Allanson, J.:— The seven appellants have been convicted by the Sessions Judge of Patna, accepting the verdict of the majority of the jury, of offences under sections 302/149 and 148 of the Indian Penal Code and sentenced to transportation for life. Nine accused were placed on their trial. Four jurors out of seven found the seven appellants guilty under sections 302/149 and 148. Two more jurors found the appellants 1 to 3 guilty under section 302/34. All the jurors found two of the accused not guilty of all the charges, and one juror found all the accused not guilty of all charges.

The case for the prosecution was that on the morning of the 12th February 1927 the accused persons, armed with ganrasas and bhallas, attacked Mathura Prasad Singh at his threshing floor and killed him. The post-mortem showed that he had 16, ante-mortem wounds on the body; three of these were dangerous wounds on the abdomen, from which the entrails protruded. They were probably caused by spears; the other wounds were probably caused by ganrasas; four of them on the head and neck were serious; the wound on the neck cut the bone and the spinal cord and was by itself sufficient to cause death. The first information was lodged at 1-15 p.m at the thana five miles away by the village Guru, Dennandal Lal. He had heard shouts when in his patshala, and ran to a spot from which he could see the threshing floor. In the first information he named only appellants 1 to 3, though in court he said that there were other persons there, but they were hidden by the heaps of straw. He named three witnesses. Two other alleged eye-witnesses are not mentioned.

The defence was that Mathura was killed by his brother, Sudama, in a dispute over family property, and that the accused had been falsely implicated. No motive for the occurrence is given in the first information. Evidence was called to show that there had been litigation between Mathura and the accused, Bishun, who has been acquitted. Mathura and his father, Kamta, had quarrelled some nine or ten years ago, and there was a court partition in 1918. The prosecution alleged that Kamta and Mathura were reconciled 2½ years ago, and the family re-united. Sudama had all along lived with his father.

The charge of the learned Sessions Judge has been generally attacked as one-sided. The more important instances of alleged misdirections are non-directions which, it is contended, amount to misdirections. A judge summing up at the end of a long trial (this one took a fortnight) cannot deal in detail with every point in the case; an attempt to do so would not only weary, but almost certainly confuse, the jury. It has also to be borne in mind that what he has to place on the record are the heads of the charge. They cover 9½ pages of the typed book. It is manifestly impossible in the absence of a shorthand note of the actual words of the charge, for a Sessions Judge to reproduce in the heads of the charge everything that he may have said to the jury.

The first point taken is that the learned Sessions Judge has not recorded in the charge the directions he gave to the jury on the legal aspect of the case. His record on this point is as follows—

“Sections 302, 114, 326, 147, 148, 149, 34 of the Penal Code read and explained.”

Towards the end of the charge he said—

“The charges have been explained to you. You cannot convict anyone under section 147 or 148 or 302/149, unless you are satisfied that an unlawful assembly of five or more persons was formed.”

It has been pointed out in various cases that this is not a sufficient record of the charge on the question of law. In Kasimuddin Nasya v. Emperor the learned Judges remarked as follows—

“But we desire to say that in our judgment the record of the learned Judge's charge on the question of law is not sufficient. It is not sufficient for the learned Judge, who tries a case, to state in his record of the heads of chargps that he referred to certain sections of the Indian Penal Code and explained to the jury the law in regard to the offence. He should set out the directions which in fact he gave to them in respect of the law, in order that, if the case comes up on appeal, this Court may not be hampered by having to speculate as to what he said. The heads of charge should contain a record of the explanation of the law as the learned Judge gave it to the jury, so that this Court may be in a position to judge whether the elements constituting the particular offence in question have been properly and fully explained to the jury. I hope that the learned Judges will pay attention to this. A great deal of time, trouble and expense will be saved if they observe our directions in this respect.”

