DWARKA DAS BAIRAGI Vs. EMPEROR

JUDGEMENT

(1.) This case comes from Burdwan where the accused in the present appeal and the accused in Criminal Appeal No. 253 of 1928 were tried along with four others before the then learned Additional Sessions Judge of Burdwan and a jury on a charge under Section 395, I.P.C. The jury found the present appellants and the appellants in Appeal No. 253 of 1928 guilty of having committed on offence punishable under Section 395, I.P.C. The learned Judge agreeing with the verdict of the jury sentenced each of the accused to suffer rigorous imprisonment for a period of seven years. In the present appeal the appellant Hencha alias Niranjan Ghose has been represented before us by Mr. Mritunjoy Chattapadhya. The appellants in appeal No. 253 of 1928 preferred the appeal from jail and the two appeals have been heard together before us. For the reasons which we are about to give we must set aside the verdict of the jury and the conviction and sentence and direct retrial of the accused in these two appeals according to law.

(2.) This course has been forced upon us and we have had no other alternative than to direct retrial.

(3.) Mr. Chatterji has argued on behalf of his client that from the charge of the learned Judge to the jury as it appears on the record before us it could not be said with certainty what was the view on the facts appearing on the evidence which was placed before the jury and that it could not be called a proper summing up within the meaning of Section 297, Criminal P.C. He further contends that the summing up by the learned Judge after the close of the evidence in the case should be a full and a distinct statement of the evidence on the record with such advice as to the legal bearing of that evidence and the weight which should attach to the several parts of it as sound judicial discretion would suggest and in so far as the present summing up violates the conditions indicated above it amounts to a misdirection within which expression are included also matters of non-direction. It is not necessary to set out herein the charge itself of the learned Judge for the purpose of indicating what that charge is. The charge itself must be referred to in order to fully understand the observations which follow. In our opinion this charge is one which is animadverted upon in the judgment of this Court reported in 31 Calcutta Weekly. Notes at p. 387 and in Indian Law Reports 34 Calcutta at p. 698. It no doubt appears on the face of it to be heads of charge to the jury and in so far as it consists of heads of charge to the jury it may be said that there is a technical compliance with the provisions of Section 297, Criminal P.C. It is not however, a charge in such a form as to enable this Court as the final Court of appeal in cases of trial by a jury to be satisfied that it was delivered with sufficient fulness as regards the evidence on the record or that it is such as to en- able this Court as a Court of appeal to say for itself that all points of law and fact were clearly and correctly explained to the jury having regard to the evidence adduced in the case. Now the explanation of the law bearing on the subject, if it can at all be called an explanation, is drastically meagre and we have not been afforded any assistance whatsoever by the learned Judge in the portion of the charge relating to the explanalion of the law bearing on the case for the purpose of finding out for ourselves whether the sections were properly explained to the jury or not. Leaving that aside and confining ourselves to the observations in the charge and the summing up of the evidence on the record it seems to us that the summing up is no more than than the bearest possible skeleton of the evidence on the record. It is not as indicated above a summing up at all. It is doubtful whether the jury were afforded any real assistance by the learned Judge when he proceeded to sum up the case to the jury. The names of the witnesses are mentioned no doubt in the charge. But the interdependence of the evidence given by these witnesses bearing on the charge framed against the accused has not been made clear nor does the summing up of the evidence appear to us in any way connected with the several parts thereof as a whole, as a summing up made with ordinary care would certainly show. But we need not pause here because from the record it has been shown that important points which should have been brought to the notice of the jury have not been brought to their notice. In our opinion, the circumstances to which our attention has been drawn imperatively demand that the accused should have an opportunity of having the case against them placed before the jury by another officer and at a second trial.