Beverley, J.

1. This appeal has been preferred on behalf of fourteenKabulis, who have been convicted by a Jury in the Court of Session at Hooghly,of offences under Sections 148 and 325, read with Section 149 of the PenalCode, and the appeal is preferred on the ground that the verdict is vitiated byreason of misdirection by the Sessions Judge in his charge to the Jury.

2. The fourteen appellants were committed to the SessionsCourt upon the following charges: "First, that you, on or about the 20thday of April 1894, at Bhadresar P. S., Serampore, committed murder by causingthe death of Khan Ghalib, and thereby committed an offence punishable underSection 302/149 of the Indian Penal Code, and within the cognisance of theCourt of Session. Secondly, that you, on or about the same day and at the sameplace by causing death of Khan Ghalib, committed culpable homicide, and therebycommitted an offence punishable under Section 304/149 of the Indian Penal Code,and within the cognisance of the Court of Session. Thirdly, that you, on orabout the same day and at the same place, were members of an unlawful assembly,being armed with deadly weapons, the common object of which was, by means ofcriminal force, to compel Mir Azad to pay money, which he was not legally boundto do, and to use criminal force on Mir Azad and his party, and did inprosecution of the common object use criminal force, and thereby committed anoffence punishable under Section 148/149 of the Indian Penal Code and withinthe cognisance of the Court of Session. Fourthly, that you, on or about thesame day and at the same place, voluntarily caused grievous hurt to Khan Ghaliband Khan Sadik, and thereby committed an offence punishable under Section 325/149of the Indian Penal Code, and within the cognisance of the Court ofSession."

3. In the course of the trial in the Sessions Court, at theclose of the case for the prosecution, the Sessions Judge, under the provisionsof Section 227 of the Code of Criminal Procedure, amended the third head of thecharge by adding a sentence in the alternative, as to the common object of theillegal assembly. The charge as amended runs as follows:

Thirdly, that you, on or about the same day and at the sameplace, were members of an unlawful assembly, being armed with deadly weapons,the common object of which was either (1) by means of criminal force to compelMir Azad to pay money, which he was not legally bound to do, and (2) to usecriminal force on Mir Azad and his party, or else to punish Khan Ghalib forhating enticed the wife of one Sher Ali, and did in prosecution of the commonobject use criminal force and thereby committed an offence punishable underSection 148/149 of the Indian Penal Code and within the cognisance of the Courtof Session.

4. It may be pointed out that none of the charges is veryaccurately framed. As regards the first, second and fourth heads there isnothing beyond the mere mention of Section 149 of the Penal Code to show thatthe accused were charged. with the offences therein named by virtue of theprovisions of that section. In order that those charges may be intelligible,they must be read together with the third head of the charge, in which alonethe accused are directly charged with being members of an unlawful assemblyacting in prosecution of a common object.

5. As regards the third head of the charge the mention ofSection 149 is meaningless, unless it is thought that where some members onlyof an unlawful assembly are guilty of rioting armed with deadly weapons, allthe members of such assembly may be convicted under Section 148 by virtue ofthe provisions of Section 149.

6. The Jury acquitted the accused on the first and secondheads of the charge, and convicted them on the third and fourth heads. Theverdict, as recorded by the Sessions Judge, runs as follows:

Verdict of the Jury.

On the first charge, that of murder, we find all the accusednot guilty.

On the second charge, that of culpable homicide, we find theaccused not guilty.

On the third charge, that of noting armed with deadlyweapons, we find* all the accused guilty.

On the fourth charge, that of voluntarily causing grievoushurt, we find all the accused guilty.

7. Mr. Ghose contends that this verdict is vitiated on threegrounds which may be shortly stated as follows:

(1) That the Sessions Judge misdirected the Jury by addingto the third head of the charge an alternative allegation as to the commonobject of the unlawful assembly, and leaving it open to the Jury to convict onthat altered charge, although there was no evidence on the record in support ofsuch allegation.

(2) That the Sessions Judge misdirected the Jury in allowingthem to treat as evidence in the case (i) the deposition of Bepin Behary Soorbefore the committing Magistrate, and (ii) the complaint of one of the accusedat the Serampore thannah.

(3) That the Sessions Judge was wrong in treating as one ofthe admitted facts in the case the alleged giving of information of theintended attack at the Bhadresar outpost on the morning of the day of theoccurrence.

