ON Criminal Appeal No 170 of 1956
Appeal by special leave from the judgment and order dated June 14 1954 of the Calcutta High Court in Criminal Appeal No 13 of 1954 arising out of the Judgment and order dated January 13 1954 of the said High Court in Case No 55 of 1953
Purshottam Tricumdas H J Umrigar and B P Maheshwari for the appellants
N C Chatterjee R L Anand and D N Mukherjee for respondent No 1 A C Mitra A M Pal and P K Bose for respondent No 2 1960
February 12
The Judgment of section K Das and Sarkar JJ was delivered by section K Das J Hidayatullah J delivered a separate Judgment
section 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 No 18 Bondel Road in Calcutta in the course of which one Col section C Mitra a Gynaecologist and Surgeon lost his life
Mitra was the husband of petitioner No 1 and father of petitioner No 2
In connection with the Colonel s death Sunil Chandra Roy at present respondent No 1 and his two brothers were placed on their trial for offences under sections 302 323 and 447 of the Indian Penal 3 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 No 17 Bondel Road which belonged to petitioner No 2 and consisted of several flats one of which on the second floor was in occupation of Sunil as a tenant that they had attacked Col Mitra and petitioner No 2 that Sunil had inflicted a blow or blows on the Colonel which caused his death and that one of his brothers Satyen had inflicted some minor injuries on the person of petitioner No 2
There was also a charge against Sunil for an assault alleged to have been committed on Mrs Sati Mitra Wife of petitioner No 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 sections 325 and 447 and Satyen under sections 323 and 447 Indian Penal Code
So far as the third brother Amalesh was concerned his case was referred to the High Court as the learned Judge did not agree with the jury s verdict of not guilty
Sunil and Satyen appealed to the High Court 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 Court of Calcutta directed that Sunil and Satyen be retried at the Criminal Sessions of the High Court
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 Court 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 Code
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 another retrial was directed at the Criminal Sessions of the High Court
4 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 section 325 Indian Penal Code for vountarily causing grievous hurt to Col Mitra and the other under section 447 Indian Penal Code for criminal trespass into premises No 18 Bondel Road with intent to intimidate insult or annoy Col Mitra or his son Nirmal petitioner No 2 herein
This time the jury by a majorit verdict of 7 to 2 found Sunil not guilty of the charge under section 325 Indian Penal Code  and by a majority of 6 to 3 found him not 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 Court against the order of acquittal but the High Court summarily dismissed it on June 14 1954 on the ground that no case had been made out for the admission of the appeal under the provisions of section 411A2 of the Code of Criminal Procedure
Then on July 22 1954 the petitioners herein made an application to the High Court for a certificate under Article 1341 c of the Constitution that the case is a fit one for appeal to the Supreme Court 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 not 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 not dealt with the prosecution and defence versions in the same way and by the same standard and bad been guilty of various non directions which resulted in a manifestly erroneous verdict
This application was dismissed by the 5 High Court on July 26 1954 mainly on two grounds 1 the petitioner had no locus stand to maintain an application for leave to appeal to the Supreme Court and 2 no appeal lay under Article 134 of the Constitution from an order of acquittal
The High Court then said  In view of the opinion we have formed as regards the competence of the present application it is not 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 not think then and do not think now 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 Court
 The petitioners then applied for special leave from this Court under Article 136 of the Constitution 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 Court
This Court granted special leave on February 20 1956 and the present appeal has come 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 Court in its order dated July 26 1954 no longer require any consideration
The principal question for consideration now 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 counsel for the parties that the arguments should be confined at this stage to that question and if counsel 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 Court or dealt with in this Court on the evidence already recorded would arise
We proceed now to consider 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
6 Col
Mitra was the owner of 18 Bondel Road but he did not 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 No 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 not good and there were proceedings between the two before the Rent Controller
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
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 noise 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 not getting water which was followed up by further abuse of Nirmal
After that Sunil disappeared from the window
Nirmal s wife had been up before Nirmal and already served tea to Colonel 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 Colonel
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 compound of 18 Bondel Road and his father the Colonel had gone down
Nirmal 7 who was telephoning the police hurriedly added a request to the police to come soon
Nirmal coming down found Purna Mali in the grasp of Amalesh and Colonel 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 Colonel to remonstrate again whereupon the Colonel was attacked by Sunil who caught hold of the Colonel 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 compound 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 Colonel towards the road and the gate Nirmal ordered the Mali to close the gate
Accused Sunil dragged the Colonel according to the prosecution case and while near the Durwan s room Sunil dealt a fist blow on the left temple of the Colonel
The prosecution case further was that Sunil proceeded to drag the Colonel 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 Colonel with a rod like object
On receiving the blow the Colonel 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 compound of No 18 and with their help and with the help of the servants of the family the Colonel s 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 Colonel
