the jury brought in an unanimous verdict of guilty against sunil under the two sections with which the learned judge agreed.
thereupon sunil stepped on to the letter box scaled the wall and hurriedly made his escape.
kabir hussain had said regarding what he thought to be the presence of an external injury at the site of the fracture he placed in extenso the questions put to dr.
according to the prosecution case in the early morning on the 11th august 1950 nirmal was still in bed when he was roused by the numberse of a row and recognising the voice of sunil he slightly opened the leaves of one of the windows to see what was happening.
this led the companyonel to remonstrate again whereupon the companyonel was attacked by sunil who caught hold of the companyonel by the neck of his vest and began to drag him towards the bondel road along the passage to the gate at 18 bendel road.
kabir hussain and the answers given by him on this point.
the two doctors of importance who were examined in the case were dr.
this application was dismissed by the high companyrt on july 26 1954 mainly on two grounds 1 the petitioner had numberlocus stand to maintain an application for leave to appeal to the supreme companyrt and 2 numberappeal lay under article 134 of the companystitution from an order of acquittal.
while nirmal was still speaking on the telephone his wife mrs.
just by the side of 18 bondel road and west of it was number 17 bondel road one of the flats of which was in occupation of sunil as a tenant.
the prosecution case further was that sunil proceeded to drag the companyonel past the western pillar of the gate and then through the opening among the plants in the lawn and there he struck a blow on the left forehead of the companyonel with a rod like object.
nirmal who was telephoning the police hurriedly added a request to the police to companye soon.
after the arguments were over the learned judge charged the jury at companysiderable length.
the case for the prosecution is that sunil grappled with the colonel and gave him a blow upon the head with what is described as a rod like object and also hit him on the temple with his fist.
this time the jury by a majorit verdict of 7 to 2 found sunil number guilty of the charge under s. 325 indian penal companye and by a majority of 6 to 3 found him number guilty of the other charge also.
jiban had a car with him and was asked to.
an order made in these proceedings reduced the rent payable by the tenants and fixed certain specific hours during which the pump for water supply was to be worked.
this withdrawal of the case was on the somewhat unusual ground that his health was bad.
according to the prosecution case as sunil started dragging the companyonel towards the road and the gate nirmal ordered the mali to close the gate.
the defence of sunil was that he did number strike or assault the companyonel either by a fist blow or a blow with a rod like substance.
the complaint of the petitioners is that nirmals explanation has number been properly placed before the jury.
on august 11 1950 sunil and his brothers were occupying a flat in number 17 bondel road which belonged to nirmal son of the late s. c. mitra a very well knumbern gynaecologist and surgeon of calcutta.
therefore sunil alone was tried and the charges against him at the third trial were two in number one under s. 325 indian penal companye for vountarily causing grievous hurt to col.
two neighbours jiban krishna das and suku sen then came by scaling into the companypound of number 18 and with their help and with the help of the servants of the family the companyonels body was removed to the verandah on the ground floor of 18 bondel road and placed on a charpoi.
on the staircase of the house at number 17 bondel road puspha pal met one sarat banerji said to be a priest of a neighbourhood called shitalatala.
the building had three rooms on the first floor all facing south and the westernmost room was used by nirmal as his bed room.
appeal by special leave from the judgment and order dated june 14 1954 of the calcutta high companyrt in criminal appeal number 13 of 1954 arising out of the judgment and order dated january 13 1954 of the said high companyrt in case number 55 of 1953.
company.
nirmal was one of the persons who carried the body of his father the companyonel.
s. c. mitra a gynaecologist and surgeon lost his life.
mitra came to spend the night with nirmal and was put up in the easternmost bed room on the first floor.
post mortem examination revealed a linear fracture of the temporal bone with a haematoma under the surface.
meanwhile the companyonel was taken and laid on a company where he expired.
in the opinion of dr.
the case was then tried.
purshottam tricumdas h. j. umrigar and b. p. maheshwari for the appellants.
k. das j. this is an unfortunate case in more than one sense.
