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Appeals Nos. 425 and 437 to 378 of 1956, decided on 10th June 1957.
Words "produced for the inspection of the Court"‑Meaning and interpretation.
"Produced for the inspection of the Court" means pro duced in accordance with the provisions of the Evidence Act. Merely because a document was contained in the record of the Committing Court, it cannot be said that it automatically becomes evidence in the Court of Session and was produced for the inspection of the Court of Session.
Dying declaration Admissibility of‑Requires to be proved that it was the statement of that particular person who was supposed to have made it.
If a dying declaration could be admitted under section 80 of the Evidence Act it would still require to be proved that it was the statement of the particular person who was supposed to have made it. For these reasons, a dying declaration, as such, cannot prove itself under section 80 of the Evidence Act and, therefore, to become admissible, it must be proved in one or other of the ways provided by the Evidence Act for the proof of documents.
A dying statement of a deceased person must be taken in the presence of an accused and must be proved in the ordinary way by a person who heard it and then only it would be admissible in evidence, for, in such circumstances, only the person proving the same would be entitled to use the document for refreshing his memory.
Empress v. Samiruddin I L R 8 Cat. 211 ; King‑Emperor v. Daulat Kunjra 6 C W N 921 ; Panchu Das v. Emperor I L R 34 Cal. 698 ; Gouridas Namasudra :v. Emperor I L R 36 Cal.659 ; Sulaiman v, The King A I R 1941 Rang 301; The Public Prosecutor v. eevarathnam and others A I R 1948 Mad. 503 ; Mahbub Shah v. The King‑Emperor 49 C W N 678 (P C) ; Elahi Baksha alias Elahi Baksha Mondal and others v. The Crown 7 D L R 358 and The Emperor v. Molla Khan Kabuli alias Hamidulla and others 37 C W N 1061 ref.
Suraj Bali v. Emperor A I R 1934 All. 340 disagreed.
Nurul Amin and A. Hakim for Appellants.
A. Hye Choudhary for the State.
These two appeals are by nine accused persons of whom appellants Nos. 1 to 5 in Criminal Appeal No. 425 of 11456 and the two appellants in Criminal Appeal No. 437 of 1956 have been convicted both under sections 148 and 304, Part I, read with section 34 of the P. P. C. and sentenced to suffer rigorous imprisonment for three years and six years respectively on each count. The sentences have, however, been made to run concurrently. Appellants Nos. 6 and 7 in Criminal Appeal No. 425 of 1956 have only been convicted under section 148 of the P. P. C. and sentenced to suffer rigorougs imprisonment for three years each.
The appellants in Criminal Appeal No. 425 of 1956 have been represented before us by Mr. Nurul Amin and the appellants in Criminal Appeal No 437 of 1956 have been represented by Mr. Abdul Hakim whilst the State has been represented in both these appeals by Mr. Abdul Hye Choudhury.
All these nine appellants were charged under section 148
of the P. P. C. and seven of them, excluding appellants
No. 6 and 7 in Criminal Appeal No. 425 of 1956, were
further charged under sections 304/34 of the P. P. C. They
were tried together by a jury consisting of five persons who
by a unanimous verdict found the first five appellants in
Criminal Appeal No. 425 of 1956 and the two appellants in
Criminal Appeal No. 437 of 1956 guilty under both the
aforesaid sections as also found the two appellants Nos. 6
and 7 in Criminal Appeal No. 425 of 1956, guilty under
section 148 of the P. P. C.
The prosecution case against the appellants was that they
had formed themselves into an unlawful assembly with the
common object of assaulting the deceased Nasir Sardar alias
Nasiruddin Sardar and had thereby committed the offence
of rioting, being armed with deadly weapons such as sulphis
and lathis. Appellants Nos. l to 5 in Criminal Appeal
No. 425 of 1956 and the appellants in Criminal Appeal No. 437
of 1956 were further accused of having committed culpable
homicide, not amounting to murder, by causing the death
of the said Nasir Sardar in furtherance of the common
intention of them all. The deceased Nasir Sardar alias
Nasiruddin Sardar was a resident of Mouza Boalia within
Naogaon Police Station, Rajshahi. It is alleged that on the
morning of the 12th of November 1955, corresponding
to the 25th of Kartick 1362, B. C., he had gone to plough
his plot of land comprised in C. S. plot No, 1949 of the said
Mouza Boalia. The said C. S. plot 1949 comprised within it various sub‑plots, one of which was claimed by the said deceased to be his whilst some of the other plots belonged to some of the accused in this case.