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 8 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 No 18 but when the constable 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 No 17 Bondel Road
On the staircase of the house at No 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 Colonel s 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 not signed till the 2nd September 1950 and not until the pathological report and the chemical report had been obtained
The defence of Sunil was that he did not strike or assault the Colonel 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 Colonel was not 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 Colonel
The main suggestion on behalf of the defence was that the Colonel 9 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 could s not 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 compound of No 18 Bondel Road at the invitation of Purna Mali who asked Sunil to come and see if the pump was working the pump being within the compound of No 18 Bondel Road
Sunil did not however assault the Colonel in any way
It is in the context of the aforesaid two versions that we have to consider the charge to the jury and examine the criticisms made thereto
We must make it clear that we are not 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 Court said in Mushtak Hussein vs 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 cannot be set aside In a subsequent decision Ramkishan Mithanlal Sharma vs The State of Bombay 2 this Court observed that section 297 Criminal Procedure Code 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 not 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 Court 1  at 815
2  at 930
10 referred with approval to the following observations made by the Privy Council in Arnold vs 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 course 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 not coincide with the view of others who look upon the whole proceedings in black type
It would however not 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 jury s province
But in any case in the region of fact their Lordships of the Judicial Committee would not inter fere unless something gross amounting to a complete misdescription of the whole bearing of the evidence has occurred
 Bearing the aforesaid principles in mind we proceed now to consider the criticisms made on behalf of the petitioners against the learned Judge s 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 minor points which do not advance the case of the petitioners any further
The first criticism is that the charge to the jury read as a whole is nothing but a summary of the evidence witness by witness and a summary of the arguments of counsel which the jury had already heard
that the learned Judge did not state the points for decision under separate heads nor did he collate and marshall the evidence topic wise so as to assist the jury to come to their conclusion one way or the other but left the jury with a mass of unnecessary details which was more likely to confuse 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 LR 41 IA 149
11 Chakravarti C J had said in Sunil Chandra Roy and Another vs 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 come 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 another what issues or subsidiary questions they raise for decision and what the effect will be according as one part or another of the evidence is believed or disbelieved
 It was argued that what was condemned in an earlier stage of this case has happened again
We are unable to accept this line of criticisms as substantially correct
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 now 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 counsel for the accused But the real point for consideration is not whether the learned Judge followed one method rather than another the real point is did he properly discharge his duty under section 297 Criminal Procedure Code 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 come to their conclusion  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 Colonel in the manner alleged by the prosecution
1 at 10001
12 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 Council in Arnold s case 3 and accepted by this Court as correct is that it would not 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 jury s province and this Court will not interfere unless something gross amounting to a complete misdescription of the whole bearing of the evidence has occurred
Learned counsel for the petitioners has taken us through the entire charge to the jury and while we may agree that some unnecessary details eg how the spectacles of Mrs Sati Mitra fell down could have been avoided by the learned Judge we are unable to say that the method followed by the learned Judge did not focus attention of the jury to the questions of fact which they had to decide or did not give help and guidance to the jury to arrive at their conclusion oes and as the accounts were kept on a mercantile basis the amount of commission 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 commission which had accrued to them and therefore the whole of the income from commission which had already accrued was liable to 55 income tax and reference was made to the cases reported as Commissioner of lncome tax Madras vs K R M T T Thiagaraja Chetty and Co 1 E D Sassoon  Company Ltd vs The Commissioner of Income tax Bombay City 2 and to an English case Commissioners of Inland Revenue vs Gardner Mountain  D  Ambrumnil Ltd 3
But these cases have no application to the facts of the present case
In the Commissioner of Income tax Madras vs K R M T T Thiagaraja Chetty  Co 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 commission 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 Company 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 commission was credited to the assessee s account and subsequent dealing with it would not affect the liability of the assessee to income tax
It was also held that the quantification of the commission could not affect the question as it was not a condition precedent to the accrual of the commission
At page 267 Ghulam Hassan J observed  Lastly it was urged that the commission could not be said to have accrued as the profit of the business could be computed only after the 31st March and therefore the commission could not be subject to tax when it is no more than a mere right to receive
This argument involves the fallacy that profits do not accrue unless and until they are actually computed
The computation of the profits whenever it may take place cannot possibly be allowed to suspend their accrual