It is argued that the charge does not even indicate that the Judge read and explained the sections in which the above offences are defined, for example, sections 141, 299 and 300. It is, however, impossible to believe that an experienced Sessions Judge should have contented himself, for example, with reading out section 302 and with explaining it as “murder is murder.” An explanation of murder necessarily involves an explanation of sections 299 and 300. Section 304 does not come into this case. The learned Sessions Judge should have given the numbers of all the sections which he explained. The question is whether the failure to record in his charge what actually his explanation of the law was amounts to a misdirection which would vitiate the trial as having occasioned a failure of justice. In addition to the above authority we were referred to a number of other cases on this point. [Rupan Singh v. Emperor, Rahmali Howaldar v. Emperor, Abdul Rahim v. Emperor, E. St. C. Moss v. Emperor and Durga Charan Bepair]. A consideration of these cases shows that such an omission does not necessarily involve the setting aside of the conviction. In Kasimuddin's case a re-trial was not ordered because the court was of opinion that, if the jury accepted the evidence which was put forward on behalf of the prosecution, there was no doubt that they were entitled to convict the accused of the offences charged. It is argued that in that case the charge showed that the sections defining the offence had been read to the jury. But the principle applied by the court was as I have stated above; and the same principle was applied in Rahmali's case and Abdul Rahim's case. In the present case there can be no doubt that, if the jury accepted the evidence, they were entitled to convict the accused under sections 802/149 and 148. No difficult question of law arose. Moreover the verdict indicates that the jury understood the law which had been explained to them. When the majority gave the verdict convicting the appellants under section 302/149, the Judge asked them about section 148. The reply was that they had included that under section 149. This shows that the jury understood the law of constructive liability and that there could be no conviction for an offence read with section 149 unless there had been a riot, that is, an offence committed under section 147. In King-Emperor v. Durga Charan Bepari it was held that there had been a misdirection in the explanation of the law, as the Judge described murder as the intentional killing of another human being with malice aforethought, which in the opinion of the court was not the way in which a jury ought to be charged in India. They would not, however, have rejected the direction on this ground alone if they had felt clear that the misdirection had not occasioned a failure of justice. The case of Rupan Singh v. Emperor was a very complicated one, where it was held that from the verdict of the jury it was clear that they did not in the least understand, and actually misunderstood the Judge's explanation of the law. In E. St. C. Moss v. Emperor a retrial was ordered. One of the sections in that case was 120B (criminal conspiracy) and it was found that it was impossible to say whether the Judge did or did not correctly explain the law to the jury. In my opinion for the reasons already given, the omission of the learned Sessions Judge to set out in his charge the explanation of the law he gave to the jury has not occasioned a failure of justice, and a retrial should not be ordered on this ground.

It was next contended that there were several instances of non-direction regarding the first information. It was not read over to the jury by the Judge; attention was not drawn to the delay in giving it; the jury should have been told that they should consider whether the informant must have seen the other accused persons, if they had been there and must also have seen the witness Bhajan. The first information is a comparatively short document. It had of course been read over to the jury when it was exhibited. The Judge gave a precis of it at the beginning of his charge, and he pointed out that it contained no mention whatever of six of the accused, and that it named only two out of four of the alleged eye-witnesses. The third witness in the first information was one who says he saw the accused persons running away. The Judge informed the jury that the hour of occurrence was 10-30 a.m, and that the first information was given at 1-15 p.m It is entirely a matter of opinion whether the interval of 2½ hours before the occurrence was reported at the thana five miles away was an undue delay. It is also a question of opinion whether in the circumstances the informant must have seen the other accused if they “were there, and also the witness Bhajan. It is not possible to say whether that point had been urged by the defence or was present to the mind of the Judge. I cannot find in the deposition of either of these persons that they were cross-examined on the question whether they had seen each other. The Judge did point out that Bhajan's name was not in the first information. It will be convenient at this stage to deal with certain other points urged regarding the informant and Bhajan. The Judge pointed out to the jury that in court the informant added to the story told by him in the first information report, and that he had said that he mentioned these additional details to the Head Constable who recorded the first information report. The Judge also pointed out that the Head Constable denied omitting anything of importance. He also informed the jury that the Daffadar said that he had accompanied the informant to the thana, where he heard the informant objecting that certain important points had been omitted by the Head Constable. It is argued that the jury ought also to have been told that the Daffadar admitted that he had not made such a statement to the Sub-Inspector or to the Magistrate. The heads of the charge cannot contain everything that was said, and the Judge has recorded that he told the jury what the informant, the Head Constable and the Daffadar said on this point. Moreover, the really important point for the consideration of the jury was that the informant omitted to mention these additional details; and the Judge did tell the jury that the Head Constable denied that the informant had mentioned them to him. It was argued that the jury should have been told that Bhajan was a creature of Kamta, Mathura's father. This is based on Bhajan's evidence that he was accused with Kamta some four or five years ago in a case brought by Mathura's servant; and that there had been cases between him (Bhajan) and Mathura, at the time when Mathura was on bad terms with his father. But it also appears from the evidence of P.W 5 that some years ago Kamta had been a co-accused in a case with some of the accused in the present case. I am very doubtful if the Judge would have been justified on the evidence in this case in describing Bhajan as a creature of Kamta. He did mention to the jury the case brought by Mathura's servant against Kamta, Bhajan and others.