8. We will deal with the two latter points first.

9. As regards the deposition of Bepin Behary Soor, itappears that the witness was ill with small-pox at the time of the trial, andthe Sessions Judge, therefore, allowed his deposition before the committingMagistrate to be put in evidence under the provisions of Section 83 of theEvidence Act. The witness was not cross-examined before the Magistrate. It iscontended on the authority of the case of Pyari Lall ( 4 C.L.R. 504) that thedeposition was not admissible, and we are of opinion that the contention iswell founded. But at the same time, having regard to the provisions of Section537 of the Code of Criminal Procedure, we are not prepared to say that itsimproper admission is sufficient ground for a new trial. The witness merelydeposes to the fact of an affray between certain Kabulis, none of whom he couldidentify. There is plenty of other evidence to the same effect, and it cannot besupposed that this deposition had any effect on the verdict of the Jury asbearing on the guilt or innocence of any of the accused. Seethe concludingremarks of their Lordships of the Privy Council in Makin v. Attorney-General ofNew South Wales (1894) A.C.L.R. 57

10. As regards the complaint made by one of the accused atthe Serampore police station, it has been referred to by the Judge in hischarge as tending to discredit the story told by six of the accused, That storywas that the affray arose out of the refusal of Wafadar Khan and his party topartake of sherbet at the hands of Khan Sadik. The complaint at the Seramporepolice station was made by one of the six accused who set up this story, and itwas wholly silent as to that incident or as to the presence of Khan Sadik atthe time of the affray. We think that the omission to mention thesecircumstances was a relevant fact under Section 11* of the Evidence Act asaffecting the truth or otherwise of the story told by the six accused. And asregards the other accused the complaint does not seem to have been used asevidence against them, and it is not clear to us that they have been prejudicedby its admission in evidence in any way. They are not mentioned in thecomplaint, and the Sessions Judge seems to have told the Jury that theirdefence was not the same as that of Wafadar and the five other accused whoadopted his story,

11. It is not quite correct to say that the Judge treatedthe information given at the Bhadresar outpost on the morning of the 20th Aprilas an admitted fact in the case. On the contrary, the Judge speaks of it as afact depending on the evidence of the Sub-Inspector Akhoy Kumar Chatterjee, andalthough he does intimate his own opinion that it is a fact placed beyond allreasonable doubt, he nevertheless discusses the evidence of the Sub-Inspectorand his diary at length, and expressly leaves it to the Jury to say whether ornot they believe his evidence.

12. We think, therefore, that the second and third groundstaken by Mr. Ghose afford no sufficient reason why we should disturb theverdict in this case.

13. It remains to consider whether the amendment of thethird head of the charge, coupled with the remarks of the Sessions Judgethereon, amounted in law to a misdirection, and, if so, whether this Courtought to reverse the verdict and to order a new trial.

14. The fourteen appellants are all charged with havingacted with the same common object; and it is obvious that they could not beconvicted of any offence by virtue of the provisions of Section 149 of thePenal Code, unless that offence was committed in prosecution of the commonobject of all the accused. Queen v. Surroop Chunder Paul 12 W.R. Cr. 75. Nowthe common object alleged by the prosecution was (1) by means of criminal forceto compel Mir Azad to pay money which he was not legally bound to pay, and (2)to use criminal force on Mir Azad and his party.

15. The Sessions Judge appears to have thought that theforcible levy of the small amount of money that was in dispute was aninadequate motive for the murderous attack of Wafadar and his party. He thoughtthat something had been concealed or not truly told, and that there were factswhich seemed to point to a different motive. He accordingly amended the thirdhead of the charge by inserting the allegation of another and a differentcommon object, and he inserted it as an alternative. That common object soinserted was stated to be "to punish Khan Ghalib for having enticed thewife of one Sher Ali."

16. In dealing with this matter the Judge charged the Juryas follows:

The first object is that which is definitely alleged by theprosecution. The second or alternative object is not alleged by theprosecution. If, however, you are convinced that the story of Wafadar and hisparty coming to the house and of their beating Khan Ghalib in such a way as tocause death is true, it will not be an unfair or unjust inference to make fromthe statements of some of the accused themselves, corroborated as it is by theevidence of some of the witnesses for the prosecution that Khan Ghalib isliving with a woman who was Sher Alis wife, and whom he is not proved to havemarried, that the common object of the band was to punish Khan Ghalib forenticing Sher Alis wife. Whether you should draw that inference or not is amatter entirely for you to decide. I only point out that it is an inferencethat is possible on the evidence.

