Baijnath Mahton and Another vs Emperor

Jawala Prasad, J.—I have carefully gone through the heads of charge to the jury recorded by the Warned Sessions Judge and have considered the petition of appeal and the arguments advanced by the learned Counsel. The charges are full and comprehensive and the evidence appears to have been properly laid before the jury. I have not found any thing to show that the summing up fit the case was, in any way, unfair to the accused.

The principal contention of Mr. Hasan Imam has been that the learned Judge misdirected the jury in concluding the general discussion of the evidence by giving a warning against small discrepancies in the evidence of the prosecution. The learned Judge drew the attention of the jury to the material parts of the evidence, which might, in his opinion, tell against the prosecution and in favonr of the defence. Then he conveyed the caution against minor discrepancies in the following words:

If you are satisfied that there was no object in proving a false case, not from the point of view of seeking for small discrepancies, but upon a broad view of the evidence given before you.

Reading this passage in the light of the context in the summing up, far from finding fault with it, I consider that it was a wholesome and proper caution to the jury. It does not do anything more than conveying to the jury the way in which the evidence, in any case, should be looked into. While discrepancies, affecting the material part of the case should receive proper consideration in favour of the accused, minor discrepancies in immaterial and collateral events should carry no weight in judging the case as a whole. A broad view of the evidence need only be taken. This is true both for the Jury as well as for the Judge and, in fact, for any one, who has to form a serious opinion upon the evidence placed before him.

The learned Judge has, therefore, done what he ought to have done, namely, to point out to the jury the way in which the minor discrepancies should be looked into. He has also asked them to take a broad view of the evidence and to be satisfied upon the evidence as to the case being false or true.

In the case of Queen v. Bustee Khan 1 W.R. Cr. 17 the Sessions Judge conveyed the warning to the jury in the following words:

A large number of witnesses have Sworn to the facts and if a minor discrepancy in their statements is here and there discoverable, I do not think that such streets should be laid upon them an the Vakil for the defendant urges, or that you should on such grounds only reject the whole of their testimony.

This warning is in terms similar to, if not stronger than, the one given by the Judge to the jury in the present case. Mr. Justice Kemp, so far back as in 1861, observed as follows:

I am of opinion that in giving the warning to the jury not to disbelieve amass of otherwise consistent evidence, because in one-or two minor and immaterial points the witnesses made different statements, the Judge used a wise discretion.

I agree entirely with the aforesaid view of that eminent Judge, and also with the reason stated by him that the warning is necessary so that the jurors may not jump to the conclusion that, because a case is weak in one point, the whole charge is false. That case, though ancient, does not seem to have been dissented from, or, in any way, varied by later decisions, nor can the principle of that decision, to my mind, be disputed. In that case, as in the present, the jury appeared to have exercised their own unfettered judgment. They appear to have weighed the evidence properly and given the benefit of the material defects and discrepancies in the prosecution case and have acquitted the accused of the serions charges of murder or of grievous or simple assault under Sections 323/109, 325/114, 323/109. They unanimously returned a verdict of guilty u/s 147, Indian Penal Code, against some of the accused and by majority against others. The learned Judge accepted the verdict of the majority of the jury and sentenced the prisoners u/s 147 some to one year and others to six months rigorous imprisonment. Mr. Hasan Imam has cited certain authorities, but, when pointed out he conceded that those cases have no application to the present case. There was clear misdirection in those cases. It was then said that the learned Judge did not explain the common object to the jury. I find that he has done so very clearly. He has explained to them the essential elements that constitute an offense u/s 147 and directed their attention to the common object specified in that charge.

I need not refer to the other minor points urged by Mr. Hasan Imam. Suffice it to say, that I have considered them and I do not find any defect in the charge to the jury so as to justify the admission of the appeal.

I, therefore, dismiss this appeal.

I need not have written a long judgment, but for the great importance attached by Mr. Hasan Imam to his contentions, particularly relating to the warning by the Judge to the Jury in the passage referred to above.