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PETITIONER: SMT.  NAGINDRA BALA MITRAAND ANOTHER

       Vs.

RESPONDENT: SUNIL CHANDRA ROY AND ANOTHER

DATE OF JUDGMENT: 12/02/1960

BENCH: DAS, S.K. BENCH: DAS, S.K. SARKAR, A.K. HIDAYATULLAH, M.

CITATION:  1960 AIR  706            1960 SCR  (3)   1  CITATOR INFO :  R          1962 SC 605  (16)

ACT:        Trial by jury-Charge to the Jury-Duty of Judge-Misdirection-        Verdict  of the jury, when could be interfered with-Code  of        Criminal Procedure, 1898 (Act V of 1898). ss. 162, 297, 323,        325.

HEADNOTE: In  a trial by jury, the judge should in his charge  to  the jury  be careful to lead them to a correct  appreciation  of the evidence so that the essential issues in the case may be correctly  determined by them after understanding  the  true import of the evidence on the rival sides.  Since a  verdict of the jury depends upon the charge, if it fails to  perform this basic purpose it cannot be regarded as a proper  charge and if it contains also misdirections as to law, the verdict cannot  be upheld; but if, upon the general view taken,  the case  has been fairly left within the jury’s  province,  the verdict cannot be set aside unless something gross amounting to  a  complete misdescription of the whole bearing  of  the evidence has occurred. Mushtak  Hussein v. The State of Bombay, [1953] S.C.R.  809, Ramkrishan Mithanlal Sharma v. The State of Bombay, [1955] 1 S.C.R.  903 and-Arnold v. King Emperor, (1914) L.R. 41  I.A. 149, relied on. Per S. K. Das and Sarkar, jj.-Though the charge to the  jury in the present case was lengthy, the length was due in  part to  a  protracted narrative of facts and the  many  disputed questions of fact to which the attention of the jury had  to be  drawn, and as the judge did state the  several  disputed points  arising  therefrom  and their bearing  on  the  main qestions at issue, the jury were not misled. Held, that there was no misdirection and that the verdict of the jury could not be interfered with. Per  Hidayatullah,  J.-In  his charge to the  jury,  in  the present case, (1) the judge took each witness, turn by turn, paraphrased, his evidence, sentence by sentence and read out those  portions which he did not paraphrase, without  trying to  draw  the  attention of the jury  to  the  relevancy  or materiality of the various

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2 parts; and did not make any difference between the testimony of  the  eye witnesses and of the formal  witnesses  in  the matter  of treatment, (2) while telling the jury  that  they could  give  the  benefit  of the  doubt  on  proof  of  any individual fact if they felt any doubt about the proof,  the judge  did  not  at  the same time  caution  them  that  the totality of facts must be viewed in relation to the  offence charged and that the benefit resulting in acquittal could be given  only  if  they  felt  that  when  all  was  seen  and considered,  there was doubt as to whether the  accused  had committed  the crime or not, (3) the judge while  explaining the ingredients of the offence of grievous hurt under S. 325 of  the  Indian  Penal Code failed to  tell  the  jury  that grievous  hurt was only an aggravated form of hurt and  that even if they held that the accused did not cause a  grievous injury  it  would be open to them to hold that he  caused  a simple injury which would bring the matter within S. 323  Of the  Code, and (4) omissions were treated as  contradictions and  placed before the jury in complete disregard of s.  162 of the Code of Criminal Procedure, Held, that these defects amounted to misdirections and  that the verdict could not be accepted.

JUDGMENT:        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 170  of        1956.        Appeal  by special leave from the judgment and  order  dated        June 14, 1954, of the Calcutta High Court in Criminal Appeal        No. 13 of 1954, arising out of the Judgment and order  dated        January  13, 1954, of the said High Court in Case No. 55  of        1953.        Purshottam  Tricumdas, H. J. Umrigar and B.  P.  Maheshwari,        for the appellants.        N.   C.  Chatterjee,  R. L. Anand and D. N.  Mukherjee,  for        respondent No. 1.        A. C. Mitra, A. M. Pal and P. K. Bose, for respondent No. 2.        1960.   February 12.  The Judgment of S. K. Das and  Sarkar,        JJ.,  was  delivered  by S. K.  Das,  J.  Hidayatullah,  J.,        delivered a separate Judgment.        S.   K. DAS J.-This is an unfortunate case in more than  one        sense.   So  far  back as August 11, 1950,  there  was  some        incident in premises No. 18, Bondel Road in Calcutta in  the        course  of which one Col.  S. C. Mitra, a Gynaecologist  and        Surgeon,  lost  his life.  Col.  Mitra was  the  husband  of        petitioner  No.  1  and  father  of  petitioner  No.  2.  In        connection  with the Colonel’s death, Sunil Chandra Roy,  at        present  respondent No. 1, and his two brothers were  placed        on  their trial for offences under ss. 302, 323 and  447  of        the Indian Penal        3        Code.  Very shortly put, the case against them was that they        had trepassed into 18, Bondel Road, following upon a quarrel        regarding  the  supply of water to premises No.  17,  Bondel        Road  which  belonged to petitioner No. 2 and  consisted  of        several  flats  one  of which on the  second  floor  was  in        occupation of Sunil as a tenant; that they had attacked Col.        Mitra and petitioner No. 2; that Sunil had inflicted a  blow        or blows on the Colonel which caused his death and that  one        of his brothers Satyen had inflicted some minor injuries  on        the  person  of petitioner No. 2. There was  also  a  charge        against Sunil for an assault alleged to have been  committed        on  Mrs. Sati Mitra, Wife of petitioner No. 2.  The  accused

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      persons were, in the first instance, tried by the Additional        Sessions  Judge  of Alipur with the result  that  Sunil  was        convicted under ss. 325 and 447 and Satyen under ss. 323 and        447, Indian Penal Code.  So far as the third brother Amalesh        was  concerned, his case was referred to the High  Court  as        the  learned Judge did not agree with the jury’s verdict  of        not guilty.        Sunil  and Satyen appealed to the High Court  against  their        convictions and sentences; the State of west Bengal obtained        a Rule for enhancement of the sentences passed on Sunil  and        Satyen.   The  appeal,  the Rule and  Reference  were  heard        together.   The  appeal was allowed, and the High  Court  of        Calcutta  directed that Sunil and Satyen be retried  at  the        Criminal  Sessions  of  the High Court.   The  Reference  in        respect of Amalesh was rejected and the Rule for enhancement        of the sentences passed necessarily fell through.        Sunil and Satyen were then tried at the Criminal Sessions of        the  High  Court by Mitter, J., with the aid  of  a  special        jury.   The  jury  unanimously  found  Sunil  guilty   under        sections 325 and 447, and Satyen under sections 323 and 447,        Indian  Penal Code.  The learned Judge accepted the  verdict        and  sentenced  both Sunil and Satyen to  various  terms  of        imprisonment and fines.        An  appeal  was then preferred by Sunil  and  Satyen.   This        appeal  was again allowed, and another retrial was  directed        at the Criminal Sessions of the High Court.        4        The  retrial  was  held by P. B. Mukherjee,  J.  Before  the        commencement  of  the  trial, the State  withdrew  the  case        against  Satyen  on the ground of the state of  his  health.        Therefore,  Sunil alone was tried, and the  charges  against        him at the third trial were two in number: one under s.  325        Indian  Penal Code for vountarily causing grievous  hurt  to        Col.  Mitra and the other under s. 447 Indian Penal Code for        criminal  trespass  into premises No. 18, Bondel  Road  with        intent to intimidate, insult or annoy Col.  Mitra or his son        Nirmal,  petitioner No. 2 herein.  This time the jury, by  a        majorit  verdict  of 7 to 2, found Sunil not guilty  of  the        charge under s. 325 Indian Penal Code’ and, by a majority of        6 to 3, found him not guilty of the other charge also.   The        learned Judge accepted the verdicts and acquitted Sunil.        Then,  the State of West Bengal preferred an appeal  to  the        High  Court  against the order of acquittal,  but  the  High        Court summarily dismissed it on June 14, 1954, on the ground        that  no  case had been made out for the  admission  of  the        appeal  under  the provisions of s. 411A(2) of the  Code  of        Criminal Procedure.        Then,  on  July  22, 1954, the petitioners  herein  made  an        application  to  the  High Court  for  a  certificate  under        Article  134(1) (c) of the Constitution that the case  is  a        fit  one  for appeal to the Supreme Court, and  the  grounds        alleged in support of the application substantially were-(1)        that in his charge to the jury, the learned Judge had failed        to  marshall  and sift the evidence properly so as  to  give        such  assistance as the jury were entitled to receive ;  (2)        that  the learned Judge had misdirected the jury on  several        points,  both  with  regard  to the  evidence  of  the  eye-        witnesses and the evidence of medical experts; (3) that  the        learned  Judge did not properly explain the law relating  to        the charges; (4) that he admitted inadmissible evidence  and        shut out evidence which was admissible and this had vitiated        the verdict of the jury; and (5) that the learned Judge  had        not  dealt with the prosecution and defence versions in  the        same  way  and by the same standard and bad been  guilty  of        various  non-directions  which  resulted  in  a   manifestly