I have stated that the first information given by MirAbdullah, directly after the disturbance, differs in one particular from thestory now told. The name of the person, to whom Mahomed Amir is said to havelent the money, is stated in the first information to be Afzal Khan. The PublicProsecutor thinks that is only a mistake for Mir Azad-a mistake caused by thedifficulty of catching the exact pronunciation of names as made by these upcountry men, of which you had many illustrations in Court. That is anexplanation which might be accepted in default of any other, were it not forthe fact that, among the persons living in Abdullahs lodging, there is onewhose name is given by Mir Abdullah in Court as Mir Afzal Khan. Afzal Khanis much more likely to be a mistake for Mir Afzal Khan than for Mir Azad. Ifthis view is correct, there is still greater room for doubt whether the storyabout Mahomed Amir entrusting Azad with the collection of his dues is correct.I have, however, before pointed out that money matters were even before theriot referred to as the cause of animosity on Wafadars part. I have alsopointed out that Mir Abdullah had hardly time for concocting an altogetherfalse story, and that he was more likely to have distorted a true story. Theseconsiderations raised in my mind a suspicion whether the person to whom MahomedAmir entrusted his collections was not Khan Ghalib himself. If that were so,the variation as to Afzal and Azad would be accounted for, viz., by the desireto avoid all mention of Khan Ghalib, whose adulterous intercourse, if there wassuch, it would be natural for his friends to endeavour to screen. It wouldperhaps account for the conduct on the part of Wafadar and his companions. Theydid not want him to collect Mahomed Amirs dues, and their object would be bothto prevent him from doing so and to punish him for his behaviour. As I havesaid, however, this is only a suspicion, unsupported by direct evidence, andarising from some of the aspects of the case and of the evidence put forward bythe prosecution. It is not inconsistent with the alternative common objectalleged in the charge.

17. Now upon this matter Mr. Ghose contends (1) that fromthe verdict on this head of the charge it is impossible to say whether the Juryintended to find that the accused acted with the common object alleged by theprosecution, or with that inserted in the charge by the Judge, or with both, orsome with one and some with the other; and (2) that if, and so far as, the Juryintended to find that the common object of the assembly was that inserted inthe charge by the Judge, the verdict is bad, inasmuch as there is no sufficientevidence of any such common object. He contends, therefore, that the verdictmust be set aside.

18. There can be no doubt that the Judges proceeding inthis matter was, to say the least, most unfortunate. If he was of opinion thatthere was ground for charging the accused with a common object, different fromthat alleged by the prosecution, he should have added a separate count orcounts to the charge upon which a separate verdict could have been taken.Section 236 of the Code only authorises a charge in the alternative, when it isdoubtful which of several offences the facts which can be proved willconstitute,-not, as in this case, when there may be a doubt as to the factswhich constitute one of the elements of the offence. The result of the Judgesaction has been, as pointed out, to introduce uncertainty into the verdict upona most material point, and thereby, as we think, to vitiate it. It is to beregretted that the Judge did not even take the precaution to put such questionsto the Jury, under the provisions of Section 303 of the Gods, as were necessaryto make it clear what their verdict was.

19. But Mr. Ghose further contends that the Judge was notjustified in asking the Jury to use the statements of some of the accused asevidence against the others, and in charging all the accused with the commonobject of punishing Khan Ghalib for his adulterous intercourse upon thestatements of some of the accused only and in the absence of specific evidenceon the point. The Judge himself says: "You have in the first place thefact that Khan Ghalib was living with the wife of Sher Ali, a fellow-countrymanof the parties. Whether Sher Ali had divorced the woman and Khan Ghalib hadmarried her, we have no evidence to determine one way or the other; but youhave this fact from the mouth of the accused themselves that Khan Ghalibsbehaviour in living with Sher Alis wife was considered by Wafadar, and thefive others who admittedly accompanied him, to be adulterous, and that itaroused so much irritation and animosity in their breasts that they wouldconsider it an insult to be offered water by Khan Ghalibs son."

20. It is necessary to see what the statements of theaccused and the evidence in regard to this matter really amount to. In hisstatement before the Sessions Court, Wafadar Khan stated as follows: "KhanSadik said to us, Drink sherbet. We all of us said, We wont drink at yourhands. Khan Sadik said, Why not I said, Your father has brought anothermans wife without marrying her, thats the reason," and further on:"Khan Ghalib has run away with Sher Alis wife."