Considerable argument centred round the question whether the Judge exercised his discretion properly in allowing the chaukidar (P.W 24) to be declared hostile and cross-examined by the prosecution. The chaukidar reached the thana a quarter of an hour before the informant, and he reported that he had seen two mobs assembling in the village, one headed by Mathura and the other by his brother Sudama. It is unnecessary to discuss the question whether the chaukidar had followed a practice not unknown among chaukidars of going to the thana after the occurrence to report merely that there was an apprehension of a riot, in order to save himself from being blamed for not having stopped it. His report was recorded in the station diary. I agree with the learned Counsel for the Crown that it was the duty of the prosecution to put the chaukidar into the witness-box. The Crown of course did not rely on the truth of this report, but the reverse. Adverse comment would certainly have been made if the Crown had withheld this witness. The defence would have contended that they would be prejudiced if they had to call this witness, and so lose the right of reply. If the prosecution had not called him, the Court would have had to do so, and then he would have been cross-examined by both sides. Before the Magistrate, the chaukidar said that an unknown man had told him that the mobs were collecting and that he should report the matter at the thana. He therefore went to the thana without going to the place of occurrence or making any enquiry in the village. In the Sessions Court he said that an unknown man told him that the mobs were collecting, that he (the chaukidar) saw them from a distance of two or three rasis, and that the man had not asked him to inform the police. When he was first put in the box the Public Prosecutor wanted to declare him hostile, but the Court refused. He was then examined in chief as above, and the Judge, finding that he made statements inconsistent with his evidence before the Magistrate and with his own report to the police, allowed him to be cross-examined by the prosecution. It is contended that there really were no inconsistencies in his statements; that if there were inconsistencies, they were not material and did not show any hostility. Reading the report and the two depositions as a whole (up to the point where he was declared hostile) I am bound to say that the chaukidar had made, if not formally contradictory statements, at any rate essentially inconsistent ones. He reports to the thana that he saw the mobs assembling; he does not mention the unknown man. Before the Magistrate he mentions the unknown man and adds that the latter had told him to go to the police. It is also quite clear to me that when he said that he did not go to the place of occurrence he intended to convey the impression that he had not see a anything. Before the Sessions Court he not only denies that the unknown man asked him to inform the police, but he says that he saw the mobs from two or three rasis. In my opinion it would be far fetched to try to reconcile this latter statement with his former statement that he did not go to the place of occurrence. In view of the fact that he was obviously not a truthful witness; that the prosecution had not put him forward as a truthful witness, but had to call him because his report was the first in connection with the affair and adverse comment could properly have been made if he had been kept back, because his report supported the defence version of the affair; and that the truth of his report was inherently improbable, as he reached the thana only a quarter of an hour before the informant, am of opinion that the provisions of section 154 of the Evidence Act could be applied by the Sessions Judge, and that he exercised his discretion properly in permitting the prosecution to cross-examine the chaukidar.

The facts in the case of Kala Chand Sarkar v. Queen Empress and Fouzdar Rai v. Crown, were entirely different, and the remarks therein appear, to me to have no application to the circumstances now under consideration. The position might have been different had the witness consistently supported the details of his report instead of making practically contradictory statements at different times.

Another point taken was that Exhibit 7 had been improperly admitted. This is a certified copy of a deposition of the deceased Mathura in 1922 when he gave evidence in a money suit against the accused, Bishun, who has been acquitted. It is mentioned in the charge as one of the instances put forward by the grosecution to show enmity between Mathura and Bishun. The copy was produced by the patwari before the police, and he produced it in Court and stated that Mathura gave evidence for the Daffadar in the suit. The document was marked as an exhibit without objection. In a somewhat lengthy cross-examination he was asked one question about this document, namely, whether he was present when Mathura gave evidence and he said he was not. It does not seem to have been contended then that the document was inadmissible and should be removed from the list of exhibits. It is urged that the document was inadmissible, unless evidence was given to prove the identity of the person making the deposition. The case of Maqbulan v. Ahmad Hussain has no application. There the heading of the deposition was held not to be part of the evidence on solemn affirmation. The position is different now. The name, parentage, age, residence and profession of a witness form part of the deposition on solemn affirmation and not part of the heading. In Queen Empress v. Durga Sonar a deposition made by the accused in a previous case was mainly relied on to convict him, and it was held that there was no proof of identity. In the present case there can really be no question of identity. The father's name, residence and profession all tally. The contents of the deposition show that the evidence related to matters in dispute regarding milkiyat right in Alawalpur, in regard to which there is other oral and documentary evidence in the present case. It was argued on behalf of the Crown that the document was admitted without objection, though the witness had not said that he was present when the deposition was given; and that the fact that he said in cross-examination that he was not present did not lead to any objection by the defence that the document was inadmissible. The whole matter appears to be of minor importance. The deposition was so far back as 1922, and it was only one of several instances put forward to suggest motive. If the other more important instances were not considered by the jury sufficient to suggest motive, this document could be of little value. The accused have not been prejudiced by this admission.

