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Criminal Appeal No. 60 of 1947, decided on 14th July 1948.

Ss. 296 and 423 -Head of charge as placed on record containing considerably more than what judge placed before jury‑Retrial ordered.

Where the "head of charge" totalling 143 typed foolscap pages averaging 30 lines of type to a page appeared to have been compressed into so short a time as 2 hours, the only inference that can be drawn is that the " head of charge " as placed on record contained considerably more than the Judge placed before the jury.

If the charge on record is not the charge which was delivered to the jury, there is no alternative but .to set aside the verdict and order n retrial in law this must he so, for an Appellate Court in such circumstances, cannot possibly know what charge was, in fact, delivered to the jury and cannot say whether the jury were properly charged in order to enable them to return a proper verdict.

A. K. Fazlul Huq, D. C. Roy and M. H. Khondkar, for Appellants.

Afzal, Dy. Legal Remembrancer for Crown.

This appeal arises out of an occurrence which took place on the night of the April 17th, 1946, when two persons Makbul Khan and Bhagla were murdered at a place called Bhowanipur, 2 miles north‑west of Bheramara Police Station in the Kushtia Sub‑division of Nadia District.

Makbul Khan was a resident of a village called Dharampur. He was a. zemindar, has been President of the local Union Board for some 20 years and was a person of some importance in the locality. Bhagla was a young man whom he had brought up as his own son.

Makbul Khan visited Kushtia on business on April 17^th 1946, and returned home the same evening. He alighted from the train of Bheramara railway station and mounted a bullock cart which was waiting to convey him to Dharampur. He was escorted by two old retainers Poka Sheikh and Nasir Sheikh, who walked behind the cart, and by Bhagla who walked in front. The cart was driven by Maijaddi, a villager of Dharampur.

The party had to pass a garden known as Marda Bagan in Bhownipur, about 2 miles or so from Bheramara Railway station Some 15 or 16 men were lying in ambush in the garden and when the cart came abreast of the garden they launched an attack. Maijaddi was knocked off the cart and ran as fast as he could to Dharampur when he gave word to Makbul s house that Makbul was being murdered. Bhagla fell back on the cart to protect Makbul, but was transfixed with a spear in the chest and succumbed to his injury. Poka Sheikh and Nasir Sheikh were unable to offer any effective resistance and stood by, short distance away, and saw their master Makbul Khan dragged out of the cart and brutally murdered in cold blood.

The seven appellants were placed on trial on charges under sections 302‑34, 323 and 324‑ of the Indian Penal Code before Mr. Sk. Haldar, Sessions Judge of Nadia, and a jury of nine members. The trial began on November 18, 1946. On November 30, the learned Sessions judge charged the jury, and they retired to consider their verdict. They did not return a unanimous verdict, but were divided in the proportion of 7 to 2, the majority finding the seven appellants guilty. The learned Sessions judge agreed with and accepted the majority verdict, convicted the appellants and passed sentence on them on December 2nd 1946.

The appellants appeal to the High Court in Calcutta was admitted on 14th February 1947. Thereafter it came for hearing before Lodge and Chunder, JJ. on 25th June 1947, and as a result of the argument advanced before them, their Lordships called upon the learned Sessions judge to explain if he could the apparent discrepancy between the size of the charge to the jury and the time in which that charge said to have been delivered. This learned Sessions Judge submitted an explanation which is dated June 17th, 1947.

On partition, the case fell to the High Court of East Bengal and came up for hearing before Ormond and Amin Ahmad, JJ., on January 8th and 9th, 1948. As their Lordships were divided in opinion the case has been laid before me under the provision of section 429, Criminal Procedure Code.

Mr. Fazlul Haq has appeared before me on behalf of the appellants and has stressed, as a preliminary point, the im possibility of the charge on record having been delivered in the time available for its delivery. That time, we know from the record, cannot have been more than 2 hours, from 11‑00 a.m. When the Court sat till 1‑30 p.m. on November 30, 1946, when the jury retired to consider their verdict, it may conceivably have been less if the Court did not sit punctually. The charge consists of 90 typed pages of foolscap, averaging some 30 lines of type to a page. In the charge there are copious references to the depositions of witnesses as being "fully recalled." These quotations from the record evidence, calculated from the typed brief, will add at least another 48 pages to the charge. Then on page 59 of the charge the learned Sessions Judge claims that:

"The points of corroboration and contradiction as enunciated in paragraph 22 of the charge above are once more read out to the jury."

and paragraph 22 is over five pages long. This brings the total up to 143 pages and takes no account of the documentary evidence which is supposed to have been placed in full, or the statements of the seven appellants in the committing Court and the Sessions Court it ignores the learned Sessions judge's explanation of the law, and he claims to have done that with exemplary thorough ness, reading over all the sections and explaining them to Bengali ; indeed in regard to section 300, he claims to have fully explained the section in Bengali with all its illustrations and exceptions in itself, no small feat.

No one with experience of charging a jury will for one moment believe that all this could have been compressed into so short a time as 2 hours and the only inference that can be drawn is) that the " head of charge " as placed on record contain considerably wore than the learned Sessions judge placed before the jury. Mr. Afzal, appearing for the Crown can only point in answer to the explanation of the learned Sessions judge, and to the extract there from:‑--

" Therefore, all I can say with positive certainty is that every point and every idea incorporated in my typed 'English charge vas without exception dealt with in my verbal charge, and that omitted no point in my verbal charge and added to point in the English charge. The truth of this I vouch as a mad of honour."

This explanation has not committed itself to the learned Judges who have considered it before me, nor do I believe or accept it.

Mr. Fazlul Huq has argued and Mr. Afzal has conceded that if the charge on record is not the charge which was delivered to the jury, there is no alternative but to set aside the verdict and order a retrial. In law this must be so, for an Appellate Court, in such circumstances, cannot possibly know what charge was, in fact, delivered to the jury and cannot say, whether the jury were properly charged in order to enable them to return a proper verdict.

The appeal is accordingly allowed, the convictions and sentences set aside and the case remanded for retrial according to law.

K.M.A./A.H. Appeal allowed.

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