21. Wafadars statement was adopted as their own defence byfive other of the accused, namely, by Maza Khan (3), Sap Khan (4), Latif Khan(5), Abdur Rahman (6) and Surrendaz (7), and another of the accused SikandarKhan (8) made the following statement: "Khan Ghalib has enticed away SherAlis wife to this country, while his own wife, Khan Sadiks mother, is livingin her own country. Wafadar is no retainer of Sher Ali. Khan Ghalib brought thewoman three or four months ago. I dont know whether there was any disturbanceon account of the woman." Accused No. 13 Nakibullah said: "I dontknow Khan Ghalib. I have not heard that he enticed away Sher Alis wife."None of the other accused said anything about the matter,

22. As regards the witnesses for the prosecution, four ofthem appear to have been cross-examined on the point. Mir Abdullah said:"Khan Ghalib had a separate lodging of his own. That was because he had a wife.I dont know her name. I know Sher Ali, my wifes brother. I heard that SherAli put away his wife, and Ghalib Khan married her. I cant say whether thatwife is at Bhadresar or has gone back to her home. Khan Sadik is the son ofanother wife. * * * * It is not true that the quarrel arose from the refusal ofthose persona to drink sherbet at the hands of Khan Sadik because his fatherwas living in adultery without nikah with a woman."

23. Mir Azad said: "Khan Ghalib did not put up with us.He had a separate residence. I have heard of Malika Bibi, who lives with KhanGhalib. I have never seen her. I dont go to Khan Ghalibs bari. It is not truethat on the Friday I went to his dwelling and had a talk with Malfka Bibi thatbrought Khan Ghalib into my lodging. I dont know Sher Ali who was husband ofMalika Bibi. I know that Khan Ghalib brought a woman from our country. I hearshe is his wife. 1 dont know that she is any one elses wife * * * It is nottrue that Wafadar and five others came into our lodging on being invited todrink sherbet."

24. Khan Sadik says: "There was a woman living with myfather. I dont know whether her name was Malika or Malka. She had beendivorced by her husband and my father had married her. I was not present at themarriage. My father told me he had married her. Warrants did not come fromPeshawar for their arrest. * * * My father brought the woman to Bhadresar sevenor eight months before his death."

25. Matabdin says: "I know Malka Bibi: she is living atBhadresar. I have never seen her in this country. I have seen her in our owncountry. She was the wife of Mir Abdullahs brother-in-law, Sher Ali. He wasalive when I left my country. Khan Ghalib brought the woman from our country.She was living with him at Bhadresar. * * * It is considered very bad in ourcountry for a man to run away with another mans wife."

26. This appears to be all the evidence on the point, and wethink Mr. Ghose is right, therefore, when he says that there is no evidencethat the attack upon Mir Abdullahs house was made with the object ofchastising Khan Ghalib. Khan Ghalibs adulterous intercourse was referred to byWafadar as being the* cause of his refusing to drink sherbet at the hands ofhis son, which refusal he says was the immediate cause of the quarrel, and itis obvious that the cross-examination was directed to establish this point. Itwas not fair, therefore, to use a part of Wafadars statement only and toconvert a fact which he put forward in his defence into a motive for the attack.The statement, even as against those who made it, should be taken in itsentirety and not a part of it only for the purpose of being turned against theaccused; and, further, the statement was certainly no evidence against any ofthe accused other than those who made or adopted it. Yet the Judge has used itagainst all the accused without distinction. We agree, therefore, with Mr.Ghose that there was no evidence is support of the common object chargedagainst the accused in the alternative allegation added by the Sessions Judge,and as the verdict of the Jury leaves it uncertain whether they did not intendto find that this was the common object which actuated the accused, thatverdict is bad in law.

27. It is necessary, however, to consider whether, havingregard to the provisions of Section 423, Clause (d) of the Code, we are boundto reverse the verdict of a Jury, unless we are of opinion that it iserroneous, or, in other words, wrong. The point was argued at the bar, and Mr.Leith, on the part of the Crown, further invited our attention to Section 537of the Code, which prescribes that, "subject to the provisionshereinbefore contained, no finding * * * passed by a competent Court shall bereversed * * * on appeal * * * on account of any misdirection in any charge toa Jury unless such * * * misdirection * * * has occasioned a failure ofjustice." Mr. Leith accordingly asks us to go into the evidence and todecide upon the facts whether or not the accused have been rightly convicted.

