury verdict, no case for interference has been made

out in this case.

The appeal is accordingly dismissed.

HIDAYATULLAH, J.-I have had the advantage of reading the

judgment just delivered by my learned brother, S. K. Das, J.

He’ is of the opinion that the charge to the jury by the

learned trial Judge was proper. Since I have the misfortune

to differ from him in this conclusion, I am delivering a

separate judgment. In my opinion, the charge to the jury

was defective for several reasons, particularly misdirec-

tions in law and absence of any guidance while setting forth

at enormous length, without comment, the evidence in the

case.

My learned brother has pointed out that this is an

unfortunate case, and I agree with him that it is so, in

view of the events that have happened. The facts of the

case were simplicity itself. The offence alleged

to have been committed as far back as August 11, 1950, has

been the subject of three trials. It was first tried before

the Additional Sessions Judge, Alipur who convicted the

present respondent, Sunil, under ss. 325 and 447 of the

Indian Penal Code, agreeing with the verdict of the jury.

On appeal, the High Court of Calcutta set aside the

conviction, and ordered a, retrial at the Criminal Sessions

of the High Court. The case was then tried. by Mitter, J.

with a special jury. The jury brought in an unanimous

verdict of guilty against Sunil under the two sections, with

which the learned Judge agreed. Sunil was sentenced to a

long term of imprisonment, but the appellate side of the

Calcutta High Court, on appeal, set aside the conviction and

sentence, and ordered a retrial. The third trial was

conducted by P. B. Mukherjee J. Before the trial, the -State

Government withdrew the case against Sunil’s brother,

Satyen, who was tried along With him in the previous trials,

and was also convicted. This withdrawal of the case was on

the somewhat unusual ground that his health was bad. Sunil

himself, it appears, was defended at Government cost by one

of the Government advocates. The trial dragged through a

weary course, in which prolonged cross-examination of the

witnesses took place, and alleged contradictions between

their previous versions were put to them in detail. After

the arguments were over, the learned Judge charged the jury

at considerable length. I have estimated that the charge is

a document of some 50,000-60,000 words. How much of it was

of any real guidance to the jury is a matter, to which I

shall address myself in the sequel; but it appears at the

outset that the length of the charge was somewhat

extraordinary, regard being had to the plain facts, to which

I now refer.

On August 11, 1950, Sunil and his brothers were occupying a

flat in No. 17 Bondel Road, which belonged to Nirmal, son of

the late S. C. Mitra, a very well-known Gynaecologist and

Surgeon of Calcutta. It appears that the water supply to

the flat was irregular and intermittent, and Sunil bad, in

common with the other tenants, a complaint against the land-

lord, Nirmal. Incidents had taken place previously, and

Sunil had taken the matter to the rent control authorities,

and, it is alleged, had even threatened the landlord with

dire consequences, if the water supply was not improved.

Under an alleged agreement, the water supply was regulated

by working the electric pump during certain hours of the

day; but nothing turns upon it. It appears that the water

supply did not improve, and often enough, an ’exasperating

situation arose in so far as the tenants of No. 17, Bondel

Road, including the present respondent, Sunil, were

concerned.

On the fateful morning, matters came to a head, because the

water supply, as was frequent, failed in the flat.. Evidence

has been led in the case to show that Sunil was angry and

started abusing and expostulating in a loud manner. He

followed up his expostulations by entering the compound of

No. 18, Bondel Road, whether to see to the working of the

pump himself, as he contended, or to remonstrate more

effectively with the landlord, as is the prosecution case.

However it be, Nirmal’s father, Col. Mitra, happened to be

present that morning, and he came out to talk the matter

over with Sunil, who apparently was quite loud in his

remonstrances. Whether the Colonel gave any offence to

Sunil by rebuking him is not much to the present purpose,

because I am not determining the true facts in this order.

The case for the prosecution is that Sunil grappled with the

Colonel, and gave him a blow upon the head with what is

described as a ‘rod-like’ object, and also hit him on the

temple with his fist. The Colonel, it is alleged, fell

down, while Sunil clambered the parapet wall, and made good

his escape, because the Colonel had previously ordered that

the gates be shut. Meanwhile, the Colonel was taken and

laid on a cot, where he expired. A phone call having been

made to the police, the Investigating Officer arrived on the

scene, and after taking some statements including one from

Sunil, he went and arrested him and also his two brothers.

