QUEEN Vs. GAGALU, MAGALU AND ORS

JUDGEMENT

(1.) The appellants in this case have been convicted in a trial by jury, in Assam, of the offence of murder. The Judge, though entirely disapproving of the verdict, has passed sentence of transportation for life upon the prisoners, and the prisoners have now appealed upon the ground that the direction of the Judge to the jury contains both absolute errors in the way of misdirection, and also errors of omission such as to invalidate that direction, and to make it the duty of this Court to set aside the proceedings, and order a new trial. The learned counsel who appeared for the appellants set forth what he considered to be the errors both of omission and commission on the part of the Judge, and proposed to read to us the evidence on the trial, in order to show that the prisoners had been prejudiced by those errors, and that the case was one in which this Court ought to interfere. The case of Elahi Buksh 5 W.R. Cr. 80 was very much referred to. The learned counsel read portions of the judgment of the Chief Justice as indicating the principles on which this Court would proceed in dealing with such cases. But it seems to me impossible to lay down with precision in what cases this Court may and ought, and in what cases it may not and ought not, to interfere with the direction of the Judge so as to set aside a trial by jury after verdict has been given. I do not think it necessary in this case to go seriatim into the grounds which the learned counsel has laid before us, because, I think, we must deal with each case upon its own merits; and taking, as we are bound to take, the charge of the Judge to the jury as a whole, say whether its tendency baa been upon the whole to give a correct or incorrect direction to the mind of the jury. Applying that test to the case before us, I think I am bound to say that there is no such error in the charge of the Judge as ought to induce us to interfere with the proceedings. I think the Judge has in no way led the jury to attach undue weight to any portion of the evidence. On the contrary, I think that be has taken throughout a favourable and merciful view of the case towards the prisoners, and that it would be an altogether misplaced rule for us to apply to the direction of a Judge in a Mofussil Court the same criticisms which we would to a charge of a Judge in an English Court of Assizes. I think, therefore, that the grounds of appeal, as regards the whole of the prisoners in relation to the Judge's direction, must fail.

(2.) I have been reminded by my learned colleague, Mr. Justice Markby, of an objection to which I thick I ought to advert separately. That is an objection taken to the admission of the evidence of a witness, named Oruna. It is objected in regard to this witness that he was not examined by the Court of Session, but that his deposition was received and read at the trial upon its appearing to the Court that the witness was dead, when in fact there was nothing before the Court in the shape of proof to show that he was dead. By section 369 of the Code of Criminal Procedure, it is provided that the examination of a witness taken and attested by the Magistrate in the presence of the accused person may be given in evidence, if the witness be dead, or the Court be satisfied that, for any "sufficient cause, his attendance cannot be procured." I think that, in order to make the evidence of a deceased witness legally admissible, provided that the admission of that evidence is questioned, it is necessary strictly to prove the death of the witness. I think it would be quite competent to the counsel for the prisoner at the time of the trial, to admit the death of the witness, and to dispense the prosecution from proving that circumstance, and I think the Court might, upon such admission, allow the evidence to be read; and I do not think it would be for the prisoner upon appeal to complain that his counsel had made that admission improperly. Upon this point, therefore, I think no valid objection to the proceedings in appeal is made out.

(3.) There is another and separate objection which relates to the case of one of the prisoners named Magalu. The point in question is that the Court of Session, acting under the powers contained in section 210, Act VIII of 1869, being the Act to amend the Code of Criminal Procedure, during the trial, tendered a pardon to this prisoner; that the prisoner made some statement to the Court; and that thereupon the Court, instead of ordering the commitment of the prisoner, under section 211, withdrew the tender of pardon, and ordered the trial to proceed as if no such tender had been made. It is contended that it was not open to the Court to take that course, but that the trial of Magalu ought to have stopped; and although it would proceed in regard to the remaining prisoners, that prisoner ought to have been re-committed, and proceedings taken in respect of him de novo.