Jenkins, C.J:— Upendra Nath Das was tried at the last Criminal Sessions of this Court before. Stephen, J., and a special jury on charges under secs. 302, 304 and 326 of the Indian Penal Code. The jury found the accused guilty under sec. 302 by a majority of 8 to 1. The learned Judge agreeing with them gave judgment in accordance with the opinion of the majority and sentenced the accused to death.

The Advocate-General subsequently on the representation of the accused's counsel as to the direction given by the learned Judge in his charge to the jury purported to grant a certificate under cl. 26 of the Letters Patent. Certain alleged errors of decision on points of law were attributed to the learned Judge, but when the case came on for argument it was found that in some respects the certificate was in direct conflict with what was stated by the Judge, and in other respects was manifestly unsustainable, or failed to formulate the accused's real grievance as placed before us by Mr. Norton on his behalf. It has been decided by the leading case of Reg v. Pestonji Dinsha that the statement of the Judge who presides at the trial is conclusive, and accordingly Mr. Norton was, on his own application, allowed to apply for a fresh certificate that might be in conformity with the learned Judge's statement, and might also give effect to the accused's real grievance to which I have already alluded. This grievance was in substance that the learned Judge had directed the jury that he could not see evidence that would establish any of the exceptions set forth in sec. 300, I.P.C, when in fact there was such evidence. The Advocate-General has now granted a fresh certificate which is in these terms:—

“I certify that in my judgment the following points of law were erroneously decided by the learned Judge and should be further considered by the High Court under the provisions of sec. 26 of the Letters Patent of 1865.

“That the learned Judge told the jury that he ‘did not see that there was any evidence of any of those provided for’ (meaning exceptions to sec. 300, I.P.C) thereby

“(a) wrongly withdrawing from the jury the charge of culpable homicide not amounting to murder under sec. 304, instead of leaving the case to the jury upon that charge; and

“(b) wrongly omitting to explain to the jury that they were the sole judges of the evidence and that notwithstanding his expressed opinion it was competent to them upon the facts to find a verdict under sec. 304; and

“(c) thereby misdirecting the jury.

“2. The learned Judge ‘mentioned the existence of exceptions such as self-defence’, but omitted to explain to the jury the application of the exception of provocation to the facts of the case, thereby failing to comply with sec. 297 of the Criminal Procedure Code.

“3. That the jury not being unanimous and having returned a majority verdict only on the charge under sec. 302, I.P.C, the learned Judge erred in law in not taking their verdict on the charge under sec. 304, inasmuch as in the event of a unanimous verdict under sec. 304 the majority verdict under sec. 302 could not legally have been accepted.

“G.H.B Kenrick,

“Advocate-General, Bengal.”

The certificate of an Advocate-General is naturally entitled to respect: the Letters Patent require that it should reflect the judgment of the Advocate-General and not a mere surmise, and the certificate is presumably granted, in the interests of justice after a careful consideration of all available materials. Here the error ascribed to the Judge obviously depends on the evidence in the case, and until that is perused, it is difficult to see how the Judge can be said to have erred in directing the jury as to its effect. I therefore feel, Mr. Norton must have been under some misapprehension when he stated to the Court that no note of the evidence was read by or to the Advocate-General before he grant ed his certificate. But whatever may have been done, the certificate has been granted and we therefore have to deal with the case.

The first paragraph of the certificate imputes to the Judge—(a) that be withdrew from the jury the charge of culpable homicide not amounting to murder and so forth and (b) that he wrongly omitted to explain to the jury that they were the sole judges of the evidence and so forth. The learned Trial Judge positively and definitely denies the accuracy of these allegations and this denial is conclusive.

The 2nd para, complains that the learned Judge omitted to explain to the jury the application of the exception of provocation to the facts of the case. But the learned Judge was of opinion that there was no evidence of any of the exceptions enumerated in sec. 300, and among those exceptions is that which I will for brevity call grave and sudden provocation. So that in plain language what we have to see is whether the Judge misdirected the jury when he said he did not see there was any evidence of any of the exceptions. To arrive at a conclusion as to this it is necessary to see what the law is as to culpable homicide.

Sec. 299 of the Indian Penal Code provides that whoever causes death by doing an act with the intention of causing death or with the intention of causing such bodily injury as is likely to cause death or with the knowledge that he is likely by such act to cause death commits the offence of culpable homicide.