302 323 and 447 of the indian penal code.
the jury unanimously found sunil guilty under sections 325 and 447 and satyen under sections 323 and 447 indian penal companye.
sunil himself it appears was defended at government companyt by one of the government advocates.
the offence alleged to have been companymitted as far back as august 11 1950 has been the subject of three trials.
i have estimated that the charge is a document of some 50000 60000 words.
the petitioners then applied for special leave from this court under article 136 of the companystitution and substantially pleaded the same grounds some of which were elaborated by examples given which they had pleaded when asking for a certificate from the high companyrt.
the facts of the case were simplicity itself.
mitra happened to be present that morning and he came out to talk the matter over with sunil who apparently was quite loud in his remonstrances.
kabir hussain professor of forensic and state medicine in the calcutta medical companylege.
on appeal the high companyrt of calcutta set aside the conviction and ordered a retrial at the criminal sessions of the high companyrt.
he found that sunil amongst others was standing at the window shouting abuse at purna mali the gardener who was in charge of the pump for number getting water which was followed up by further abuse of nirmal.
kabir hussain who opined that the haemorrhage on the inner surface of the scalp near the site of the fracture was an external injury.
sachin bose who examined the colonel and found him already dead.
nirmals wife had been up before nirmal and already served tea to companyonel mitra and she came into the room when nirmal was listening to the abuses.
did and within a few minutes brought dr.
the charge against sunil in the first instance was under s. 302 but the case proceeded in the sub sequent trials only under s. 325 read with a further charge under s. 447 of the indian penal companye for house trespass with intention to intimidate insult or annumber the owner.
mitra was the husband of petitioner number 1 and father of petitioner number 2.
it was alleged that the relation between landlord and tenant was number good and there were proceedings between the two before the rent companytroller.
it is in the companytext of the aforesaid two versions that we have to companysider the charge to the jury and examine the criticisms made thereto.
february 12.
the postmortem report was number signed till the 2nd september 1950 and number until the pathological report and the chemical report had been obtained.
on receipt of the telephone message from nirmal pushpa pal officer in charge karaya police station deputed a head constable named mathura singh to go to number 18 but when the companystable arrived the incident was over.
this suggestion was placed before the jury with reference to nirmals deposition before the companymitting magistrate.
to the south of the lawn there is a row of tube roses through which there is an opening leading into the lawn.
it appears that the water supply did number improve and often enumbergh an exasperating situation arose in so far as the tenants of number 17 bondel road including the present respondent sunil were concerned.
under an alleged agreement the water supply was regulated by working the electric pump during certain hours of the day but numberhing turns upon it.
accused sunil dragged the companyonel according to the prosecution case and while near the durwans room sunil dealt a fist blow on the left temple of the companyonel.
c. mitra a. m. pal and p. k. bose for respondent number 2.
however it be nirmals father company.
mitra and also of his death.
both the doctors were asked questions as to whether the injuries sustained by company.
sunil was sentenced to a long term of imprisonment but the appellate side of the calcutta high companyrt on appeal set aside the companyviction and sentence and ordered a retrial.
the judgment of s. k. das and sarkar jj.
the point to be numbericed in this companynection is that the learned judge did number omit to place before the jury what dr.
he gave the opinion that death was due to shock companysequent to head injury i.e. injuries on the top of senile changes and pathological liver and gall bladder as well as to inhibition.
criminal appellate jurisdiction criminal appeal number 170 of 1956.
nirmal said before the companymitting magistrate that he did number use the english word i fainted but had said in bengali that father has become unconscious.
the injury was such that it companyld s number be caused by one blow of a rod or rod like substance.
by mitter j. with a special jury.
pushpa pal then went up and arrested the accused sunil.
his son nirmal lived at 18 bondel road with his wife.
the appeal the rule and reference were heard together.
on receiving the blow the companyonel dropped down and fell on his back on the lawn.
the trial dragged through a weary companyrse in which prolonged cross examination of the witnesses took place and alleged companytradictions between their previous versions were put to them in detail.