Before starting for the field, the deceased had asked his son Nazrul Islam, P. W. 3, to bring to the field his bidis and match box. Accordingly, at about 7 or 7‑30 a.m., the said Nazrul Islam proceeded to the field with the bidis and the match box but whilst he was on the way he saw the appellants Abdus Sattar, Badaruddin and Budhai rushing from the east with lathis in their hands towards the deceased shouting dhar shalake (catch hold of the shala). Seeing this, the deceased unyoked the bullocks and began to run towards the west with plough on his shoulder but, as he found that his pursuers were gaining upon him, he. threw off the plough when he was on the land of one Askar and began to run faster. But as he reached the western portion of the land of one Gana Mondal, the appellants Sudha Sardar, Atab alias Atabuddin, Moyezuddin, Dola, Kusha and Badaruddin who were hiding behind the ail of the lard suddenly sprang upon the deceased, surrounded him and started beating him up. In the meantime, ‑ the appellants Sattar, Badaruddin and Budhai also reached the snot and joined in the beating of the deceased. After some 'ime, tte appellant Atab told the other appellants that as the deceased had been finished, they should go away and the appellants thereafter dispersed from the place in different directions.
At about this time, the nephew of the deceased, Abdul Aziz, P. W. 1, who was near his tank, heard the cry of the first three pursuers of the deceased and at once ran towards his uncle whom he found fleeing away with the plough on his shoulder chased by the first named three appellants. The hue and cry attracted many other persons also who came and witnessed the occurrence from a little distance and saw all the nine appellants before us assaulting the deceased. The hue and cry also attracted p. W. 6, Taleb Ali, who started for the scene of the incident and found the appellants Sudha, Budhai, Arab, Sattar and Bahar returning from the field with lathis and sulphis in their hands.
After the miscreants had retreated, the people collected there, went to the place of the incident, saw the deceased lying there with multiple injuries but still not quite uncon scious. They removed him to the Naogaon Hospital where he died in the morning of the following day.
The first information report in this case was lodged by P. W. 1, the nephew of the deceased, at about 4 p.m. at Naogaon Police Station which is only about I mile away from the place of the incident. In this first information report, the informant stated that there had been some delay on his part in coming to the police station after making arrangements for the treatment of the deceased. In the first information report, the appellants in Criminal Appeal No. 437 of 1956 were also not named as the accused. On the basis, 'however, of this first information report, the investigation was taken up by the police officer who visited the hospital and found the deceased with multiple injuries on his person receiving treatment there. After his death in the hospital. the inquest on his dead body was held there and later forwarded 'to the morgue for post‑mortem examination under the escort of constable, P. W. 8. On completion of the investigation, the investigating officer, P. W. 15, sent up all the nine appellants before us for trial. A preliminary enquiry was held by a Magistrate of the 1st class and the nine. appellants were committed .to stand their trial before the Court of Session.
At the trial, the appellants all pleaded not guilty and their case briefly was that they did not take any part what soever in the assault on the deceased Nasir Sardar but that they had been falsely implicated in this case out of grudge and previous enmity.
It also transpired in the prosecution evidence that some months before this occurrence the deceased, one Yasin and another person assaulted one Reajuddin, a full brother of the appellants Sattar and Arab. Over this incident a criminal case was also started against the deceased and the said two other persons, which was actually pending at the time of the alleged occurrence and ultimately ended later in the con viction of both the other two accused in that case. In addition to this, it was also suggested by the defence to P. W. 1, the complainant in this case, that there was litigation over C. S. plot No. 1949 between some of the accused on the one side and the deceased acid his co-sharers on the other. This witness also admitted that the four appellants Sudha, Atab, Budhai and Sattar possessed some lands of C. S. plot 1949 in the easternmost portion thereof.
In support of its case, the prosecution examined some 15 witnesses, of whom P. Ws. 1, 2, 3, 4, 5, 13 and 14 claimed to be the eyewitnesses of the occurrence ; P. W. 6 arrived at the scene later and only saw .some of the appellants retreating armed with sulphis and lathis ; P. W. 9 was the witness only to the seizure list and P. W. 10, a pound‑keeper of Shapur, was also a formal witness called to prove the impounding of the bullocks of the deceased.