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      erroneous verdict.  This application was dismissed by the        5        High Court on July 26, 1954, mainly on two grounds: (1)  the        petitioner had no locus stand to maintain an application for        leave to appeal to the Supreme Court, and (2) no appeal  lay        under  Article  134  of the Constitution from  an  order  of        acquittal.  The High Court then said:        "  In  view  of the opinion we have formed  as  regards  the        competence  of the present application, it is not  necessary        for  us to say anything on the merits, but for the  sake  of        completeness  we shall observe that the grounds  which  have        been set out in the petition are all grounds which had  been        taken  in the appeal preferred by the State and we  did  not        think  then  and do not think now that those  grounds  would        justify us in either admitting the appeal from the order  of        acquittal  or giving leave to appeal from our order  to  the        Supreme Court."        The  petitioners  then applied for special leave  from  this        Court   under   Article   136  of   the   Constitution   and        substantially  pleaded the same grounds some of  which  were        elaborated  by  examples given which they had  pleaded  when        asking  for a certificate from the High Court.   This  Court        granted special leave on February 20, 1956, and the  present        appeal  has  come to us in pursuance of  the  special  leave        granted by us.        In  view  of the special leave granted,  the  two  questions        dealt  with  by the High Court in its order dated  July  26,        1954,  no longer require any consideration.   The  principal        question for consideration now is whether the charge to  the        jury at the third trial is so defective that it has led to a        manifestly  erroneous  verdict, resulting in  a  failure  of        justice.  Therefore we intimated to learned counsel for  the        parties that the arguments should be confined at this  stage        to  that  question,  and  if  counsel  for  the  petitioners        satisfied us that the charge was so defective on the grounds        alleged,  then the further question as to whether  the  case        should  be remitted to the High Court or dealt with in  this        Court on the evidence already recorded, would arise.        We proceed now to consider the principal question before us.        But  before we do so, it is necessary perhaps to give a  few        more details of the prosecution case and the defence.        6        Col.  Mitra was the owner of 18, Bondel Road, but he did not        live in that house.  He had his chambers on the ground floor        of 18, Bondel Road.  His son Nirmal lived at 18, Bondel Road        with his wife.  Just by the side of 18, Bondel Road and west        of it was No. 17, Bondel Road one of the flats of which  was        in occupation of Sunil as a tenant.  It was alleged that the        relation between landlord and tenant was not good and  there        were proceedings between the two before the Rent Controller.        An order made in these proceedings reduced the rent  payable        by the tenants and fixed certain specific hours during which        the pump for water supply was to be worked.  The prosecution        case was that on August 10, 1950.  Col.  Mitra came to spend        the night with Nirmal and was put up in the easternmost  bed        room  on the first floor.  The building had three  rooms  on        the  first floor all facing south, and the westernmost  room        was  used by Nirmal as his bed room.  The intermediate  room        was a drawing room and had a telephone in it.  According  to        the  prosecution  case,  in the early morning  on  the  11th        August, 1950, Nirmal was still in bed when he was roused  by        the  noise of a row and recognising the voice of  Sunil,  he        slightly opened the leaves of one of the windows to see what        was  happening.   He found that Sunil  amongst  others,  was        standing  at the window, shouting abuse at Purna  Mali  (the

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      gardener  who  was in charge of the pump)  for  not  getting        water  which  was followed up by further  abuse  of  Nirmal.        After that Sunil disappeared from the window.  Nirmal’s wife        had been up before Nirmal, and already served tea to Colonel        Mitra  and she came into the room when Nirmal was  listening        to  the abuses.  She came to call him, that is,  Nirmal,  to        join  his  father  at tea, and went  back  to  the  Colonel.        Nirmal  was greatly alarmed at-what he had seen  and  heard,        and  passing into the drawing room sent a telephone  message        to the Karaya Police Station asking for help.  While  Nirmal        was  still  speaking on the telephone, his  wife  Mrs.  Sati        Mitra  ran  into the room and said that Sunil  and  his  two        brothers  who  were  also tenants at 17,  Bondel  Road,  had        already  entered  the compound of 18, Bondel  Road  and  his        father, the Colonel, had gone down.  Nirmal        7        who was telephoning the police hurriedly added a request  to        the  police  to come soon.  Nirmal coming down  found  Purna        Mali in the grasp of Amalesh, and Colonel Mitra was standing        underneath  the  porch at 18 Bondel Road  and  remonstrating        with  Sunil  and his brother.   Nirmal  immediately  ordered        accused  Sunil  and  his brothers to get out  of  the  house        whereupon  Satyen and Amalesh, fell upon Nirmal.   This  led        the  Colonel to remonstrate again whereupon the Colonel  was        attacked by Sunil who caught hold of the Colonel by the neck        of  his vest and began to drag him towards the Bondel  Road,        along  the  passage  to the gate at 18,  Bendel  Road.   The        building  at l8, Bondel Road faces south, has a lawn to  its        south  alongside which runs a passage to the gate, and  near        the western pillar of the gate there is a masonry letter box        built in the compound wall.  To the south of the lawn  there        is  a  row of tube roses through which there is  an  opening        leading  into the lawn.  According to the prosecution  case,        as  Sunil started dragging the Colonel towards the road  and        the  gate,  Nirmal  ordered  the Mali  to  close  the  gate.        Accused   Sunil  dragged  the  Colonel,  according  to   the        prosecution  case,  and while near the Durwan’s  room  Sunil        dealt  a fist blow on the left temple of the  Colonel.   The        prosecution  case further was that Sunil proceeded  to  drag        the  Colonel  past the western pillar of the gate  and  then        through  the opening among the plants in the lawn and  there        he struck a blow on the left forehead of the Colonel with  a        rod like object.  On receiving the blow, the Colonel dropped        down  and  fell on his back on the  lawn.   Thereupon  Sunil        stepped on to the letter box, scaled the wall and  hurriedly        made his escape.  Two neighbours, Jiban Krishna Das and Suku        Sen,  then came by scaling into the compound of No. 18,  and        with  their  help and with the help of the servants  of  the        family,  the Colonel’s body was removed to the  verandah  on        the  ground  floor  of 18, Bondel Road and  placed  on  a  "        charpoi".   Nirmal  was one of the persons who  carried  the        body  of his father, the Colonel.  Jiban had a car with  him        and was asked to. rush for a doctor which he. did and within        a few minutes brought -Dr.  Sachin Bose who examined the        8        Colonel  and  found  him already dead.  On  receipt  of  the        telephone  message  from  Nirmal,  Pushpa  Pal,  Officer-in-        charge,  Karaya  Police Station, deputed  a,  Head-constable        named Mathura Singh, to go to No. 18 but when the  constable        arrived,  the  incident was  over.   The  Officer-in-charge,        Pushpa Pal, soon followed and after obtaining from Nirmal  a        brief  oral  statement as to his version  of  the  incident,        proceeded  to No. 17, Bondel Road.  On the staircase of  the        house  at  No.  17, Bondel Road, Puspha Pal  met  one  Sarat        Banerji,  said  to  be a priest of  a  neighbourhood  called

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      Shitalatala.   Pushpa  Pal  then went up  and  arrested  the        accused Sunil.        The  postmortem examination of the Colonel’s  body  revealed        that he had sustained a linear fracture of his left temporal        bone,  vertical  in character, an  abrasion  laid  obliquely        across  the  middle  of the left half  of  his  forehead,  a        lacerated wound bone deep laid vertically across the  middle        of the eye-brow, an abrasion on the left cheek and one small        lacerated  wound near the left ear.  There was some  clotted        blood  on the top of the membrane over the fracture  of  the        bone  and  some on the inner surface of the scalp.   In  the        opinion  of  Dr.  Majumdar who carried  out  the  postmortem        examination  as  recorded in his report, the  death  of  the        Colonel  was due to shock caused by the head injury, on  top        of  senile  changes, and the head injury,  which  was  ante-        mortem  must  have  been  caused by  a  fall  on  some  hard        substance.   The postmortem report was not signed  till  the        2nd  September, 1950, and not until the pathological  report        and the chemical report had been obtained.        The  defence of Sunil was that he did not strike or  assault        the Colonel, either by a fist blow or a blow with a rod like        substance.   The defence further was that the fist  blow  on        the  left  temple  of  the  Colonel  was  not   specifically        mentioned by any material witness until after the postmortem        report  showed a linear fracture of the left  temporal  bone        and  it was suggested by the defence that the fist blow  was        invented  to make a case that such blow fractured  the  left        temporal bone of the Colonel.  The main suggestion on behalf        of the defence was that the Colonel        9        was  an  old  man with heart trouble  and  his  pathological        condition  was such that he was excited at the time  of  the        incident  and  fell down on a rough surface, either  on  the        passage or on the masonry letter box, and hurt himself.  The        injury was such that it could s not be caused by one blow of        a rod or rod-like substance.  The defence against the charge        of criminal trespass was that Sunil entered the compound  of        No.  18,  Bondel Road at the invitation of Purna  Mali,  who        asked  Sunil  to come and see if the pump was  working,  the        pump  being  within  the compound of No.  18,  Bondel  Road.        Sunil did not, however, assault the Colonel in any way.        It  is in the context of the aforesaid two versions that  we        have  to  consider the charge to the jury  and  examine  the        criticisms made thereto.  We must make it clear that we  are        not called upon at this stage to give our findings on any of        the  disputed questions of fact.  That was the  function  of        the jury, and the jury had given their verdict.  The limited        question  before us is whether that verdict is  vitiated  by        reason  of any serious misdirection by the Judge or  of  any        misunderstanding  on  the part of the jury of the  law  laid        down  by  him,  which in fact has occasioned  a  failure  of        justice.  This Court said in Mushtak Hussein v. The State of        Bombay  (1) : "Unless therefore it is established in a  case        that  there has been a serious misdirection by the Judge  in        charging the jury which has occasioned a failure of  justice        and  has misled the jury in giving its verdict, the  verdict        of the jury cannot be set aside." In a subsequent  decision,        Ramkishan  Mithanlal Sharma v. The State of Bombay (2)  this        Court observed that s. 297, Criminal Procedure Code, imposed        a  duty  on  the Judge in charging the jury to  sum  up  the        evidence for the prosecution and defence and to lay down the        law by which the jury were to be guided; but summing up  for        the  prosecution  and defence did not mean  that  the  Judge        should  give  merely  a summary of  the  evidence;  he  must        marshall the evidence so as to give proper assistance to the