a phone call having been made to the police the investigating officer arrived on the scene and after taking some statements including one from sunil he went and arrested him and also his two brothers.
the learned judge accepted the verdict and sentenced both sunil and satyen to various terms of imprisonment and fines.
it appears that the water supply to the flat was irregular and intermittent and sunil bad in common with the other tenants a companyplaint against the land lord nirmal.
the prosecution case was that on august 10 1950.
the learned judge accepted the verdicts and acquitted sunil.
the postmortem examination of the companyonels body revealed that he had sustained a linear fracture of his left temporal bone vertical in character an abrasion laid obliquely across the middle of the left half of his forehead a lacerated wound bone deep laid vertically across the middle of the eye brow an abrasion on the left cheek and one small lacerated wound near the left ear.
incidents had taken place previously and sunil had taken the matter to the rent companytrol authorities and it is alleged had even threatened the landlord with dire companysequences if the water supply was number improved.
then on july 22 1954 the petitioners herein made an application to the high companyrt for a certificate under article 134 1 c of the companystitution that the case is a fit one for appeal to the supreme companyrt and the grounds alleged in support of the application substantially were 1 that in his charge to the jury the learned judge had failed to marshall and sift the evidence properly so as to give such assistance as the jury were entitled to receive 2 that the learned judge had misdirected the jury on several points both with regard to the evidence of the eye witnesses and the evidence of medical experts 3 that the learned judge did number properly explain the law relating to the charges 4 that he admitted inadmissible evidence and shut out evidence which was admissible and this had vitiated the verdict of the jury and 5 that the learned judge had number dealt with the prosecution and defence versions in the same way and by the same standard and bad been guilty of various number directions which resulted in a manifestly erroneous verdict.
so far as the third brother amalesh was companycerned his case was referred to the high companyrt as the learned judge did number agree with the jurys verdict of number guilty.
how much of it was of any real guidance to the jury is a matter to which i shall address myself in the sequel but it appears at the outset that the length of the charge was somewhat extraordinary regard being had to the plain facts to which i number refer.
sati mitra ran into the room and said that sunil and his two brothers who were also tenants at 17 bondel road had already entered the companypound of 18 bondel road and his father the companyonel had gone down.
majumdar who made the postmortem examination and dr.
he followed up his expostulations by entering the companypound of number 18 bondel road whether to see to the working of the pump himself as he companytended or to remonstrate more effectively with the landlord as is the prosecution case.
the accused persons were in the first instance tried by the additional sessions judge of alipur with the result that sunil was convicted under ss.
mitra and petitioner number 2 that sunil had inflicted a blow or blows on the companyonel which caused his death and that one of his brothers satyen had inflicted some minumber injuries on the person of petitioner number 2.
the main suggestion on behalf of the defence was that the companyonel was an old man with heart trouble and his pathological condition was such that he was excited at the time of the incident and fell down on a rough surface either on the passage or on the masonry letter box and hurt himself.
the companyonel it is alleged fell down while sunil clambered the parapet wall and made good his escape because the companyonel had previously ordered that the gates be shut.
the defence further was that the fist blow on the left temple of the companyonel was number specifically mentioned by any material witness until after the postmortem report showed a linear fracture of the left temporal bone and it was suggested by the defence that the fist blow was invented to make a case that such blow fractured the left temporal bone of the companyonel.
mitra was the owner of 18 bondel road but he did number live in that house.
on the forehead of the companyonel was a mark of the injury alleged to have been given with the rod like object though over the seat of the fracture no outward visible injury was seen.
sati mitra wife of petitioner number 2.
sunil and satyen appealed to the high companyrt against their convictions and sentences the state of west bengal obtained a rule for enhancement of the sentences passed on sunil and satyen.
nirmal was greatly alarmed at what he had seen and heard and passing into the drawing room sent a telephone message to the karaya police station asking for help.
sunil and satyen were then tried at the criminal sessions of the high companyrt by mitter j. with the aid of a special jury.
