John Beaumont, Kt. , C. J. -
(1.) THIS is a petition to the Court to review the conviction of the accused of the offence of murder by the Bombay Sessions Court and the sentence of death passed upon him, the petition being based on a certificate of the Advocate General given under Clause 26 of the Letters Patent. The certificate granted by the Advocate General is that in his judgment the question whether the direction to the jury by the learned Judge in this case and the omission to direct the jury do not amount in law to a misdirection should be further considered by the Court. The basis of the petition for review is, therefore, that there were misdirections and omissions in the summing up of the learned Judge which amount to error in a point of law.
(2.) SECTION 297 of the Criminal Procedure Code provides that in cases tried by jury, when the case for the defence and the prosecutor's reply (if any) are concluded, the Court shall proceed to charge the jury, summing up the evidence for the prosecution and defence, and laying down the law by which the jury are to be guided. It is, therefore, mandatory upon the Judge to charge the jury, and in so doing, to sum up the evidence for the prosecution and the defence and to lay down the law. The object of requiring the Judge to sum up the evidence is that he may render such assistance as he can to the jury by pointing out to them the salient evidence for both the prosecution and for the defence. It is not necessary for him to read his notes of the evidence to the jury, though it may often be desirable to read his notes of important parts of the evidence; nor is it necessary for him to go through the whole of the evidence. But he ought to refer to the salient parts of the evidence. Now what the learned Judge did in this case was that he first laid down certain general rules for the guidance of the jury in appreciating the evidence, and no exception is taken to that part of the charge. He also dealt with the law relating to murder, and it is not suggested that he gave any misdirection :in his statement of the law, although it is suggested that his direction did not go far enough, in that he omitted reference to the exceptions to SECTION 300 of the Indian Penal Code. He then asked the jury whether they desired him to read out his notes of any part of the evidence, and on the jury saying that they did. not so desire, the learned Judge really did not deal at all with the evidence. It is no doubt legitimate for a Judge to ask the jury whether they have a particular piece of evidence in mind, or whether it would help them for him to read his notes on the subject; but the Judge is bound to sum up the evidence, whether or not the jury desire him to do so. The learned Judge made some general observations about the nature of the prosecution case, he referred to the fact that there were discrepancies in the evidence, though he did not allude to any particular discrepancy, and he referred generally to the defence suggested in the cross-examination of the prosecution witnesses. But it is impossible to say, in my opinion, that he summed up the evidence -to the jury, and as the learned Judge omitted to sum up the evidence to the jury and failed to comply with SECTION 297, it is, in my opinion, established that there is an error of law which brings the case within Clause 26 of the Letters Patent.
The next point to consider is what our powers are in dealing with a case under Clause 26 of the Letters Patent. That clause provides that on its being certified by the Advocate General that in his judgment there is an error in the decision of a point or points of law decided by the Court of original criminal jurisdiction, or that a point or points of law which has or have been decided by the said Court should be further considered, the said High Court shall have full power and authority to review the case, or such part of it as may be necessary, and finally determine such point or points of law, and thereupon to alter the sentence passed by the Court of original jurisdiction, and to pass such judgment and sentence as to the said High Court shall seem right. It was admitted by Mr. Poonawalla on behalf of the accused, and I think quite rightly admitted, that the clause does not entail that whenever any misdirection is found to exist, the Court has no option but to set aside the verdict. To hold that we are bound to set aside the verdict whenever any misdirection is proved would be to disregard the direction in the section that we are to review the case. It is clear, I think, from the wording of Section 537 of the Criminal Procedure Code that it does not apply to a case dealt with under Clause 26 of the Letters Patent. But, in my opinion, we ought to apply to such a case the principle which underlies that section, that is, that where there has been no illegality in the mode of trial, but some irregularity in the process of trial, we are not entitled to set aside the verdict or judgment unless we are satisfied that that irregularity has led to a miscarriage of justice, or has prejudiced the accused. Mr. Velinker for the Crown has relied on the decision of a full bench of this Court, which is not reported: Emperor v. Leherchand Dayachand see p. 23, supra, where the judgment is in these terms: Though our decision on some of the points raised by the Advocate General must be in the Accused's favour that does not entitle us to dispose of the case by simply quashing the conviction. For this Court to deal with the case now be novo no doubt transfers from the jury to this Court the determination of the question whether the legal evidence in the case is-sufficient to support a conviction against each of the accused but the authorities are conclusive that section 26 of the Letters Patent casts upon us that duty. It is, in my opinion, not necessary for us in this case to go as far as the Court went in that case, or to consider how far that ruling is in accordance with certain views of the Privy Council expressed in the well-known case of Subrahmania Ayyar v. King-Emperor (1901) I. L. R. 25 Mad. 61 : s. c. 3 Bom. L. R. 540, P. C. It is, in my judgment, clearly open I to the Court to consider, not: so much, what effect: the misdirection has upon the minds of this Court sitting in place of a jury, but what the effect of the misdirection was or may have been upon the minds of the jury which tried the case; and in so doing we must, I think, assume that the jury was a reasonably competent jury, though we must remember that is jury consists of laymen, and that a misdirection may have more effect upon the minds of laymen than upon the mind of a trained Judge.