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      jury  who are required to decide which view of the facts  is        true.  This Court        (1)  [1953] S.C.R. 809 at 815.        (2) [1955] 1 S.C.R. 903 at 930.        10        referred with approval to the following observations made by        the Privy Council in Arnold v. King Emperor        " A charge to a jury must be read as a whole.  If there  are        salient propositions of law in it, these will, of course, be        the  subject  of  separate analysis.  But  in  a  protracted        narrative of facts the determination of which is  ultimately        left  to  the jury, it must needs be that the  view  of  the        Judge  may  -not coincide with the view of others  who  look        upon  the  whole  proceedings  in  black  type.   It  would,        however, not be in accordance with usual or good practice to        treat  such  cases as cases of misdirection,  if,  upon  the        general view taken, the case has been fairly left within the        jury’s  province.   But in any case in the  region  of  fact        their  Lordships of the Judicial Committee would not  inter-        fere   unless  something  gross  amounting  to  a   complete        misdescription  of  the whole bearing of  the  evidence  has        occurred."        Bearing the aforesaid principles in mind, we proceed now  to        consider  the criticisms made on behalf of  the  petitioners        against  the  learned Judge’s charge to the  jury.   We  had        earlier  classified  the  criticisms  under  five  different        heads,  and  we shall deal with them one by one.   We  shall        refer  to the main points urged under each head, avoiding  a        detailed reference to the evidence on minor points which  do        not advance the case of the petitioners any further.        The first criticism is that the charge to the jury, read  as        a whole, is nothing but a summary of the evidence witness by        witness and a summary of the arguments of counsel which  the        jury  had  already heard;. that the learned  Judge  did  not        state the points for decision under separate heads, nor  did        he  collate  and marshall the evidence topic-wise so  as  to        assist  the jury to come to their conclusion one way or  the        other, but left the jury with a mass of unnecessary  details        which was more likely to confuse than to help them.  Learned        counsel  for  the petitioners has pointed out  that  in  the        appeal from the judgment of Mitter, J., in an earlier  stage        of this very case,        (1)  [1914] L.R. 41 I.A. 149.        11        Chakravarti,  C.  J.,  had said in  Sunil  Chandra  Roy  and        Another v. The State (1):        "  But I feel bound to say that the function of a charge  is        to  put  the  jury in a position to  weigh  and  assess  the        evidence  properly  in order that they may come to  a  right        decision on questions of fact which, under the law, is their        responsibility.   The charge must therefore  address  itself        primarily  to pointing out what the questions of  fact  are,        what  the totality of the evidence on each of the  questions        is,  how  the  different portions of  that  evidence,  lying        scattered in the depositions of several witnesses, fit  with        one another, what issues or subsidiary questions they  raise        for  decision and what the effect will be according  as  one        part or another of the evidence is believed or disbelieved."        It was argued that what was condemned in an earlier stage of        this case has happened again.        We  are  unable  to  accept  this  line  of  criticisms   as        substantially correct.  It is indeed, true that the  learned        Judge  followed the method of placing the evidence  witness-        wise  rather than topic-wise.  He started his summing-up  by        stating:  "  I  now  propose  to  take  up  the  prosecution

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      witnesses individually with a view to sum up the evidence of        each witness and the suggestions made to each by the counsel        for  the accused." But the real point for  consideration  is        not  whether  the learned Judge followed one  method  rather        than  another: the real point is-did he  properly  discharge        his duty under s. 297, Criminal Procedure Code by giving the        jury the help and guidance to which they were entitled ? Did        he  marshall the evidence in such a way as to bring out  the        essential  points  for decision and  the  probabilities  and        improbabilities bearing on the disputed questions of fact on        which the jury had to come to their conclusion ? The learned        Judge  gave a lengthy charge to the jury; and in summing  up        the  evidence  of each witness, he did  state  the  disputed        points  arising  therefrom  and their bearing  on  the  main        questions  at issue, viz. whether Sunil had trespassed  into        18  Bondel Road and had assaulted the Colonel in the  manner        alleged -by the prosecution.        (1)  57 C.W.N. 962 at 10001.        12        The  length  of the charge was due in part to  a  protracted        narrative  of facts and the many disputed questions of  fact        to  which  the attention of the jury had to be  drawn.   The        principle  laid down by the Privy Council in  Arnold’s  case        (3)  and accepted by this Court as correct is that it  would        not be in accordance with good practice to treat a case as a        case  of misdirection if, upon the general view  taken,  the        case  has been fairly left within the jury’s  province,  and        this  Court  will  not  interfere  unless  -something  gross        amounting to a complete misdescription of the whole  bearing        of  the  evidence  has occurred.  Learned  counsel  for  the        petitioners  has taken us through the entire charge  to  the        jury  and while we may agree that some  unnecessary  details        (e.g. how the spectacles of Mrs. Sati Mitra fell down) could        have been avoided by the learned Judge, we are unable to say        that the method followed by the learned Judge did not  focus        attention  of the jury to the questions of fact  which  they        had to decide or did not give help and guidance to the  jury        to  arrive at their conclusion oes and as the accounts were kept on  a        mercantile  basis, the amount of commission accrued  as  and        when  the sales took place and paragraph 5 of agreement  was        only  a machinery for quantifying the amount.  It  was  also        argued  that  the  Managing  Agents  by  entering  into   an        agreement  with  the Mills had  voluntarily  relinquished  a        portion  of  the amount of commission which had  accrued  to        them  and therefore the whole of the income from  commission        which had already accrued was liable to        55        income-tax; and reference was made to the cases reported  as        Commissioner  of  lncome-tax,  Madras  v. K.  R.  M.  T.  T.        Thiagaraja Chetty and Co. (1), E. D. Sassoon & Company  Ltd.        v. The Commissioner of Income-tax, Bombay City (2) and to an        English  case  Commissioners of Inland  Revenue  v.  Gardner        Mountain  & D’ Ambrumnil Ltd. (3).  But these cases have  no        application  to  the  facts of the  present  case.   In  the        Commissioner  of  Income-tax,  Madras  v. K.  R.  M.  T.  T.        Thiagaraja  Chetty & Co. (1), the assesses firm  was,  under        the  terms of the Managing Agency Agreement, entitled  to  a        certain  percentage  of  profits and in  the  books  of  the        Company  a  certain sum was shown as commission due  to  the        assessee  firm and that sum was also adopted as an  item  of        business  expenditure and credited to the  Managing  Agents’        commission  account  but  subsequently  it  was  carried  to        suspense  account by a resolution of the Company  passed  at        the request of the assessee firm in order that the debt  due        by the Firm might be written off.  The accounts were kept on

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      mercantile  basis  and it was held that on  that  basis  the        commission  accrued to the assessee when the commission  was        credited  to the assessee’s account and  subsequent  dealing        with  it would not affect the liability of the  assessee  to        income-tax.  It was also held that the quantification of the        commission  could  not affect the question as it was  not  a        condition  precedent to the accrual of the  commission.   At        page 267 Ghulam Hassan J., observed:-        " Lastly it was urged that the commission could not be  said        to  have  accrued, as the profit of the  business  could  be        computed  only  after  the 31st  March,  and  therefore  the        commission  could not be subject to tax when it is  no  more        than  a mere right to receive.  This argument  involves  the        fallacy that profits do not accrue unless and until they are        actually computed.  The computation of the profits  whenever        it  may  take place cannot possibly be  allowed  to  suspend        their  accrual.   In  the case of income where  there  is  a        condition that the commission will not be payable until  the        expiry of a definite period or the making up of the account,        it  might  be        (1) [1954] S.C.R. 258 at 267.        (2) [1955] 1  S.C.R. 313, 344.        (3)  29 T.C. 69, 96.        56        said  with some justification, though we do not  decide  it,        that  the  income  has  not accrued but  there  is  no  such        condition in the present case ".        This  passage  does  not help  the  appellant’s  case.   The        question   there  decided  was  that  the  accrual  of   the        commission  was  not dependent upon the computation  of  the        profits  although  the question whether it  would  make  any        difference  where  the  commission was  so  payable  or  was        payable after the expiry of a definite period for the making        of  the account was left undecided . In the case  before  us        the  agreement  is  of  a different  nature  and  the  above        observations are not applicable to the facts of the  present        case.        The  next  case  is  E.  D.  Sasoon  &  Co.,  Ltd.  v.   The        Commissioner  of  Income-tax, Bombay City (1).   But  it  is        difficult to see how it helps the case of the appellant.  If        anything  it goes against his contention.  In that case  the        assessee Company was the Managing Agent of several Companies        and was entitled to receive remuneration calculated on  each        year’s profits.  Before the end of the year it assigned  its        rights   to   another  person  and  received  from   him   a        proportionate share of the commission for the portion of the        year  during  which  it worked as Managing  Agent.   On  the        construction  of  the Managing Agency Contract it  was  held        that unless and until the Managing Agent had carried out one        year’s completed service, which was a condition precedent to        its being entitled to receive any remuneration or commission        it was not entitled to receive any commission.  The facts in        that  case were different and the question for decision  was        whether the contract of service was such that the commission        was only payable if the service was for a completed year  or        the  assessee  Company was entitled to receive  even  for  a        portion  of  the year for which it had acted as  a  Managing        Agent.  It was held that it was the former.        As  was observed by Lord Wright in Commissioners  of  Inland        Revenue  V. Gardner, Mountain & D Ambrumenil Ltd. (2), "  It        is  on  the  provisions  of the contract  that  it  must  be        decided, as a question of construction and therefore of law,        when the commission was earned The contract in, the  present        case in para-        (1) [1955] 1 S.C.R. 313, 344.

