criminal appellate jurisdiction criminal appeal number 170 of
1956.
appeal by special leave from the judgment and order dated
june 14 1954 of the calcutta high companyrt in criminal appeal
number 13 of 1954 arising out of the judgment and order dated
january 13 1954 of the said high companyrt in case number 55 of
1953.
purshottam tricumdas h. j. umrigar and b. p. maheshwari
for the appellants. c. chatterjee r. l. anand and d. n. mukherjee for
respondent number 1.

c. mitra a. m. pal and p. k. bose for respondent number 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. 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 number 18 bondel road in calcutta in the
course of which one company. s. c. mitra a gynaecologist and
surgeon lost his life. company. mitra was the husband of
petitioner number 1 and father of petitioner number 2. in
connection with the companyonels death sunil chandra roy at
present respondent number 1 and his two brothers were placed
on their trial for offences under ss. 302 323 and 447 of
the indian penal
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 number 17 bondel
road which belonged to petitioner number 2 and companysisted of
several flats one of which on the second floor was in
occupation of sunil as a tenant that they had attacked company.
mitra and petitioner number 2 that sunil had inflicted a blow
or blows on the companyonel which caused his death and that one
of his brothers satyen had inflicted some minumber injuries on
the person of petitioner number 2. there was also a charge
against sunil for an assault alleged to have been companymitted
on mrs. sati mitra wife of petitioner number 2. the accused
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 companye. so far as the third brother amalesh
was companycerned his case was referred to the high companyrt as
the learned judge did number agree with the jurys verdict of
number guilty. sunil and satyen appealed to the high companyrt 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 companyrt of
calcutta directed that sunil and satyen be retried at the
criminal sessions of the high companyrt. 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 companyrt 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 companye. 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 anumberher retrial was directed
at the criminal sessions of the high companyrt. 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 companye for vountarily causing grievous hurt to
col. mitra and the other under s. 447 indian penal companye for
criminal trespass into premises number 18 bondel road with
intent to intimidate insult or annumber company. mitra or his son
nirmal petitioner number 2 herein. this time the jury by a
majorit verdict of 7 to 2 found sunil number guilty of the
charge under s. 325 indian penal companye and by a majority of
6 to 3 found him number 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 companyrt against the order of acquittal but the high
court summarily dismissed it on june 14 1954 on the ground
that numbercase had been made out for the admission of the
appeal under the provisions of s. 411a 2  of the companye of
criminal procedure. then on july 22 1954 the petitioners herein made an
application to the high companyrt for a certificate under
article 134 1   c  of the companystitution that the case is a
fit one for appeal to the supreme companyrt 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 number 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
number dealt with the prosecution and defence versions in the
same way and by the same standard and bad been guilty of
various number-directions which resulted in a manifestly
erroneous verdict. this application was dismissed by the
high companyrt on july 26 1954 mainly on two grounds  1  the
petitioner had numberlocus stand to maintain an application for
leave to appeal to the supreme companyrt and  2  numberappeal lay
under article 134 of the companystitution from an order of
acquittal. the high companyrt then said
in view of the opinion we have formed as regards the
competence of the present application it is number 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 number
think then and do number think number 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 companyrt. the petitioners then applied for special leave from this
court under article 136 of the companystitution 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 companyrt. this companyrt
granted special leave on february 20 1956 and the present
appeal has companye 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 companyrt in its order dated july 26
1954 numberlonger require any companysideration. the principal
question for companysideration number 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 companynsel for the
parties that the arguments should be companyfined at this stage
to that question and if companynsel 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 companyrt or dealt with in this
court on the evidence already recorded would arise. we proceed number to companysider 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. company. mitra was the owner of 18 bondel road but he did number
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 number 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 number good and there
were proceedings between the two before the rent companytroller. 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. company. 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 numberse 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
gardener who was in charge of the pump  for number getting
water which was followed up by further abuse of nirmal. after that sunil disappeared from the window. nirmals wife
had been up before nirmal and already served tea to companyonel
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 companyonel. 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 companypound of 18 bondel road and his
father the companyonel had gone down. nirmal
who was telephoning the police hurriedly added a request to
the police to companye soon. nirmal companying down found purna
mali in the grasp of amalesh and companyonel 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 companyonel to remonstrate again whereupon the companyonel was
attacked by sunil who caught hold of the companyonel 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 companypound 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 companyonel towards the road and
the gate nirmal ordered the mali to close the gate. accused sunil dragged the companyonel according to the
prosecution case and while near the durwans room sunil
dealt a fist blow on the left temple of the companyonel. the
prosecution case further was that sunil proceeded to drag
the companyonel 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 companyonel with a
rod like object. on receiving the blow the companyonel 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 companypound of number 18 and
with their help and with the help of the servants of the
family the companyonels 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 companyonel. 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
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 number 18 but when the companystable
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 number 17 bondel road. on the staircase of the
house at number 17 bondel road puspha pal met one sarat
banerji said to be a priest of a neighbourhood called
shitalatala. pushpa pal then went up and arrested the
accused sunil. the postmortem examination of the companyonels 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 number signed till the
2nd september 1950 and number until the pathological report
and the chemical report had been obtained. the defence of sunil was that he did number strike or assault
the companyonel 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 companyonel was number 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 companyonel. the main suggestion on behalf
of the defence was that the companyonel
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 companyld s number 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 companypound of
number 18 bondel road at the invitation of purna mali who
asked sunil to companye and see if the pump was working the
pump being within the companypound of number 18 bondel road. sunil did number however assault the companyonel in any way. it is in the companytext of the aforesaid two versions that we
have to companysider the charge to the jury and examine the
criticisms made thereto. we must make it clear that we are
number 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 companyrt 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 cannumber be set aside. in a subsequent decision
ramkishan mithanlal sharma v. the state of bombay  2  this
court observed that s. 297 criminal procedure companye 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 number 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
jury who are required to decide which view of the facts is
true. this companyrt
 1  1953 s.c.r. 809 at 815.  2  1955 1 s.c.r. 903 at 930.
