Queen vs Gagalu, Magalu and Others

L.S. Jackson, J.—The appellants in this case have been convicted in a trial by jury, in Assam, of the offence of murder. The Judge, though entirely disapproving of the verdict, has passed sentence of transportation for life upon the prisoners, and the prisoners have now appealed upon the ground that the direction of the Judge to the jury contains both absolute errors in the way of misdirection, and also errors of omission such as to invalidate that direction, and to make it the duty of this Court to set aside the proceedings, and order a new trial. The learned counsel who appeared for the appellants set forth what he considered to be the errors both of omission and commission on the part of the Judge, and proposed to read to us the evidence on the trial, in order to show that the prisoners had been prejudiced by those errors, and that the case was one in which this Court ought to interfere. The case of Elahi Buksh 5 W.R. Cr. 80 was very much referred to. The learned counsel read portions of the judgment of the Chief Justice as indicating the principles on which this Court would proceed in dealing with such cases. But it seems to me impossible to lay down with precision in what cases this Court may and ought, and in what cases it may not and ought not, to interfere with the direction of the Judge so as to set aside a trial by jury after verdict has been given. I do not think it necessary in this case to go seriatim into the grounds which the learned counsel has laid before us, because, I think, we must deal with each case upon its own merits; and taking, as we are bound to take, the charge of the Judge to the jury as a whole, say whether its tendency baa been upon the whole to give a correct or incorrect direction to the mind of the jury. Applying that test to the case before us, I think I am bound to say that there is no such error in the charge of the Judge as ought to induce us to interfere with the proceedings. I think the Judge has in no way led the jury to attach undue weight to any portion of the evidence. On the contrary, I think that be has taken throughout a favourable and merciful view of the case towards the prisoners, and that it would be an altogether misplaced rule for us to apply to the direction of a Judge in a Mofussil Court the same criticisms which we would to a charge of a Judge in an English Court of Assizes. I think, therefore, that the grounds of appeal, as regards the whole of the prisoners in relation to the Judge''s direction, must fail.

I have been reminded by my learned colleague, Mr. Justice Markby, of an objection to which I thick I ought to advert separately. That is an objection taken to the admission of the evidence of a witness, named Oruna. It is objected in regard to this witness that he was not examined by the Court of Session, but that his deposition was received and read at the trial upon its appearing to the Court that the witness was dead, when in fact there was nothing before the Court in the shape of proof to show that he was dead. By section 369 of the Code of Criminal Procedure, it is provided that the examination of a witness taken and attested by the Magistrate in the presence of the accused person may be given in evidence, if the witness be dead, or the Court be satisfied that, for any "sufficient cause, his attendance cannot be procured." I think that, in order to make the evidence of a deceased witness legally admissible, provided that the admission of that evidence is questioned, it is necessary strictly to prove the death of the witness. I think it would be quite competent to the counsel for the prisoner at the time of the trial, to admit the death of the witness, and to dispense the prosecution from proving that circumstance, and I think the Court might, upon such admission, allow the evidence to be read; and I do not think it would be for the prisoner upon appeal to complain that his counsel had made that admission improperly. Upon this point, therefore, I think no valid objection to the proceedings in appeal is made out.

There is another and separate objection which relates to the case of one of the prisoners named Magalu. The point in question is that the Court of Session, acting under the powers contained in section 210, Act VIII of 1869, being the Act to amend the Code of Criminal Procedure, during the trial, tendered a pardon to this prisoner; that the prisoner made some statement to the Court; and that thereupon the Court, instead of ordering the commitment of the prisoner, u/s 211, withdrew the tender of pardon, and ordered the trial to proceed as if no such tender had been made. It is contended that it was not open to the Court to take that course, but that the trial of Magalu ought to have stopped; and although it would proceed in regard to the remaining prisoners, that prisoner ought to have been re-committed, and proceedings taken in respect of him de novo.

I think that, under sections 209, 210 and 211, the procedure, if properly and completely carried out, must be this. The Court, or Magistrate, must tender a pardon to the prisoner explaining to him the conditions which accompany that tender. It is for the prisoner then either to accept or refuse the tender. If he refuse, the tender will have been abortive, and the trial would proceed as if no such tender had been made; if he accept, it is the duty of the Court as pointed out in section 209, to examine him as a witness in the case under the rules applicable to the examination of witnesses, and then, if after having so examined him, the Court be of opinion that he has not complied with the conditions, the Court may then commit or order him to be committed for trial upon the charge in respect of which pardon was tendered. Now as to what took place on the present occasion I confess I have some doubt--though a Blender doubt--as to whether the prisoner did accept or refuse the pardon offered to him. I am inclined to think that he did refuse. It is clear, however, that if be did accept, the subsequent proceedings of the Court in respect to that prisoner were irregular, and the trial was probably void in regard to him. I think, therefore, that before we can make any further order in respect to this prisoner, it will be necessary to call upon the Judicial Commissioner; and I propose that he be called upon, to state whether, upon the tender of pardon being made to Magalu, he accepted or refused the tender so made, that is, whether the words used by the prisoner, namely, that he knew nothing of the case," amounted to an acceptance of the tender of pardon, and subsequent imperfect compliance with the conditions of it; or whether they were meant to be, and were looked upon, by the Judicial Commissioner, as a refusal to make any communication, and, therefore, a refusal of the tender of pardon. Upon the Judicial Commissioner making an answer to this question, and so completing the record, we shall be in a position to deal further with the case of this prisoner.

Markby, J.

I am of the same opinion. I think there was no misdirection, and that there was no error in admitting the deposition. Upon the other point, our opinion must await the result of the inquiries which have to be made.

The following order was passed on the prisoner Magalu on the 1st April 1870. It appears from the proceeding submitted by the Judicial Commissioner that the prisoner Magalu refused the tender of pardon made to him. It is clear, therefore, that the point taken by the learned counsel for the prisoner does not arise, and the conviction being good in other respects it is affirmed.