But culpable homicide is of two degrees it may be murder or culpable homicide nor amounting to murder.

Murder is defined by sec. 300 and four states of mind are there indicated, any one of which is sufficient to constitute murder where death is caused. The precise significance of these four several states of mind is sometimes missed, but there is no reason why this should be, for each mental state is aptly explained by one or other of the four several illustrations appended to the section.

But then the section goes on to formulate five exceptions any one of which suffices to reduce the degree of criminality from murder to culpable homicide not amounting to murder. These exceptions substantially are those cases—(1) where the offender is deprived of the power of self-control by grave and sudden provocation, (2) where the offender exercises the right of private defence in good faith, (3) where the offender is or aids a public servant acting for the advancement of public justice, (4) where there is a sudden fight and so forth, and (5) where the victim consents.

Culpable homicide may therefore not be murder, (1) where notwithstanding the mental state it is sufficient to constitute murder still one of the exceptions applies, or (2) where the mental state though within the description of sec. 299, is not of the especial degree of criminality required by sec. 300. The law on this subject is fully expounded in Queen v. Gora Chand Gope(2) and in Reg v. Govinda(3) and in relation to the cases falling within the second of the above categories the essential differences are indicated by the contrast in the language or secs. 300 and 304. It is then erroneous to suppose that a case cannot be left to the jury under sec. 304, if the exceptions enumerated in sec. 300 are held not to apply in the circumstances of the case, and it is this erroneous view and the fallacy founded on it that have been the foundation of much of the argument before us. The learned Judge could, and he conclusively assures us he did, leave the case to the jury under sec. 304, though he told them he could see no evidence that would establish any of the exceptions. The duty of the Judge in a trial with a jury is defined by sec. 297 of the Criminal Procedure Code, which provides that the Judge shall proceed to charge the jury summing up the evidence for the prosecution and the defence and laying down the law by which the jury are to be guided.

The Judge's duties are further elaborated under sec. 298 and include the duty to decide all questions of law arising in the course of the trial.

It would therefore come within the duty of the Judge to determine whether any evidence had been given on which the jury could properly find the question for the party on whom the onus of proof lies, for that is a question of law.

We have heard much of a scintilla of evidence and its paralysing effect on the power of the Judge to assist the jury: that is, an argument that might possibly have possessed some force in the early part of the last century. But the scintilla theory is now exploded.

It is not enough to say that there was some evidence. A scintilla of evidence clearly would not justify the Judge in leaving the case to the jury. There must be evidence on which they might reasonably and properly conclude the fact to be established: Ryder v. Wombwell(4). This case was quoted with approval in The Directors, etc., of the Metropolitan Ry. Co. v. J.J Jackson(5), where Lord Blackburn said: “It is for the jury to say whether and how far the evidence is to be believed. And if the facts as to which evidence is given are such that from them a further inference of fact may legitimately be drawn, it is for the jury to say whether that inference is to be drawn. But it is for the Judge to determine, subject to review, as a matter of law, whether from those facts that further inference may legitimately be drawn”. It is true that these remarks were made in a civil case, but they are of universal application.

How then do matters stand as to this question of grave and sudden provocation? It is an exception, and the burden of proving the existence of circumstances bringing the case within the exception was upon the accused, and the Court had to presume the absence of such circumstances, that is to say, it had to regard the absence of such circumstances as proved unless and until the contrary was proved. (Evidence Act, secs. 105 and 104.) To apply this to the circumstances of this case the Court was bound to regard the absence of grave and sudden provocation as proved until the contrary was proved. It is admitted that there is absolutely no direct evidence proving grave and sudden provocation and this is amply shown by the notes of evidence, the whole of which was read out to us.

But it is said there is circumstantial evidence, and so it has to be seen whether the Judge was entitled to hold as a matter of law that there were no facts from which the inference of grave and sudden provocation could legitimately be drawn.

In Wills on Circumstantial Evidence, 5th Edition, p. 361, it is said that the distinct and proving power of circumstantial evidence depends upon its incompatibility with any reasonable hypothesis other than that of the truth of the principal fact in proof of which it is adduced, and this statement has been incorporated into the judgment of Hill, J., who delivered the principal judgment of the Full Bench in Emperor v. Imam Ali Sircar(6).

