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21. It is admitted by Mr. Norton who appeared for the accused at the Sessions, that the case he made was that his client had no hand in the killing of Jamini, and that he never suggested and certainly never argued that the exception of grave and sudden provocation had any application to the case, He has very fairly stated before us that to have advanced the defence of grave and sudden provocation would have been in conflict with his instructions. His argument in the Sessions Court was that the case was one of murder or nothing, and he pressed upon the Jury their reponsibility if they convicted the accused of the offence of murder on what he regarded as the meagre and unsatisfactory testimony before the Court. This may be a very potent argument when skilfully handled before a Calcutta Jury and no one would be a better Judge of its value than Mr. Norton. The whole of the evidence has been placed before us and I can find nothing in the cross-examination of any of the prosecution witnesses that is Dot in harmony with this.

38. If I omitted to draw the attention of the Jury to any matter a consideration of which might properly lead them to return a verdict of culpable homicide not amounting to murder, instead of murder, 1 no doubt committed an error, though the defence did not suggest the existence of any such matter. If, however, I had told the Jury the existence of grave and sudden provocation had anything to do with the case, it would have been my duty to point out to them the evidence that supported the exception, since in laying down the law it is the duty of the Judge to show how the law applies to the facts on the record. This would have been impossible, as I had no doubt that there was no such evidence in the case; for the absence of any evidence as to the circumstances immediately preceding the killing of the deceased is not by itself a fact from which the Jury could properly infer the existence of the circumstances constituting provocation. In order to establish the existence of grave and sudden provocation it would have been necessary to put a suppositious case before the Jury, by which I mean a 'case founded on suppositions as to facts, and not on evidence. In my opinion it would be a serious error on the part of a Judge to do any such thing. If I was wrong in thinking that there was no evidence on which the Jury could properly find the existence of grave and sudden provocation, again I was in error. But on reconsidering the matter I am of opinion that I was not wrong in taking the view that I did.

Woodroffe, J.

42. As regards Clause (1) of the certificate, the allegations there made are not in accordance with the learned Judge's statement. Mr. Justice Stephen says that he neither directed the Jury that there was no evidence of grave and sudden provocation nor did he say that he himself saw no such evidence, that is, I understand, this exception was not specially named in this connection. Further, so far as it refers to grave and sudden provocation, this point is affected by the remarks made later as regards that special defence. The point here taken, therefore, fails. The ground in Clause (3) also, in my opinion, fails. If there were 8 to 1 in favour of a verdict of murder, there could not be in law an unanimous verdict of culpable homicide not amounting to murder. And if such a verdict had been returned, it would have shown that the Jury did not understand the law. Stephen, J., tells us that under his orders no verdict was taken on the second and third counts. The trial was, therefore, in this respect in order.