In the case of income where there is a condition that the commission will not be payable until the expiry of a definite period or the making up of the account it might be 1  at 267
2   344
3  96
56 said with some justification though we do not decide it that the income has not accrued but there is no such condition in the present case 
This passage does not help the appellant s case
The question there decided was that the accrual of the commission was not dependent upon the computation of the profits although the question whether it would make any difference where the commission 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 not applicable to the facts of the present case
The next case is E D Sasoon  Co Ltd vs 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 contention
In that case the assessee Company was the Managing Agent of several Companies and was entitled to receive remuneration calculated on each year s profits
Before the end of the year it assigned its rights to another person and received from him a proportionate share of the commission for the portion of the year during which it worked as Managing Agent
On the construction of the Managing Agency Contract it was held that unless and until the Managing Agent had carried out one year s completed service which was a condition precedent to its being entitled to receive any remuneration or commission it was not entitled to receive any commission
The facts in that case were different and the question for decision was whether the contract of service was such that the commission was only payable if the service was for a completed year or the assessee Company 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 Commissioners of Inland Revenue V Gardner Mountain  D Ambrumenil Ltd 2  It is on the provisions of the contract that it must be decided as a question of construction and therefore of law when the commission was earned The contract in the present case in para 1   344
2  96
57 graph 2 shows that 1 the company was to pay each year 2 that the Managing Agents were to be paid 5 per cent
commission on the proceeds of the total sales of yarn and of all cloth sold by the Company 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 complete misdescription of the whole bearing of the evidence has occurred in this case
As to the observations which Chakravarti CJ 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 comment or mere comment 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 jury s provinces in spite of the criticism so strenuously made that the charge to the jury contained a mass of details which need not 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 not whether the charge to the jury is perfect in all respect the question is has something gross occurred amounting to a complete 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 LR 41 IA 149 13 The second criticism relates to certain misdirections alleged to have been committed by the learned Judge in placing the evidence of the eye witnesses as also of medical witnesses
No useful purpose will be served by referring to each and every example given before us we shall confine 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 comment 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 Col Mitra was pronounced to be dead
The suggestion to Nirmal was that he had not 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 Nirmal s deposition before the committing Magistrate
Nirmal said before the committing Magistrate that he did not use the English word I fainted  but had said in Bengali that father has become unconscious 
The complaint of the petitioners is that Nirmal s explanation has not 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 not 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 Colonel had heart trouble and that Nirmal was confronted with contradiction that he told the Magistrate and the police that his father had heart trouble
Nirmal had denied it
 Nirmal s explanation was that he did not tell the Magistrate or the police that his father had heart 14 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 Nirmal s statement
Pushpa Pal admitted that even if Nirmal had stated that Col 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 cannot 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 comments were made with regard to the placing of the evidence of other eye witnesses but their general effect is the game
They do not 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 connection 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 not 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 come 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 not agree with learned counsel for the petitioners that the learned Judge committed 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  Now gentlemen in cross examination she was cross examined on her eyesight
She did succeed in pointing out to an old man in Court
That is in answer to Q 30
But further ahead she could not see properly
She is far too old a woman on whom any reliance can be placed having regard to her state of 15 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 Mahanti s place and was being kept back
It was submitted before us that Mrs Ghose was no doubt 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 not 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 comments 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 not 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 College
Those two doctors expressed widely divergent views as to the probable cause of the injuries sustained by Col 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 Maumdar s opinion is that such a man cannot be expected to talk
It is also Dr Majumdar s opinion that the injury was due to a fall and he does not think that the injuries Nos 1 2 and 3 could be caused by a lathi blow or a blow by a rod
According to his opinion the fracture was also due to a fall
16 It is contended that this must have misled the jury in thinking that there was no external injury on the site of the fracture on the left temporal region and therefore it could not 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 noticed in this connection is that the learned Judge did not 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 Col Mitra could 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 Colonel could be caused by a fall on a hard substance
It is true that the answers to questions 73 74 and 75 we re not 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 concluded his summing up of the medical evidence in these words  Now gentlemen when a medical witness is called in as an expert he is not a witness of fact
Medical 17 evidence of an expert is evidence of opinion not 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 corroborative