In approaching the question whether the Judge rightly decided as a matter of law that there was no evidence, of any of the exceptions, it is relevant to consider how the accused's case was placed before the Court, for I think this may fairly and properly be taken into consideration.

The conduct of a case by counsel is not a negligible factor even in a Criminal Court, though it may not necessarily conclude the accused, and that it is not without its influence, is forcibly illustrated by the judgment of the Lord Chief Justice in The King v. Bridgwater with which all the Judges hearing the case concurred.

It is admitted by Mr. Norton who appeared for the accused at the Sessions that the case he made was that his client had no hand in the killing of Jamini, and that he never suggested and certainly never argued that the exception of grave an sudden provocation had any application to the case. He has very fairly stated before us that to have advanced the defence of grave and sudden provocation would have been in conflict with his instructions. His argument in the Sessions Court was that the case was one of murder or nothing, and he pressed upon the jury their responsibility if they convicted the accused of the offence of murder on what he regarded as the meagre and unsatisfactory testimony before the Court. This may be a very potent argument when skilfully handled before a Calcutta jury and no one would be a better Judge of its value than Mr. Norton. The whole of the evidence has been placed before us, and I can find nothing in the cross-examination of any of the prosecution witnesses that is not in harmony with this.

When the Judge summed up, he expressed his inability to see any evidence that brought the exceptions in sec. 300 into play, and though this was; done in the presence of counsel for the accused, no protest was advanced nor was any suggestion made to the Judge of a defect in his charge or of a disregard of any of the lines of defence.

In the argument before us, it is candidly admitted that the real purpose even now is not to have it adjudged that there was grave and sudden provocation and so to have the quality of the offence reduced, but to obtain a decision that no crime at all has been proved against Upendra Nath Das: in other words, to obtain a decision, which would of necessity negative the theory of grave and sudden provocation as applied to him.

The accused apparently made no statement in the Sessions Court, but his statement before the Committing Magistrate was: “I know nothing about this matter—what shall I say about it?”

I think then, in view of all these circumstances, it may fairly be said that, grave and sudden provocation was no part of the defence case in the Sessions Court, and this, I think, has to be borne in mind when estimating the propriety of the Judge's intimation that he did not see, that there was any evidence of the exceptions.

In my opinion, this decision in the circumstances was right, and I think the Judge correctly laid down the law.

In the absence of any direct evidence of grave and sudden provocation or of facts from which this exception could be legitimately inferred—for I hold that there was no such facts—it would in my opinion have been an error on the part of the learned Judge to have laid down the law as to a matter, which was not legally and not properly before the jury. Where a trial for culpable homicide is proceeding before a jury, it is not an appropriate-mode of laying down the law to discourses on all branches and departments of this complicated topic of crime; to do so is, I think, calculated to confuse the jury, and possibly to direct their deliberations into channels that have nothing to do with the case. The duty of the Judge is (in my opinion) to lay down the law in reference to the case presented to the Court and the facts of the case, and not to perplex the miads of the jury with considerations that are outside the legitimate scope of the enquiry. It is, I think, the duty of the Judge to keep the jury within proper limits and for this purpose to simplify as far as he can the issues fairly and properly before the Court, and direct the minds of the jurors to those issues and those issues alone.

To apply these remarks to the facts of this case, the Judge was, I think, justified on the evidence and on the facts before him in excluding enquiry into the exceptions, for their applicability had not been made even the matter of conjecture or surmise before him—much less the subject of proof or positive defence.

There is authority in this Court which fully supports the view taken by the Judge at the trial. In Queen v. Hurt Giree(8), if was said that to give the accused the benefit of exception 1, it ought to be shown distinctly not only that the act was done under the influence of some feeling which took away, from the accused all control over his actions, but that feeling had an adequate cause.

And in Jamsheer Sardar's case, it was ruled, in regard to the exception of private defence which stands on the same footing, that it must, be supported by evidence-giving a full and true account of the transaction, from which the charge against an accused person arises. “No accused person”, it is said, “can at the same time deny committing an act and justify, it. The law does not admit of justification by putting forward hypothetical cases: it must be by proof of actual facts”. No case is reported which throws a doubt on these decisions. It is not however necessary for me on this occasion to go to the whole length of this last decision, for I am content to hold on the general principles I have endeavoured to formulate that there was no error in anything decided at the trial in reference to grave and sudden provocation.