In support of the charge under section 34 of the P. P. C., the prosecution also examined two witnesses, P, Ws. 11 and 12, who purported to give direct evidence of a conspiracy being hatched, to kill the deceased, between some of the appellants in the house of one Reajuddin on the night preceding the day of occurrence. Apart from these, P. W. 7 was the doctor who carried out the post‑mortem examination. P. W. 8 was the constable who escorted the dead body to the margue and P. W. 15 was the investigating officer in this case.
The learned Assistant Sessions Judge of Rajshahi elabo rately analysed and marshalled this evidence in the Heads of Charge delivered by him to the jury, drawing their attention to 411 the discrepancies and contradictions therein, as also to all the circumstances in favour of that appellants. He also made it a point to deal with the various defence suggestions put forward on behalf of the appellants.
The learned Advocate appearing on behalf of the appellants, however, have assailed this charge to the jury as being full of misdirections and non‑directions on material points, as also of being vitiated by the exclusion of material evidence from the jury.
Although different sets of arguments were advanced before us by the learned Advocates appearing in these two appeals, we propose to deal with them together, for most of these contentions are common to the cases of all the appellants.
The first misdirection alleged is that the learned Judge seriously erred in not taking into consideration a dying decla ration said to have been made by the deceased and recorded by a Magistrate, although this was admitted by P. W. 15, the investigating officer, in his evidence and was, indeed, con tained in the record sent up by the committing Court. It is alleged that the learned judge thereby with‑held a material piece of evidence from the jury. Thus, even though he emphatically directed the jury that this dying declaration had been with‑held by the prosecution for no reason at all and, hence, the jury were at liberty to presume against the prosecution under section 114 of the Evidence Act for with‑holding this evidence regarding the dying declaration and for not examining the Magistrate who recorded the same and to direct their decision accordingly, this could not, according to the learned Advocates, take the place of direct evidence, for, it is difficult to tell what effect it might have produced on the jury if it had, in fact, been brought into evidence.
It is contended that since the said dying declaration was on the record of the committing Court which had been sent up to the Court of Session, it was evidence under section 3 of the Evidence Act and no further proof thereof was necessary, as it, having been recorded by a Magistrate competent to record a dying declaration, ipso facto proved itself under section 80 of the Evidence Act and, hence, the learned Assistant SesFions Judge should have admitted it into evidence and directed the jury that the presumption under the said section of the Evidence Act was that it was genuine and that it was duly taken. In support of this contention, reliance has also been placed on a decision in the case of Suraj Bali v. Emperor (A I R 1934 All. 340) where Bennet, J. in more or less similar circum stances held that "a dying declaration before a Magistrate and recorded by him is evidence and can be admitted without proof under section 80 of the Evidence Act".
Section 3 of the Evidence Act defines what is evidence and clause (2) of the said definition provides that all docu ments produced for the inspection of the Court are called documentary evidence. This definition does not say that any and every document is evidence but it only makes documents produced for the inspection of the Court evidence. Produced for the inspection of the Court, must necessarily mean produced in accordance with the provisions of the Evidence Act, that is to say, proved in the case in accordance with those provisions. In the present case, therefore, we areA unable to accept the contention that merely because a document was contained in the record of the committing Court, it automatically became evidence in the Court of Session and was produced for the inspection of the Court of Session. If that be so, then, indeed, it may not be necessary to examine any witness at all in the Court of Session, because, the depositions of all the witnesses taken in the commuting Court are also sent up to the Court of Session. We are unable to agree that merely because a document, when produced for the inspection of the Court, becomes evidence it follows that all and every document even though not so produced for the inspection of the Court; is also evidence. The learned Advocate himself must have felt this difficulty, hence the recourse to the provisions of section 80 of the Evidence Act, which reads as follows :‑
"Whenever any document is produced before any Court, purporting to be a record or memorandum of the evidence, or of any part of the evidence, given by a witness in a judicial proceeding or before any officer authorized by law to take such evidence or to be a statement or confession by any prisoner or accused person, taken in accordance with law, and purporting to be signed by any judge or Magistrate, or by any such officer as aforesaid, the Court shall presume‑
that the document is genuine ; that any statement as to the circumstances under which it was taken, purporting to be made by the person signing it, are true, and that such evidence, statement or confession was duly taken".