It proves that the injuries could have been caused in the manner alleged and nothing 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 not 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 no question of further considering the medical evidence arises at all
The only question in that case when you consider 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 don t believe the eye witnesses then consideration of the medical evidence in any manner becomes unnecessary
 We do not think that any exception can be taken to the observations made above in the context of the two versions which the jury had to consider
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
None 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 3 18 fracture on the temporal region could be the indirect effect of the other injuries sustained by the Colonel
We now go on to third head of criticism viz the learned Judge s 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 Code
But be made one error
Dealing with the word  voluntarily  in section 325 he said The word  voluntarily  means what it says it means of one s free will 
 Perhaps the learned Judge forgot that the word is defined in section 39 Indian Penal Code and that definition should have been placed before the jury
We do not however think that this minor lapse misled the jury in any way or occasioned a failure of justice
There is one more point in this connection
The learned Judge did not tell the jury that it was open to them to return a verdict of guilty for an offence under section 323 Indian Penal Code if they came to the conclusion that Sunil gave a blow to the Colonel with a flexible rod but did not cause the fracture
In the circumstances of the case however we do not think that the failure to direct the jury that it was open to them to return a verdict of guilty on a minor offence occasioned any failure of justice
If the eyewitnesses for the prosecution were believed it would be undoubtedly a case under section 325 Indian Penal Code if on the contrary the eye witnesses were not believed and the defence version was accepted that the Colonel sustained the injuries by a fall then there would be no case even under section 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 Nirmal s statements to Pushpa Pal on his arrival at No 18 Bondel Road or at least his statements to the Head Constable Mathura Singh before the arrival of the investigating officer were not hit by section 162 Criminal Procedure Code and were clearly admissible in evidence
The learned Judge said in this connection 19  I would like to remind you that if any person makes any statement to the police that is not admissible evidence as a rule unless in the case of contradictions which are formally proved as you have seen the counsel for the accused has proved contradictions 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 not be substantive evidence of the facts stated therein  and if Nirmal s evidence in Court was not accepted his statements to the police officers concerned 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 vs The State of Uttar Pradesh 1
That decision dealt exhaustively with section 162 Criminal Procedure Code and laid down certain propositions to explain the scope of that section it was however observed that the examples given therein were not exhaustive and the Judge must decide in each case whether the recitals intended to be used for contradiction satisfied the requirements of the law
We agree that on the principles laid down in Tahsildar Singh s decision 1 some of the statements put to the prosecution witnesses were not really contradictions and did not therefore fall within what is permissible under section 162 Criminal Procedure Code
We may take by way of example what was put to Nirmal
The learned Judge placed the following contradictions in Nirmal s 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 not mentioned by him and then he only said assault with blows before 1  20 the police and that he also said that the Colonel was hit near about the gate of the house and not beside the boundary wall
It was also suggested to him in defence that the Colonel did not 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 not mention to the police that the Colonel was lying on his back
He was also criticised for not having mentioned the names of persons who carried his father after he had fallen down
Nirmal s answer was that he was not 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 Colonel
 Now on the principles laid down in Tahsildar Singh s decision 1 Nirmal s failure to mention before the police that his father was lying on his back was not 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 not really contradictions do they materially affect the verdict  In our opinion they do not
By and large the important statements made before the police were admissible under section 162 Criminal Procedure Code but some minor statements were not
We do not think that the verdict of the jury can be said to have been vitiated on this ground
Lastly we come to the defence evidence
Here the complaint 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  Now gentlemen these questions are important because he does not 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 1 ATR
I959 SC 1012 21 consider in this connection whether this is a witness whom you would consider a liar because you will have to consider 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 am on the 11th August 1950
He says that he examined the compound 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 no blood 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 no trace of the adoption of a double standard or of a serious misdirection on any question of fact or law
We have therefore come to the conclusion that on the principles which this Court has adopted for interference with a jury verdict no case 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 section 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 conclusion 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 enormous length without comment 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 22 to have been committed 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 convicted the present respondent Sunil under sections 325 and 447 of the Indian Penal Code agreeing with the verdict of the jury
On appeal the High Court of Calcutta set aside the conviction and ordered a retrial at the Criminal Sessions of the High Court
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 Court on appeal set aside the conviction 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 Sunil s brother Satyen who was tried along With him in the previous trials and was also convicted