But there is another erroneous decision imputed to the learned Judge by the certificate and it is expressed in these terms:

“That the jury not being unanimous and having returned a majority verdict only on the charge under sec. 302, I.P.C, the learned Judge erred in law in not taking their verdict on the charge under sec. 304, inasmuch as in the event of a unanimous verdict under sec. 304, the majority verdict under sec. 302 could not legally have been accepted.”

I have no hesitation in holding that the law, as propounded in this paragraph, is erroneous. It was hardly made the subject of serious argument before us, and it could not be, for it is manifestly opposed to the law.

The result then is that the certificate granted is misconceived: in part it is opposed to the learned Judge's conclusive statement of what occurred and in no respect can I find that it discloses an error in the decision of a point of law decided by the Judge at the trial.

In this view of the case, it is not within my power to re-open the case, and I regard myself as not entitled to express any opinion as to its merits. In fact, I am not in a position to deal with the merits; for they have not been discussed before us, nor have those conditions been established on which alone they could be considered by us.

Our powers, are circumscribed, for we can only act in conformity with cl. 26 of the Letters Patent. If there was no misdirection or other error as certified, the certificate was misconceived, and we have no power to interfere.

If the merits of the case or the sentence are to be further considered, then that must be not by this Court, but by some other authority vested with the requisite power.

Stephen, J.—I agree generally with what the Chief Justice has said: but I wish to add a few words, rather to explain the course that I took in this case, than to prove that it was correct according to decided cases that were not in my mind at the time I took it.

The error in my proceeding certified by the Advocate-General is, as I understand it, substantially that I omitted to direct the attention of the jury to a defence that might have been raised on the facts proved in the trial. This defence was that though the facts proved might show that the accused had killed the deceased in such circumstanced that his act fell under one of the first four paragraphs of sec. 300, I.P.C, yet they might be taken as showing that it also came within the scope of exception 1, and that if the jury thought that this was so, the offence would be reduced from murder to culpable homicide not amounting to murder. Instead of doing this, I “omitted to explain to the jury the application of the exception of provocation to the facts of the case”, which is a correct statement of what I did, in that I advisedly did not tell the jury that grave and sudden provocation had anything to do with the casa.

If I omitted to draw the attention of the jury to any matter, a consideration of which might properly lead them to return a verdict of culpable homicide not amounting to murder, instead of murder, I no doubt committed an error, though the defence did not suggest the existence of any such matter. If however I had told the jury that the existence of grave and sudden provocation had anything to do with the case, it would have been my duty to point out to them the evidence that supported the exception, since in laying down the law it is the duty of the Judge to show how the law applies to the facts on the record. This would have been impossible, as I had no doubt that there was no such evidence in the case: for the absence of any evidence as to the circumstances immediately preceding the killing of the deceased is not by itself a fact from which the jury could properly infer the existence of the circumstances constituting provocation. In order to establish the existence of grave and sudden provocation, it would have been necessary to put a supposititious case before the jury, by which I mean a case founded on suppositions as to facts and not on evidence. In my opinion, it would be a serious error on the part of a Judge to do any such thing. If I was wrong in thinking that there was no evidence on which the jury could properly find the existence of grave and sudden provocation, again I was in error. But on reconsidering the matter, I am of opinion that I was not, wrong in taking the view that I did.

I have said that absence of evidence was a fact from which the jury could not properly infer provocation, for I consider tint the propriety and not the possibility of an inference is the test by which a Judge should decide, whether or not he should suggest a case for the consideration of the jury on his own initiative. A Judge always puts any case to the jury which is seriously made on behalf of the accused, even though he may consider it unfounded or even absurd. But he fails in his duty if he makes a case himself on which he thinks the jury cannot properly convict. For to do this is to mislead the jury.

These were the general considerations which caused me to act as I did. And in so acting, I have no doubt that, I was acting in accordance with the rules followed by Judges in England in charging juries, and I believe, that the same rules have always been followed by Judges in this Court and in the Mofussil. And I have no doubt that these rules should be followed here: for the law as to murder, and its reduction to manslaughter or culpable homicide, are practically the same here, that they are in England. In England, manslaughter is rightly not charged in addition to murder, unless it is thought that it ought to be considered as a specific offence. And if it is not charged, a Judge does not refer to it unless it is alleged, or is in his opinion indicated by the facts proved. The view of the law indicated by the Advocate-General implies that the Judge is to perform the functions that are properly performed by defending counsel—a course which would be fatal to the proper discharge of his duty.

