NABI KHAN Vs. EMPEROR

JUDGEMENT

(1.) In this case the appellants were charged with two others under Sub-section 364 and 302/120-B, I. P. C. Two of the accused were acquitted by the jury and the others, who are the present appellants, were found guilty under both sections by a majority of 6 to 3. This is a case in which, though it cannot be said that there is a actual misdirection of the jury, the Judge has failed almost entirely to give the jury the help and guidance which they are entitled to expect from the Judge, and which it is his duty to give. The charge consists of a long, rambling repetition of the evidence, without any attempt to marshall the facts under appropriate heads, or to assist the jury to sift and weigh the evidence, so that they will be in a position to understand which are the really important parts of the evidence and which are of secondary importance. Especially, the learned Judge has failed altogether to deal with the case of each of the accused separately, that is to say, he has omitted to point out to the jury exactly the evidence against each of the accused separately. Almost the last words of his; charge were that they would consider the case of each accused separately. That however is not sufficient, It is his duty to consider the case of each accused separately and to describe to the jury the evidence against each of the accused. It is of course necessary in every criminal case for the Judge carefully, properly and efficiently to charge the jury, but if there is any case in which it is more important that this duty should properly be performed, it is in a case of murder, and especially, in this case was great care necessary on the part of the Judge, because it was a case in which the police had originally reported against any proceedings being taken, and after a Naraji petition had been filed, the case was inquired into by a Deputy Magistrate who dismissed it under Section 203, Criminal P. C. Thereupon the complainant moved the Sessions Judge and it was not until the third attempt made by the complainant that he succeeded in getting the case sent back for a fresh inquiry out of which the present prosecution resulted.

(2.) In addition to failing to give any assistance to the jury, the learned Judge handicapped them by going into unnecessary details with regard to certain aspects of the case, which were really of very little importance. Yet he told the jury that it was necessary for them to come to a finding with regard to these secondary matters. With regard to the evidence generally, all that the learned Judge did was to repeat shortly what each witness had said, and then to tell the jury again and again ad-nauseum that it was for them to consider whether they would believe or disbelieve that witness, without attempting to guide or help them in considering what facts there were in his evidence which would lead them either to one conclusion or the other.

(3.) The facts shortly were that Kazi Sarip Hossain was a Collectorate Amin and he was the complainant. He had purchased a property and a rent decree against the accused Nabi Khan and had purchased Nabi Khan's homestead in execution and attached his moveables. There had been resistance to the peon who went to attach the goods, and Nabi Khan, Mofez, Ful Khan and others were implicated in a criminal case for resisting the peon, and Nabi Khan, Mofez, Chinta Haran Das and one Kasemali had threatened the complainant. This Kasemali seems to be intended for the accused Hashemali, though there is no explanation in the charge about this discrepancy. The complainant's son, Momin, gave evidence against these accused in the criminal case. After stating these facts to the jury, the Judge then went on to describe certain letters written by one Abdul Kader to the complainant, in which he stated that Nabi Khan, Mofezaddi, Khorshed and Chintaharan, the accused, and others were conspiring to kill him. These letters were admissible only in corroboration under Section 157 of the statement of Abdul Kader, that some of the accused had offered him money to murder the complainant. Nowhere in the charge has the Judge explained this to the jury. He has left them to imagine that this was substantive evidence of a threat by these accused to murder the complainant, or substantive evidence of a conspiracy on their part to murder him. This, in itself, was a non- direction which amounted to misdirection.