Patna High Court
Rupan Singh And Ors. vs Emperor on 25 February, 1925
Equivalent citations: 91IND. CAS.225, AIR 1925 PATNA 797
JUDGMENT John Bucknill, J.
1. This was an appeal made by nine men who were charged before the Sessions Judge of Patna sitting with a Jury in December 1924 with various offences. One of the appellants (appellant No. 9), named Bangali Dusadh, was charged under Section 304, Penal Code, with having committed the offence of culpable homicide not amounting to murder by causing the death of one Khedan Goala: the Jury unanimously found him not guilty and he was acquitted on this charge.
2. All the appellants were charged with an offence under the joint provisions of Section 304 and 149, that is to say, in this case, for being members of an unlawful assembly in prosecution of the common object of which the appellant Bengali Dusadh, who was one of the members of the unlawful assembly, committed the offence of culpable homicide not amounting to murder by causing the death of Khedan Goala, the common object being stated to be the wrongful dispossession of the deceased Khedan from a field of 1 bigha and 2 khatas in area on which he had been settled by the malik after such land had been abandoned by persons named Akloo, Hari and Karu and for which field they (the appellants) mistook the field of Bhaju Goala. It is obvious that the Jury was in a very confused state of mind as to this charge: they first of all, by a majority of 3 to 2, found all the accused guilty under Section 149 alone; but what they meant it is impossible, to say; for a conviction under Section 149 alone cannot be properly recorded as the concurrent finding of the commission of an offence by any member of the unlawful assembly in prosecution of the common unlawful object of the assembly is necessary.
3. It has been suggested by the learned Assistant Government Advocate that the Jury meant that they thought that all the appellants were guilty under Sections 304 and 149 although they did not think that the evidence proved which of the appellants caused Khedan Goala's death. But this conjecture will not serve for, on the learned Sessions Judge pointing out to the Jury that their verdict was an impossible one, the Jury by a majority of 4 to 1 promptly returned a verdict of not guilty against all the appellants under Sections 304 and 149 and the Judge then acquitted all the accused on this charge. So all that can be concluded is that the Jury's minds were not clear about the law at the end of Judge's charge and, assuming that he had explained the law properly to the Jury, it seems certain that the Jury could not have understood his exposition.
4. All the appellants were also charged under Section 147 with being members of an unlawful assembly and using force with the common wrongful object of taking forcible possession of the field of the deceased' Khedan for which they (the appellants) mistook the field of Bhaju Goala.
5. The Jury, by a majority of 3 to 2, found all the appellants guilty of the charge under Section 147: the Judge accepted this verdict: and on 24th December 1924, he sentenced one of the appellants No. 2 named Gobind Singh to two years' rigorous imprisonment (presumably because he was principally interested in the land in question or was alleged to have taken a very prominent part in the matter) and all the rest of the eight appellants to one year's rigorous imprisonment each. It is from these findings, convictions and sentences that the appellants now appeal.
6. One is naturally very loath to interfere with a Jury's verdict; but the grounds put forward in this appeal, which are, so the learned Counsel who appears for the appellants has urged, such as show omissions to direct and mis-directions by the learned Judge and which should be regarded under the provisions of Section 537(d) of the Cr.P.C. as having occasioned a failure of justice, are numerous and by no means trivial; and it is necessary, therefore, to give some account of the circumstances which are said to have given rise to Khedan's death Some of the facts which it is necessary to recite are not in dispute.
6. There is a tola of a village called Kalyanpura known as Bhatbigha: it is not far from Behar. One Jagdeo Bhat was formerly owner of Tovzi No. 10851 in this Bhatbigha tola. It is said that after the survey which took place in 1909 some of the raiyats who had previously been on this land abandoned their plots and that Jagdeo settled these derelict lands with fresh people one of whom was the deceased Khedan.
7. About ten years ago Jagdeo sold the whole touzi to one Kailaspati Bhat: this purchaser kept on the old raiyats and took over one Mithu Singh, who had been Jagdeo's servant, as his (Kailaspati's) barahil: amongst the raiyats was the deceased Khedan.