47. At regards the first point, it is to be observed that Section 297 of the Criminal Procedure Code requires the Judge to charge the Jury, summing up the evidence for the prosecution and defence and laying down the law by which the Jury are to be guided. In the present case, it is not disputed that the Judge did lay down the law, but it is argued that this exposition of the law was imperfect, as he did not explain to the Jury the bearing of the first exception in Section 300. I do not think it can reasonably be maintained that the expression "lay down the law" signifies "lay down the whole law on the subject irrespective of the facts of the particular case before the Court." If this view were not adopted, the inferense would follow that in every case where an accused is charged with an offence, say the offence of murder, it would be incumbent upon the trial Judge to lay before the Jury an exhaustive commentary on the law of murder in all its possible aspects; he would thus have to deal with matters entirely foreign to the inquiry before the Court and the Jury would be distracted by the discussion of legal questions which could be of no assistance in the solution of the problem laid before them. The reasonable construction of Section 297 of the Criminal Procedure Code is that the Judge should lay down the law, only in so far as it bears upon the evidence adduced in the particular case; as has been said, all unnecessary and extraneous discussion and argument should be avoided by the Judge, and the summing up should be strictly confined to the evidence adduced and the mode of application of the law to such evidence: Queen v. Noho Kisto Ghose 8 W.R. Cr. 87. The case of Emperor v. Mahmadkhan 9 Bom. L.R. 153 : 5 Cr. L.J. 168 to which reference has been made on behalf of the prisoner, is really not opposed to this view. Consequently, the more fact that Stephen, J., did not explain to the Jury specifically the effect of the first exception in Section 300 does not show that there has been a misdirection. The petitioner has to establish that the question of grave and sudden provocation did require consideration in the circumstances of this case. I am unable to hold, upon the notes of the evidence which have been read to the Court, that the question did properly arise at all. The trend of the cross-examination of the prosecution witnesses points unmistakably to the conclusion that the case for the defence was that the accused was not in the house when the woman was killed; the defence, presented by an able and experienced Counsel, was that the case was one of murder or nothing at all. It was never hinted before the trial Judge that the case might possibly be one of grave and sudden provocation. Indeed, even in this Court, although it has been strenuously argued that the Judge should have invited the attention of the Jury to the first exception in Section 800, Counsel for the prisoner has frankly intimated that if he can induce the Court to hold that there has been a misdirection and then to examine the case on the merits, he would argue, not that the accused was guilty of the offence of culpable homicide not amounting to murder because the case fell within Section 300, exception (1), but that the accused has been falsely charged and has had no hand in the commission of the crime. Such a position as this seems to me to be entirely untenable. I wish, however, to dissociate myself from the proposition that the mere fact that Counsel for the accused has failed to present to the Court a particular aspect of the case, can justify an omission on the part of the Judge to draw the attention of the Jury to what appears to be a possible answer to the charge against the accused even on the prosecution evidence; it would be the duty of the Judge, in my opinion, to draw the attention of the Jury to such possible view of the case on the evidence, notwithstanding that it may have escaped the Counsel for the accused. The question, consequently, arises, whether, on a fair and reasonable reading of the evidence, we can say in this case that the question of grave and sudden provocation did require consideration and should have been put to the Jury. I am of opinion that the answer must be in the negative. The Counsel for the prisoner has dwelt on his past history and his relations with the deceased woman, and has put forward a plausible and possibly a captivating theory that he could not have killed her except under grave and sudden provocation. It is not disputed that there in no direct evidence on the point, and although circumstantial evidence might be sufficient to justify the plea if taken, I see no answer to the very forcible argument of the Standing Counsel that to determine whether there was or was not evidence to go to the Jury, regard must be had to the whole course of the proceedings in the trial Court. We cannot further overlook the provisions of Section 105 of the Indian Evidence Act, illustration (o) whereof has an obvious application to this matter. From these points of view, I think Stephen, J, was fully justified in the opinion he expressed, namely, that none of the exceptions in Section 800 (it is immaterial that he mentioned specifically only one) had any application to the case. It is erroneous to say that he withdrew from the Jury the charge under Section 304; that charge remained, and it was open to the Jury, if they were not satisfied as to the existence of any of the four alternatives specified and the substantive portion of Section 300, to return a verdict of not guilty on the first count and guilty on the second count. "What Stephen, J., omitted to do was to lay down the law as to grave and sudden provocation; this omission did not constitute misdirection in the circumstance of this case. As Lord Advertence, C.J., said in Rex v. Stoddart (1909) 2 Cr. App. Rep. 217 at p. 246 : 73 J.P. 348 : 53 S.J. 578 : 25 T.L.R. 612 quoting with approval the words of Lord Esher, M. 11., in Abratk v. North-East Ry. Co. (1886) 11 App. Cas. 247 : 52 L.J. Q.B. 620 : 49 L.T. 618 : 32 W.R. 50 mere non-direction is not necessarily misdirection; those who allege misdirection must show that something wrong was said or that something was said which would make wrong that which was left to be understood; every summing up must be regarded in the light of the conduct of the trial and the questions which have been raised by the Counsel for the prosecution and for the defence respectively.