Post-mortem examination revealed a linear fracture of the

temporal bone with a haematoma under the surface. On the

forehead of the Colonel

was a mark of the injury alleged to have been given with the

’ rod-like’ object, though over the seat of’ the fracture no

outward visible injury was seen. The doctor who performed

the autopsy also found certain -pathological defects in the

liver and the, gall bladder, and he asked the Chemical

Examiner to examine the viscera for possible poisoning. He

gave the opinion that death was "due to shock consequent to

head Injury, i.e., injuries on the top of senile changes and

pathological liver and gall bladder as well as to

inhibition." With regard to the head injury which was

certified to be ante-mortem, the doctor was of opinion that

it was likely to have been caused by a fall on some hard

substance.

The charge against Sunil, in the first instance, was under

s. 302, but the case proceeded in the sub sequent trials

only under s. 325 read with a further charge under s. 447 of

the Indian Penal Code for house trespass, with intention to

intimidate, insult or annoy the owner.

The above facts clearly show that the essence of the case

lay in a very narrow compass. The questions which the jury

had to determine were whether Sunil trespassed into the

premises of No. 18, Bondel Road with the intention of

insulting, intimidating or annoying the owner and further,

whether Sunil struck one or more blows either with a I rod-

like’ object or his fist on the head of Col. Mitra, thereby

causing him injuries, simple or grievous. Alternatively,

the jury had to determine whether Col. Mitra suffered these

injuries not at the hands of Sunil but by a fall, which was

the defence. No doubt, the case involved a very lengthy

cross-examination of the witnesses for the prosecution, who

alleged that they had witnessed the entire occurrence. The

issues to be decided were simple; One would have expected

that the learned Judge in charging the jury would have, at

least, pointed out to the jury what were the points for

determination after weighing the evidence, pro and con, in

the case; but the learned Judge did not, in spite of the

voluminous charge, put these simple points before the jury.

The attention of the jury was never directed to these simple

matters, but, on the

other hand, it was directed to almost everything else.

No doubt, a verdict of the jury is entitled to the greatest

weight, not only before the Court of trial but in all

appeals including that before this Court. The law does not

allow an appeal against the verdict, except only if the

Judge in his charge to the jury is guilty of a wrong

direction in law or of a substantial misdirection. Since

the verdict of the jury depends upon the charge, the charge

becomes a most vital document in judging whether the verdict

be sustained or not. It is the charge which one has to

examine, to find out whether the verdict is defective or

not. Such an important stage in the trial requires that the

Judge should be careful to lead the jury to a correct appre-

ciation of the evidence, so that the essential issues in the

case may be correctly determined by them, after

understanding the true import of the evidence on the rival

sides. A charge which fails to perform this basic purpose

cannot be regarded as a proper charge, and if it contains

also misdirections as to law, it cannot be upheld.

The learned Judge in his charge to the jury began by telling

the jury in a sentence, or two each, what were the essential

things they had to remember, before making up their minds as

to the verdict. He told the jury that they were the judges

of fact, and that it was their function to determine all

issues of fact, without accepting any view which he might

feel disposed to express upon the credibility or otherwise

of the’ witnesses. These observations in black and white do

read quite well; but, in view of the fact that the Judge

expressed’ almost no opinion as to the credibility or

otherwise of the witnesses, it lost in practical application

all its point. Then, the Judge stated that every accused

was presumed to be innocent, until the contrary was proved,

and further, that the jury should convict only if the facts

were compatible with his guilt. So far as this direction

went, nothing can be said against it. The Judge next pro-

ceeded to explain what was meant by the expression fact

proved-". He paraphrased the definition of proved " from

the Evidence Act. In dealing with

this topic, he omitted to explain also the expressions "

disproved " and " not proved " ; but that too cannot be said

to be a serious defect. He then expatiated on reasonable

doubt, the benefit of which, according to him, must go to

the accused. In dealing with this subject, he observed as

follows:

" The law further says, if you have any reasonable doubt,

then the fact is not proved and the verdict you bring would

be a verdict of not guilty. If you have no reasonable doubt,

then the verdict you are to give is the verdict of guilty.