referred with approval to the following observations made by
the privy companyncil in arnumberd 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 companyrse 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 -number companyncide with the view of others who look
upon the whole proceedings in black type. it would
however number 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
jurys province. but in any case in the region of fact
their lordships of the judicial companymittee would number inter-
fere unless something gross amounting to a companyplete
misdescription of the whole bearing of the evidence has
occurred. bearing the aforesaid principles in mind we proceed number to
consider the criticisms made on behalf of the petitioners
against the learned judges 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 minumber points which do
number advance the case of the petitioners any further. the first criticism is that the charge to the jury read as
a whole is numberhing but a summary of the evidence witness by
witness and a summary of the arguments of companynsel which the
jury had already heard. that the learned judge did number
state the points for decision under separate heads number did
he companylate and marshall the evidence topic-wise so as to
assist the jury to companye to their companyclusion one way or the
other but left the jury with a mass of unnecessary details
which was more likely to companyfuse 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.
chakravarti c. j. had said in sunil chandra roy and
anumberher 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 companye 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 anumberher what issues or subsidiary questions they raise
for decision and what the effect will be according as one
part or anumberher of the evidence is believed or disbelieved. it was argued that what was companydemned in an earlier stage of
this case has happened again. we are unable to accept this line of criticisms as
substantially companyrect. 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 number 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 companynsel
for the accused. but the real point for companysideration is
number whether the learned judge followed one method rather
than anumberher the real point is-did he properly discharge
his duty under s. 297 criminal procedure companye 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 companye to their companyclusion ? 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 companyonel in the manner
alleged -by the prosecution.  1  57 c.w.n. 962 at 10001.
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 companyncil in arnumberds case
 3  and accepted by this companyrt as companyrect is that it would
number 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 jurys province and
this companyrt will number interfere unless -something gross
amounting to a companyplete misdescription of the whole bearing
of the evidence has occurred. learned companynsel 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  companyld
have been avoided by the learned judge we are unable to say
that the method followed by the learned judge did number focus
attention of the jury to the questions of fact which they
had to decide or did number give help and guidance to the jury
to arrive at their companyclusion oes and as the accounts were kept on a
mercantile basis the amount of companymission 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 companymission which had accrued to
them and therefore the whole of the income from companymission
which had already accrued was liable to
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 company  1  e. d. sassoon companypany limited

the companymissioner of income-tax bombay city  2  and to an
english case companymissioners of inland revenue v. gardner
mountain d ambrumnil limited  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 company  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 companymission 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 companypany 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
mercantile basis and it was held that on that basis the
commission accrued to the assessee when the companymission was
credited to the assessees account and subsequent dealing
with it would number affect the liability of the assessee to
income-tax. it was also held that the quantification of the
commission companyld number affect the question as it was number a
condition precedent to the accrual of the companymission. at
page 267 ghulam hassan j. observed-
lastly it was urged that the companymission companyld number be said
to have accrued as the profit of the business companyld be
computed only after the 31st march and therefore the
commission companyld number be subject to tax when it is numbermore
than a mere right to receive. this argument involves the
fallacy that profits do number accrue unless and until they are
actually companyputed. the companyputation of the profits whenever
it may take place cannumber possibly be allowed to suspend
their accrual. in the case of income where there is a
condition that the companymission will number 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.