8. It is said that amongst the raiyats who abandoned their land after the survey were three brothers named Aklu, Hariand Karu; they and another man called Lekha (who is also stated to have left his plot) are said to have held together about 5 bighas of land: Lekha is said to have cultivated his share separately, and the three brothers to have managed 2 bighas 17 kathas; this latter piece has conveniently been referred to as "Aklu's land." According to the evidence, some 1 bigha, 2 kathas of Aklu's land was settled with Khedan and one plot (No. 199) out of this area lay, it is said, to the southeast of a larger (but considerably subdivided) plot, known as plot No. 193, which was the abandoned land of another raiyat called Ganga Singh in the south-east corner of this plot No. 193 another small bit of land had been also settled with the deceased.
9. A large portion of Aklu's land, (about 1 bigha 1 katha) formed a plot No. 192 which lies west of plot No. 193: it is not suggested that any part of plot No. 192 was ever settled with Khedan: nor that any portion of, plot No. 193 ever belonged to Aklu nor has it ever been suggested by the prosecution that what is said to have taken place took place on land which ever belonged to Aklu. It was at first, i.e., in the First Information laid by the deceased's son, stated that the appellants had tried to eject and had attacked, the deceased from and on his plot in plot No. 193: but that story was changed and the prosecution account now is that the deceased was assaulted on the eastern ridge of the middle, north-western, portion of plot No. 193 which is said to have belonged to one Bhaju and for whom the deceased's son cultivated it: Bhaju is quite a youth.
10. Now there seems no doubt that Aklu, some years age, sold his land or his Tights (whatever they were) in his land to two persons named Somar Mahto and Chatardhari; the latter disposed of his share to Somar Mahto; Somar and his son in turn sold to the son of No. 2 appellant Gobind Singh; this last transaction was in July of last year; it was probably a farzi transaction.
11. Now the appellant No. 2 is a barahil of one Manna Lal who owns certain properties in a place called Samasti: appellant No. 1 is the manager of this Manna Lal; and he (Rupan Singh) lives at a place called Maraura. Appellant No. 3 is the titular; vendee, from Somar and his son is the son of appellant No. 1. Appellant No. 4 is a brother of appellant No. 9 who is the field watchman of Samasti: the other four appellants are also men of Samasti: Samasti is only about a mile from Kalyanpur.
12. Now there is no doubt that an occurrence took place on August 5th 1924, somewhere on or in the neighbourhood of plots Nos. 192 and 193 in the course of which Khedan was speared in the abdomen and died not long afterwards: another man, called Pairoo, who was one of those in company with Khedan, had his left thumb hurt: the deceased's son, Etwari Dusadh, also of course of his father's party, sustained a simple fracture of the left ulna; whilst a fourth man named Hiraman (not one of the appellants' faction) received a lathi blow on the right hand.
13. On the other side, the appellant, Gobind had no less than eight injuries including five lacerated wounds on the head none of which, however, were really serious. It seems very likely that all the accused were present at the time when the affair, whatever it was, took place: and this appears to be the fact notwithstanding that all the accused except Gobind and his son (who give their version of the occurrence as an attack upon themselves) deny having been there: but the evidence of their identification at the scene is undoubtedly very voluminous.
14. Without, in any way wishing to criticize any opinion, whatever it was, which was taken by the Jury upon the evidence, as to what actually took place, it is necessary here, to state, with the view of considering subsequently the attack made upon the learned Sessions Judge's charge to the Jury, that, there, were several versions of the affair from, which a choice could be made.
15. There was first of all a story of information received by the, chowkidar of Bhatibigha named Etwari Dusadh (P.W. No. 9) (not of course, the same person as the informant Etwari Goala) and of what he saw before the occurrence whilst -he was going to parade at his thana at Bihar very early in the morning of the day of the affair: he reported at the Police station and his report was entered at the station diary: he seems to have been fully--though not entirely accurately--cognizant of the position of affairs and of the parties. He then stated that the appellant No. 1 (Rupan Singh) had bought recently 3 bighas of land at Bhatibigha which belonged to a goala of Bhatbigha; the land had, however, been cultivated by one Mithoo Singh "from before"; that on that day, "men on behalf of Rupan" were going with ploughs to take possession of the land and that arrangements were being made on behalf of Mithoo for resistance: he added that he, himself was sure that as soon as the plough would be at work on Rupan's behalf, Mithoo would resist and that there was every likelihood of a serious breach of the peace. As this report was lodged before anything, had happened it seems very strongly to be probable that it represents the true position of matters. The next account of what took place is the First Information given by the deceased's son Etwari Goala: not to be confounded with the Chowkidar Etwari Dusadh.