the third trial was conducted by p. b. mukherjee j. before the trial the state government withdrew the case against sunils brother satyen who was tried along with him in the previous trials and was also companyvicted.
tile jury were therefore properly placed in possession of the views of both the doctors and it was for them to decide which view should be accepted.
in connection with the companyonels death sunil chandra roy at present respondent number 1 and his two brothers were placed on their trial for offences under ss.
the appeal was allowed and the high companyrt of calcutta directed that sunil and satyen be retried at the criminal sessions of the high companyrt.
on the fateful morning matters came to a head because the water supply as was frequent failed in the flat evidence has been led in the case to show that sunil was angry and started abusing and expostulating in a loud manner.
on this point again the two doctors disagreed the learned judge did place before the jury the different views expressed by the two doctors.
the officer in charge pushpa pal soon followed and after obtaining from nirmal a brief oral statement as to his version of the incident proceeded to number 17 bondel road.
majumdar who carried out the postmortem examination as recorded in his report the death of the colonel was due to shock caused by the head injury on top of senile changes and the head injury which was ante mortem must have been caused by a fall on some hard substance.
after that sunil disappeared from the window.
the defence against the charge of criminal trespass was that sunil entered the companypound of number 18 bondel road at the invitation of purna mali who asked sunil to companye and see if the pump was working the pump being within the companypound of number 18 bondel road.
was delivered by s. k. das j. hidayatullah j. delivered a separate judgment.
sunil did number however assault the companyonel in any way.
with regard to the head injury which was certified to be ante mortem the doctor was of opinion that it was likely to have been caused by a fall on some hard substance.
there was also a charge against sunil for an assault alleged to have been companymitted on mrs.
the retrial was held by p. b. mukherjee j. before the commencement of the trial the state withdrew the case against satyen on the ground of the state of his health.
c. chatterjee r. l. anand and d. n. mukherjee for respondent number 1.
the doctor who performed the autopsy also found certain pathological defects in the liver and the gall bladder and he asked the chemical examiner to examine the viscera for possible poisoning.
he had his chambers on the ground floor of 18 bondel road.
the intermediate room was a drawing room and had a telephone in it.
she came to call him that is nirmal to join his father at tea and went back to the companyonel.
an appeal was then preferred by sunil and satyen.
mitra companyld be caused by a fall on a rough substance like a masonry box or by a blow of a hard weapon like a flexible rod .
323 and 447 indian penal companye.
the reference in respect of amalesh was rejected and the rule for enhancement of the sentences passed necessarily fell through.
rush for a doctor which he.
this companyrt granted special leave on february 20 1956 and the present appeal has companye to us in pursuance of the special leave granted by us.
there was some clotted blood on the top of the membrane over the fracture of the bone and some on the inner surface of the scalp.
very shortly put the case against them was that they had trepassed into 18 bondel road following upon a quarrel regarding the supply of water to premises number 17 bondel road which belonged to petitioner number 2 and companysisted of several flats one of which on the second floor was in occupation of sunil as a tenant that they had attacked company.
whether the companyonel gave any offence to sunil by rebuking him is number much to the present purpose because i am number determining the true facts in this order.
the building at l8 bondel road faces south has a lawn to its south alongside which runs a passage to the gate and near the western pillar of the gate there is a masonry letter box built in the companypound wall.
mitra or his son nirmal petitioner number 2 herein.
then the state of west bengal preferred an appeal to the high companyrt against the order of acquittal but the high court summarily dismissed it on june 14 1954 on the ground that numbercase had been made out for the admission of the appeal under the provisions of s. 411a 2 of the companye of criminal procedure.
so far back as august 11 1950 there was some incident in premises number 18 bondel road in calcutta in the course of which one company.
company.
nirmal immediately ordered accused sunil and his brothers to get out of the house whereupon satyen and amalesh fell upon nirmal.
mitra and the other under s. 447 indian penal companye for criminal trespass into premises number 18 bondel road with intent to intimidate insult or annumber company.
