HAFEZALI HALDAR Vs. EMPEROR

JUDGEMENT

(1.) This is an appeal by one Hafezali Haldar who has been convicted by a verdict of a jury of offences punishable under Secs.148 and 326, I.P.C.

(2.) The ground of appeal which has been urged before us is that the recording of the heads of the charge is insufficient and the criticism is based upon the fact that the heads of the charge do not reveal the way in which the learned Sessions Judge explained the sections under which the accused has been charged. Nor the sections concerned with the exercise of the right of private defence on which the accused relied. In the heads of the charge there is a paragraph which runs as follows: Secs.141, 142, 146 to 148, 319 to 322, 326, 201, I.P.C., explained; Secs.96, 97, 99 to 106 I.P.C. explained. Charges explained.

(3.) The learned advocate appearing for the Crown concedes that it is highly desirable that the heads of the charge should indicate far more fully than has been done here what the learned Sessions Judge has said in his explanation of the law to the jury and there are many reported cases dealing with the form which record of the learned Sessions Judge's direction on the law should take. Among others we were referred to the observation of Sanderson, C.J., in the case of Kasimuddin Nasya V/s. Emperor (1920) 47 Cal. 795. But in spite of this the learned advocate for the Crown argued that before we were justified in setting aside the verdict of the jury on the ground which I have indicated we must be in a position to come to the conclusion under Section 423, Sub-section (2), Criminal P.C., that the verdict is erroneous owing to misdirection by the Judge or {misunderstanding on the part of the jury of the law as laid down by him, and he |says that it is for the appellant to show affirmatively that there has been such misdirection or misunderstanding. He is supported in this contention by an unreported case decided by Graham and Lort-Williams, JJ., in Appeal No. (248 of 1929 where the point urged here on behalf of the appellant was taken and the Court pointed out that in no case had the verdict of a jury been set aside solely on the ground that the heads of a charge were in the form with which we are dealing in the present case, and that in the opinion of the Court the provisions of Sub-section (2), Section 423, were effective to prevent a Court from interfering with the verdict of a jury on this ground alone. It is also pointed out on behalf of the Crown that, although we do not know exactly what the learned Judge said to the jury as to the right of private defence, yet in concluding his charge he gave direction to the jury that, unless they were satisfied with the evidence of possession by the complainant's party they were bound to acquit the accused, thereby leaving out of account the possibility of their right of private defence being exceeded. We do not think that there is any substance in the other criticism which has been directed against the charge and it seems to us that the learned Judge dealt with sufficient fullness with the inference which the jury were entitled to draw from the failure to examine witnesses who in his opinion should have been examined.