A further question that you should bear in mind is that you

may be in a state where you cannot decide. That is a case

of benefit of doubt and if you reach such a stage, then the

law says that you will give the benefit of doubt to the

accused. That means that if you have a kind of doubt which

makes you unable to decide, then the accused is not guilty.

Again, if you have no such doubt, then the accused is

guilty. These are the main principles of criminal trial

which I think, you should bear in mind while you are

approaching the evidence in this case."

This statement of the law is partly true but not wholly

true. The learned Judge, with due respect, did not make it

clear to the jury that the prosecution case is built up of

numerous facts, though the fact to be determined is the

guilt of the accused, and that a reasonable doubt may arise

not only in connection with the whole of the case but also

in relation to any one or more of the numerous facts, which

the prosecution seeks to establish. Every individual fact

on which doubt may be entertained may be held against the

prosecution; but it’ does not mean that if the jury

entertained a doubt about any individual fact, the benefit

of that doubt must result in their bringing in a verdict I

of not guilty’. This, however, seems to be the effect of

this direction which incidentally is almost the only

direction on the point of law which the learned Judge, apart

from what I have stated earlier, has chosen to give. In my

opinion, the learned Judge should have told the jury that

they could give the benefit of the doubt on proof of any

individual fact, if they felt any doubt

about the proof. But be should have cautioned them that the

totality of facts must be viewed in relation to the offence

charged, and the benefit resulting in acquittal could be

given only if they felt that when all was seen and

considered, there was doubt as to., whether the accused had

committed the crime or not. The direction on the point of

law contained in the above passage was too attenuated, and,

in my opinion misleading, and led to the inference,

possibly, that if the jury felt a doubt about even one

circumstance, they must bring in a verdict of not ’guilty’.

Having laid down the law to the extent indicated above, the

learned Judge next explained the ingredients of s. 325 of

the Indian Penal Code. He explained this with reference

only to grievous hurt, drawing the attention of the jury to

’ fracture of bone’ or injury endangering life’ in the

definition. He, failed to say that grievous hurt was only

an aggravated form of hurt, and that the liability of the

accused did not cease, if he committed an act which resulted

in a simple hurt. Indeed, the learned Judge did not tell

the jury that even if they held that the accused did not

cause a grievous injury, it would be open to them to hold

that he caused a simple injury, which would bring the matter

within s. 323 of the Indian Penal Code. I may further point

out that after the verdict of I not guilty’ under s. 325,

the learned Judge did not question the jury whether they

thought that the accused was guilty of causing at least

simple hurt. The jury gave no reasons; they only answered

the query whether they thought that the accused was guilty

of the offence of causing grievous hurt. But they were not

questioned whether they thought, on the facts of the case,

that the accused had committed the lesser offence of causing

simple hurt. It must be remembered that the prosecution

case was that two blows were given, one causing the

injury to the temple resulting in a fracture of the temporal

bone and the other, causing an injury on the forehead of of

Col. Mitra. One of them was grievous; the other was not.

Of course, the jury were perfectly entitled, to hold that

the accused caused neither of these injuries; but it is

possible that the jury, if questioned,

would have answered that they thought that the accused had

caused the simple injury but not the one resulting in the

fracture of the temporal bone. The failure to question the

jury with regard to the lesser ,offence completely ruled out

that aspect of the case from the minds of the jury, with the

result that the jury were limited to a case of grievous hurt

and not lesser offence.

These defects in the charge to the jury on matters of law

are heightened by the manner in which the facts have been

laid before them. The charge to the jury, as I have stated,

ran the course of 50,00060,000 words. The matter I have so

far discussed is contained in 1,000-1,500 words.