Objection was taken to the partition decree (Exhibit 19) being marked as an exhibit during the argument stage. The order-sheet shows that this was done at the instance of the Court, and that it was admitted without objection. The next day an objection was taken that an objection had been made, and the Judge says that if it was made he did not hear it. The Judge had power under section 165 of the Evidence Act to order the production of this document. The point is of no importance. There was a lot of oral evidence on the record regarding this partition, and if the Judge thought it was well to have the actual decree on the record, no prejudice could attach so far as the accused were concerned.

It was argued that the Judge misdirected the jury by telling them as follows:—

“These four witnesses have given a circumstantial description of the assault from beginning to end,”

without also telling the jury who these witnesses were, and the criticisms of the defence affecting their trustworthiness. When dealing with these four witnesses the Judge spoke of them as “professing to be eye-witnesses,” and he mentioned that two of the four were not mentioned in the first information report. But it was contended that he ought to have told the jury that P.W 13 held khudkasht lands under Kamta and Mathura; that P.W 16 had been co-accused with Kamta, a point already dealt with above; that P.W 5 had also been involved in litigation in the dispute between Kamta and Mathura, and that P.W 8 was a tenant of Mathura and Kamta. The Judge did tell the jury that P.W 13 had khudkasht lands settled with him. The above statement of P.W 5 was in examination-in-chief, and we do not know whether the defence relied on it.

Some minor criticisms were made on the charge regarding the question of motive. But in my opinion the charge was adequate on this point.

I am not of the opinion that the charge is onesided. The Judge has avoided expressing his own opinions. The only definite opinion he seems to have expressed is that the chaukidar from his demeanour and his answers was lying. At the same time he told the jury that they were in no way bound to follow his opinion regarding the chaukidar. He pointed out to the jury that the first information contained the names of only three out of nine accused and two out of four eye-witnesses. He set out the case for the prosecution and defence. Before dealing with the events which the prosecution suggested were a motive for the murder, he told the jury that there was nothing about motive in the first information. The jury were also told that they must not be influenced by the fact that the defence called no witnesses; that the case of each accused must be considered separately; and it was suggested that they should not place too much reliance on the evidence of the witnesses assigning infliction of specific injuries to individual accused. Exception has been taken to his remarks that in the course of the trial various red herrings had been drawn across the track, but that the jury would know what value would attach to them. This is the kind of remark that a judge is entitled to make in a charge to the jury. He told the jury to confine their attention to essential facts, and he does not say which, side had drawn red herrings. Probably Both, did. After all “red herrings” is only a colloquial expression for “side issues”.

In my opinion there have been no misdirections in this case which would justify the setting aside, of the verdict of the jury, and I would-dismiss the appeal of all the appellants.

Kulwant Sahay, J.:— I agree. I however desire to say that the heads of charge as recorded by the learned Sessions Judge are defective. It has been repeatedly laid down that the heads of charge ought to shew as to how the Judge explained, the law to the jury. It is not sufficient to say that such and such sections of the Penal Code were read and explained. When the law which the jury has to apply is complicated and not easy of comprehension by laymen, the necessity to shew as to how it was explained to the jury becomes imperative. Moreover mere explanations of the sections of the Penal Code in the words of the Judge without reading out the sections themselves is also undesirable. The sections must be read out to the jury and then explained to them.

In the present case the learned Judge omitted to say whether or not he read out the sections which define unlawful assembly, culpable homicide and murder and if I had any doubt in my mind as to whether the jury properly understood the elements which constitute the crime of which they found the appellants guilty, I would have set aside the verdict. But there were no complications in the present case, the facts were simple and the evidence was clear. The verdict itself shewed that the jury apprehended the law correctly and if they believed the evidence, the conviction under section 302/149 would be proper. It is true that section 300 of the Penal Code is a difficult section and not easy of comprehension by laymen, but the difficulty arises only when the question for consideration is whether the crime was murder or, only culpable homicide not amounting to murder. In the present case, having regard, to the nature of the injuries inflicted on the deceased, such a question could not arise. The crime, if proved, would be murder.

I agree that no such misdirection or non-direction or illegality has been pointed to us which would justify us in setting aside the verdict. Learned Counsel for the appellants has placed before us portions of the evidence which he says ought to have been placed by the Judge before the jury. If it was open to me to consider the evidence in the case and to come to a finding of my own as regards the guilt of each of the appellants individually, I might have come to a different conclusion. But the law does not permit me to do so and I am unable to say that the Judge did not place the evidence fairly and fully before the jury or that the evidence was such that the view taken by the jury could not reasonably be taken. I am, therefore, constrained to dismiss this appeal.

Appeal dismissed.