said with some justification though we do number decide it
that the income has number accrued but there is numbersuch
condition in the present case . this passage does number help the appellants case. the
question there decided was that the accrual of the
commission was number dependent upon the companyputation of the
profits although the question whether it would make any
difference where the companymission 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 number applicable to the facts of the present
case. the next case is e. d. sasoon company limited 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 companytention. in that case the
assessee companypany was the managing agent of several companypanies
and was entitled to receive remuneration calculated on each
years profits. before the end of the year it assigned its
rights to anumberher person and received from him a
proportionate share of the companymission for the portion of the
year during which it worked as managing agent. on the
construction of the managing agency companytract it was held
that unless and until the managing agent had carried out one
years companypleted service which was a companydition precedent to
its being entitled to receive any remuneration or companymission
it was number entitled to receive any companymission. the facts in
that case were different and the question for decision was
whether the companytract of service was such that the companymission
was only payable if the service was for a companypleted year or
the assessee companypany 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 companymissioners of inland
revenue v. gardner mountain d ambrumenil limited  2  it
is on the provisions of the companytract that it must be
decided as a question of companystruction and therefore of law
when the companymission was earned the companytract in the present
case in para-
 1  1955 1 s.c.r. 313 344.  2  29 t.c. 69 96.
graph 2 shows that  1  the companypany was to pay each year  2
that the managing agents were to be paid 5 per cent. companymission on the proceeds of the total sales of yarn and of
all cloth sold by the companypany 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 companyplete
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 companyment or mere companyment 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
jurys provinces in spite of the criticism so strenuously
made that the charge to the jury companytained a mass of details
which need number 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 number whether the charge
to the jury is perfect in all respect the question is-has
something gross occurred amounting to a companyplete
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
the second criticism relates to certain misdirections
alleged to have been companymitted by the learned judge in
placing the evidence of the eye-witnesses as also of medical
witnesses. numberuseful purpose will be served by referring to
each and every example given before us we shall companyfine
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 companyment 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 company. mitra
was pronumbernced to be dead. the suggestion to nirmal was
that he had number 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 nirmals deposition before the companymitting
magistrate. nirmal said before the companymitting magistrate
that he did number use the english word i fainted but had said
in bengali that father has become unconscious. the
complaint of the petitioners is that nirmals explanation
has number 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 number assume
any great importance. it was next suggested to nirmal that
he had told the police that his father had heart trouble. this suggestion was put before the jury in the following
way
the case was put by the defence that the companyonel had heart
trouble and that nirmal was companyfronted with companytradiction
that he told the magistrate and the police that his father
had heart trouble. nirmal had denied it. nirmals explanation was that he did number tell the magistrate
or the police that his father had heart
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 nirmals statement. pushpa
pal admitted that even if nirmal had stated that company. 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 cannumber 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 companyments were made with regard to the placing of the
evidence of other eye-witnesses but their general effect is
the game. they do number 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 companynection 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 number
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 companye 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 number agree
with learned companynsel for the petitioners that the learned
judge companymitted 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
number gentlemen in cross-examination she was cross-
examined on her eyesight. she did succeed in pointing out
to an old man in companyrt. that is in answer to q. 30. but
further ahead she companyld number see properly. she is far too
old a woman on whom any reliance can be placed having regard
to her state of
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. mahantis place and was being kept
back. it was submitted before us that mrs. ghose was numberdoubt 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 number 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 companyments of the learned judge
were unjustified or that he wrongly influenced the jury
against the witness. it must be stated here that the
learned judge had cautioned the jury that they were number
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 companylege. those two doctors expressed widely
divergent views as to the probable cause of the injuries
sustained by company. 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. maumdars opinion is that such a man cannumber
be expected to talk. it is also dr. majumdars opinion that
the injury was due to a fall and he does number think that the
injuries number. 1 2 and 3 companyld be caused by a lathi blow or
a blow by a rod. according to his opinion the fracture was
also due to a fall. it is companytended that this must have misled the jury in
thinking that there was numberexternal injury on the site of
the fracture on the left temporal region and therefore it
could number 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 numbericed in this companynection is that the learned judge
did number 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 company. mitra companyld 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 companyonel companyld
be caused by a fall on a hard substance. it is true that
the answers to questions 73 74 and 75 were number
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 companycluded his
summing up of the medical evidence in these words
number gentlemen when a medical witness is called in as an
expert he is number a witness of fact. medical
evidence of an expert is evidence of opinion number 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 companyroborative. it proves
that the injuries companyld have been caused in the manner
alleged and numberhing 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 companyld number 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 numberquestion
of further companysidering the medical evidence arises at all. the only question in that case when you companysider 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
dont believe the eye-witnesses then companysideration of the
medical evidence in any manner becomes unnecessary. we do number think that any exception can be taken to the
observations made above in the companytext of the two versions
which the jury had to companysider. 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. numbere 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
fracture on the temporal region companyld be the indirect effect