This withdrawal of the case was on the somewhat unusual ground that his health was bad
Sunil himself it appears was defended at Government cost by one of the Government advocates
The trial dragged through a weary course in which prolonged cross examination of the witnesses took place and alleged contradictions between their previous versions were put to them in detail
After the arguments were over the learned Judge charged the jury at considerable 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 now refer
On August 11 1950 Sunil and his brothers were occupying a flat in No 17 Bondel Road which belonged to Nirmal son of the late section C Mitra a very well known 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 complaint against the land 23 lord Nirmal
Incidents had taken place previously and Sunil had taken the matter to the rent control authorities and it is alleged had even threatened the landlord with dire consequences if the water supply was not improved
Under an alleged agreement the water supply was regulated by working the electric pump during certain hours of the day but nothing turns upon it
It appears that the water supply did not improve and often enough an exasperating situation arose in so far as the tenants of No 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 compound of No 18 Bondel Road whether to see to the working of the pump himself as he contended or to remonstrate more effectively with the landlord as is the prosecution case
However it be Nirmal s father Col 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 Colonel gave any offence to Sunil by rebuking him is not much to the present purpose because I am not 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 Colonel it is alleged fell down while Sunil clambered the parapet wall and made good his escape because the Colonel had previously ordered that the gates be shut
Meanwhile the Colonel was taken and laid on a cot 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 Colonel 24 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 consequent to head Injury ie 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 section 302 but the case proceeded in the sub sequent trials only under section 325 read with a further charge under section 447 of the Indian Penal Code for house trespass with intention to intimidate insult or annoy the owner
The above facts clearly show that the essence of the case lay in a very narrow compass
The questions which the jury had to determine were whether Sunil trespassed into the premises of No 18 Bondel Road with the intention of insulting intimidating or annoying 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 Col Mitra thereby causing him injuries simple or grievous
Alternatively the jury had to determine whether Col Mitra suffered these injuries not at the hands of Sunil but by a fall which was the defence
No doubt 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 con in the case but the learned Judge did not in spite of the voluminous charge put these simple points before the jury
The attention of the jury was never directed to these simple matters but on the 25 other hand it was directed to almost everything else
No doubt a verdict of the jury is entitled to the greatest weight not only before the Court of trial but in all appeals including that before this Court
The law does not 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 not
It is the charge which one has to examine to find out whether the verdict is defective or not
Such an important stage in the trial requires that the Judge should be careful to lead the jury to a correct appre ciation of the evidence so that the essential issues in the case may be correctly determined by them after understanding the true import of the evidence on the rival sides
A charge which fails to perform this basic purpose cannot be regarded as a proper charge and if it contains also misdirections as to law it cannot 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 no opinion 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 innocent until the contrary was proved and further that the jury should convict only if the facts were compatible with his guilt
So far as this direction went nothing 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 4 26 this topic he omitted to explain also the expressions  disproved  and  not proved   but that too cannot 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 not proved and the verdict you bring would be a verdict of not guilty
If you have no reasonable 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 cannot 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 not guilty
Again if you have no such 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 not wholly true
The learned Judge with due respect did not 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 not only in connection 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 not 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 not 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 could give the benefit of the doubt on proof of any individual fact if they felt any doubt 27 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 could 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 not
The direction on the point of law contained 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 not guilty 
Having laid down the law to the extent indicated above the learned Judge next explained the ingredients of section 325 of the Indian Penal Code
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 not cease if he committed an act which resulted in a simple hurt
Indeed the learned Judge did not tell the jury that even if they held that the accused did not cause a grievous injury it would be open to them to hold that he caused a simple injury which would bring the matter within section 323 of the Indian Penal Code
I may further point out that after the verdict of I not guilty  under section 325 the learned Judge did not question the jury whether they thought that the accused was guilty of causing at least simple hurt
The jury gave no reasons they only answered the query whether they thought that the accused was guilty of the offence of causing grievous hurt
But they were not questioned whether they thought on the facts of the case that the accused had committed 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 not
Of course the jury were perfectly entitled to hold that the accused caused neither of these injuries but it is possible that the jury if questioned 28 would have answered that they thought that the accused had caused the simple injury but not the one resulting in the fracture of the temporal bone