In order to determine that question it is, of course, necessary to consider the evidence on the record, and we have been through the whole of the evidence. [after discussing the evidence in the case his Lordship proceeded:]
(3.) THE broad points, on which Mr. Poonawalla relies to establish that there was a misdirection which prejudiced the accused, are first of all, that the Judge should have referred to the evidence in the case. I agree that he should have done so, but having regard to the nature of the evidence, I think that the Judge's omission to refer to it was really favourable to the accused. In my view the more the Judge had referred to the evidence, the worse it would have been for the accused. THEn it is said that the Judge should have pointed out the discrepancies between the stories of the different eye-witnesses and the discrepancies between the stories which the several witnesses told in the Sessions Court and the stories the same witnesses had told in the Committing Magistrate's Court. Counsel had of course referred to those discrepancies. THE Judge's duty would be to refer to any material discrepancy, but in my opinion there were here no such serious discrepancies as made it necessary for the Judge specifically to deal with them. THE learned Judge did refer to the fact of there being discrepancies in the evidence, and he pointed out quite truly that minor discrepancies rather tend to strengthen, than to weaken, the evidence, because they suggest that the witnesses have not learnt the same story off by heart. In my opinion there was no failure of justice in the omission of the Judge to deal with the particular minor discrepancies which were shown to exist in the evidence. THEn it is said that the Judge did not refer to the fact that there were matter favourable to the accused, for instance that there were no blood-stains found on their clothes, no blood-stained knife found with the accused, and no injury on the person of the present petitioner. Well, all those are negative matters which, in my opinion, it was not essential: for the Judge to refer to. THE points were again all before the jury, and they may well have thought that inasmuch as the present petitioner was not arrested until three days after the assault, the fact that no blood-stains were found on his clothes and no incriminating weapon found with him was very easily explained. THEn a great point is made of the fact that the learned Judge did not refer to any of the Exceptions to Section 300 of the Indian Penal Code, and it is suggested that the defence might have brought the case within the 1st or 4th Exception. Admittedly, counsel for the petitioner did not himself read those exceptions to the jury, and if the learned Judge had read the exceptions, it would have been necessary for him, in my opinion, to tell the jury as matter of law that there was no evidence on which they could bring the case within either of those exceptions. If that is so, there was clearly no miscarriage of justice in the Judge not reading exceptions which did not apply. THE exception principally relied on in; this Court is the 4th exception, which provides that culpable homicide is net murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner. THE defence case as suggested in cross-examination was that the deceased Ramzanbux had told the accused that they were not to come to Pannabai's room. THEy had, on Pannabai's own admission, been harassing her, and she was frightened of them and wanted them not to come to her room, and as Ramzanbux was a rent-collector and was responsible for letting Pannabai's room to her, it no doubt is quite a possible theory that he told the petitioner that he was not to come to her room and frighten her. THEn the defence theory is that Ramzanbux, when the accused came in, told them to go away and started to fight with a stick. Admittedly, he was not armed with. any knife. THEre is absolutely no evidence whatever in support of that story. THE learned Judge did refer to it as a possible theory, and counsel quite rightly put that theory in cross-examination of the prosecution witnesses, but no witness accepted that theory as correct. THEy all said that was not what
Happened, and merely to put a theory to witnesses, who reject it, does not provide any evidence of the truth of the theory. That being so, in-my opinion, in law there was no evidence on which the jury could have held that the case fell within either exception, and lie Judge would of course have had to warn the jury that the burden of bringing himself within one of the exceptions. rested on the accused.;