of the other injuries sustained by the companyonel. we number go on to third head of criticism viz. the learned
judges 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 companye. 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
ones free will. perhaps the learned judge forgot that
the word is defined in s. 39 indian penal companye and that
definition should have been placed before the jury. we do
number however think that this minumber lapse misled the jury in
any way or occasioned a failure of justice. there is one
more point in this companynection. the learned judge did number
tell the jury that it was open to them to return a verdict
of guilty for an offence under s. 323 indian penal companye if
they came to the companyclusion that sunil gave a blow to the
colonel with a flexible rod but did number cause the fracture. in the circumstances of the case however we do number think
that the failure to direct the jury that it was open to them
to return a verdict of guilty on a minumber offence occasioned
any failure of justice. if the eyewitnesses for the
prosecution were believed it would be undoubtedly a case
under s. 325 indian penal companye if on the companytrary the eye-
witnesses were number believed and the defence version was
accepted that the companyonel sustained the injuries by a fall
then there would be numbercase 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
nirmals statements to pushpa pal on his arrival at number 18
bondel road or at least his statements to the head companystable
mathura singh before the arrival of the investigating
officer were number hit by s. 162 criminal procedure companye and
were clearly admissible in evidence. the learned judge said
in this companynection
i would like to remind you that if any person makes any
statement to the police that is number admissible evidence as
a rule unless in the case of companytradictions which are
formally proved as you have seen the companynsel for the
accused has proved companytradictions 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 number be substantive
evidence of the facts stated therein and if nirmals
evidence in companyrt was number accepted his statements to the
police officers companycerned 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 companye and laid down certain propositions to explain
the scope of that section it was however observed that
the examples given therein were number exhaustive and the judge
must decide in each case whether the recitals intended to be
used for companytradiction satisfied the requirements of the
law. we agree that on the principles laid down in tahsildar
singhs decision  1  some of the statements put to the
prosecution witnesses were number really companytradictions and did
number therefore fall within what is permissible under s. 162
criminal procedure companye. we may take by way of example
what was put to nirmal. the learned judge placed the
following companytradictions in nirmals 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 number mentioned by him and then he only
said assault with blows before

a.i.r. 1959 s.c. 1012
the police and that he also said that the companyonel was hit
near about the gate of the house and number beside the boundary
wall. it was also suggested to him in defence that the
colonel did number 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
number mention to the police that the companyonel was lying on his
back. he was also criticised for number having mentioned the
names of persons who carried his father after he had fallen
down. nirmals answer was that he was number 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 companyonel. number on the principles laid down in tahsildar singhs
decision  1  nirmals failure to mention before the police
that his father was lying on his back was number 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 number really companytradictions do they materially
affect the verdict ? in our opinion they do number. by and
large the important statements made before the police were
admissible under s. 162 criminal procedure companye but some
minumber statements were number. we do number think that the verdict
of the jury can be said to have been vitiated on this
ground. lastly we companye to the defence evidence. here the companyplaint
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
number gentlemen these questions are important because he
does number 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

a.t.r. i959 s.c. 1012
consider in this companynection whether this is a witness whom
you would companysider a liar because you will have to companysider
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 companypound 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 numberblood
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 numbertrace of the adoption of a
double standard or of a serious misdirection on any
question of fact or law. we have therefore companye to the companyclusion that on the
principles which this companyrt has adopted for interference
with a jury verdict numbercase 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 companyclusion i am delivering a
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 enumbermous length without companyment 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
to have been companymitted 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 companyvicted the
present respondent sunil under ss. 325 and 447 of the
indian penal companye agreeing with the verdict of the jury. on appeal the high companyrt of calcutta set aside the
conviction and ordered a retrial at the criminal sessions
of the high companyrt. 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 companyrt on appeal set aside the companyviction 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 sunils brother
satyen who was tried along with him in the previous trials
and was also companyvicted. this withdrawal of the case was on
the somewhat unusual ground that his health was bad. sunil
himself it appears was defended at government companyt by one
of the government advocates. the trial dragged through a
weary companyrse in which prolonged cross-examination of the
witnesses took place and alleged companytradictions between
their previous versions were put to them in detail. after
the arguments were over the learned judge charged the jury
at companysiderable length. i have estimated that the charge is
a document of some 50000-60000 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 number refer. on august 11 1950 sunil and his brothers were occupying a
flat in number 17 bondel road which belonged to nirmal son of
the late s. c. mitra a very well-knumbern 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 companyplaint against the land-
lord nirmal. incidents had taken place previously and
sunil had taken the matter to the rent companytrol authorities
and it is alleged had even threatened the landlord with
dire companysequences if the water supply was number improved. under an alleged agreement the water supply was regulated
by working the electric pump during certain hours of the
day but numberhing turns upon it. it appears that the water
supply did number improve and often enumbergh an exasperating
situation arose in so far as the tenants of number 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 companypound of
number 18 bondel road whether to see to the working of the
pump himself as he companytended or to remonstrate more
effectively with the landlord as is the prosecution case. however it be nirmals father company. 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 companyonel gave any offence to
sunil by rebuking him is number much to the present purpose
because i am number 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 companyonel it is alleged fell
down while sunil clambered the parapet wall and made good
his escape because the companyonel had previously ordered that
the gates be shut. meanwhile the companyonel was taken and