Thereafter, the learned Judge did nothing more than

paraphrase the evidence of each single witness in detail, or

read out extracts from it. Throughout the course of this

reading and paraphrasing, he made no attempt to connect the

evidence with the fact to be tried. All that he ever said-

and he said it with monotonous iteration-was that it was for

the jury to decide whether they believed the witnesses or

not. No doubt, a Judge in charging the jury is neither

compelled nor required to express his opinion on the

evidence, except on a matter of law. But Judges marshll

facts and evidence to draw the attention of the jury to what

is relevant -and what is not. They do hot try to place

everything that a witness states, before the jury. It must

be remembered that a charge is a vital document, and the

Judge’s summing up is only needed, because the minds of the

jury must be directed to the salient points in the evidence,

so that they may avoid the irrelevant or immaterial parts

thereof. The learned Judge before dealing with the

evidence, prefaced his remarks by saying this :

" I now propose to take up the prosecution witnesses

individually with a view to sum up the evidence of each

witness and the suggestions made to each by the counsel for

the accused."

This represents a very fair and adequate summary of what the

Judge really did, except that he did not sum up the evidence

but placed it in its entirety. As I have stated, hetook

each witness, turn, by turn

paraphrased his evidence sentence by sentence, and read out

those portions which he did not paraphrase, without trying

to draw the attention of the jury to the relevancy or

materiality of the various parts, The document is composed

of a series of narrations with regard to the testimony of

the witnesses’ each portion beginning with the words, " Then

there is the evidence of witness so and so..." and ending

with ,,This is the evidence of witness so and so..." In

between is a voluminous account of everything that each

witness stated. Not only this; no difference was made

between the testimony of the eye-witnesses and of the formal

witnesses in the matter of treatment. I quote verbatim from

the charge what the learned Judge said with regard to one of

the police witnesses.

" Then comes the evidence of Head Constable Mathura Singh.

He reached No. 18, Bondel Road in a lorry and he was

accompanied by a constable. You remember he was first sent

by Pushpa Pal. This Head Constable Mathura Singh posted

another constable at the gate so as not to allow a crowd to

gather. - He also saw Col. Mitter lying unconscious like a

dead person covered with a blanket. He also had talk with

Nirmal. I would like to remind you that if any person makes

any statement to the police, that is not admissible evidence

as a rule unless in the case of contradictions which are

formally proved as you have seen the Counsel for the accused

has proved contradictions in some cases but you must bear in

mind that except such cases, this is no evidence.

Then this Constable Mathura Singh went to No. 17 with the

other constable and posted that other constable at No. 17 to

control the crowd so as to prevent any one coming out of No.

17 And then while he was coming back to No. 18 to find out

if he could telephone the officer in charge, the constable

found the officer in charge at the gate of No. 18. After

Pushpa Pal, the Officer in charge came out of No. 18, Bondel

Road, he went to No.. 17 and brought down the accused. That

is the evidence of Constable Mathura Singh also. This

Constable took charge of the accused and left for the thana

with the accus-

ed at about 9 O’clock in the morning on the 11th August,

1950. Mathura Singh was cross-examined and be said in

cross-examination that he did not note down the names of the

persons forming the crowd at No. 18. He did not go and find

any article at No. 17. His evidence is that he was there to

guard No. 17 so that no one escaped from there. "

It needs no argument to apprehend that all this was not only

a waste of the Court’s time but was also likely to

obliterate the impression which the jury had gathered with

regard to the other material evidence in the case. This is

only one passage quoted from the evidence of one witness.

Not only were several such witnesses brought to the notice

of the jury; but even in the evidence of those that were

relevant and material, there was no attempt made to

extricate the relevant from the irrelevant, the material

from the immaterial, the ore from the dross. The learned

Judge, as he had indicated, followed the pattern of putting

all the evidence before the jury without any attempt to

focus their attention on the salient parts of it, and

without expressing his opinion either for or against the

accused.

There were only two passages in the entire charge, in which

the learned Judge expressed his opinion. One was with

regard to an old lady who was an eyewitness and who viewed

the incident from the upper storey of a neighbouring house.