16. His story then was that 1 bigha 2 kathas of a field, "comprised in, three bandhs" was settled by the malik Jagdeo with the Informant's father in 1909 and that since that time the informant's father had been in possession of this field or piece of land. This field, had, once formed part of property belonging to Aklu, Hari and Karu Gope: but that they had left the village not long after the, survey although their names continued to be retained in the, khatian. The malik--a new one--to whom Jagdeo had sold about nine years ago, had settled these left lands with new tenants: but Aklu, Hari and Karu had, about the year 1921. sold the property (which they had abandoned) to one Durga Gope who in 1923 sold it to Dharam Singh Gope of a place called Mahalpur: but neither of these two successive purchasers had ever had actual possession of the land. This Dharam Singh Gope in his turn had sold the land to the 2nd appellant Gobind (or his son the 3rd appellant) a week or so before the occurrence. About one pahar after sunrise a mob of 40 or 50 persons including appellants Nos. 1, 2, 4, 5, 6,7, 8 and 9 came to take possession of this field of 1 bigha 2 kathas: when the mob reached the field the deceased was working there but they began to uproot his transplanted paddy crop: the deceased remonstrated with the appellants telling them not to do so; the 2nd appellant then said, "Beat the betichod," and the 9th appellant then stabbed the deceased with a spear, the deceased fell down and the assailants ran away.
17. The informant and Hiraman (his friend) retaliated on the attackers hitting Gobind (appellant No. 2 and Bangli (No. 9) with lathis: the assailants had lathis swords, garasas and spears. The informant did not know the 3rd appellant--Gobind's son--by name or, apparently, by sight.
18. Now this was an intelligible story; namely, that Gobind (appellant No. 2) had recently bought a field originally belonging to Aklu and his brothers on which the deceased had been settled by the landlord after Aklu and his brothers had abandoned it; that thereupon Gobind and his friends came to take possession of it and began to uproot the rice: that the deceased remonstrated and was then stabbed and be laboured as a result of which he soon died.
19. But this was not the story which was put forward by the prosecution at the hearing of the case nor was it the account of the matter which the informant (Etwari Goala) gave in his evidence in Court: this forms a different and a third account. He now said that a mob of men including all the appellants, came and began to uproot paddy seedlings in a held belonging to a person called Bhaju; that the deceased, interfered with them and got assaulted. The detailed story which the informant now gave portrays that all the mob had lathis except appellant No. 9 who had a spear. He deposed that the deceased and appellant No. 2 had a conversation together before the deceased was touched; when Gobind's men began to uproot the paddy seedlings in Bhaju's field the deceased, remonstrated: Gobind then said he had bought this field; the deceased asked Gobind whose field it was and Gobind replied it was Aklu's, the deceased told Gobind that this field of Bhaju's was Hot and never had been Aklu's and told Gobind that he was looting Gobind then gave orders that the deceased should be beaten. Now it is important; to notice here several points: one is that no one has suggested that Bhaju's field, belonged to the deceased or that it was ever part of Aklu's or his brother's land or that Gobind had bought it or that the deceased had any call to interfere in what Gobind and his party was doing except that the deceased (or his son) is said to have cultivated Bhaju's land for him as he (Bhaju) was a youth. At any rate it is a different story to that in the First Information and the difficulty is attempted to be avoided by framing the charge in the ingenious phrasing that the accused mistook Bhaju's land for Khedan's.
20. But it seems not very clear that the affair really took place on Bhaju's land at (sic) blood-stained earth was found right away from Bhaju's land and a long way from Khedan's plot at which place Etwari Goala first put the occurrence. Then there is a fourth account which is that given by Gobind and his son: the former who, it will be remembered had received numerous injuries, lodged a first information at the thana on August 7th (i.e., two days after the affair had taken place): he explains the delay by saying, that he was too much hurt to walk and could not get bearers to carry him and also that he was rather fearful as he had been accused already by the other side. However, his story is that he had bought land (2 biahas 17. kathas) which originally belonged to Aklu and his brothers in the name of his son (appellant No. 3) some ten days previously: he had taken possession of it and had been ploughing it: on the day of the occurrence he was ploughing the remaining portion. when Khedan, Etwari Goala, Hiraman, Mithu (names with which we are already familiar) and a number of other men--some ten or more (some of whom he named)--came up and Mithu (the new landlord's barahil) told him that the malik had given instructions that the ploughing should be stopped. Gobind, however, paid no heed and persisted in going on: then he was attacked by Mithu and his party: Gobind's son (appellant No. 3) was there too and when Gobind was knocked down his son gave an alarm and called to his aid eight or ten men: what happened then we are not told.