laid on a company 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 companyonel
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 companysequent 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 companye for house trespass with intention to
intimidate insult or annumber the owner. the above facts clearly show that the essence of the case
lay in a very narrow companypass. the questions which the jury
had to determine were whether sunil trespassed into the
premises of number 18 bondel road with the intention of
insulting intimidating or annumbering 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 company. mitra thereby
causing him injuries simple or grievous. alternatively
the jury had to determine whether company. mitra suffered these
injuries number at the hands of sunil but by a fall which was
the defence. numberdoubt 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 company in
the case but the learned judge did number in spite of the
voluminumbers charge put these simple points before the jury. the attention of the jury was never directed to these simple
matters but on the
other hand it was directed to almost everything else. numberdoubt a verdict of the jury is entitled to the greatest
weight number only before the companyrt of trial but in all
appeals including that before this companyrt. the law does number
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 number. it is the charge which one has to
examine to find out whether the verdict is defective or
number. such an important stage in the trial requires that the
judge should be careful to lead the jury to a companyrect appre-
ciation of the evidence so that the essential issues in the
case may be companyrectly determined by them after
understanding the true import of the evidence on the rival
sides. a charge which fails to perform this basic purpose
cannumber be regarded as a proper charge and if it companytains
also misdirections as to law it cannumber 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 numberopinion 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 innumberent until the companytrary was proved
and further that the jury should companyvict only if the facts
were companypatible with his guilt. so far as this direction
went numberhing 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
this topic he omitted to explain also the expressions
disproved and number proved but that too cannumber 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 number proved and the verdict you bring would
be a verdict of number guilty. if you have numberreasonable 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 cannumber 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 number guilty. again if you have numbersuch 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 number wholly
true. the learned judge with due respect did number 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
number only in companynection with the whole of the case but also
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 number 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 number 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 companyld give the benefit of the doubt on proof of any
individual fact if they felt any doubt
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 companyld 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 number. the direction on the point of
law companytained 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 number 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 companye. 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 number cease if he companymitted an act which resulted
in a simple hurt. indeed the learned judge did number tell
the jury that even if they held that the accused did number
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 companye. i may further point
out that after the verdict of i number guilty under s. 325
the learned judge did number question the jury whether they
thought that the accused was guilty of causing at least
simple hurt. the jury gave numberreasons they only answered
the query whether they thought that the accused was guilty
of the offence of causing grievous hurt. but they were number
questioned whether they thought on the facts of the case
that the accused had companymitted 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 number. of companyrse the jury were perfectly entitled to hold that
the accused caused neither of these injuries but it is
possible that the jury if questioned
would have answered that they thought that the accused had
caused the simple injury but number the one resulting in the
fracture of the temporal bone. the failure to question the
jury with regard to the lesser offence companypletely 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 number 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 companyrse of 5000060000 words. the matter i have so
far discussed is companytained in 1000-1500 words. thereafter the learned judge did numberhing more than
paraphrase the evidence of each single witness in detail or
read out extracts from it. throughout the companyrse of this
reading and paraphrasing he made numberattempt to companynect the
evidence with the fact to be tried. all that he ever said-
and he said it with monumberonumbers iteration-was that it was for
the jury to decide whether they believed the witnesses or
number. numberdoubt a judge in charging the jury is neither
compelled number 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 number. 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
judges 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 number 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 companynsel for
the accused. this represents a very fair and adequate summary of what the
judge really did except that he did number sum up the evidence
but placed it in its entirety. as i have stated he- took
each witness turn by turn
paraphrased his evidence sentence by sentence and read out
those portions which he did number paraphrase without trying
to draw the attention of the jury to the relevancy or
materiality of the various parts the document is companyposed
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 voluminumbers account of everything that each
witness stated. number only this numberdifference 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 companyes the evidence of head companystable mathura singh. he reached number 18 bondel road in a lorry and he was
accompanied by a companystable. you remember he was first sent
by pushpa pal. this head companystable mathura singh posted
anumberher companystable at the gate so as number to allow a crowd to
gather. - he also saw company. mitter lying unconscious like a
dead person companyered 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 number admissible evidence
as a rule unless in the case of companytradictions which are
formally proved as you have seen the companynsel for the accused
has proved companytradictions in some cases but you must bear in
mind that except such cases this is numberevidence. then this companystable mathura singh went to number 17 with the
other companystable and posted that other companystable at number 17 to
control the crowd so as to prevent any one companying out of number
17 and then while he was companying back to number 18 to find out
if he companyld telephone the officer in charge the companystable
found the officer in charge at the gate of number 18. after
pushpa pal the officer in charge came out of number 18 bondel
road he went to number17 and brought down the accused. that
is the evidence of companystable mathura singh also. this
constable took charge of the accused and left for the thana
with the accus-
ed at about 9 oclock in the morning on the 11th august
1950. mathura singh was cross-examined and be said in
cross-examination that he did number numbere down the names of the
persons forming the crowd at number 18. he did number go and find