The failure to question the jury with regard to the lesser offence completely 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 not 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 course of 5000060000 words
The matter I have so far discussed is contained in 1000 1500 words
Thereafter the learned Judge did nothing more than paraphrase the evidence of each single witness in detail or read out extracts from it
Throughout the course of this reading and paraphrasing he made no attempt to connect the evidence with the fact to be tried
All that he ever said and he said it with monotonous iteration was that it was for the jury to decide whether they believed the witnesses or not
No doubt a Judge in charging the jury is neither compelled nor 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 not
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 Judge s 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 now 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 counsel for the accused
 This represents a very fair and adequate summary of what the Judge really did except that he did not sum up the evidence but placed it in its entirety
As I have stated he took each witness turn by turn 29 paraphrased his evidence sentence by sentence and read out those portions which he did not paraphrase without trying to draw the attention of the jury to the relevancy or materiality of the various parts The document is composed 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 voluminous account of everything that each witness stated
Not only this no difference 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 comes the evidence of Head Constable Mathura Singh
He reached No 18 Bondel Road in a lorry and he was accompanied by a constable
You remember he was first sent by Pushpa Pal
This Head Constable Mathura Singh posted another constable at the gate so as not to allow a crowd to gather
He also saw Col Mitter lying unconscious like a dead person covered 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 not admissible evidence as a rule unless in the case of contradictions which are formally proved as you have seen the Counsel for the accused has proved contradictions in some cases but you must bear in mind that except such cases this is no evidence
Then this Constable Mathura Singh went to No 17 with the other constable and posted that other constable at No 17 to control the crowd so as to prevent any one coming out of No 17 And then while he was coming back to No 18 to find out if he could telephone the officer in charge the constable found the officer in charge at the gate of No 18
After Pushpa Pal the Officer in charge came out of No 18 Bondel Road he went to No 17 and brought down the accused
That is the evidence of Constable Mathura Singh also
This Constable took charge of the accused and left for the thana with the accus 30 ed at about 9 O clock in the morning on the 11th August 1950
Mathura Singh was cross examined and be said in cross examination that he did not note down the names of the persons forming the crowd at No 18
He did not go and find any article at No 17
His evidence is that he was there to guard No 17 so that no one escaped from there
 It needs no argument to apprehend that all this was not only a waste of the Court s 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
Not only were several such witnesses brought to the notice of the jury but even in the evidence of those that were relevant and material there was no attempt 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 could 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 not 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 not binding on them
The other comment 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 conflicting medical testimony which it appears he forgot to do at the end and in another portion he gave this direction 31 Now gentlemen when a medical witness is called as an expert he is not a witness of fact
Medical evidence of In expert is evidence of opinion not 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 corroborative
It proves that the injuries could have been caused in the manner alleged and nothing 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 not 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 no question of having it supported by medical evidence unless the medical evidence again in its turn goes so far 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 no question of further considering the medical evidence arises at all
The only question in that case when you consider 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 don t believe the eye witnesses then consideration of the medical evidence in any manner becomes unnecessary
I think this will be gentlemen a convenient time for you to halt otherwise it might be too tiring for you
Foreman of the jury expressed the desire to continue the Charge
 I do not think that the direction is either correct or complete
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 not 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 32 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 victim s 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 course of 15000 words
There is also a complete disregard of section 162 of the Code of Criminal Procedure both during the trial and also during the charge
Omissions were treated as contradictions 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 not see when the old man was assaulted and who assaulted him  A
I stated to the police that I had seen the old man being dealt a fist blow but I had not seen him being struck with a rod
Q 152
Did you tell the police that you did not see when the old man was assaulted and who assaulted him  ANo
I did not make that statement
I Gentlemen that is a contradiction and it will be for you to judge how far that goes to destroy the credit of this witness
Another contradiction was put to him that he did not 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 contradictions with this police statement were made out in cross examination
The first is that it was not mentioned by him before the police that there was any fist blow on the Colonel secondly that it was not mentioned to the police by him that Sati Mitra intervened in the matter by clasping the Colonel and also on the point whether 33 the Colonel was dragged by his shirt
I will read out the relevant questions and answers Q Do you find further that you have stated in the next paragraph after that I also saw another tall person stated to be the second brother was dragging the old man holding his wearing shirt  A
I saw that person dragging the Colonel by holding his genji and when a fist blow was given to the Colonel 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 Colonel being dragged and nothing is mentioned about the fist blow and Mrs Sati Mitter clasping her father in law and being pulled away by the hair  A