21. The plot which Gobind says he purchased was 2 bighas, 17 Kathas, in extent: it is not suggested he was ploughing on Khedan's land but it was suggested that he was ploughing plot No. 192 which used to belong to Aklu and his brothers.
22. So we have four stories, viz.,-
(1) The chowkidar's which en visages, a fight between Mithu and party (representing the new landlord and, perhaps, his new settlers) and Gobind and party; (2) Etwari Goala'a first information account which puts the affair in Khedan's plot No. 193: subsequently changed to. (3) The trial account: in which the affair is placed in or near Bhaju's land;
(4) Gobind's account which falls in with No. 1 story rather better than with either of Etwari's.
23. I have thought it necessary to mention these stories seriatim because, without knowing of them all, it is impossible to understand clearly all the criticisms levelled against the learned Sessions Judge's summing up: the Jury had ample choice: presumably they thought that the trial account may have been right although it is not clear what they thought was the object of the unlawful assembly.
24. Now, with the above stories in mind, there has now to be considered the learned Judge's charge.
25. It is suggested that it is not at all clear what is meant by Section 367(5) of the Cr.P.C. where, in the proviso, it uses the words "heads of charge to the Jury": and that it is uncertain what is and what is not enough to constitute a fulfilment of this duty imposed upon the Court of Session, i.e., to record the heads of charge. It is asked whether it should be a verbatim reproduction of the Judge's observations; whether it must or may be written out beforehand; or written by the Judge from his remembrance of what he actually did say to the Jury. The answers to all these questions are really simple. The suggestion that it should be a verbatim reproduction of the Judge's words is negatived by the phrasing of, the proviso itself in which it is expressly stated that judgment need not be written but merely "heads of the charge": it is in this country not feasible to have a verbatim report of every Sessions Judge's charge to a Jury if he, delivered it extemporarily as there is no staff of stenographers, as a rule, available for such a purpose.
26. Nor is there anything in the section which contemplates that the charge must be writ ten out beforehand; and although it is common ground that many Sessions Judges do prepare their charges by writing them out prior to their delivery, such a practice would surprise most experienced Judges of Assize and would and must be a matter at times of considerable delay and inconvenience; and not in the spirit of Section 297 of the Cr.P.C. which contemplates that the Judge shall charge the Jury as soon as possible after the case for the defence and the prosecutor's reply (if any) are concluded, or of Section 296, Cr.P.C., which touches on the undesirability of the separation of Jury prior to the charge.
27. But it is quite certain that, assuming the heads of charge are written out before delivery or taken down verbatim, they should be placed on record by the Judge as soon as he may find it possible to do so and whilst what he said is fresh in his recollection.
28. Then as to sufficiency: it is certain that the record need not be meticulous or lengthy but it must give accurately the substance of what the Judge said to the Jury so that the High Court may, if occasion arises, be able to ascertain from this record whether the law and the facts relative to the case were fairly and properly exit to the Jurors. This is obviously a point which can only be decided by looking at the charge itself in the light of the circumstances of each case.
29. A Judge's record of his heads of charge is not a matter to be treated cavalierly or lightly thrown aside on the ground of insufficiency or mis-direction: Section 357, Cr.P.C. expressly provides that, in order to justify the alteration or reversal of any finding, sentence or order on account Of the faulty nature of a charge to a Jury, the Court must be satisfied that some failure of justice has thereby been occasioned: whilst Sub-section (2) of Section 423 again states that a verdict of a Jury shall not be altered or reversed on appeal unless the Appellate Court regards such verdict as erroneous owing to mis direction by the Trying Judge or to a mis-understanding by the Jurors of the law as expounded to them by him.
30. It is obvious, therefore, that an appellant who seeks to set aside the result of a trial by Jury has a task of considerable magnitude and must, to be successful, present a case of real substance.
31. Now in the appeal tinder consideration the first objection made against the Judge's record of his charge is that he contents himself when recording how he had laid down the law to the Jury by writing.