In conclusion, I may state the following propositions, which I consider elementary, but which seem to have been lost sight of in this case. It is the duty of a Judge to make a case for the accused on which he thinks that a verdict of not guilty may be properly returned, though the case has not been suggested by or on behalf of the accused. It is the duty of defending counsel to make the Judge aware of any case that he considers may be made on behalf of the accused though he has not made it himself. When defending counsel hears a Judge omit in summing up a point that he considers may be made on behalf of the accused, it is a dereliction of duty on his part not to bring the point to the notice of the Judge.

Woodroffe, J.—As regards cl. (1) of the certificate, the allegations there made are not in accordance with the learned Judge's statement. Mr. Justice Stephen says that he neither directed the Jury that there was no evidence of grave and sudden provocation, nor did he say that he himself saw no such evidence, that is, I understand, this exception Was not specially named in this connection. Further, so fair as it refers to grave and sudden provocation, this point is affected by the remarks made later as regards that special defence. The point here taken, therefore, fails. The ground in cl. (3) also, in my opinion, fails. If there were 8 to 1 in favour of a verdict of murder, there could not be in law a unanimous verdict of culpable homicide not amounting to murder. And if such a verdict had been returned, it would have shown that the jury did not understand the law. Stephen, J., tells us that under his orders no verdict was taken on the second and third counts. The trial was, therefore, in this respect in order.

There remains then the ground in cl. (2). Stephen, J., tells us that he said to the jury there were exceptions, but that he need not tell the jury about them, and that he said this, because, in his opinion, there was, in fact, no evidence of grave and sudden provocation or other case within the exceptions.

The question then resolves itself into this; was there or not such evidence upon the depositions which have been read to us? It is to be observed in the first case that no such defence was raised by the accused or his experienced counsel. I am not prepared to hold as a general proposition of universal applicability that a Court cannot and should not consider a case in favour of the accused, which he has not raised. For such a case may properly arise on the prosecution evidence, and if it did, I myself should put it to the jury for their consideration, whatever line might hare been taken by the accused, or his counsel. But on the question whether an inference does arise in favour of the accused, the fact, that a particular defence has or has not been taken, may affect the significance of the evidence given. Mr. Norton has argued that if the learned Judge had dis cussed this question of grave and sudden provocation, it is possible the jury might have arrived at a different verdict. I cannot say, that this is impossible; For juries are sometimes ready to seize any point, which may relieve them from a verdict possibly involving a capital sentence. But what we have to see is whether the learned Judge was bound in law to do so. I hold that the alleged error of law is not established on the ground, firstly, that this special defence was not raised by the recused, and, secondly, that reading the evidence in the light of that fact, it cannot be said to be such as to have cast on the Court the duty of asking the jury to consider whether the evidence disclosed circumstances which would have established such a defence had it been specifically raised.

There is indeed an air of unreality about the contention. Mr. Norton does not even now ask us to hold that his client committed the act charged under grave and sudden provocation. What he asks us to do is to hold that there was a misdirection on this point, which would enable him to argue the case on the facts, to show that the accused never committed the act at all, and that he has been found guilty of the offence with which he was charged on practically the testimony of a single witness whose evidence he impugns. With the merits, however, we are not concerned until it is established that there has been an error in law which opens out the case for our judgment. The same ground precludes me from dealing with the question of sentence, which may arise on the facts above stated, and the possibility, if the verdict be correct, of the act having been committed without pre-meditation on a sudden access of passion. This is, however, a matter for the Crown to consider I can only hold that no error of law has been shown which entitles me to re-open a verdict or to consider a sentence which has already been passed.

Mookerjee, J.— On anxious consideration of the arguments addressed to us in this matter, I have formed the opinion that the application for review must be dismissed. The reasons for this conclusion are identical with those stated by Woodroffe, J., in the judgment he has just read, and I shall accordingly touch briefly upon the main points in issue.