Here again it should be observed that the section requires that the document must be produced before the Court. As we have already indicated, in this case. the document con cerned was not even produced before the Court of Session and, hence, there was no question of the presumption under section 80 of the Evidence Act attaching to it. We, how ever, go further. Even assuming that the document had been produced before the Court, we have to point out that the presumption under this section attaches not to all and every kind of document but only to two kinds of documents, namely ; (a) a record or memorandum of the evidence or any part of the evidence given by a witness in a judicial proceeding or before an officer authorised by law to take such evidence and (b) the statement or confession by a prisoner or accused person taken in accordance with law. A dying declaration does nor tall within either of the above two categories and, therefore, the presumption under section 80 of the Evidence Act does not, in our opinion, attach to dying declarations as such. The possibility of a dying declaration being admitted under section 80 of the Evidence Act, in our view, can only arise when the dying declaration is taken as a deposition in tile course of a judicial proceeding or before an officer authorised by law to take it, as for example, under section 164 of the Code of Criminal Procedure. Furthermore. the obvious fallacy in this argument is that it assumes that section 80 of the Evidence Act also raises a presumption that a document is what it purportslI to be. It, in our opinion, does not. Thus, ever, if a dying declaration could be admitted under section 80, it would still require to be proved that it was the statement of the particular person who was supposed to have made it. For these reasons, we have no manner of doubt that a dying declaration, as such, cannot prove itself under section 80 of the Evidence Act and, therefore to become admissible, it must be proved in one or other of the ways provided by the Evidence Act for the proof of documents.
We are also strengthened in this view by a series of decisions of the Calcutta High Court as well as of some of the other High Courts. Thus, as early as 1882, the Calcutta High Court to the case of Empress v. Samiruddin (JLR 8 Cal. 211) held that a dying statement of a deceased person must be taken in the presence of an accused and must be proved in the ordinary way by a person who heard it and then only it would be admissible in evidence, for, in such circumstances, only the person proving the same would be entitled to use the document for refreshing his memory. So far as we are aware, the principle laid down in this case has not been departed from in the Calcutta High Court. Thus, in the case of King‑Emperor v. Daulat Kunjra (6CWN921) Punchu Das v. Emperor (I L R 34 Cal. 698) and Gouridas Namasudra v. Emperor (I L R 36 Cal. 659) the decision in I L R 8 Cal. 211 was cited and approved.
In the case of Sulaiman v. The King (A I R 1941 Rang. 301) Mosely, J., before whom it was also argued' that the presumption under section 80 of the Evidence At attaches to a dying declaration also, held that the dying declaration had to be proved, for it was not a record of the evidence given by a witness before an officer authorised by law to take such evidence.
In view of these authorities, we are unable to agree with the decision in the case of Suraj Bali v. Emperor and prefer to follow the Calcutta view which has been consistently held since the decision in I L R 8 Cal. 211.
Alteratively, the learned Advocates have argued that even if the dying declaration was not evidence in this case and did not prove itself under section 80 of the Evidence Act, this Court should, in the ends of justice, take it into evidence as additional evidence under section 428 of the Code of Criminal Procedure, since the only questions here is one of mere formality of proof of the document concerned. In support of this contention, reliance is placed on the decision in the case of The Public Prosecutor v. eleevarathnam and others (A I R 1948 Mad. 503) where
Govinda Menon, J. admitted a Customs Union Agreement entered into between the Government of India and the Governor of the French Establishment in India at the appellate stage as additional evidence since he considered it to be a question only of the formal proof of the document. The document, it appears, was a printed copy of the said agree ment which was filed supported by an affidavit of an official of the Central Excise Department. It is further urged that since such additional evidence need neither be recorded in the presence of the jury nor need the accused be further examined under section 342 of the Code of Criminal Procedure, there can be no possible objections to this procedure being adopted.