I do not know 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 Colonel Sati Mitter came and clasped the Colonel from a side and she was thrown down by being caught by her hair
Q164
Forget about the genji and the shirt You find here that nothing is mentioned about your evidence that you saw the Colonel being given a fist blow by the accused on the left temple and then Sati Mitter coming and clasping the Colonel round his waist you find that is not mentioned  A
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 come back
She saw the Colonel after her return from the kitchen
She does not remember the dress of the assailant
She also says that the gate of No 18 was closed
Her evidence has been criticised also for contradiction 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 children s cries 5 34 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 not see them arguing
Fifthly it is said she told the police she saw the Colonel once go near the pillar of the gate on the western side but she does not 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 not see the old man falling down
Gentlemen you will again weigh these contradictions 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
Q During the examination it appears that you have told us that you saw Colonel Mitter being drawn towards 17 Bondel Road  A
He was being dragged in the direction of the Mansion House
Q 111
That is towards the west of the path  A Yes Q 112
How far was he from the boundary walls abutting the Bondel Road  A
I would not 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
Could 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 Colonel and that gentleman standing  35 A
It is difficult for me to describe the position
But I can say that he was neither in the exact centre of the lawn nor 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 Court rejected the verdict of the jury because in the opinion of Chakravarti CJ Sarkar J concurring it was all comment and no evidence
It may be said that this time it was all evidence and no comment or arrangement
The Calcutta High Court 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 no settled rule or practice as to what a charge should or should not contain
That is dictated by the circumstances of each case
Sir James Fitz James Stephen in his History of Criminal Law of England Vol
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 notes does not discharge his duty
This course was commoner in former times than it is now
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 advocate s feelings in regulating the proceedings altogether fails to discharge his duty but I further think that he ought not to conceal his opinion from the Jury nor 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 conclusion
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 considerable way 36 towards suggesting an answer to them and if a Judge does not do as much at least as this he does almost nothing
 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 not 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 conclusion
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 not enough 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 not enough 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 no more than a recital of the entire evidence in the case  almost as detailed as the evidence itself and there is no attempt whatever to give any guidance to the Jury
No doubt the Privy Council in Arnold vs King Emperor4 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 course 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 2 AIR 1934 Cal 169 SB 3 AIR 1927 Cal
4 1914 LR 4I IA 149
37 needs be that the view of the Judge may not coincide with the view of others who look upon the whole proceedings in black type
It would however not 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 Jury s 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 no doubt but it is so amorphous as to give no indication of its real purport and import and leaves the matter not 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 Court under article 136
As was laid down in Ramkrishan Mithanlal Sharma vs The State of Bombay1 the Judge in summing up for the prosecution and defence should not 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 cannot be said to be a proper charge on any principle or precedent and that the verdict cannot be accepted
Though this case has taken already almost ten years there is prima facie reason to think that justice has failed
Since the matter is now before the highest Court there is no likelihood of any further delay in the case and what is just therein can be done
I would therefore proceed to hear the case on merits
By Court In accordance with the opinion of the majority this appeal is dismissed
Appeal dismissed
1   930


Summary:
On the refusal of the appellant employer to fix the minimum wages and rates for contract work of the workmen respondents who alleged that they were paid below the level of bare subsistance wage the dispute was referred to the Industrial Tribunal for adjudication
The first Tribunal could not fix any minimum basic wage and the award of the second Tribunal which fixed a scale was set aside on the ground that the appointment of the Tribunal was not published according to law
The third Tribunal ultimately fixed the basic minimum wage on the industry cum region basis after considering the rates prevalent in various parts of the country and a place nearest to the appellant company
The minimum awarded by the Tribunal was slightly increased by the Labour Appellate Tribunal in accordance with a statutory notification issued under the XI of 1948 which had come into force after two years of the award of the Tribunal and by which a scale of minimum wage and dearness allowance was fixed
On appeal by the appellant company by special leave
Held that the Labour Appellate Tribunal committed no error of law in awarding the same minimum basic wage which was statutorily fixed and which came into force only two years after the award of the Tribunal
In determining the minimum basic wage the fact that a large amount of dearness allowance was paid to the employees in other comparable occupations in the same region should not be ignored
In order that the Central Government might itself become the appropriate Government within the meaning Of section 2ai of the Industrial Development and Regulation Act 1951 65 of I 95 1 it must specify in that behalf that the industry in question was a controlled industry
If the services of one Tribunal were not available to the appropriate Government it was perfectly competent to that Government to appoint another Tribunal to take up the work of adjudication