Sections 141 to 149 and 299 to 304 read over and explained.
32. It is difficult to view so short a summary as this as satisfactory: and so cursory a statement has been directly disapproved of in the case of Kasimuddin Nasya v. Emperor 57 Ind. Cas. 934 : 21 Cr.L.J. 694 : 47 C. 795. The nature of what is requisite to be expressed in the record of a Judge's charge is Well expressed by our own Court in Eknath Sahay v. Emperor 35 Ind. Cas. 657 : 1 P.L.J. 317 : 17 Cr.L.J. 353 : 2 P.L.W. 348, where it is said by Atkinson, J., that "the object of the heads of charge is to inform the High Court, should occasion arise, of what direction the Judge gave in law to the Jury and the nature of his summing up of the evidence not only for the prosecution, but also for the defence. The heads of charge are not intended to be an exhaustive detail of every particular which the Judge may have addressed to the Jury. The Judge is not bound to address himself in every particular and in every detail to every suggestion put forward by the defence. It is the duty of the Judge fairly and candidly to point out the main and salient features of the case from the point of view of the prosecution and of the defence, respectively. In doing so he is entitled to take into consideration the speeches made upon both sides by the Grown and by the prisoner's Counsel in considering -his presentation of the evidence to the Jury. The heads of charge should record in an intelligible form and with sufficient fulness the points of law and the directions given by the Judge to the Jury, and the record should represent with accuracy the substance of the charge by the Judge."
33. It is impossible in the present appeal to gather from the words used-by the Judge what he did or did not say but the fact that the Jury recorded a majority verdict (as I have mentioned above) of guilty under the provisions of Section 149 of the Indian Penal Code indicates very clearly that they did not understand rightly the Judge's exposition (whatever it was) of the law; assuming, as of course I do that his exposition was correct. Nor, apparently, when the Jury had returned its verdict under Section 149, did the Judge's further exposition clear their minds: his record is, I pointed out to the Jury that Section 149 cannot stand without Section 304, i.e., in order to a conviction" (I do not follow this myself unless it means "in order to base or And a conviction") "under Section 149 it must be found that an offence under Section 304 was committed by some members of the assembly in prosecution of the common object.
34. The Jury Were, as is perhaps not surprising, evidently puzzled by the word "some": it is obvious that it might mean "some particular or known members"; in which cage, if it was imagined that only in such case was the operation of the section effective, it would have been an incorrect or ihc6mplete statement of the law: or it might mean "some known or unknown," i.e., "any, member," in which case it would have been right.
35. What the Jury had in their minds when returning their first verdict of guilty under Section 149 cannot be ascertained; but it certainly looks as if, having not understood the Judge in the first instance, they thought that the word "some" connoted appellant No. 9 (i.e., some particular and known member of the assembly) and they were, having already found him not guilty under Section 304, not prepared to saddle the others" with any guilt which was not, as they thought, imputable directly to him. This may as the learned Assistant Government Advocate ruefully points but, well be a matter at which the prosecution might feel aggrieved; but what the Jury, really meant is merely a point for conjecture: the only clear inference emerging being that they failed to Understand the Judge if he interpreted the law to them correctly.
36. In circumstances such as the foregoing where it is obvious that the Jury was very much confused, it would perhaps be right to think that their majority verdict of 3 to 2 of guilty against, the appellants under Section 147 was also the subject of uncertainty. I am not prepared to say that, simply because they had been at a loss to understand what the Judge had told them about Section 149, they necessarily misunderstood what he stated with regard to Section 147, although there is, it is true, no indication in his record of what he actually did say. But there are several criticisms which have been directed against the form of the charge in so far as it may be said to relate to the conviction under Section 147: and these criticisms in his case undoubtedly upon examination necessitate very careful consideration.
37. The first criticism relates to the omission to draw attention to the exact nature of the charge.
38. The Judge, when referring to the alleged common object of the assembly, observes that it was to take forcible possession of Khedan's land; but he does not say that a basic feature of the charge Was the inclusion (to meet the prosecution story) of the words for which you mistook the field of Bhaju Goala.
39. The Judge does not put this to the Jury but merely says that "There is a difficulty about the alleged mistake as to the identity of Khedan's land and the consequent occurrence alleged to have taken place on Bhaju's land."