That lady was the one person about whom it could be said

that she was entirely disinterested and whose respectability

was above reproach. She was old and had weak eyesight. She

had stated that she saw the quarrel going on, then she asked

for her spectacles and saw properly. Whether she saw

correctly or not was the question. The learned Judge told

the jury that the lady was too old and unreliable to be a

proper witness, without warning them this time that his

opinion was not binding on them. The other comment is with

regard to the medical evidence, where the learned Judge in

one part promised the jury that he would give them adequate

guidance how to weigh the conflicting medical testimony,

which, it appears, he forgot to do at the end, and in

another portion, he gave this direction:

"Now, gentlemen, when a medical witness is called as an

expert he is not a witness of fact. Medical evidence of In

expert is evidence of opinion, not of fact. Where there are

alleged eye-witness of physical violence which is said to

have caused the, hurt, the value of medical evidence by

prosecution is only corroborative. It proves that the

injuries could have been caused in the manner alleged and

nothing more. The use which the defence can make of the

medical evidence, or any medical evidence which the defence

might itself choose to bring, is to prove that the injuries

could not possibly have been caused in the manner alleged

and thereby discredit the eyewitnesses. Therefore, you must

remember this particular point of view that if you believe

the eye-witnesses, then there is no question of having it

supported by medical evidence; unless the medical evidence

again in its turn goes so far that it completely rules out

all possibility that such injuries could take place in the

manner alleged by the prosecution and that is a point which

you should bear in mind, because if you accept the evidence

of the eye-witnesses, no question of further considering the

medical evidence arises at all. The only question in that

case when you consider the medical evidence is to test the

eye-witnesses’ version as to whether any of the particular

injuries shown in the report can be caused in the manner

alleged by the prosecution. But if you don’t believe the

eye-witnesses then consideration of the medical evidence in

any manner becomes unnecessary. I think this will be

gentlemen, a convenient time for you to halt, otherwise it

might be too tiring for you. (Foreman of the jury expressed

the desire to continue the Charge). " I do not think that

the direction is either correct or complete. It. is

incorrect, because a medical witness who performs a

postmortem examination is a witness of fact,though he also

gives an opinion on certain aspects of the case. Further,

the value of a medical witness is not merely a check upon

the testimony of eyewitnesses; it is also independent

testimony, because it may establish certain facts, quite

apart from the other oral evidence. If a person is shot, at

range, the marks of tatooing found by the medical witness

would show that the range was small, quite apart from any

other opinion of his. Similarly, fractures of bones, depth

and size of the wounds would show the nature of the weapon

used. It is wrong to say that it is only opinion evidence;

it is often direct evidence of the facts found upon the

victim’s person. However that be, these two passages were

the only directions given by the learned Judge to the jury ;

-the rest of the charge was only a paraphrase of the medical

evidence running the course of 15,000 words.

There is also a complete disregard of s. 162 of the Code of

Criminal Procedure both during the trial and also during the

charge. Omissions were treated as contradictions and placed

before the jury. The following two passages extracted from

the charge illustrate the defect at both stages :

Q. 151. Did you tell the police that you did not see

whenthe old man was assaulted and who assaulted him ?

A. I stated to the police that I had seen the old man

being dealt a fist blow, but I had not seen him being struck

with a rod.

Q. 152. Did you tell the police that you did not see when

the old man was assaulted and who assaulted him ?

A.No. I did not make that statement.

I Gentlemen, that is a contradiction and it will be for you

to judge how far that goes to destroy the credit of this

witness. Another contradiction was put to him that he did

not mention that Sati Mitra was pulled by hair, but he says

it here. You will find from his answer to Question 158 that

even before the police he made the statement that Sati Mitra

was pushed away. The language used was pushed away’. Then

in answers to Questions 161 to 164 further contradictions

with this police statement were made out in cross-

examination. The first is that it was not mentioned by him

before the police that there was any fist blow on the

Colonel; secondly, that it was not mentioned to the police

by him that Sati Mitra intervened in the matter by clasping

the Colonel, and also on the point whether

the Colonel was dragged by his shirt. I will read out the

relevant questions and answers:

Q. Do you find further that you have stated in the next

paragraph after that ’I also saw another tall person stated

to be the second brother was dragging the old man holding

his wearing shirt’?

A. I saw that person dragging the Colonel by holding his

genji and when a fist blow was given to the Colonel, Sati

Mitter came and clasped him from a side.