Section 428 of the Code of Criminal Procedure undoub tedly gives wide powers to this Court, sitting even as a Court taking criminal appeal, to admit additional evidence when it considers such additional evidence necessary for the decision of the case. But in the present case we are not convinced that the admission of such additional evidence is at all necessary, for, we find that the learned Assistant Sessions Judge has very clearly and categorically directed the jury that they should proceed to take their decision in this case upon the basis that the dying declaration, if produced. would not support the prosecution case, as they were entitled to so presume under section 114 of the Evidence Act. We do not, therefore, see what greater benefit can be gained by the appellants by the admission of such additional evidence This was a direction on a point of law which the jury was bound to follow and we have no reason to doubt that the jury did perform its functions properly in the present case. There would possibly have been no difference to their decision even if the document had been admitted into evidence and it showed that the appellants are not named therein because, under the presumption which they were asked to draw by the learned Assistant Sessions judge, that was precisely what he wanted them to do, namely, take for granted that the dying declaration did not name any of the appellants. In these circumstances, we do not consider it necessary at all to call for this additional evidence, nor do we think that the non‑admission of this dying declaration has prejudiced the appellants in any way. For these reasons, we also reject the separate application put in on behalf of the appellants in Criminal Appeal No. 437 of 1956 for the admission of this additional evidence. For the same reasons, we are also not impresed by the argument that the admission of the dying declaration into evidence would have made any material difference to the verdict of the jury.
The next ground of attack is that the learned judge has misdirected the jury by omitting to place before the jury certain material facts deposed to in the evidence by the prosecution witnesses but not mentioned in the first infor mation report, namely,
(a) that some of the alleged eye‑witnesses, as for an ample, P. Ws. 3. 4, 5 and 14, have not been named in the first information report by the informant,
(b) that no motive has been alleged in the first informa tion report,
(c) that the alleged story of conspiracy, now sought to be brought into the record by the oral testimony of P. Ws. 11 and 12, was not alleged in the first information report, even though the evidence of P. W. 12 is that he informed P. W. 1, the complainant in this case, before the latter went to lodge the first information report, and
(d) that the appellants in Criminal Appeal No. 437 of 1956 have not been named in the first information report as accused persons.
Now with regard to the first alleged omission, we have to point out that in the first information report the informant named four persons and stated that these and many others saw the occurrence and heard of it. Out of the four persons named in the first information report, three, namely, P. Ws. 2, 6 and 13, were, in fact, examined by the prosecution. In the circumstances, we do not think that this is an omission at all because the informant was not bound to name each and every one of the persons who came there or saw the occurrence or heard of it. In any event, the learned judge was, in our opinion, perfectly right in drawing the attention of the jury to the fact that the first information report cannot be treated as substantive evidence and used for contradicting any of the witnesses other than the informant himself. Thus, even if this omission had been placed before the jury, the judge would, in fairness to the prosecution, have been found to direct them that, for this reason, the jury should not use this omission for the contradiction of the said witnesses who also claimed to be eye‑witnesses although they were not named in the first information report as such witnesses.
With regard to the motive, which, of course, is normally not relevant in a criminal prosecution, we find, in the present case, that the motive that was alleged, namely, retaliation for the assault on Reajuddin leading up to the criminal prosecution of the deceased and two others was, in fact, not disputed by the defence itself. Indeed, in the cross‑exami nation of P. W. 1, the defence itself extracted from the said witness that Yasin and Abdur Rashid, the other two persons implicated in the assault case on Reajuddin, were convicted in that case and that the judgment in that case was delivered after the death of the deceased Nasir Sardar. The evidence with regard to the assault on Reajuddin and the criminal case leading up to the conviction of the two others was also duly placed before the jury. Hence, there was, in our opinion, no material omission on the part of the learned judge in not telling the jury that this fact did not find place in the first information report.
With regard to the conspiracy and the evidence of P. Ws. 11 and 12, the learned judge, we find, fully placed the entire evidence in that connection before the jury, as also drew their attention to the fact that P. W. 12 met Abdul Aziz, P. W. 1, the informant, in the Naogaon Hospital on the following day and told him of the discussion in the house of Reajuddin. Here again, the omission to mention this fact in the first information report could not be utilised to contradict P. Ws. 11 and 12 and hence we do not think that it was necessary for the learned judge to tell jury that the story of the conspiracy has not been set out in the first information report.