40. He does not point out that it is admitted that Gobind had bought land to the west (plot No. 192) which had nothing to do with Khedan; that the prosecution story at the trial did not suggest that the appellants had tried to eject Khedan; that there was no sort of reason shown why Gobind should have mistaken Bhaju's land for Khedan's or for part of the Aklu brothers' old holding; or that it was quite clear that Etwari Goala's story detailed in the First Information and his account detailed in his evidence are quite different and that the venue had obviously been changed. He says that "there is a difficulty" and that if the venue has been changed the true facts are hot before the Court and one could not say how precisely the events led up to what he calls "the fight"; he does add that if the Jury thought the place of occurrence had been changed the accused would be entitled to the benefit of the doubt but he is in that passage referring to the suggestion that the "fight" took place in plot No. 192. He also does indicate, that there was evidence to show that Aklu and his brothers and other old tenants did not consider that they had altogether thrown up and abandoned their lands and that the sales to Gobind were really bona fide, transactions which were not liked by the malik and the results--if any--of which he was ready to oppose.
41. But it has been pointed out by the learned Counsel for the appellants (and to my mind correctly) that the learned Judge appears quite to have omitted to explain to the Jury what was the real nature of the "difficulty" or the "doubt" which he incidentally mentioned or to indicate that the result of a change of venue must be most seriously inimical to the prosecution case. Nor does he adequately explain to the Jury the fact that the story in the First Information report and the prosecution story indubitably display a complete change of venue.
42. The so-called "difficulty" is really a very serious double point which alters the whole complexion and strength of the prosecution case. If Gobind and his party, after having bought the Aklu land, went to take possession of it, there is nothing primarily unlawful in their assembly for that purpose. It is quite necessary to place them, in order to sustain a conviction under Section 147, on land to which they had no sort of claim: the First Information Report describes minutely an affair on land (which was part of Aklu's land) in the occupation of Khedan: but that story is completely altered for two obvious reasons; firstly, because the evidence (e.g., as to signs of disturbance and the presence of blood) would support no such case and, secondly, because, if Gobind's intention was to take possession of what he had bought, Khedan's plot in plot No. 193 was admittedly a bit of it: but so too was plot No. 192 to which Khedan had no sort of claim and which is adjacent to Bhaju's field.
43. The second point in this connection is that such a direct change in the venue would very greatly if not utterly discredit the whole of the prosecution story; not only of course as to where the affair took place but as to what actually occurred and would throw into prominence and indicate as a much more probable alternative the chowkidar's report that there was likely to be a fight on account of Mithu, the barahil bf the new malik, intending to resist Gobind's desire to take possession of and plough the lands which he (Gobind), had acquired.
44. If these results of the alteration in the venue had been explained to the Jury and it had also been pointed out that under such circumstances considerations, quite different to those circumscribed by the provisions of the law relating to unlawful assemblies would arise no opportioning or fixing the culpability (if any) for the death of Khedan on any person or persons, I have a very strong feeling that the Jury would not have returned the verdict which they did. I am satisfied that from what I can gather from the heads of the charge that the position was not sufficiently explained to them or, if there are lacunas in the record which were in fact filled up verbally by the Judge when delivering Ins charge, that the Jury failed to understand the import of what he said.
45. In my opinion the point mentioned above coupled with the confusion shown by the Jury with regard to their verdicts (for there were two) relative to Section 149 makes it obligatory for us to allow this appeal; but there are a few further observations which I should like to make with reference to further criticisms directed by the learned Counsel for the appellants against the Judge's charge.
46. One of these criticisms is that the learned Judge made some actual and serious mistakes in his summing up; if the record of the heads of the charge is correct.
(A) In his reference to the chowkidar's report he says, "The sanha indicates that the dispute was between Mithu and Gobind."
It must be pointed out, however, that this is incorrect; the sanha, as it appears in the papers before this Court, does not even mention Gobind's name.
(B) Again, still referring to the sanha, he learned Judge says, The substance of this sanha is that Rupan Singh (appellant No. 1) was going that day with men and ploughs to take possession of some 4 bighas of land which he had purchased from a goala of Bhatbhigha this year.
47. It must, again, be pointed out that this is quite incorrect according to the wording of the sanha, as it lies before us, Rupan is act personally mentioned at all as going or intending to go to take possession.