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      (2) 29 T.C. 69, 96.        57,        graph 2 shows that (1) the company was to pay each year; (2)        that  the  Managing  Agents  were to be  paid  5  per  cent.        commission on the proceeds of the total sales of yarn and of        all  cloth  sold  by the Company or three  pies  per  pound’        avoirdupois  on  the  sale, whichever  the  Managing  Agents        chose; thus there was an’ option to be exercised at the  end        of  the year; (3) they were also to be paid at 10 per  cent.        on  the proceeds of sales of all, other materials;  and  (4)        the Mills were to pay to the Managing Agents each year after        December  31, or such other dale which the Directors of  the        Company  may choon those questions.  We  -are        far  less  satisfied that anything amounting to  a  complete        misdescription  of  the whole bearing of  the  evidence  has        occurred  in  this  case.   As  to  the  observations  which        Chakravarti,  C.J.,  had made, it is well to  remember  that        they  were made in respect of an earlier charge to the  jury        which, to use the words of the learned Chief Justice, was  "        all  comment or mere comment in the main." Having  carefully        perused  the  present  charge to the jury, we  think,  on  a        general view, that the case has been fairly left within  the        jury’s  provinces in spite of the criticism  so  strenuously        made that the charge to the jury contained a mass of details        which  need  not  have been placed before the  jury.   In  a        protracted narrative full of details, it is perhaps easy  to        find  fault  with  a charge to the jury  on  the  ground  of        prolixity.  The question before us is not whether the charge        to  the jury is perfect in all respect: the question  is-has        something   gross   occurred   amounting   to   a   complete        misdescription of the whole bearing of the evidence ? We are        unable  to say that there has been any such gross  misdirec-        tion by the learned Judge.        (1)  (1954] L.R. 41 I.A. 149        13        The  second  criticism  relates  to  certain   misdirections        alleged  to  have  been committed by the  learned  Judge  in        placing the evidence of the eye-witnesses as also of medical        witnesses.  No useful purpose will be served by referring to        each  and  every example given before us; we  shall  confine        ourselves  to  some  of the salient  points  and  state  the        general impression we have formed.  In placing the  evidence        of  each  eyewitness,  the learned  Judge  referred  to  the        suggestions  made  by the defence.  The comment is  that  he        placed  the  suggestions  in such a way  as  to  create  the        impression  in  the minds of the jury that they  were  true,        even  though  they had been repudiated or explained  by  the        witness.   We may give some examples.  Nirmal telephoned  to        his  brother Dr. Lalit Mitra immediately after  Col.   Mitra        was  pronounced  to be dead.  The suggestion to  Nirmal  was        that he had not told his doctor brother then that his father        had  been  beaten,  but had said only that  his  father  had        "fainted ". This suggestion was placed before the jury  with        reference  to  Nirmal’s  deposition  before  the  committing        Magistrate.   Nirmal said before the  committing  Magistrate        that he did not use the English word I fainted’ but had said        in  Bengali  that  ’father  has  become  unconscious’.   The        complaint  of the petitioners is that  Nirmal’s  explanation        has  not  been  properly placed before the  jury.   But  the        learned Judge says in his charge that the jury had seen  the        earlier  deposition of Nirmal, and if that is so,  the  dis-        tinction  between I fainting’ and ’becoming unconscious’  in        explanation of the suggestion made to Nirmal does not assume        any great importance.  It was next suggested to Nirmal  that        he  had told the Police that his father had  heart  trouble.

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      This  suggestion  was put before the jury in  the  following        way:        " The case was put by the defence that the Colonel had heart        trouble  and that Nirmal was confronted  with  contradiction        that  he told the Magistrate and the police that his  father        had heart trouble.  Nirmal had denied it."        Nirmal’s explanation was that he did not tell the Magistrate        or the police that his father had heart        14        trouble  he  merely  said  that  his  father  used  to  have        occasional palpitation of heart when he ate too much or took        irregular  meals.   Pushpa  Pal,  the  investigating  police        officer,  understood  this  to mean  heart  trouble  and  he        recorded  " heart trouble " in Nirmal’s  statement.   Pushpa        Pal admitted that even if Nirmal had stated that Col.  Mitra        had palpitation of heart, he would have recorded it as heart        trouble.   This part of the evidence of Pushpa Pal also  the        learned Judge placed before the jury.  It cannot, therefore,        be said that the learned Judge misled the jury in any way or        left  the jury with the impression that Nirmal had  admitted        that his father had heart trouble.        Similar comments were made with regard to the placing of the        evidence of other eye-witnesses, but their general effect is        the game.  They do not, in our view, establish that the jury        were  misled  on  any of the points in  dispute.   We  must,        however,  mention two more points, one in connection with  a        person  called  Sarat Banerji and the other with  regard  to        Mrs. Nagendra Bala Ghose.  Sarat Banerji, it appears, was  a        priest  who  brought  some holy water, and  there  was  some        evidence  to  show that - such water was  sprinkled  on  the        Colonel  soon  after the incident.  Sarat  Banerji  was  not        examined  in  the  case, and the  question  naturally  arose        whether  he was present at the time of the incident  and  if        so,  when  did  he come to 18, Bondel Road  ?  A  number  of        prosecution witnesses were crossexamined on this point,  and        the  learned  Judge repeatedly referred to  this  matter  in        summing up the evidence of those witnesses.  We do not agree        with  learned counsel for the petitioners that  the  learned        Judge committed any misdirection in drawing the attention of        the jury to this matter.        As  to Mrs. Nagendra Bala Ghose, the criticism was that  the        learned Judge usurped the function of the jury.  About  this        witness the learned Judge said:        "  Now,  gentlemen,  in  cross-examination  she  was  cross-        examined  on her eyesight.  She did succeed in pointing  out        to  an old man in Court.  That is in answer to Q.  30.   But        further  ahead she could not see properly.  She is  far  too        old a woman on whom any reliance can be placed having regard        to her state of        15        health  and  having regard to her state of  vision  and  her        power of memory.  Shew as called by the prosecution only  to        meet  the defence suggestion that she was there at the  time        of the incident in Prof.  Mahanti’s place and was being kept        back.        It was submitted before us that Mrs. Ghose was no doubt old,        but  she  was  a respectable and reliable  witness  who  was        staying  in a neighbouring house from the verandah of  which        the place of incident was visible; therefore, it was  argued        that  the  learned  Judge was not  justified  in  expressing        himself  so strongly against this witness, and in doing  so,        he  improperly  dissuaded the jury from  forming  their  own        opinion  about her evidence.  Having examined her  evidence,        we are unable to hold that the comments of the learned Judge        were  unjustified  or that he wrongly  influenced  the  jury

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      against  the  witness.   It must be  stated  here  that  the        learned  Judge  had cautioned the jury that  they  were  not        bound by his opinion on a question of fact and were free  to        act on their own opinion.        This brings us to the medical evidence.  The two doctors  of        importance who were examined in the case were Dr.  Majumdar,        who made the postmortem examination, and Dr. Kabir  Hussain,        Professor  of  Forensic and State Medicine in  the  Calcutta        Medical   College.   Those  two  doctors  expressed   widely        divergent  views  as to the probable cause of  the  injuries        sustained by Col.  Mitra and also of his death.  The learned        Judge rightly placed before the jury those divergent views.        Dealing with the evidence of Dr. Majumdar, the learned Judge        said:        "Suggestions were made to Dr. Majumdar in cross. examination        that  in  case a fist blow was given on  the  left  temporal        region  whether any external injury was to be expected.   He        said  that  external injury was expected and  there  was  no        external  injury mentioned in the postmortem report in  this        case.  Then Dr. Maumdar’s opinion is that such a man  cannot        be expected to talk.  It is also Dr. Majumdar’s opinion that        the injury was due to a fall and he does not think that  the        injuries Nos. 1, 2 and 3 could be caused by a lathi blow  or        a blow by a rod.  According to his opinion, the fracture was        also due to a fall.        16        It  is  contended  that this must have misled  the  jury  in        thinking  that there was no external injury on the  site  of        the  fracture on the left temporal region and  therefore  it        could  not have been caused by a fist blow.   Our  attention        was  drawn to the evidence of Dr. Kabir Hussain, who  opined        that the haemorrhage on the inner surface of the scalp  near        the site of the fracture was an external injury.  The  point        to  be noticed in this connection is that the learned  Judge        did not omit to place before the jury what Dr. Kabir Hussain        had said regarding what he thought to be the presence of  an        external  injury at the site of the fracture; he  placed  in        extenso  the  questions  put to Dr. Kabir  Hussain  and  the        answers  given  by  him  on this  point.   Tile  jury  were,        therefore,  properly  placed in possession of the  views  of        both  the doctors, and it was for them to decide which  view        should be accepted.        Both  the  doctors were asked questions as  to  whether  the        injuries sustained by Col.  Mitra could be caused by a  fall        on  a rough substance like a masonry box or by a blow  of  a        hard  weapon like a flexible rod . On this point  again  the        two  doctors disagreed ; the learned Judge did place  before        the  jury the different views expressed by the two  doctors.        A  grievance has been made before us that in summing up  the        evidence  of Dr. Kabir Hussain the learned Judge  failed  to        draw the attention of the jury to the answers given to ques-        tions  73,  74  and 75 by  which  the  doctor  categorically        negatived  the suggestion of the defence that a fracture  of        the temporal gone of the kind sustained by the Colonel could        be  caused by a fall on a hard substance.  It is  true  that        the   answers  to  questions  73,  74  and  75   we’re   not        specifically placed before the jury, but reading the  charge        relating  to the medical evidence’ as a whole, we find  that        the  learned  Judge sufficiently indicated to the  jury  the        disagreement  between the two doctors on the main  questions        of  fact  and  the reasons which each doctor  gave  for  his        opinion.   It  was the province of the jury  to  accept  one        opinion  or  the  other.  The learned  Judge  concluded  his        summing up of the medical evidence in these words:        " Now, gentlemen, when a medical witness is called in as  an