28. We are of opinion that it is not open to us to adoptthis course, and we are not aware of any case in which it has been followed.Section 418 of the Code provides that, where the trial is by jury, an appealshall lie on a matter of law only. It is quite clear, therefore, that we haveno power to try the accused in this appeal on matters of fact. Clause (d) ofSection 423 runs as follows: Nothing herein contained shall authorise the Courtto alter or reverse the verdict of a Jury, unless it is of opinion that suchverdict is erroneous owing to a misdirection by the Judge, or to amisunderstanding on the part of the Jury of the law as laid down by him."In this clause, as it seems to us, the word "erroneous" is not to beread as meaning "wrong on the facts;" it must rather be read inconnection with the words that fellow as meaning that the verdict has beenvitiated and rendered bad or defective by reason of a misdirection or amisunderstanding of the law. The effect of the clause is evidently to preventthe Appellate Court from reversing the verdict of a Jury on account of anymisdirection by the Judge or any misunderstanding on the part of the Jury ofthe law as laid down by him, unless such misdirection or misunderstanding ofthe law is on a point material to the verdict, so that the verdict can be saidto be tainted with error in the process by which it has been arrived at. Itthrows on the Appellate Court the duty no doubt of ascertaining whether theprocessor method which the Judge directed the Jury to follow as to the acceptanceor discarding of evidence or as to the view taken of the law was erroneous onany material point, but not certainly the duty of determining for itselfwhether the verdict, as a conclusion of fact, was right or wrong. To holdotherwise would be tantamount to holding that an appeal would lie upon thefacts from the verdict of a Jury in the face of the provisions of Section 418,and that the Legislature intended to give this Court the same powers in respectto an appeal from the verdict of a Jury as it has in respect of a judgment bythe Sessions Judge in a trial with assessors. In his contention that this wasthe object of the Legislature Mr. Leith has referred to Section 307 of theCode, under which section the High Court is authorised to go into the facts.But it is to be observed that that section expressly and designedly confersupon the Court higher powers than it can exercise on appeal under theprovisions of Section 423.

29. A very similar point was recently before the JudicialCommittee of the Privy Council in the case of Makin v. Attorney-General for NewSouth Wales already referred to. In that case, the question was raised whether,under the proviso to Section 423 of the Criminal Law (Amendment) Act of 1883,where the Judge who tries a case reserves for the opinion of the Supreme Courtthe question whether evidence was improperly admitted, and the Court comes tothe conclusion that it was not legally admissible, the Court can, nevertheless,affirm the judgment if it is of opinion that there was sufficient evidence tosupport the conviction, independently of the evidence improperly admitted, andthat the accused was guilty of the offence with which he was charged. Theproviso in question runs as follows : Provided that no conviction or judgmentthereon shall be reversed, arrested or avoided on any case so stated, unlessfor some substantial wrong or other miscarriage of justice." The PrivyCouncil held that the words of the proviso could not be given the constructioncontended for. To quote the words of the Lord Chancellor: "It is obviousthat the construction contended for transfers from the Jury to the Court thedetermination of the question, whether the evidence,-that is to say, what thelaw regards as evidence-established the guilt of the accused. The result isthat in a case where the accused has the right to have his guilt or innocencetried by a Jury, the judgment passed upon him is made to depend, not on thefinding of the Jury, but on a decision of the Court. The Judges are in truth substitutedfor the Jury, the verdict becomes theirs and theirs alone, and is arrived atupon a perusal of the evidence without any opportunity of seeing the demeanourof the witnesses, and weighing the evidence with the assistance which thisaffords.

30. "It is impossible to deny that such a change of thelaw would be a very serious one, and that the construction, which theirLordships are invited to put upon the enactment, would gravely affect the muchcherished right of trial by Jury in criminal cases. The evidence, improperlyadmitted, might have chiefly influenced the Jury to return a verdict of guilty,and the rest of the evidence which might appear to the Court sufficient tosupport the conviction might have been reasonably disbelieved by the Jury in viewof the demeanour of the witnesses. Yet the Court might, under suchcircumstances, be justified, or even consider themselves bound to let thejudgment and sentence stand.

31. "These are startling consequences, which stronglytend in their Lordships opinion to show that the language used in the provisowas not intended to apply to circumstances such as those under consideration.

32. "Their Lordships do not think it can properly besaid that there has been no substantial wrong or miscarriage of justice, whereon a point material to the guilt or innocence of the accused the Jury have, notwith standing objection, been invited by the Judge to consider, in arriving attheir verdict, matters which ought not to have been submitted to them.

33. "In their Lordships opinion substantial wrongwould be done to the accused, if he were deprived of the verdict of a Jury onthe facts proved by legal evidence, and there were substituted for it theverdict of the Court founded merely upon a perusal of the evidence."

34. For these reasons we are of opinion that, having come tothe conclusions that the verdict of the Jury in this case has been vitiated bythe misdirection of the Sessions Judge, we have no option but to set aside thatverdict and to direct that the accused be retried.

* When facts not otherwise relevant become relevant.

[Section 11: Facts not otherwise relevant are relevant:

(1) if they are inconsistent with any fact in issue orrelevant fact;

(2) if by themselves or in connection with other facts they makethe existence or non-existence of any fact in issue or relevant fact highlyprobable or improbable.]

.

Wafadar Khan and Ors.vs. Queen-Empress (23.07.1894 -CALHC)