Sri Prosad Misser vs The Empress

Maclean, C.J.—I think that the Appellant is right in this case when he says that the learned Sessions Judge has not properly explained the law to the jury. There is a series of decisions in this Court to the effect that it is the duty of Sessions Judge, when charging the jury, to explain the law, and that merely reading the sections of the Code which are applicable is not a sufficient explanation. The Sessions Judge in this case, simply referred to the sections of the Penal Code bearing upon the charge and there left the matter. This being so, upon the authorities, the appeal must, on this short ground, succeed. But, apart from this, in other respects the charge is somewhat confused. For instance, the learned Judge says :--" In this case, if the accused had not been present at the committal of the offence, there is no evidence to show that he would be punishable as an abettor. I am therefore of opinion that the case does not come under sec. 114." I do not quite follow this. Further on, he says:--"Again as those four persons came with the Pathan and went with him, and made no effort to prevent him from striking the Nawab, it must be naturally inferred that the criminal act done by the Pathan was in furtherance of the common intention of all, and, therefore, under sec. 34." That is not an accurate way of putting it. The Judge ought to have called the attention of the jury to the facts, and then said that it was for them to consider whether, from those facts, they concluded that the criminal act was done by the several persons in furtherance of the common intention of all, and if they so concluded then to direct them that the case came within sec. 34 of the Penal Code and that each of them would be liable for that act, in the same manner as if it were done by him alone. I think'' the Appellant has made out a case and although it is much to be regretted that there should be a third trial, the conviction must under the circumstances be set aside and the case sent back for retrial.

Banerjee, J.

I concur.