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      expert he is not a witness of fact.  Medical        17        evidence  of an expert is evidence of opinion, not of  fact.        Where  there are alleged eye-witnesses of physical  violence        which is said to have caused the hurt, the value of  medical        evidence  by prosecution is only corroborative.   It  proves        that  the  injuries  could have been caused  in  the  manner        alleged  and  nothing more.  The use which the  defence  can        make of the medical evidence, or any medical evidence  which        the  defence might itself choose to bring, is to prove  that        the  injuries  could not possibly have been  caused  in  the        manner  alleged  and thereby  discredit  the  eye-witnesses.        Therefore,  you must remember this particular point of  view        that  if  you believe the eye-witnesses, then  there  is  no        question of having it supported by medical evidence;  unless        the  medical evidence again in its turn goes so for that  it        completely  rules  out all possibility  that  such  injuries        could  take place in the manner alleged by  the  prosecution        and  that is a point which you should bear in mind,  because        if you accept the evidence of the eye-witnesses, no question        of  further considering the medical evidence arises at  all.        The only question in that case when you consider the medical        evidence is to test the eye-witnesses’ version as to whether        any  of the particular injuries shown in the report  can  be        caused in the manner alleged by the prosecution.  But if you        don’t  believe the eye-witnesses, then consideration of  the        medical evidence in any manner becomes unnecessary.  "        We  do  not  think that any exception can be  taken  to  the        observations  made above in the context of the two  versions        which  the jury had to consider.  One version was  that  the        Colonel  had  been  assaulted  and  thereby  sustained   the        injuries;  the other version was that he had  sustained  the        injuries  by  a  fall on a rough surface  like  the  masonry        letter  box.   None of the two doctors  were  giving  direct        evidence  of how the injuries were caused; they were  merely        giving their opinion as to how in all probability they  were        caused.    The  learned  Judge  was,  therefore,  right   in        directing  the  jury  in the way he did  about  the  medical        evidence  in the case.  We may also point out here that  the        learned  Judge  drew the attention of the jury also  to  the        evidence of Dr. Suresh Sinha, who said that the        3        18        fracture on the temporal region could be the indirect effect        of the other injuries sustained by the Colonel.        We  now go on to third head of criticism viz., the  ,learned        Judge’s exposition of the law relating to the two charges on        which  Sunil  was tried.  These charges  the  learned  Judge        correctly   explained   with  reference  to   the   relevant        provisions of the Indian Penal Code.  But be made one error.        Dealing  with  the word ’ voluntarily’ in s. 325,  he  said:        "The  word ’ voluntarily’ means what it says; it  means  ’of        one’s  free will’." Perhaps, the learned Judge  forgot  that        the  word is defined in s. 39, Indian Penal Code,  and  that        definition  should have been placed before the jury.  We  do        not, however, think that this minor lapse misled the jury in        any  way or occasioned a failure of justice.  There  is  one        more  point in this connection.  The learned Judge  did  not        tell  the jury that it was open to them to return a  verdict        of guilty for an offence under s. 323, Indian Penal Code, if        they  came to the conclusion that Sunil gave a blow  to  the        Colonel with a flexible rod, but did not cause the fracture.        In  the circumstances of the case, however, we do not  think        that the failure to direct the jury that it was open to them        to return a verdict of guilty on a minor offence  occasioned

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      any  failure  of  justice.   If  the  eyewitnesses  for  the        prosecution  were believed, it would be undoubtedly  a  case        under s. 325 Indian Penal Code; if on the contrary, the eye-        witnesses  were  not believed and the  defence  version  was        accepted that the Colonel sustained the injuries by a  fall,        then  there would be no case even under s. 323 Indian  Penal        Code.        A  grievance  was made before us under the  fourth  head  of        criticism   that  admissible  evidence  was  shut  out   and        inadmissible  evidence  was let in.  It was  submitted  that        Nirmal’s statements to Pushpa Pal on his arrival at No.  18,        Bondel Road or at least his statements to the Head Constable        Mathura  Singh,  before  the arrival  of  the  investigating        officer, were not hit by s. 162 Criminal Procedure Code  and        were clearly admissible in evidence.  The learned Judge said        in this connection:        19        "  I would like to remind you that if any person  makes  any        statement to the police, that is not admissible evidence  as        a  rule  unless  in the case  of  contradictions  which  are        formally  proved,  as  you have seen  the  counsel  for  the        accused  has  proved contradictions in some cases;  but  you        must  bear  in  mind  that except such  cases,  this  is  no        evidence."        In  the  opinion which we have formed it is  unnecessary  to        consider  whether  the  learned Judge was  right  or  wrong:        because we are of the opinion that even if those  statements        of  Nirmal  were admissible, they would not  be  substantive        evidence  of  the  facts stated therein ;  and  if  Nirmal’s        evidence  in Court was not accepted, his statements  to  the        police officers concerned would hardly make any difference.        As  to  the  admission  of  inadmissible  evidence,  learned        counsel for the petitioners placed before us those parts  of        the  charge  to  the  jury  which  dealt  with  the   cross-        examination   of  prosecution  witnesses  on  their   police        statements.   Ho submitted that a large part of that  cross-        examination was inadmissible in view of the decision of this        Court in Tahsildar Singh v. The State of Uttar Pradesh  (1).        That  decision  dealt  exhaustively  with  s.  162  Criminal        Procedure Code and laid down certain propositions to explain        the  scope of that section; it was, however,  observed  that        the examples given therein were not exhaustive and the Judge        must decide in each case whether the recitals intended to be        used  for  contradiction satisfied the requirements  of  the        law.  We agree that on the principles laid down in Tahsildar        Singh’s  decision  (1)  some of the statements  put  to  the        prosecution witnesses were not really contradictions and did        not, therefore, fall within what is permissible under s. 162        Criminal  Procedure Code.  We may take, by way  of  example,        what  was  put  to Nirmal.  The  learned  Judge  placed  the        following contradictions in Nirmal’s evidence to the jury:              "He  was also -cross-examined on his statement to  the        police.  The main point made in his cross-examination on his        statement to the police, are firstly, that the fist blow  on        the  left temple was not mentioned by him and then  he  only        said assault with blows before        (1)  A.I.R. 1959 S.C. 1012        20        the  police and that he also said that the Colonel  was  hit        near about the gate of the house and not beside the boundary        wall.   It  was also suggested to him in  defence  that  the        Colonel  did  not fall on the lawn at all but  fell  on  the        letter box.  The further suggestion to him was that the fist        blow  was a false invention and it was intended  only  after        the postmortem report was out.  He was also told that he did

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      not mention to the police that the Colonel was lying on  his        back.   He was also criticised for not having mentioned  the        names of persons who carried his father after he had  fallen        down.  Nirmal’s answer was that he was not asked and that it        was physically impossible for him alone to carry his father.        Then there was crossexamination as to whether the fist  blow        was before or after Sati Mitra had clasped the Colonel."        Now,  on  the  principles laid  down  in  Tahsildar  Singh’s        decision  (1) Nirmal’s failure to mention before the  police        that   his  father  was  lying  on  his  back  was   not   a        contradiction;  but his failure to mention that a fist  blow        on   the  left  temple  was  given  to  his  father  was   a        contradiction.   Therefore,  the point before us  really  is        this  :  assuming that some of the  statements  admitted  in        evidence were not really contradictions, do they  materially        affect  the verdict ? In our opinion, they do not.   By  and        large, the important statements made before the police  were        admissible  under s. 162 Criminal Procedure Code;  but  some        minor statements were not.  We do not think that the verdict        of  the  jury  can be said to have  been  vitiated  on  this        ground.        Lastly, we come to the defence evidence.  Here the complaint        is that the learned Judge has summed up the defence evidence        by  adopting a different standard.  We are unable to  agree.        Even  with regard to the prosecution witnesses, the  learned        Judge  had emphasised points in favour of  the  prosecution.        For  example, dealing with the evidence of Purna  Mali,  the        learned Judge said:        "  Now, gentlemen, these questions are important because  he        does  not  improve the case or try to improve  the  case  by        suggesting that he saw a fist blow on the left temple and it        is a matter for you to        (1)  A.T.R. I959 S.C. 1012        21        consider  in this connection whether this is a witness  whom        you would consider a liar because you will have to  consider        the  suggestion that if he were then he would have  probably        tried  to improve the case by suggesting to say that he  did        see a fist blow on the temple."        Dealing  with the evidence of Pushpa Pal, the learned  Judge        pointedly drew attention of the jury to a circumstance which        was  partly in favour of the prosecution and partly  of  the        defence:        " You also remember that Pushpa Pal held an inquest at about        9  a.m. on the 11th August, 1950.  He says that he  examined        the  compound,  the lawn, the boundary wall, the  gate,  the        masonry letter box, the bricks on edge and the whole spot of        18, Bondel Road including the pathway, but he found no blood        marks anywhere."        We  have examined the charge to the jury carefully;  it  may        suffer  from  a  plethora  of details  and  also  perhaps  a        meticulous  statement  of  the divergent views  of  the  two        doctors;  but  we have found no trace of the adoption  of  a        double  standard,  or  of  a  serious  misdirection  on  any        question of fact or law.        We  have,  therefore,  come to the conclusion  that  on  the        principles  which  this Court has adopted  for  interference        with a jury verdict, no case for interference has been  made        out in this case.        The appeal is accordingly dismissed.        HIDAYATULLAH,  J.-I  have had the advantage of  reading  the        judgment just delivered by my learned brother, S. K. Das, J.        He’  is  of the opinion that the charge to the jury  by  the        learned trial Judge was proper.  Since I have the misfortune        to  differ  from him in this conclusion, I am  delivering  a