It is well settled that when the Court is called upon to review a case under cl. 26 of the Letters Patent, it will accept as unquestionable the statement of the Trial Judge as to what actually took place before him: Reg v. Pestonji, Reg v. Grant(10), Everett v. Youells(11), Gibbs v. Pike(12) and Reg v. Mellor(13). From this point of view the certificate granted by the Advocate-General must be deemed to have been passed in part on a misapprehensioa of the facts: the two questions which remain for consideration are, first, was it misdirection not to explain to the jury the scope and effect of the first exception in sec. 300 of the Indian Penal Code, and, secondly, was Stephen, J., bound to take the verdict of the jury on the second count, namely, that of culpable homicide not amounting to murder? As regards the first point, it is to be observed that sec. 297 of the Criminal Procedure Code requires the Judge to charge the jury, summing up the evidence for the prosecution and defence and laying down the law by which the jury are to be guided. In the present case, it is not disputed that the Judge did lay down the law, but it is argued that his exposition of the law was imperfect, as he did not explain to the jury the bearing of the first exception in sec. 300. I do not think, it can reasonably be maintained that the expression “lay down the law” signifies “lay down the whole law on the subject, irrespective of the facts of the particular case before the Court”. If this view were not adopted, the inference would follow that in every case where an accused is charged with an offence, say the offence of murder, it would be incumbent upon the Trial Judge to lay before the jury an exhaustive commentary on the law of murder in all its possible aspects: he would thus have to deal with matters entirely foreign to the enquiry before the Court, and the jury would be distracted by the discussion of legal questions which could be of no assistance in the solution of the problem laid before them. The reasonable construction of sec. 297 of the Criminal Procedure Code is that the Judge should lay down the law, only in so far as it bears upon the evidence adduced in the particular case; as has been said, all unnecessary and extraneous discussion and argument should be avoided by the Judge, and the summing up should be strictly confined to the evidence adduced and the mode of application of the law to such evidence: Queen v. Nobokisto Ghose(14). The case of Emperor v. Mahomedkhan Sultankhan, to which reference has been made on behalf of the prisoner, is really not opposed to this view. Consequently, the mere fact that Stephen, J., did not explain to the jury specifically the effect of the first exception in sec. 300, does not show that there has been a misdirection. The Petitioner has to establish that the question of grave and sudden provocation did require consideration in the circumstances of this case. I am unable to hold, upon the notes of the evidence which have been read to the Court, that the question did properly arise at all. The trend of the cross-examination of the prosecution witnesses points unmistakably to the conclusion that the case for the defence was that the accused was not in the house when the woman was killed: the defence, presented by an able and experienced counsel, was that the case was one of murder or nothing at all. It was never hinted before the Trial Judge that the case might possibly be one of grave and sudden provocation. Indeed, even in this Court although it has been strenuously urged that the Judge should have invited the attention of the jury to the first exception in sec. 300, counsel for the prisoner has frankly intimated that if he can induce the Court to hold that there has been a misdirection and then to examine the case on the merits, he would argue, not that the accused was guilty of the offence of culpable homicide not amounting to murder, because the case fell within sec. 300, Exception 1, but that the accused has been falsely charged and has had no hand in the commission of the crime. Such a position as this seems to me to be entirely untenable. I wish, however, to dissociate myself from the proposition that the mere fact that counsel for the accused has failed to present to the Court a particular aspect of the case, can justify an omission on the part of the Judge to draw the attention of the jury to what appears to be a possible answer to the charge against the accused even on the prosecution evidence: it would be the duty of the Judge, in my opinion, to draw the attention of the jury to such possible view of the case on the evidence, notwithstanding that it may have escaped the counsel for the accused. The question, consequently, arises, whether on a fair and reasonable reading of the evidence, we can say in this case that the question of grave and sudden provocation did require consideration, and should have been put to the jury. I am of opinion that the answer must be in the negative. The counsel for the prisoner has dwelt on his past history and his relation with the deceased woman and has put forward a plausible and possibly a captivating theory that he could not have killed her except under grave and sudden provocation. It is not disputed that there is no direct evidence on the point, and although circumstantial evidence might, be sufficient to justify the plea if taken, I see no answer to the very forcible argument of the Standing Counsel that to determine whether there was or was not evidence to go to the jury, regard must he had to the whole course of the proceedings in the Trial Court We cannot further overlook the provisions of sec. 105 of the Indian Evidence Act, illustration (b) whereof has an obvious application to this matter. From these points of view, I think, Stephen, J., was fully justified in the opinion he expressed, namely, that none of the exceptions in sec. 300 (it is immaterial that he mentioned specifically only one) had any application to the case. It is erroneous to say that he withdrew from the jury the charge under sec. 304; that charge remained, and it was open to the jury, if they were not satisfied as to the existence of any of the four alternatives specified in the substantive portion of sec. 300, to return a verdict of not guilty on the first count and guilty on the second count. What Stephen, J., omitted to do was to lay down the law ??? to grave and sudden provocation: this omission did not constitute misdirection in the circumstances of this case. As Lord Alverstone, C.J, said in Rex v. Stoddart(16), quoting with approval the words of Lord Esher, M.R, in Abrath v. N.E Ry. Co.(17), mere non-direction is not necessarily misdirection: those who allege misdirection must show that something wrong was said or that something was said which would make wrong that which was left to be understood. Every summing up must be regarded in the light of the conduct of the trial and the questions which have been raised by the counsel for the prosecution and for the defence respectively.