Q. 161. Do you find here that all that is written is that

you saw the Colonel being dragged and nothing is mentioned

about the fist blow and Mrs. Sati Mitter clasping her

father-in-law and being pulled away by the hair ?

A. I do not know how the police had recorded my statement.

But I am telling you that (what) I saw. I saw that when a

fist blow was given to the Colonel Sati Mitter came and

clasped the Colonel from a side and she was thrown down by

being caught by her hair.

Q.164. Forget about the genji and the shirt You find here

that nothing is mentioned about your evidence that you saw

the Colonel being given a fist blow by the accused on the

left temple and then Sati Mitter coming and clasping the

Colonel round his waist,--you find that is not mentioned ?

A. On my being repeatedly asked about the lathi blow I

denied to the police that I had -seen any lathi blow being

given to him, but I said that I had seen a fist blow being

given. "

The second passage is even more significant. This is how it

runs:

" She makes it clear that she saw the incident at different

stages having been to the kitchen in the meantime and come

back. She saw the Colonel after her return from the

kitchen. She does not remember the dress of the assailant.

She also says that the gate of No. 18 was closed. Her

evidence has been criticised also for contradiction between

her evidence here and her statement to the police first. It

is said that she said before the police that she heard the

hulla herself; here she says that it was the children’s

cries

which attracted her attention. Secondly, she said to the

police that she came first to the drawing room ; here she

says that she came first to the verandah. Thirdly, she also

said to the police that she saw the person wearing Choti or

pants and blue shirs Fourthly, before the police she said

that she saw the three persons leaving Nirmal and started

arguing. Here she says that she did not see them arguing.

Fifthly, it is said she told the police she saw the Colonel

once go near the pillar of the gate on the western side but

she does not say so here. Then again, it is said that she

told the police that she saw the assailant bring out a black

looking object from somewhere in his waist and she

subsequently saw the old man fallen down. She said here

that she did not see the old man falling down. Gentlemen,

you will again weigh these contradictions and see whether

they are such as to discredit the witness or are such for

which you can make allowance. In fact, she said in cross-

examination that I something’ was brought out by the

assailant from his right side. I think, gentlemen of the

jury, you also asked her some questions.

Q. During the examination it appears that you have told us

that you saw Colonel Mitter being drawn towards 17, Bondel

Road ?

A. He was being dragged in the direction of the Mansion

House.

Q. 111. That is, towards the west of the path ?

A. Yes.

Q. 112. How far was he from the boundary walls abutting

the Bondel Road ?

A. I would not be able to tell you that because I was

seeing this from above, from a height.

Then the last question to her was this:

Q. 113. You have just given us more or less what you saw.

Could you also tell us exactly on what part of the lawn, was

it at the central portion of the lawn or was it on the side

of the lawn that you saw that one person who was with the

Colonel was bringing out something from his side ? At what

position were the Colonel and that gentleman standing ?

A. It is difficult for me to describe the position. But I

can say that he was neither in the exact centre of the lawn

nor was he absolutely on an extreme side of the lawn. He

was somewhere about 4 or 5 cubits way from the gate of the

boundary wall."

In the previous trials, the Calcutta High Court rejected the

verdict of the jury, because in the opinion of Chakravarti,

C.J. (Sarkar, J. concurring), it was all comment and no

evidence. It may be said that this time it was all evidence

and no comment or arrangement. The Calcutta High Court has

laid down in a series of cases what the charge to the jury

should be, and I shall refer only to the Calcutta cases.