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      separate  judgment.  In my opinion, the charge to  the  jury        was  defective for several reasons,  particularly  misdirec-        tions in law and absence of any guidance while setting forth        at  enormous  length, without comment, the evidence  in  the        case.        My  learned  brother  has  pointed  out  that  this  is   an        unfortunate  case,  and I agree with him that it is  so,  in        view  of  the events that have happened.  The facts  of  the        case were simplicity itself.  The offence alleged        22        to  have been committed as far back as August 11, 1950,  has        been the subject of three trials.  It was first tried before        the  Additional  Sessions Judge, Alipur  who  convicted  the        present  respondent,  Sunil, under  ss. 325 and 447  of  the        Indian  Penal Code, agreeing with the verdict of  the  jury.        On  appeal,  the  High  Court  of  Calcutta  set  aside  the        conviction, and ordered a, retrial at the Criminal  Sessions        of  the High Court.  The case was then tried. by Mitter,  J.        with  a  special  jury.  The jury brought  in  an  unanimous        verdict of guilty against Sunil under the two sections, with        which  the learned Judge agreed.  Sunil was sentenced  to  a        long  term  of imprisonment, but the appellate side  of  the        Calcutta High Court, on appeal, set aside the conviction and        sentence,  and  ordered  a retrial.   The  third  trial  was        conducted by P. B. Mukherjee J. Before the trial, the -State        Government  withdrew  the  case  against  Sunil’s   brother,        Satyen, who was tried along With him in the previous trials,        and was also convicted.  This withdrawal of the case was  on        the somewhat unusual ground that his health was bad.   Sunil        himself, it appears, was defended at Government cost by  one        of  the Government advocates.  The trial dragged  through  a        weary  course, in which prolonged cross-examination  of  the        witnesses  took  place, and alleged  contradictions  between        their  previous versions were put to them in detail.   After        the arguments were over, the learned Judge charged the  jury        at considerable length.  I have estimated that the charge is        a document of some 50,000-60,000 words.  How much of it  was        of  any  real guidance to the jury is a matter, to  which  I        shall  address myself in the sequel; but it appears  at  the        outset   that  the  length  of  the  charge   was   somewhat        extraordinary, regard being had to the plain facts, to which        I now refer.        On August 11, 1950, Sunil and his brothers were occupying  a        flat in No. 17 Bondel Road, which belonged to Nirmal, son of        the  late S. C. Mitra, a very well-known  Gynaecologist  and        Surgeon  of Calcutta.  It appears that the water  supply  to        the  flat was irregular and intermittent, and Sunil bad,  in        common with the other tenants, a complaint against the land-        23        lord,  Nirmal.   Incidents had taken place  previously,  and        Sunil had taken the matter to the rent control  authorities,        and,  it is alleged, had even threatened the  landlord  with        dire  consequences,  if the water supply was  not  improved.        Under  an alleged agreement, the water supply was  regulated        by  working  the electric pump during certain hours  of  the        day;  but nothing turns upon it.  It appears that the  water        supply  did not improve, and often enough, an  ’exasperating        situation  arose in so far as the tenants of No. 17,  Bondel        Road,   including  the  present  respondent,   Sunil,   were        concerned.        On the fateful morning, matters came to a head, because  the        water supply, as was frequent, failed in the flat.. Evidence        has  been led in the case to show that Sunil was  angry  and        started  abusing  and expostulating in a  loud  manner.   He        followed  up his expostulations by entering the compound  of

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      No.  18, Bondel Road, whether to see to the working  of  the        pump  himself,  as  he contended,  or  to  remonstrate  more        effectively  with the landlord, as is the prosecution  case.        However it be, Nirmal’s father, Col.  Mitra, happened to  be        present  that  morning, and he came out to talk  the  matter        over  with  Sunil,  who apparently was  quite  loud  in  his        remonstrances.   Whether  the Colonel gave  any  offence  to        Sunil  by rebuking him is not much to the  present  purpose,        because  I am not determining the true facts in this  order.        The case for the prosecution is that Sunil grappled with the        Colonel,  and  gave him a blow upon the head  with  what  is        described  as a ‘rod-like’ object, and also hit him  on  the        temple  with  his fist.  The Colonel, it  is  alleged,  fell        down, while Sunil clambered the parapet wall, and made  good        his escape, because the Colonel had previously ordered  that        the  gates  be shut.  Meanwhile, the Colonel was  taken  and        laid  on a cot, where he expired.  A phone call having  been        made to the police, the Investigating Officer arrived on the        scene,  and after taking some statements including one  from        Sunil,  he went and arrested him and also his two  brothers.        Post-mortem  examination revealed a linear fracture  of  the        temporal  bone with a haematoma under the surface.   On  the        forehead of the Colonel        24        was a mark of the injury alleged to have been given with the        ’ rod-like’ object, though over the seat of’ the fracture no        outward  visible injury was seen.  The doctor who  performed        the autopsy also found certain -pathological defects in  the        liver  and  the,  gall bladder, and he  asked  the  Chemical        Examiner to examine the viscera for possible poisoning.   He        gave the opinion that death was "due to shock consequent  to        head Injury, i.e., injuries on the top of senile changes and        pathological   liver  and  gall  bladder  as  well   as   to        inhibition."  With  regard  to the  head  injury  which  was        certified to be ante-mortem, the doctor was of opinion  that        it  was  likely to have been caused by a fall on  some  hard        substance.        The  charge against Sunil, in the first instance, was  under        s.  302,  but the case proceeded in the sub  sequent  trials        only under s. 325 read with a further charge under s. 447 of        the Indian Penal Code for house trespass, with intention  to        intimidate, insult or annoy the owner.        The  above facts clearly show that the essence of  the  case        lay in a very narrow compass.  The questions which the  jury        had  to  determine were whether Sunil  trespassed  into  the        premises  of  No.  18, Bondel Road  with  the  intention  of        insulting,  intimidating or annoying the owner and  further,        whether Sunil struck one or more blows either with a I  rod-        like’ object or his fist on the head of Col.  Mitra, thereby        causing  him injuries, simple or  grievous.   Alternatively,        the jury had to determine whether Col.  Mitra suffered these        injuries not at the hands of Sunil but by a fall, which  was        the  defence.   No doubt, the case involved a  very  lengthy        cross-examination of the witnesses for the prosecution,  who        alleged that they had witnessed the entire occurrence.   The        issues  to be decided were simple; One would  have  expected        that  the learned Judge in charging the jury would have,  at        least,  pointed  out to the jury what were  the  points  for        determination  after weighing the evidence, pro and con,  in        the  case;  but the learned Judge did not, in spite  of  the        voluminous charge, put these simple points before the  jury.        The attention of the jury was never directed to these simple        matters, but, on the        25        other hand, it was directed to almost everything else.

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      No doubt, a verdict of the jury is entitled to the  greatest        weight,  not  only  before the Court of  trial  but  in  all        appeals including that before this Court.  The law does  not        allow  an  appeal against the verdict, except  only  if  the        Judge  in  his  charge  to the jury is  guilty  of  a  wrong        direction  in law or of a substantial  misdirection.   Since        the verdict of the jury depends upon the charge, the  charge        becomes a most vital document in judging whether the verdict        be  sustained  or not.  It is the charge which  one  has  to        examine,  to  find out whether the verdict is  defective  or        not.  Such an important stage in the trial requires that the        Judge should be careful to lead the jury to a correct appre-        ciation of the evidence, so that the essential issues in the        case   may   be   correctly  determined   by   them,   after        understanding  the true import of the evidence on the  rival        sides.   A charge which fails to perform this basic  purpose        cannot  be regarded as a proper charge, and if  it  contains        also misdirections as to law, it cannot be upheld.        The learned Judge in his charge to the jury began by telling        the jury in a sentence, or two each, what were the essential        things they had to remember, before making up their minds as        to the verdict.  He told the jury that they were the  judges        of  fact,  and that it was their function to  determine  all        issues  of fact, without accepting any view which  he  might        feel  disposed to express upon the credibility or  otherwise        of the’ witnesses.  These observations in black and white do        read  quite  well; but, in view of the fact that  the  Judge        expressed’  almost  no  opinion as  to  the  credibility  or        otherwise of the witnesses, it lost in practical application        all  its point.  Then, the Judge stated that  every  accused        was presumed to be innocent, until the contrary was  proved,        and further, that the jury should convict only if the  facts        were  compatible with his guilt.  So far as  this  direction        went,  nothing can be said against it.  The Judge next  pro-        ceeded  to  explain what was meant by  the  expression  fact        proved-".   He paraphrased the definition of proved  "  from        the Evidence Act.  In dealing with        4        26        this  topic,  he omitted to explain also the  expressions  "        disproved " and " not proved " ; but that too cannot be said        to  be a serious defect.  He then expatiated  on  reasonable        doubt,  the benefit of which, according to him, must  go  to        the  accused.  In dealing with this subject, he observed  as        follows:        "  The law further says, if you have any  reasonable  doubt,        then the fact is not proved and the verdict you bring  would        be a verdict of not guilty. If you have no reasonable doubt,        then  the verdict you are to give is the verdict of  guilty.        A further question that you should bear in mind is that  you        may  be in a state where you cannot decide.  That is a  case        of benefit of doubt and if you reach such a stage, then  the        law  says  that you will give the benefit of  doubt  to  the        accused.  That means that if you have a kind of doubt  which        makes you unable to decide, then the accused is not guilty.        Again,  if  you  have no such doubt,  then  the  accused  is        guilty.   These  are the main principles of  criminal  trial        which  I  think,  you  should bear in  mind  while  you  are        approaching the evidence in this case."        This  statement  of the law is partly true  but  not  wholly        true.  The learned Judge, with due respect, did not make  it        clear  to the jury that the prosecution case is built up  of        numerous  facts,  though the fact to be  determined  is  the        guilt of the accused, and that a reasonable doubt may  arise        not  only in connection with the whole of the case but  also

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      in relation to any one or more of the numerous facts,  which        the  prosecution seeks to establish.  Every individual  fact        on  which doubt may be entertained may be held  against  the        prosecution;  but  it’  does  not  mean  that  if  the  jury        entertained  a doubt about any individual fact, the  benefit        of  that doubt must result in their bringing in a verdict  I        of  not guilty’.  This, however, seems to be the  effect  of        this  direction  which  incidentally  is  almost  the   only        direction on the point of law which the learned Judge, apart        from what I have stated earlier, has chosen to give.  In  my        opinion,  the learned Judge should have told the  jury  that        they  could  give the benefit of the doubt on proof  of  any        individual fact, if they felt any doubt        27        about the proof.  But be should have cautioned them that the        totality of facts must be viewed in relation to the  offence        charged,  and  the benefit resulting in acquittal  could  be        given  only  if  they  felt  that  when  all  was  seen  and        considered, there was doubt as to., whether the accused  had        committed  the crime or not.  The direction on the point  of        law contained in the above passage was too attenuated,  and,        in  my  opinion  misleading,  and  led  to  the   inference,        possibly,  that  if  the jury felt a doubt  about  even  one        circumstance, they must bring in a verdict of not ’guilty’.        Having laid down the law to the extent indicated above,  the        learned  Judge next explained the ingredients of s.  325  of        the  Indian  Penal Code.  He explained this  with  reference        only to grievous hurt, drawing the attention of the jury  to        ’  fracture  of  bone’ or injury endangering  life’  in  the        definition.   He, failed to say that grievous hurt was  only        an  aggravated form of hurt, and that the liability  of  the        accused did not cease, if he committed an act which resulted        in  a simple hurt.  Indeed, the learned Judge did  not  tell        the  jury  that even if they held that the accused  did  not        cause  a grievous injury, it would be open to them  to  hold        that he caused a simple injury, which would bring the matter        within s. 323 of the Indian Penal Code.  I may further point        out  that after the verdict of I not guilty’ under  s.  325,        the  learned  Judge did not question the jury  whether  they        thought  that  the accused was guilty of  causing  at  least        simple  hurt.  The jury gave no reasons; they only  answered        the  query whether they thought that the accused was  guilty        of the offence of causing grievous hurt.  But they were  not        questioned  whether they thought, on the facts of the  case,        that the accused had committed the lesser offence of causing        simple  hurt.   It must be remembered that  the  prosecution        case  was  that  two blows were given,  one     causing  the        injury to the temple resulting in a fracture of the temporal        bone and the other, causing an injury on the forehead of  of        Col.   Mitra.  One of them was grievous; the other was  not.        Of  course, the jury were perfectly entitled, to  hold  that        the  accused  caused neither of these injuries;  but  it  is        possible that the jury, if questioned,        28        would  have answered that they thought that the accused  had        caused  the simple injury but not the one resulting  in  the        fracture of the temporal bone.  The failure to question  the        jury with regard to the lesser ,offence completely ruled out        that aspect of the case from the minds of the jury, with the        result that the jury were limited to a case of grievous hurt        and not lesser offence.        These  defects in the charge to the jury on matters  of  law        are  heightened by the manner in which the facts  have  been        laid before them.  The charge to the jury, as I have stated,        ran the course of 50,00060,000 words.  The matter I have  so