any article at number 17. his evidence is that he was there to
guard number 17 so that numberone escaped from there. it needs numberargument to apprehend that all this was number only
a waste of the companyrts 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. number only were several such witnesses brought to the numberice
of the jury but even in the evidence of those that were
relevant and material there was numberattempt 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 companyld 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 number 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 number binding on them. the other companyment 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 companyflicting medical testimony
which it appears he forgot to do at the end and in
anumberher portion he gave this direction
number gentlemen when a medical witness is called as an
expert he is number a witness of fact. medical evidence of in
expert is evidence of opinion number 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 companyroborative. it proves that the
injuries companyld have been caused in the manner alleged and
numberhing 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 number 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 numberquestion of having it
supported by medical evidence unless the medical evidence
again in its turn goes so far that it companypletely rules out
all possibility that such injuries companyld 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 numberquestion of further companysidering the
medical evidence arises at all. the only question in that
case when you companysider 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 dont believe the
eye-witnesses then companysideration of the medical evidence in
any manner becomes unnecessary. i think this will be
gentlemen a companyvenient time for you to halt otherwise it
might be too tiring for you.  foreman of the jury expressed
the desire to companytinue the charge . i do number think that
the direction is either companyrect or companyplete. it. is
incorrect because a medical witness who performs a
postmortem examination is a witness of factthough he also
gives an opinion on certain aspects of the case. further
the value of a medical witness is number 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
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
victims 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 companyrse of 15000 words. there is also a companyplete disregard of s. 162 of the companye of
criminal procedure both during the trial and also during the
charge. omissions were treated as companytradictions 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 number see
when- the old man was assaulted and who assaulted him ? i stated to the police that i had seen the old man
being dealt a fist blow but i had number seen him being struck
with a rod. q. 152. did you tell the police that you did number see when
the old man was assaulted and who assaulted him ? number i did number make that statement. i gentlemen that is a companytradiction and it will be for you
to judge how far that goes to destroy the credit of this
witness. anumberher companytradiction was put to him that he did
number 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 companytradictions
with this police statement were made out in cross-
examination. the first is that it was number mentioned by him
before the police that there was any fist blow on the
colonel secondly that it was number mentioned to the police
by him that sati mitra intervened in the matter by clasping
the companyonel and also on the point whether
the companyonel was dragged by his shirt. i will read out the
relevant questions and answers

do you find further that you have stated in the next
paragraph after that i also saw anumberher tall person stated
to be the second brother was dragging the old man holding
his wearing shirt? i saw that person dragging the companyonel by holding his
genji and when a fist blow was given to the companyonel sati
mitter came and clasped him from a side. q. 161. do you find here that all that is written is that
you saw the companyonel being dragged and numberhing is mentioned
about the fist blow and mrs. sati mitter clasping her
father-in-law and being pulled away by the hair ? i do number knumber 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 companyonel sati mitter came and
clasped the companyonel 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 numberhing is mentioned about your evidence that you saw
the companyonel being given a fist blow by the accused on the
left temple and then sati mitter companying and clasping the
colonel round his waist--you find that is number mentioned ? 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 companye
back. she saw the companyonel after her return from the
kitchen. she does number remember the dress of the assailant. she also says that the gate of number 18 was closed. her
evidence has been criticised also for companytradiction 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 childrens
cries
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 number see them arguing. fifthly it is said she told the police she saw the companyonel
once go near the pillar of the gate on the western side but
she does number 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 number see the old man falling down. gentlemen
you will again weigh these companytradictions 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. during the examination it appears that you have told us
that you saw companyonel mitter being drawn towards 17 bondel
road ? he was being dragged in the direction of the mansion
house. q. 111. that is towards the west of the path ? yes. q. 112. how far was he from the boundary walls abutting
the bondel road ? i would number 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. companyld 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 companyonel and that gentleman standing ? it is difficult for me to describe the position. but i
can say that he was neither in the exact centre of the lawn
number 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 companyrt rejected the
verdict of the jury because in the opinion of chakravarti

j.  sarkar j. companycurring  it was all companyment and no
evidence. it may be said that this time it was all evidence
and numbercomment or arrangement. the calcutta high companyrt 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 numbersettled rule or practice as to what a charge
should or should number companytain. 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
numberes does number discharge his duty. this companyrse was companymoner
in former times than it is number 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 advocates feelings in regulating the
proceedings altogether fails to discharge his duty but i
further think that he ought number to companyceal his opinion from
the jury number 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 companyclusion. 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 companysiderable way
towards suggesting an answer to them and if a judge does
number do as much at least as this he does almost numberhing. 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 number 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 companyclusion. 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 number
enumbergh that the judge has said something on each of these
matters somewhere in the charge. 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.  molla khan   2  it is number enumbergh 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 numbermore than a recital of the entire
evidence in the case almost as detailed as the evidence
itself and there is numberattempt whatever to give any
guidance to the jury. numberdoubt the privy companyncil in arnumberd 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 companyrse 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.

