Judgment Case ID: 843

Judgment:
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 411A(2) 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 134(1) (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] L.R. 41 I.A. 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 (e.g. 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	 C.J.	 had made	 it is well to remember that they were made in respect of an earlier charge to the jury which	 to use the words of the learned Chief Justice	 was " all 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] L.R. 41 I.A. 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) A.T.R. I959 S.C. 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 a.m. 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 50	000 60	000 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	 i.e.	 injuries on the top of senile changes and pathological liver and gall bladder as well as to inhibition." With regard to the head injury which was certified to be ante mortem	 the doctor was of opinion that it was likely to have been caused by a fall on some hard substance. The charge against Sunil	 in the first instance	 was under 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 50	00060	000 words. The matter I have so far discussed is contained in 1	000 1	500 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 fact	though 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 15	000 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 ? A.No. 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. Q.164. 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	 C.J. (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 Emperor(4) stated that: " A charge to a Jury must be read as a whole. If there are salient propositions of law in it	 these will	 of 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) A.I.R. 1934 Cal. 169 (S.B.) (3) A.I.R. 1927 Cal. (4) (1914) L.R. 4I I.A. 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 Bombay(1)	 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:
In a trial by jury	 the judge should in his charge to the jury be careful to lead them to a correct appreciation 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. Since a verdict of the jury depends upon the charge	 if it fails to perform this basic purpose it cannot be regarded as a proper charge and if it contains also misdirections as to law	 the verdict cannot be upheld; but if	 upon the general view taken	 the case has been fairly left within the jury 's province	 the verdict cannot be set aside unless something gross amounting to a complete misdescription of the whole bearing of the evidence has occurred. Mushtak Hussein vs The State of Bombay	 ; 	 Ramkrishan Mithanlal Sharma vs The State of Bombay	 ; and Arnold vs King Emperor	 (1914) L.R. 41 I.A. 149	 relied on. Per section K. Das and Sarkar	 jj. Though the charge to the jury in the present case was lengthy	 the length 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	 and as the judge did state the several disputed points arising therefrom and their bearing on the main qestions at issue	 the jury were not misled. Held	 that there was no misdirection and that the verdict of the jury could not be interfered with. Per Hidayatullah	 J. In his charge to the jury	 in the present case	 (1) the judge took each witness	 turn by turn	 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 2 parts; and did not make any difference between the testimony of the eye witnesses and of the formal witnesses in the matter of treatment	 (2) while telling the jury that they could give the benefit of the doubt on proof of any individual fact if they felt any doubt about the proof	 the judge did not at the same time caution them that the totality of facts must be viewed in relation to the offence charged and that 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	 (3) the judge while explaining the ingredients of the offence of grievous hurt under section 325 of the Indian Penal Code failed to tell the jury that grievous hurt was only an aggravated form of hurt and 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 Code	 and (4) omissions were treated as contradictions and placed before the jury in complete disregard of section 162 of the Code of Criminal Procedure	 Held	 that these defects amounted to misdirections and that the verdict could not be accepted.