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      far   discussed   is   contained   in   1,000-1,500   words.        Thereafter,   the  learned  Judge  did  nothing  more   than        paraphrase the evidence of each single witness in detail, or        read  out extracts from it.  Throughout the course  of  this        reading and paraphrasing, he made no attempt to connect  the        evidence with the fact to be tried.  All that he ever  said-        and he said it with monotonous iteration-was that it was for        the  jury to decide whether they believed the  witnesses  or        not.   No  doubt, a Judge in charging the  jury  is  neither        compelled  nor  required  to  express  his  opinion  on  the        evidence,  except  on a matter of law.  But  Judges  marshll        facts and evidence to draw the attention of the jury to what        is  relevant  -and what is not.  They do hot  try  to  place        everything that a witness states, before the jury.  It  must        be  remembered  that a charge is a vital document,  and  the        Judge’s summing up is only needed, because the minds of  the        jury must be directed to the salient points in the evidence,        so  that they may avoid the irrelevant or  immaterial  parts        thereof.    The  learned  Judge  before  dealing  with   the        evidence, prefaced his remarks by saying this :        "  I  now  propose  to take  up  the  prosecution  witnesses        individually  with  a view to sum up the  evidence  of  each        witness and the suggestions made to each by the counsel  for        the accused."        This represents a very fair and adequate summary of what the        Judge really did, except that he did not sum up the evidence        but  placed it in its entirety.  As I have stated, he-  took        each witness, turn, by turn        29        paraphrased his evidence sentence by sentence, and read  out        those  portions which he did not paraphrase, without  trying        to  draw  the  attention of the jury  to  the  relevancy  or        materiality  of the various parts, The document is  composed        of  a series of narrations with regard to the  testimony  of        the witnesses’ each portion beginning with the words, " Then        there  is the evidence of witness so and so..."  and  ending        with  ,,This  is the evidence of witness so  and  so..."  In        between  is  a voluminous account of  everything  that  each        witness  stated.   Not  only this; no  difference  was  made        between the testimony of the eye-witnesses and of the formal        witnesses in the matter of treatment.  I quote verbatim from        the charge what the learned Judge said with regard to one of        the police witnesses.        "  Then comes the evidence of Head Constable Mathura  Singh.        He  reached  No.  18,  Bondel Road in a  lorry  and  he  was        accompanied by a constable.  You remember he was first  sent        by  Pushpa  Pal.  This Head Constable Mathura  Singh  posted        another constable at the gate so as not to allow a crowd  to        gather. - He also saw Col.  Mitter lying unconscious like  a        dead  person covered with a blanket.  He also had talk  with        Nirmal.  I would like to remind you that if any person makes        any statement to the police, that is not admissible evidence        as  a  rule unless in the case of contradictions  which  are        formally proved as you have seen the Counsel for the accused        has proved contradictions in some cases but you must bear in        mind that except such cases, this is no evidence.        Then  this Constable Mathura Singh went to No. 17  with  the        other constable and posted that other constable at No. 17 to        control the crowd so as to prevent any one coming out of No.        17  And then while he was coming back to No. 18 to find  out        if  he could telephone the officer in charge, the  constable        found  the officer in charge at the gate of No.  18.   After        Pushpa Pal, the Officer in charge came out of No. 18, Bondel        Road, he went to No.. 17 and brought down the accused.  That        is  the  evidence  of Constable Mathura  Singh  also.   This

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      Constable took charge of the accused and left for the  thana        with the accus-        30        ed  at  about 9 O’clock in the morning on the  11th  August,        1950.   Mathura  Singh  was cross-examined and  be  said  in        cross-examination that he did not note down the names of the        persons forming the crowd at No. 18.  He did not go and find        any article at No. 17.  His evidence is that he was there to        guard No. 17 so that no one escaped from there.  "        It needs no argument to apprehend that all this was not only        a  waste  of  the  Court’s  time  but  was  also  likely  to        obliterate  the impression which the jury had gathered  with        regard to the other material evidence in the case.  This  is        only  one passage quoted from the evidence of  one  witness.        Not  only were several such witnesses brought to the  notice        of  the  jury; but even in the evidence of those  that  were        relevant  and  material,  there  was  no  attempt  made   to        extricate  the  relevant from the irrelevant,  the  material        from  the immaterial, the ore from the dross.   The  learned        Judge, as he had indicated, followed the pattern of  putting        all  the  evidence before the jury without  any  attempt  to        focus  their  attention  on the salient  parts  of  it,  and        without  expressing  his opinion either for or  against  the        accused.        There were only two passages in the entire charge, in  which        the  learned  Judge  expressed his opinion.   One  was  with        regard  to an old lady who was an eyewitness and who  viewed        the incident from the upper storey of a neighbouring  house.        That  lady  was the one person about whom it could  be  said        that she was entirely disinterested and whose respectability        was above reproach.  She was old and had weak eyesight.  She        had stated that she saw the quarrel going on, then she asked        for  her  spectacles  and saw  properly.   Whether  she  saw        correctly  or not was the question.  The learned Judge  told        the  jury that the lady was too old and unreliable to  be  a        proper  witness,  without warning them this  time  that  his        opinion was not binding on them.  The other comment is  with        regard  to the medical evidence, where the learned Judge  in        one part promised the jury that he would give them  adequate        guidance  how  to weigh the conflicting  medical  testimony,        which,  it  appears,  he forgot to do at  the  end,  and  in        another portion, he gave this direction:        31        "Now,  gentlemen,  when a medical witness is  called  as  an        expert he is not a witness of fact.  Medical evidence of  In        expert is evidence of opinion, not of fact.  Where there are        alleged  eye-witness of physical violence which is  said  to        have  caused  the, hurt, the value of  medical  evidence  by        prosecution  is  only  corroborative.  It  proves  that  the        injuries  could have been caused in the manner  alleged  and        nothing  more.   The use which the defence can make  of  the        medical evidence, or any medical evidence which the  defence        might itself choose to bring, is to prove that the  injuries        could  not possibly have been caused in the  manner  alleged        and thereby discredit the eyewitnesses.  Therefore, you must        remember  this particular point of view that if you  believe        the  eye-witnesses, then there is no question of  having  it        supported  by medical evidence; unless the medical  evidence        again  in its turn goes so far that it completely rules  out        all  possibility that such injuries could take place in  the        manner alleged by the prosecution and that is a point  which        you should bear in mind, because if you accept the  evidence        of the eye-witnesses, no question of further considering the        medical  evidence arises at all.  The only question in  that        case  when you consider the medical evidence is to test  the

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      eye-witnesses’  version as to whether any of the  particular        injuries  shown  in the report can be caused in  the  manner        alleged  by the prosecution.  But if you don’t  believe  the        eye-witnesses then consideration of the medical evidence  in        any  manner  becomes  unnecessary.  I  think  this  will  be        gentlemen,  a convenient time for you to halt, otherwise  it        might be too tiring for you. (Foreman of the jury  expressed        the  desire to continue the Charge).  " I do not think  that        the  direction  is  either  correct  or  complete.   It.  is        incorrect,   because  a  medical  witness  who  performs   a        postmortem  examination is a witness of fact,though he  also        gives  an opinion on certain aspects of the case.   Further,        the  value of a medical witness is not merely a  check  upon        the  testimony  of  eyewitnesses;  it  is  also  independent        testimony,  because  it may establish certain  facts,  quite        apart from the other oral evidence.  If a person is shot, at        close        32        range,  the marks of tatooing found by the  medical  witness        would  show that the range was small, quite apart  from  any        other opinion of his.  Similarly, fractures of bones,  depth        and size of the wounds would  show the nature of the  weapon        used.  It is wrong to say that it is only opinion  evidence;        it  is  often direct evidence of the facts  found  upon  the        victim’s  person.  However that be, these two passages  were        the only directions given by the learned Judge to the jury ;        -the rest of the charge was only a paraphrase of the medical        evidence running the course of 15,000 words.        There is also a complete disregard of s. 162 of the Code  of        Criminal Procedure both during the trial and also during the        charge.  Omissions were treated as contradictions and placed        before the jury.  The following two passages extracted  from        the charge illustrate the defect at both stages :        Q.   151.   Did  you tell the police that you  did  not  see        when- the old man was assaulted and who assaulted him ?        A.   I  stated  to the police that I had seen  the  old  man        being dealt a fist blow, but I had not seen him being struck        with a rod.        Q.   152.  Did you tell the police that you did not see when        the old man was assaulted and who assaulted him ?        A.No. I did not make that statement.        I Gentlemen, that is a contradiction and it will be for  you        to  judge  how far that goes to destroy the credit  of  this        witness.   Another contradiction was put to him that he  did        not mention that Sati Mitra was pulled by hair, but he  says        it here.  You will find from his answer to Question 158 that        even before the police he made the statement that Sati Mitra        was pushed away.  The language used was pushed away’.   Then        in  answers to Questions 161 to 164  further  contradictions        with   this  police  statement  were  made  out  in   cross-        examination.  The first is that it was not mentioned by  him        before  the  police  that there was any  fist  blow  on  the        Colonel;  secondly, that it was not mentioned to the  police        by him that Sati Mitra intervened in the matter by  clasping        the Colonel, and also on the point whether        33        the  Colonel was dragged by his shirt.  I will read out  the        relevant questions and answers:        Q.   Do  you find further that you have stated in  the  next        paragraph after that ’I also saw another tall person  stated        to  be the second brother was dragging the old  man  holding        his wearing shirt’?        A.   I  saw that person dragging the Colonel by holding  his        genji  and when a fist blow was given to the  Colonel,  Sati        Mitter came and clasped him from a side.