(c) Again with regard to the alleged settlement of some of Aklu's land with Khedan, Etwari stated in the First Information Report that this settlement was effected in 1316-F. after Aklu and others had abandoned their holdings: and that settlement was effected a year after the receipt of the survey khatian: and Etwari produced what purported to be genuine receipts for the year 1316F. But the Survey Settlement was only published in 1317 and the appellants produced the khatian showing that Aklu's name was therein still recorded. This quite disposed of Etwari's date "1316" but the learned Judge did not regard the discrepancy as important because, so he says in his charge, the attestation would have taken place in 1316.
48. It is also now pointed out by the learned Assistant Government Advocate that to date "1316" as given by Etwari Goala was really merely a mistake; as the whole pf the rest of the tenour of his evidence was to the effect that the land was settled a year after the survey khatian had been received. But it is rather incongruous to) brush aside the date of 1316 as a mistake; when Etwari Goala produces in proof there of rent-receipts for that year: what must be the nature of such receipts if 1316 was a mistake of Etwari's and what can be the value of Etwari's evidence if he is prepared thus to bolster up his case with counterfeit receipts? The learned Judge did not point out any of these serious inferences to the Jury but brushed aside the criticism directed against Etwari's story of settlement on reasoning which seems fallacious and misleading.
49. There were other criticisms of the record of the charge but none so penetrating as the above. Those, however, to which I have drawn specific attention are sufficiently important; and only strengthen the view which I have already expressed that this appeal must be allowed.
50. The learned Counsel for the appellant has asked us with great earnestness to express some view as to the desirability of a Sessions Judge formulating, at the conclusion of the delivery of his charge, specific questions for the Jury's reply. I do not think that any rule can possibly be laid down on this subject: there is nothing to prevent such questions being formulated and, in cases presenting complication, I used to find when sitting as a Judge of Assize, that such a practice was helpful to, the Jury and useful in deciding the legal effect of the Jury's findings; but the formulation of such questions requires great care and queries should be confined within the lowest possible compass; in a very large number of cases such procedure is not requisite as a simple finding of guilty or not guilty serves all necessary purposes.
52. It must not bethought that I have intended in my remarks to express any view that the summing up by the Judge was an inefficient one taken as a whole: but it was rather a complicated case presented in a very confused fashion. In many parts of the Judge's record it is clear that he summed up to the Jury with skill and in some portions rather strongly in favour of the accused: but if the record before us really gives a substantially accurate record of what he said to the Jury he obviously omitted much of importance. If on the other hand it does not give a substantially accurate account of what he said, then we have no means of knowing what he did say or how he filled up the important gaps.
53. I have no hesitation in this case in coming to the conclusion that the record of the heads of charge to the Jury (a) shows insufficient material to enable this Court to judge what the learned Judge told the Jury, (b) shows that there were serious omissions (and certain actual mistakes) in directing the Jury on the facts and law which in my view did in every probability occasion a verdict different to that which would have been otherwise given.
54. It is also clear to my mind from the verdicts of the Jury that they did not in the least understand and actually misunderstood the Judge's exposition of the law.
55. For the above reasons lam of the opinion that the appeal must be allowed; the convictions quashed and the sentences set aside and the appellants set at liberty. There will be no order by this Court for a new trial or expression of opinion as to whether a new trial is desirable or necessary.
Kulwant Sahay, J.
56. I agree. I only desire to add that in complicated cases the Judge in his charge to the Jury ought not only to explain the law but should also draw their attention to the evidence in the case and to explain as to how they should apply the law as explained by him to the particular facts of the case. In other words where the facts are complicated he should explain to them what are the points which they ought to take into consideration in arriving at their verdict. The observations of Manuk, J., in the case of Sunder Buksh Singh v. Emperor 48 Ind. Cas. 163 : 3 P.L.J. 653 at p. 655 : 19 Cr.L.J. 983 : (1918) Pat. 359 as regards the duty of Sessions Judges to assist assessors by putting specific questions concerning the facts upon which the law will turn may with advantage be borne in mind by Judges in charging the Jury so that in cases involving complicated questions of fact and law the Jury may have a clear idea of the real questions requiring consideration in order to arrive at a correct verdict. In the present case it is obvious that the Jury were in a hopelessly confused state of mind and had no clear comprehension of the law, which they were called upon to apply to the facts of the case.