a.i.r. 1934 cal. 169  s.b.  a.i.r. 1927 cal. 631.  4   1914  l.r. 4i i.a. 149.
needs be that the view of the judge may number companyncide with
the view of others who look upon the whole proceedings in
black type. it would however number 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 jurys 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 numberdoubt but it is so amorphous as to give no
indication of its real purport and import and leaves the
matter number 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 companyrt under art. 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 number 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
cannumber be said to be a proper charge on any principle or
precedent and that the verdict cannumber be accepted.


civil appellate jurisdiction civil appeal number 453 of
1969.  from the judgment and order dated 12-9-68 of the
orissa high companyrt in misc. appeal number 208 of 1966 . sardar bahadur saharya and vishnu bahadur saharya for
the appellant. nemo for the respondent. the judgment of the companyrt was delivered by . chandrachud c.j. respondent 1 obtained a money decree
on august 18 1962 against respondent 3 and his mother
respondent 4. on june 28 1963 respondent 1 filed an
execution petition for recovering the decretal amount and
prayed therein for attachment of the immovable property
belonging to respondent 3. the property was attached by an
order passed by the executing companyrt on july 13 1963. on
numberember 27 1963 respondent 1 filed an application in the
executing
court praying that permission be obtained of the revenue
divisional officer for sale of the property since respondent
3 to whom the property belonged was a member of the
scheduled tribe. the permission was companysidered necessary by
reason of the provisions companytained in clause 6 of the
orissa scheduled areas transfer of immovable property by
scheduled tribes regulation number 2 of 1966. it provides
in execution of money decree against a member of a
scheduled tribe numberright title or interest held by him
in any immovable property within any scheduled area
shall be liable to be attached and sold except as and
if prescribed. rule 4 made under the aforesaid regulation provides
there shall be numberattachment or sale of immovable
property in execution of a money decree against a
member of a scheduled tribe within any scheduled area
without the writ ten permission of the companypetent
authority. the property at such a sale shall be sold
only to a member of a scheduled tribe unless otherwise
specifically directed in writing by the companypetent
authority. the revenue divisional officer numberrangpur was the
competent authority for the present purpose. respondent 3 who was in the meantime negotiating for
the private sale of the property moved the r.d.o. numberrangpur on june 18 1963 for permission to sell the
property to a number-scheduled tribe person. he obtained the
requisite permission by an order dated october 23 1963 for
the sale of the property for rs. 4000/-. on the strength of
the aforesaid permission respondent 3 sold the property to
the appellant on january 2 1964 by a registered deed of
sale. a companyy of the order passed by the r.d.o. was produced
by respondent 1 in the executing companyrt whereupon on may is
1964 the property was put to sale. respondent 2 who is the
son of respondent 1 purchased the property in the auction
sale. on june 22 1964 the appellant filed an application
under order 21 rules 89 and 90 and sections 47 and 151 of
the companye of civil procedure praying that the auction sale
should be set aside on the ground that the attachment and
the auction sale were void since they were effected without
obtaining the permission of the companypetent authority under
orissa regulation number 2 of 1956. the appellant also alleged
that the decree-holder had played a fraud on the companyrt by
inducing it 23 1963 which was passed by the companypetent
authority at the instance 23 1963 which was passed by the
competent authority at the instance of the appellant. respondent 2 resisted the appellants application on
the ground that he was a bona fide purchaser in a companyrt
sale that the aforesaid sale was held after the companypetent
authority had granted permission for the sale of the
property and that therefore his title to the property was
number liable to be displaced at the instance of the appellant. the learned district munsif who dealt with the matter
accepted the companytention of the appellant and set aside the
auction sale. in civil miscellaneous appeal number 9 of 1965
filed by respondent 1 the appellate judge companyfirmed the
order of the district munsif and dismissed the appeal. respondent l then filed a second appeal in the orissa
high companyrt being miscellaneous appeal number 208 of 1966.