There is no settled rule or practice as to what a charge

should or should not contain. That is dictated by the

circumstances of each case. Sir James Fitz-James Stephen in

his History of Criminal Law of England, Vol. 1 pp. 455-456

(quoted in Trial by Jury and Misdirection by Mukherji, 1937

Edn., at p. 237) says:

"The summing up again is a highly characteristic part of the

proceedings, but it is one on which I feel it difficult to

write. I think however that a Judge who merely states to

the Jury certain propositions of law and then reads over his

notes does not discharge his duty. This course was commoner

in former times than it is now...... I also think that a

Judge who forms a decided opinion before he has heard the

whole case or who allows himself to be in any degree

actuated by an advocate’s feelings in regulating the

proceedings, altogether fails to discharge his duty, but I

further think that he ought not to conceal his opinion from

the Jury, nor do I see how it is possible for him to do so,

if he arranges the evidence in the order in which it strikes

his mind. The mere effort to see what is essential to a

story, in what order the important events happened, and in

what relation they stand to each other must, of necessity,

point to a conclusion. The act of stating for the Jury the

questions which they have to answer and of stating the

evidence bearing on those questions and in showing in what

respect it is important, generally goes a considerable way

towards, suggesting an answer to them, and if a Judge does

not do as much at least as this, he does almost nothing."

As pointed out by Mukerji (ibid p. 253):

" Where the charge to the Jury was little more than a

rambling statement of the evidence as it came from the

mouths of the several witnesses who were called and no

attempt was made to sift the relevant and important matters

from the irrelevant and unimportant facts, held that the

charge was defective and the trial was vitiated on that

account. (Jabed Sikdar) (1). It is not sufficient for the

Judge simply to point out this peace of evidence and that,

this presumption and that, this bit of law and that. It is

his duty to help and guide the Jury to a proper conclusion.

It is his duty to direct the attention of the Jury to the

essential facts. It is his duty to point out to them the

weight to be attached to the evidence and to impress upon

them that if there is any doubt in their minds they must

give the benefit of the doubt to the accused. It is not

enough that the Judge has said something on each of these

matters somewhere in the charge. It is the manner of saying

it, the arrangement and the structure of his charge which

will make it either of value or valueless to the Jury.

(Molla Khan) (2)... It is not enough to read out the

evidence in extenso it is incumbent on the Judge to analyse

it and place it succinctly before the Jury (Rajab Ali) (3)."

The charge in this case goes manifestly against these

directions. It is no more than ’a recital of the entire

evidence in the case’ almost as detailed as the evidence

itself, and there is no attempt whatever to give any

guidance to the Jury.

No doubt, the Privy Council in Arnold v. King Emperor(4)

stated that:

" A charge to a Jury must be read as a whole. If there are

salient propositions of law in it, these will, of course be

the subject of separate analysis. But in a protracted

narrative of fact, the determination of which is ultimately

left to the jury, it must

(1) (1931) 35 C.W.N. 835.

(2) A.I.R. 1934 Cal. 169 (S.B.)

(3) A.I.R. 1927 Cal. 631.

(4) (1914) L.R. 4I I.A. 149.

needs be that the view of the Judge may not coincide with

the view of others who look upon the whole proceedings in

black type. It would however, not be in accordance with

usual or good practice to treat such cases as cases of

misdirection, if, upon the general view taken, the case has

been fairly left within the Jury’s province."

These observations apply only if the matter has been fairly

left to the jury. When this charge is read through its vast

length, the most astute person is left guessing as, to where

it was all driving the jury to. It is a protracted

narrative no doubt, but it is so amorphous as to give no

indication of its real purport and import, and leaves the

matter not in the hands of the jury, but, if I may so say

with great respect, in the air. I think that this was a

case for the exercise of the powers of this Court under Art.

136. As was laid down in Ramkrishan Mithanlal Sharma v. The

State of Bombay(1), the Judge in summing up for the

prosecution and defence should not give merely a summary of

the evidence; he must marshall the evidence so as to give

proper assistance to the jury, who are required to decide

which view of the facts is true.

I am, therefore, of opinion that the charge to the jury

cannot be said to be a proper charge on any principle or

precedent, and that the verdict cannot be accepted. Though

this case has taken already almost ten years, there is prima

facie reason to think that justice has failed. Since the

matter is now before the highest Court, there is no

likelihood of any further delay in the case, and what is

just therein can be done. I would, therefore, proceed to

hear the case on merits.

By Court: In accordance with the opinion of the majority,

this appeal is dismissed.

Appeal dismissed.

(1) [1955] 1 S.C.R. 903, 930.

Smt. Nagindra Bala Mitraand Another v. Sunil Chandra Roy and Another