1. Per Curiam:— The Assistant Judge's charge to the jury is very unsatisfactory. The charge against the prisoners wasof a serious character, viz., that they had forged a valuable security and had used it as genuine in the coarse of certain judicial proceedings. The case arises under the following circumstances. One Imambu kom Mohidin charged Mira walad Gajbarsab, Mahomed walad huseinsab and Bapuji walad Mahomed under ss. 454 and 384, Indian Penal Code, before the Second Class Magistrate, Hukeri.
2. In the course of this trial a yadi was produced by the accused, showing that the parties, including Imambu's deceased husband, Had been members of a joint, family and had lived and messed together, and that on the death of Imambu's husband they derived their right to the whole property in dispute as survivors, so that Imambu had no right. The Magistrate committed the accused for trial, holding that the yadi had been fabricated by the accused.
3. The defence in the present case have put in a number of documents which, as the Assistant Judge said in his charge, conclusively show that there was no partition among the parties, and that they were in union. It was absolutely the duty of the Assistant Sessions Judge, to give a narrative and history of the case, and to place the facts and evidence in a clear manner before the jury, so as to enable them to grasp the details and come to a right decision. All the facts of prime importance in favour of the accused shoud have bean placed before the jury. Nothing in the heads of charge indicate that this duty was discharged by the Assistant Sessions Judge. He says in the charge that there is a mass of oral evidence for the prosecution, and another mass for the defence, and then tells them: It may literally be stated that the jury may neglect it all.” This we think is certainly a misdirection to the jury. It is not the duty of the Judge to say that they may neglect any portion of the evidence, That is clearly against the provisions of the law, which says that the jury are to give their verdict upon the whole of the evidence recorded. What is still more extraordinary is, that the jury were told that the evidence put in by the defence was in some cases, notably Exhibits 50 and 51, of such poor quality as to insult the Court before which it was produced. This direction coming after the Judge's observation that the documents put in by the defence conclusively disproved partition was apt to mislead the jury. All that he could properly state was, how the evidence stood, whether in his opinion it was credible, pointing out at the same time the points which especially told in favour of the defence. Instead of that his direction practically amounts to a direction that the jury were bound to reject most of the evidence. The Judge then goes on to say that the jury can weigh this evidence, but that their attention should be concentrated upon the documents put in, upon which, he says, all turns, and which, he says, are sufficient to decide the case. This again amounts to asking the jury to decide the case on a portion of the evidence, and reject the rest, and not to apply their mind to it as a whole.
4. We think a charge of this kind is materially defective, and amounts to a misdirection of law, which has led to an erroneous verdict. We must go, therefore, into the evidence, and see if the verdict of the jury can ba sustained. As to this the learned Government Pleader, with his usual fairness, has admitted that if we consider the evidence the conviction can not be upheld. The documents put in by the defence are of such a character that they show that the parties did live in union. In particular we may mention the production of a plaint wherein the undivided state of the family is admitted by the opponents of the accused at a date subsequent to the document alleged to be forged. It is, therefore, impossible to say that the document in question was forged and not genuine. In a criminal case the evidence must be clear to justify a conviction. That element is wanting in this case. We need not discuss the evidence for the prosecution because the learned Government Pleader concedes that the evidence is unsatisfactory.
5. We accordingly reverse the conviction recorded against, and sentence passed upon, the accused Mira walad Gajbar, and direct that he be set at liberty.