Smt. Nagindra Bala Mitra& ANR Vs.
Sunil Chandra Roy & ANR  INSC 21 (12 February 1960)
CITATION: 1960 AIR 706 1960 SCR (3) 1
CITATOR INFO :
R 1962 SC 605 (16)
Trial by jury-Charge to the Jury-Duty of
Judge-MisdirectionVerdict of the jury, when could be interfered with-Code of
Criminal Procedure, 1898 (Act V of 1898). ss. 162, 297, 323, 325.
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 mis-directions 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 mis-description
of the whole bearing of the evidence has occurred.
Mushtak Hussein v. The State of Bombay,  S.C.R. 809, Ramkrishan Mithanlal Sharma v. The State of Bombay,  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 there from and their bearing on the main questions
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 mis-directions
and that the verdict could not be accepted.
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
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 3 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
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.
4 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 voluntarily 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 eyewitnesses
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 5 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,
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.
6 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
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 7 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 8 Colonel and found him
already dead. On receipt of the telephone message from Nirmal, Pushpa Pal, Officer-incharge,
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 antemortem 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 9 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
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)  S.C.R. 809 at 815.
(2)  1 S.C.R. 903 at 930.
10 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 interfere unless something
gross amounting to a complete mis-description 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)  L.R. 41 I.A. 149.
11 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 witnesswise 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.
12 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 mis-description 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 55 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)  S.C.R. 258 at 267.
(2)  1 S.C.R. 313, 344.
(3) 29 T.C. 69, 96.
56 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
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)  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 misdirection by the learned
(1) (1954] L.R. 41 I.A. 149 13 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 distinction 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 14 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 crossexamined 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 15 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.
16 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
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 questions 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
" Now, gentlemen, when a medical witness
is called in as an expert he is not a witness of fact. Medical 17 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
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 3 18 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
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 eyewitnesses
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:
19 " 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
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
"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 20 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 cross-examination 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
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 21 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
misdirections 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 22 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 land23
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 24 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
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 rodlike' 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 25 other hand, it was directed to almost
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 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. 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 proceeded to explain what was meant by the
expression fact proved-". He paraphrased the definition of proved "
from the Evidence Act. In dealing with 4 26 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 27 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 Col. Mitra. One of them was grievous; the other was
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, 28 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
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
not 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 29 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
" 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 accused 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
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
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:
31 "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 close 32 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 when the 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 33 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
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 5 34 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 crossexamination
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 ? 35 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 36 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
(2) A.I.R. 1934 Cal. 169 (S.B.) (3) A.I.R.
1927 Cal. 631.
(4) (1914) L.R. 4I I.A. 149.
37 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.
(1)  1 S.C.R. 903, 930.