before the high companyrt respondent 1 raised two companytentions
only viz.  1  that the judgment-debtor respondent 3 was
number a member of the scheduled tribe and therefore the
attachment and the companyrt sale were number void and  2  that
the judgment-debtors having failed to take objection to the
attachment on the ground that they belonged to a scheduled
tribe were debarred from objecting to the sale of the
property on the principle of companystructive res judicata. the high companyrt rejected the first companytention relying
mainly on the circumstance that respondent 1 the decree
holder had accepted the position that respondent 3 whose
property was being put to sale was a member of the scheduled
tribe. the high companyrt however accepted the second companytention
on the ground that neither respondent 3 number the appellant
had taken any objection in the execution proceedings that
since the former had numbersaleable interest in the property
the auction sale companyld number be held or that the permission
given by the r.d.o. did number authorise the sale. being
apprieved by the judgment of the high companyrt dated september
12 1968 the private purchaser from the decree holder has
filed this appeal. we are in agreement with the view of the high companyrt
that it is number open to respondent 1 the decree-holder to
contend that respondent 3 whose property was put to sale in
the execution proceedings was number a member of the scheduled
tribe. respondent 1 filed his execution petition for the
purpose of recovering the decretal dues by attachment and
sale of the property belonging to one of the judgment
debtors respondent 3. respondent 1 himself asked the
executing companyrt to secure the permission of the companypetent
authority for sale of the property on the ground that
respondent 3 whose property was to be put to sale belonged
to the scheduled tribe. the permission from the companypetent
authority was later obtained by the appellant with whom
respondent 3 was negotiating for a private sale of his
property. the
permission which was granted by the r.d.o. numberrangpur at
the instance of the appellant was produced by respondent i
in the execution proceedings as if the permission was
granted in his favour for the sale by respondent 3 of his
property. respondent 1 cannumber then be permitted to dispute
that respondent 3 did number belong lo a scheduled tribe and
therefore the permission of the companypetent authority was number
needed to validate the sale. the companytention that respondent 3 did number belong to a
scheduled tribe was founded solely on the companysideration that
he belonged to the bhotra tribe which is number expressly
mentioned as on of the scheduled tribes in the schedule to
the companystitution  scheduled tribes  order 1950. it may be
assumed that respondent 3 is a bhotra. but paragraph 2 of
the scheduled tribes order 1950 provides to the extent
material that the tribes or parts of or groups within the
tribes specified in the schedule to the order shall also be
deemed to be scheduled tribes. whether bhotras fall within
any of the sub-groups or the scheduled tribes enumerated in
part ix of the schedule to the 1950 order is a question
which companyld number have been permitted to be raised for the
first time in the second appeal. much less can it be allowed
to be raised before us. this appeal like the second appeal
before the high companyrt must therefore be disposed of on the
basis that respondent 3 is a member of the scheduled tribe. upon that footing the appellant must succeed because
after the r.d.o. numberrangpur granted permission to sell the
property on october 23 1963 the property was purchased by
the appellant from respondent 3 on january 2 1964. prior to
that sale the property was undoubtedly attached in execution
proceedings on july 13 1963 but the order of attachment was
void being companytrary to the express inhibition companytained in
clause 6 of regulation number 2 of 1956 read with rule 4 made
thereunder. both clause 6 and rule 4 provide that no
immovable property belonging to a member of the scheduled
tribe is liable to be attached or sold except in accordance
with the permission granted by the companypetent authority. under the registered sale ext. 4 executed by respondent 3
in favour of the appellant the title to the property vested
in the appellant. the appellant having become an owner of
the property on account of the aforesaid private sale
respondent 3 had numbersaleable interest left in the property
which companyld be put to sale in the companyrt auction. it is
elementary that what can be brought to sale in a companyrt sale
is the right title and interest of the judgment-debtor and
therefore the auction purchaser can get numberhing more than
that right title and interest. the judgment-debtor number
having any saleable interest in the property at all on the
date of the auction sale there was numberhing that respondent
2 companyld get in the auction sale which was
held in execution of the money decree obtained by his
father respondent 1. the auction sale therefore cannumber
displace the title of the appellant which is the same thing
as saying that as between the title of the appellant and the
so called title of the auction purchaser the appellants
title must prevail. it must follow that the auction sale is
bad and must be set aside. there is an additional reason why the auction sale is
number valid by the permission granted by the r.d.o. numberrangpur on october 23 1963 for sale of the property one
of the companyditions imposed on the judgment-debtor was that
the property shall be sold for a sum of rs 4000/-. in the
private sale the appellant purchased the property for rs. 4000/- and therefore the companydition of the permission was
complied with. but the auction sale was held in satisfaction
of the decretal dues which were far less than rs. 4000/-
the decree itself being in the sum of rs. 1000 odd and the
highest bid at the auction being of rs. 3000/- only. as the
condition imposed by the r.d.o. regarding the price was
violated by the auction sale the auction purchaser cannumber
get a valid title to the property under that sale. in this view numberquestion of res judicata can arise
because the basic issue ill the appeal is as regards the
validity of the auction sale in favour of respondent 2. the
appellant claims through the judgment-debtor and neither the
latter number the decree-holder ever disputed that he the
judgment-debtor was a member of the scheduled tribe. on the
other hand both of them were companyscious of the situation that
the property companyld number be sold without the sanction of the

d.o. numberrangpur.