As regards the second point, it is plain that after the majority of the jury had returned a verdict of guilty of murder, they could not possibly, without gross inconsistency, bring in a unanimous verdict of guilty of culpable homicide not amounting to murder. The direction given by Stephen, J., in this respect was obviously right.

In the view I take, no error of law has been established and consequently the Court is not called upon to express an opinion as to the propriety of the conviction and sentence, although, as Woodroffe, J., has pointed out, if the Court could examine the case on the merits, there might be matters for careful consideration.

Holmwood, J.— I desire to express my entire concurrence with all that has fallen from my Lord the Chief Justice as regards the certificate, the law, and the facts, in this case. But I wish to say a few words on the only two points which are now before us.

I have never had any doubt and I still have no doubt that no error of law is committed by a Judge who refrains from directing the jury as to exceptions which have neither been raised nor relied upon by the accused and have no basis in evidence on the record. As to what is necessary to bring a case legally within the exception of grave and sudden provocation, this is very clearly laid down in numerous English and Indian cases of which I need only refer to the case of Hurl Giree.

Where there is no evidence bringing the case directly within any such exception, it would, in my opinion, be a misdirection to ask the jury to come to a finding of fact on a hypothetical state of circumstances which do not bring the case within the exception as a matter of law. Indeed the Court must presume the absence of those circumstances. Sec. 105 of the Evidence Act is imperative.

It would be a most undesirable practice for Judges to put hypothetical defences not taken by the accused before the jury and might cause serious prejudice to the accused. The practice has been condemned both by this Court and by the Allahabad Court: vide Jamsheer Sardar's case and Queen-Empress v. Chakauri(18).

The point seems to me so, elementary as to admit of no argument.

I am unable to understand how the learned Advocate-General raised the point, since he did not and could not certify that; there was evidence sufficient in law to bring the case within the exception of grave and sudden provocation, and until that is established as a matter of law, there is no case to go to the jury whose function is only to draw the further inference that the provocation found to exist in law is sufficiently grave and sudden to cause the accused to lose the power of self-control. This was really the only point that was seriously contended before us.

As regards the point which was raised as to the necessity of taking a verdict on the charge of culpable homicide not amounting to murder, when the original verdict on the charge of murder is only a majority verdict, the contention is clearly contrary to the plain provisions of the Code. Sec. 305 is mandatory. If the Judge agrees with the opinion of the majority of the jury, he shall give judgment in accordance with such opinion. On a verdict of murder being given, it is certainly not competent to the Court to take any verdict on the lesser charge of culpable homicide.

It would not only be superfluous but impossible, since if the jury found the accused guilty under the murder charge, it would negative the verdict of murder, and the same result would follow on a verdict of “not guilty” of culpable homicide, it is admitted that to take a verdict on the charge under sec. 326 would have been superfluous. A majority verdict with which the Judge agrees has exactly the same legal force as a unanimous verdict, and if it be a verdict of murder, the Court cannot go behind it and take any further verdict upon the facts which have been found by the jury to amount to murder.

I am therefore of opinion that no error of law has been established.

Mr. Amiya Nath Mukherjee, Solicitor (with Babu Gout Ch. Pal), for the Accused.

Mr. J.T Hume, Public Prosecutor, for the Crown.

J.N.D