Bulak Gope and Others vs Emperor

Mohammad Noor, J.—The learned Assistant Sessions Judge of Patina, agreeing with the unanimous verdict of guilty by a jury, has convicted the appellants u/s 395, I.P.C. (dacoity) and sentenced each of them to rigorous imprisonment for five years. We have carefully examined the charge of the learned Judge and do not find any misdirection or non direction which may amount to misdirection and which can be interfered with.

The learned advocate for the appellants however laid some stress upon an observation of the learned Judge in connexion with omissions or contradictions made by the witnesses before the police or the Magistrate as compared with their statements before the Court, and contended that this general observation might have influenced the jury in disregarding the omissions or contradictions which were pointed out to them on behalf of the defence though they were important.

The observation of the learned Judge which has been thus criticized by the learned advocate runs as follows:

Again some instances have been pointed out to you to show that the statements made by the witnesses in this Court do not find place in the records of their statements as prepared by the police or the committing Court, and it has been suggested that they are only after-thoughts and should be rejected. In drawing your conclusion from these omissions you should remember that the committing Magistrate and the police officers were not concerned with a detailed record of the statement of the witnesses, but were merely making investigation leading up to the trial in this Court. It is however always for you to decide whether the omissions are due to these circumstances or because evidence has subsequently been concocted to support the prosecution case.

I have noticed recently that general observations on the lines quoted above invariably find a place in the Judge''s charge to the jury irrespective of the consideration whether they are pertinent or not.

This obviously is due to a remark of the late Chief Justice of this Court (Sir Courtney-Terrell) in Hari Lal v. Emperor AIR 1935 Pat. 263. His Lordship in that case quoted a long extract from the charge to the jury delivered by the Sessions Judge of Gaya (Mr. Reuben) which, among others, contained a passage used by the learned Judge in this case and which has been commented upon by the learned advocate in this Court. After quoting the extract, the learned Chief Justice expressed his approval of it in these words:

I would recommend the passage that I have quoted to Courts which have to deal with criminal trials as well as those which have to do with civil trials, as an admirable statement of principle.

I respectfully agree with the remarks of the learned Chief Justice, but his Lordship never said, and could not have said, that a portion of his quotation from the charge of the learned Sessions Judge of Gaya should form part of each and every charge of every Judge to every jury in every case irrespective of the consideration whether it is applicable or not. This is not a question of law but a question of commonsense, prudence and expedience. Omissions are not necessarily contradictions. There are omissions and omissions. Some of them can be overlooked on the ground which was stated by the Sessions Judge of Gaya and approved by Courtney-Terrell C.J. But there may be omissions which it will be difficult to hold are due to either the police or the Magistrate leaving them out because they were simply preparing records preliminary to a trial.

I am afraid the observations of the learned Chief Justice have to a very large extent been misunderstood and misapplied. If the defence relies upon certain omissions made by witnesses either before the police or before the Magistrate, the best course is to draw the attention of the jury to those alleged omissions and then if, in the opinion of the Judge, the omissions are of no consequence and were possibly due to the circumstances which were relied upon by the Sessions Judge of Gaya, it will be quite open to him to place them before the jury and then leave them to decide whether those omissions considered in the light of the circumstances placed before them are of such consequence as to discredit the testimony of the witness in Court. General observations of this nature devoid of facts are likely at some occasions to create an impression in the mind of the jury that every omission in every case is of no consequence whatsoever, and I am definitely of opinion that his Lordship, the Chief Justice, never intended and could not have intended to lay down this wide proposition as a matter of law.

However, in this particular case, the learned advocate has not been able to show that there were omissions affecting the merits of the case which the jury ignored in consequence of the general remark of the learned Judge. I am clearly of opinion that no harm has been done in this case.

The appeal is dismissed.

Varma, J.

I agree.