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      Q.   161.  Do you find here that all that is written is that        you  saw the Colonel being dragged and nothing is  mentioned        about  the  fist  blow and Mrs.  Sati  Mitter  clasping  her        father-in-law and being pulled away by the hair ?        A.   I do not know how the police had recorded my statement.        But  I am telling you that (what) I saw.  I saw that when  a        fist  blow  was given to the Colonel Sati  Mitter  came  and        clasped  the Colonel from a side and she was thrown down  by        being caught by her hair.        Q.164.   Forget about the genji and the shirt You find  here        that  nothing is mentioned about your evidence that you  saw        the  Colonel being given a fist blow by the accused  on  the        left  temple  and then Sati Mitter coming and  clasping  the        Colonel round his waist,--you find that is not mentioned ?        A.   On  my  being repeatedly asked about the lathi  blow  I        denied  to the police that I had -seen any lathi blow  being        given  to him, but I said that I had seen a fist blow  being        given.  "        The second passage is even more significant.  This is how it        runs:        " She makes it clear that she saw the incident at  different        stages  having been to the kitchen in the meantime and  come        back.   She  saw  the  Colonel after  her  return  from  the        kitchen.  She does not remember the dress of the  assailant.        She  also  says  that the gate of No. 18  was  closed.   Her        evidence has been criticised also for contradiction  between        her evidence here and her statement to the police first.  It        is  said that she said before the police that she heard  the        hulla  herself;  here she says that it  was  the  children’s        cries        5        34        which  attracted her attention.  Secondly, she said  to  the        police  that she came first to the drawing room ;  here  she        says that she came first to the verandah.  Thirdly, she also        said to the police that she saw the person wearing Choti  or        pants  and blue shirs Fourthly, before the police  she  said        that  she saw the three persons leaving Nirmal  and  started        arguing.   Here she says that she did not see them  arguing.        Fifthly, it is said she told the police she saw the  Colonel        once go near the pillar of the gate on the western side  but        she  does not say so here.  Then again, it is said that  she        told the police that she saw the assailant bring out a black        looking   object  from  somewhere  in  his  waist  and   she        subsequently  saw  the old man fallen down.  She  said  here        that  she did not see the old man falling down.   Gentlemen,        you  will again weigh these contradictions and  see  whether        they  are such as to discredit the witness or are  such  for        which  you can make allowance.  In fact, she said in  cross-        examination  that  I  something’  was  brought  out  by  the        assailant  from his right side.  I think, gentlemen  of  the        jury, you also asked her some questions.        Q.   During the examination it appears that you have told us        that  you saw Colonel Mitter being drawn towards 17,  Bondel        Road ?        A.   He  was being dragged in the direction of  the  Mansion        House.        Q.   111.  That is, towards the west of the path ?        A. Yes.        Q.   112.   How far was he from the boundary walls  abutting        the Bondel Road ?        A.   I  would  not be able to tell you that  because  I  was        seeing this from above, from a height.        Then the last question to her was this:        Q.   113.  You have just given us more or less what you saw.

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      Could you also tell us exactly on what part of the lawn, was        it at the central portion of the lawn or was it on the  side        of  the lawn that you saw that one person who was  with  the        Colonel  was bringing out something from his side ? At  what        position were the Colonel and that gentleman standing ?        35        A.   It is difficult for me to describe the position.  But I        can say that he was neither in the exact centre of the  lawn        nor  was he absolutely on an extreme side of the  lawn.   He        was somewhere about 4 or 5 cubits  way from the gate of  the        boundary wall."        In the previous trials, the Calcutta High Court rejected the        verdict of the jury, because in the opinion of  Chakravarti,        C.J.  (Sarkar,  J. concurring), it was all  comment  and  no        evidence.  It may be said that this time it was all evidence        and no comment or arrangement.  The Calcutta High Court  has        laid  down in a series of cases what the charge to the  jury        should be, and I shall refer only to the Calcutta cases.        There  is  no settled rule or practice as to what  a  charge        should  or  should  not contain.  That is  dictated  by  the        circumstances of each case.  Sir James Fitz-James Stephen in        his  History of Criminal Law of England, Vol. 1 pp.  455-456        (quoted in Trial by Jury and Misdirection by Mukherji,  1937        Edn., at p.    237) says:        "The summing up again is a highly characteristic part of the        proceedings,  but it is one on which I feel it difficult  to        write.   I think however that a Judge who merely  states  to        the Jury certain propositions of law and then reads over his        notes does not discharge his duty.  This course was commoner        in  former  times than it is now...... I also think  that  a        Judge  who forms a decided opinion before he has  heard  the        whole  case  or  who  allows himself to  be  in  any  degree        actuated  by  an  advocate’s  feelings  in  regulating   the        proceedings,  altogether fails to discharge his duty, but  I        further think that he ought not to conceal his opinion  from        the Jury, nor do I see how it is possible for him to do  so,        if he arranges the evidence in the order in which it strikes        his  mind.   The mere effort to see what is essential  to  a        story,  in what order the important events happened, and  in        what  relation they stand to each other must, of  necessity,        point to a conclusion.  The act of stating for the Jury  the        questions  which  they  have to answer and  of  stating  the        evidence  bearing on those questions and in showing in  what        respect it is important, generally goes a considerable way        36        towards,  suggesting an answer to them, and if a Judge  does        not do as much at least as this, he does almost nothing."        As pointed out by Mukerji (ibid p. 253):        "  Where  the  charge to the Jury was  little  more  than  a        rambling  statement  of  the evidence as it  came  from  the        mouths  of  the  several witnesses who were  called  and  no        attempt was made to sift the relevant and important  matters        from  the  irrelevant and unimportant facts, held  that  the        charge  was  defective and the trial was  vitiated  on  that        account.  (Jabed Sikdar) (1).  It is not sufficient for  the        Judge  simply to point out this peace of evidence and  that,        this presumption and that, this bit of law and that.  It  is        his duty to help and guide the Jury to a proper  conclusion.        It  is his duty to direct the attention of the Jury  to  the        essential  facts.  It is his duty to point out to  them  the        weight  to be attached to the evidence and to  impress  upon        them  that  if there is any doubt in their minds  they  must        give  the  benefit of the doubt to the accused.  It  is  not        enough  that the Judge has said something on each  of  these        matters somewhere in the charge.  It is the manner of saying

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      it,  the arrangement and the structure of his  charge  which        will  make  it  either of value or valueless  to  the  Jury.        (Molla  Khan)  (2)...  It  is not enough  to  read  out  the        evidence in extenso it is incumbent on the Judge to  analyse        it and place it succinctly before the Jury (Rajab Ali) (3)."        The  charge  in  this case  goes  manifestly  against  these        directions.   It  is no more than ’a recital of  the  entire        evidence  in  the case’ almost as detailed as  the  evidence        itself,  and  there  is  no attempt  whatever  to  give  any        guidance to the Jury.        No  doubt,  the Privy Council in Arnold v.  King  Emperor(4)        stated that:        " A charge to a Jury must be read as a whole.  If there  are        salient propositions of law in it, these will, of course  be        the  subject  of  separate analysis.  But  in  a  protracted        narrative of fact, the determination of which is  ultimately        left to the jury, it must        (1)  (1931) 35 C.W.N. 835.        (2)  A.I.R. 1934 Cal. 169 (S.B.)        (3)  A.I.R. 1927 Cal. 631.        (4)  (1914) L.R. 4I I.A. 149.        37        needs  be that the view of the Judge may not  coincide  with        the  view of others who look upon the whole  proceedings  in        black  type.   It would however, not be in  accordance  with        usual  or  good  practice to treat such cases  as  cases  of        misdirection, if, upon the general view taken, the case  has        been fairly left within the Jury’s province."        These observations apply only if the matter has been  fairly        left to the jury.  When this charge is read through its vast        length, the most astute person is left guessing as, to where        it  was  all  driving  the jury  to.   It  is  a  protracted        narrative  no  doubt, but it is so amorphous as to  give  no        indication  of its real purport and import, and  leaves  the        matter  not in the hands of the jury, but, if I may  so  say        with  great  respect, in the air.  I think that this  was  a        case for the exercise of the powers of this Court under Art.        136.  As was laid down in Ramkrishan Mithanlal Sharma v. The        State  of  Bombay(1),  the  Judge  in  summing  up  for  the        prosecution and defence should not give merely a summary  of        the  evidence; he must marshall the evidence so as  to  give        proper  assistance to the jury, who are required  to  decide        which view of the facts is true.        I  am,  therefore, of opinion that the charge  to  the  jury        cannot  be  said to be a proper charge on any  principle  or        precedent, and that the verdict cannot be accepted.   Though        this case has taken already almost ten years, there is prima        facie  reason to think that justice has failed.   Since  the        matter  is  now  before  the  highest  Court,  there  is  no        likelihood  of  any further delay in the case, and  what  is        just  therein can be done.  I would, therefore,  proceed  to        hear the case on merits.        By  Court: In accordance with the opinion of  the  majority,        this appeal is dismissed.        Appeal dismissed.        (1) [1955] 1 S.C.R. 903, 930.        38