EMPEROR Vs. UPENDRA NATH DAS

JUDGEMENT

(1.) Upendra Nath Das was tried at the last Criminal Sessions of tin s Court before Stephen, J., and a Special Jury on charges under Sections 302, 304 and 826 of the Indian Penal Code. The Jury found the accused guilty under Section 302 by a majority of 8 to 1. The learned Judge agreeing with them gave judgment in accordance with the opinion of the majority and sentenced the accused to death.

(2.) The Advocate-General subsequently on the representation of the accused s Counsel as "to the direction given by the learned Judge in his charge to the Jury purported to grant a certificate under Clause 26 of the Letters Patent. Certain alleged errors of decision on points of law were attributed to the learned Judge, but when the case came on for argument it was found that in some respects the certificate was in direct conflict with what was stated by the Judge, and in other respects was manifestly unsustainable, or failed to formulate the accused s real grievance as placed before us by Mr. Norton on his behalf. It has been decided by the leading case of Reg. v. Pestonji Dinsha 10 B.H.C.R. 75 that the statement of the Judge who presides at the trial is conclusive and accordingly Mr. Norton was, on his own application, allowed to apply for a fresh certificate that might be in conformity with the learned Judge s statement, and might also give effect to the accused s real grievance to which I have already alluded. This grievance was in substance that the learned Judge had directed the Jury that he could not see evidence that would establish any of the exceptions set forth in Section 300, Indian Penal Code, when in fact there was such evidence. The Advocate-General has now granted a fresh certificate which is in these terms: I certify that in my judgment the following points of law were erroneously decided by the learned Judge and should be further considered by the High Court under the provisions of Section 26 of the Letters Patent of 1865. 1. That the learned "Judge told the Jury that he did not see that there was any evidence of any of those provided for (meaning exceptions to Section 300, Indian Penal Code), thereby: (a) wrongly withdrawing from the Jury the charge of culpable homicide not amounting to murder under Section 304 instead of leaving the case to the Jury upon that charge; and (b) wrongly omitting to explain to the Jury that they were the sole Judges of the evidence and that notwithstanding his expressed opinion it was competent to them upon the facts to find a verdict under Section 304; and (c) thereby misdirecting the Jury. 2. The learned Judge mentioned the existence of exceptions of such as self- defence, but omitted to explain to the Jury the application of the exception of provocation to the facts of the case, thereby failing to comply with Section 297 of the Criminal Procedure Code.

(3.) That the Jury not being unanimous and having returned a majority verdict only on the charge under Section 302, Indian Penal Code, the learned Judge erred in law in not taking their verdict on the charge under Section 304; inasmuch as in the event of a unanimous verdict under Section 304 the majority verdict under Section 302 could not legally have been accepted. 31st August, 1914. G.H.B. Kenrick, Advocate-General, Bengal. 3. The certificate of an Advocate-General is naturally entitled to respect; the Letters Patent require that it should reflect the judgment of the Advocate-General and not mere surmise, and the certificate is presumably granted in the interests of justice after a careful consideration of all available materials. Here the error ascribed to the Judge obviously depends on the evidence in the case, and until that is perused it is difficult to see how the Judge can be said to have erred in directing the Jury as to its effect. I, therefore, feel Mr. Norton must have been under some misapprehension when he stated to the Court that no note of the evidence was read by or to the Advocate-General before he granted his certificate. But whatever may have been done, the certificate has been granted and we, therefore, have to deal with the case.