Lastly, with regard to the alleged omission to place before the jury that the names of the appellants in Criminal Appeal No. 437 of 1956 do not transpire in the first information report, we must observe that evidently this ground has been taken under some mis‑apprehension, for, on a reference to the charge, we find that the judge clearly stated that :‑
"It appears that in the ejahar the names of accused Moyez and Dola do not find any mention. P. W. 1 says that he did not know the names of these 2 accused at the time of the occurrence as well as at the time of lodging the ejahar ; so, he could not name them. ,Later on, how ever, he came to know their names and have also deposed to that effect before you. As regards the ejahar, you are to remember that it is not a substantive piece of evidence though it has got considerable value being the first information. The ejahar can be used either to corroborate or contradict the maker viz., P. W. 1 Abdul Aziz. The other witnesses are not bound by this ejahar. Now you have heard P. Ws. 2, 3 and 4 naming accused Dola and Moyez as well. The other P. Ws. viz., P. Ws. 5, 6, 13 and 14 do not however, name these two accused viz., Dola and Moyez. It is now for you. to decide what view you will take about the fact of absence of the names of these from the ejahar and the mention of their names by P. Ws. 2, 3 and 4".
This, in our opinion, more than abundantly cautioned the jury with regard to the evidence against the appellants. Moyez and Dola, and they can have no legitimate cause for complaint against the said guidance given to the jury.
It is next argued that the defence case was not fully placed before the jury. But in the course of arguments it transpired that the real complaint on this account was that the jury was not told that there was a suggestion made to P. W. 1 that there was some litigation with regard to this plot. The suggestion was, of course, denied by the said witness but even supposing that it had been accepted, we fall to appreciate what relevance or material bearing it would have had in the present case, for, in the present case, the common object of the unlawful assembly was not to dispossess Nasir Sardar from plot No. 1949, nor was it the prosecution case that the assault took place whilst evicting Nasir Sardar who had trespassed into :that land. Indeed, the prosecution case was that Nasir Sardar ran for his life and was chased for a distance, actually surrounded and mercilessly beaten on the land of a totally different person, namely, Gona Mondal, in an adjoining village at Par Naogaon. Iri the circumstances, we do not appreciate what useful purpose would have been served by
placing before the jury a fact which particular
relevance to the case under consideration.
Some complaint was also made with regard to the explanation of the law bearing on section 34 of the P. P. C. We have carefully perpsed the said portion of the charge and the learned Advocates themselves have been forced to admit that the relevant portion of the charge dealing with this section has faithfully reproduced the law, as laid down by the Privy Council in the case of Mahbub Shah v. The King Emperor (1). Therefore, there can be no legitimate cause for complaint with regard thereto.
It is also complained that, in so far as the learned Judge had purported to minimise and actually glossed over the unusual and inordinate delay in the lodging of the first information report, he had misled the jury. This charge against the learned judge is not, however, in our opinion, justified. The learned judge has quite fairly pointed out to the jury that there was a delay of about hours in lodging the first information report and he has also placed before the jury, as he was bound to do, the explanation given by P. W. I with regard to this delay and then told the jury to consider whether there was any unreasonable delay having regard to the serious condition of Nasir Sardar and also the mental condition of the inmates of the house. We do not see what was wrong in this direction. The learned judge was bound, as we have already stated, to place before the jury not only the circumstances in favour of the accused but also the facts and circumstances that transpired in evidence against the accused and this he did and the appellants cannot complain that he placed only the circumstances against them before the jury.
Complaint is also made that whilst directing the jury as to whether the offence came under Part I or Part II of section 304, the learned Judge omitted to point out to the jury that none of the injuries were on any vital part of the body of the deceased. This argument also is, in our opinion, misconceived, for, we find from the charge that the learned judge has fully placed the evidence of the post‑mortem examination before the jury and this discioses that there were as many as four fractures found on the deceased, namely, of the metacarpal bone, the right tibia, the radius and ulna bones as also three ribs were found broken on the left side in the mid‑mamillary line. The chest is surely a vital part of the body and, if the injuries have in fact causes as many as four fractures including those of the three ribs, the injuries cannot be said to be merely such as the appellants knew (sic) were likely to cause death. In the circumstances, we do not think that there was any misdirection with regard to this either.
A point was also sought to be made that the learned judge had not drawn the attention of the jury to the relationship of the witnesses with particular emphasis in the
(1) 49 C W 'N 078 (P Q
proper paaces.
LL taaua ra.co,
, _ ___ o___ . _
really is that the learned judge did not repeat in every place
that the witnesses were mostly related with the deceased, for,
on a perusal of the charge, we find that while he dealt with
the evidence of each witness he also pointed out the relation
ship of that witness with the deceased, as also, ultimately
when placing the defence arguments before the jury, he
addressed the jury as follows
"It is also argued by the defence that no independent witness has been examined by the prosecution. I have already stated to you the relationship between the deceased and the witnesses who have spoken about the occurrence. It is also in evidence that some persons of Par Naogaon, just west of the place of occurrence, came to the scene of occurrence, but only P. W. 5, Shamsher Ali, a relation of the deceased has deposed for the prosecution. The other witness of Par Naogaon is P. W. 9 Muhammad Muzaffar Mondal, son of Gana Mondal, on whose land the occur rence is said to have taken place".
On behalf of the appellants Mayez and Dola, it is also urged that the learned judge failed to point out to the jury that P. Ws. 11 and 12 did not name these appellants as being amongst the conspirators seen by them. We find from the relevant portion of the charge that the learned judge placed before the Jury the names of all the persons mentioned by these two witnesses and, as such, we do not see what greater advantage would have accrued to these appellants by repeating again: to them that these two persons were not named. Surely, the jury being intelligent persons could be expected to understand if the names of the appellants Moyez and Dola were not mentioned by the learned judge when dealing with the conspiracy deposed to by these witnesses, P. Ws. 11 and 12, that they were not named by them.
Lastly, a general attack is made against the charge delivered by the learned judge that he failed to properly sum up the prosecution evidence. In support of this contention, reliance is placed on a passage from the case of Elahi Baksha alias Elahi Baksha Mondal and others v. The Crown(1) where Ibrahim and Chakraborti, JJ. observed that :‑
"A mere reading out of the deposition of the witnesses, beginning from that of P. W. No. 1 to the end, does not satisfy the requirements of this section. What it requires is the summing up of the evidence of the prosecution and of the defence My idea of summing up is that the Sessions judge should piece together all facts relevant to each vital point and present them in an intelligible manner to the jury. That is a more difficult method but that is the method contemplated by law and must be followed".
We can refer, in this connection, to a much stronger passage from the judgment of a Special Bench of the Calcutta High Court in the case of The Emperor v. Molla Khan Kabuli alias Hamidulla and others (2) where Lort‑Williams, J.
‑1lYGLGl1 Lilt:
Juugmel1r Or the 3peclal Bench, observed
"It is not sufficient for the Judge simply to point out this piece 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 essential points. It is his duty to point out to them the weight to be attached to the evidence, and it is his duty to warn them gravely about the responsibility which rests upon their shoulders in a trial of this kind, and to impress upon them that, if there is any doubt in their minds, they must give the benefit of that doubt to the accused. It may be said that the learned judge has done all this, and if you search through the charge, you will find something said somewhere upon each of these matters. But that is not enough. It is the manner of saying it, the arrangement and the structure of his charge, which will make it either of value or valueless to the jury".
This, it is alleged, is precisely what the learned Judge has done in this case, that he has placed this bit of evidence here and that bit of presumption there but he has not placed them together so as to make it intelligible to the jury and to guide them properly.
We do not say that the charge is perfect, but regrettable as it may be, perfection, however desirable, is rarely, if ever, attained and, what is more deplorable, the tendency now increasingly appears to be to regard it as a virtue not worth aspiring for. We are in full agreement with the learned Advocates that this tendency should be condemned in no uncertain terms but at the same time we cannot help feeling that, if on this account alone we were to set aside verdicts of juries, all criminals would have to be set at liberty by this Court. This we cannot do, for, it is equally important that criminals should not escape just punishment and hence the Code enjoins upon us to see whether substantial justice has been done in a particular case brought before us and, if so done, then we should not interfere.
Applying this test to the heads of charge delivered to the jury in the present case, we are unable. to say that, notwith standing the imperfections therein, it has not substantially drawn the attention of the jury to the salient points in the case or the relevant law applicable thereto or that it is totally devoid of any guidance to the jury for the proper appreciation of the evidence adduced or so lacking in emphasis as to be valueless or colourless. Substantial justice has, therefore, been done in our opinion and the appellants have no legitimate cause for complaint against the said charge which does not, strictly speaking, suffer from any serious misdirection or non‑direction in any material point.
These ate all the arguments advanced in this case and since we are not impressed by any one of them, these appeals must fail,
These appeals are accordingly dismissed and the con victions and sentences of the appellants are upheld. We direct that appellants Nos. 6 and 7 in Criminal Appeal No. 425 of 1956 do now surrender to their bail bonds forthwith and serve out the remainder of their sentences.
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