# THE ~UPREME COURT REPORTS SMT. NAGINDRA BALA MITRA AND ANOTHER v. SUNIL CHANDRA ROY AND ANOTHER - **Citation:** [1960] 3 S.C.R. 1 - **Court:** Supreme Court of India - **Decided:** 1960 - **Case number:** Criminal Appeal No. 170 of 1956 - **Bench:** S. K. DAs, A. K. Sarkar, M. HrnAYATULLAH - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-upreme-court-reports-smt-nagindra-bala-mitra-and-another-v-sunil-chandra-1833 - **Pages:** 37 ## Headnote Trial by Jury-Charge to the Jury-Duty'of Judge-Misdirection-Verdict of the jury, when could be interfered with-Code of Criminal Procedure, I898 (Act V of I898). ss. I62, 297, 323, 325. In a trial by jury, the judge should in his charge to the jury be careful to lead them to a correct appreciation of the evidence so that the essential issues in the case rriay be correctly determined by them after understanding the true import of the · evidence on the rival sides. Since a verdict of the jury depends upon the charge, if it fails to perform this basic purpose it cannot be regarded as a proper charge and if it contains also misdirections as to law, the verdiCt cannot be upheld; but if, upon the general view taken, the case has been fairly left within the jury's province, the verdict cannot be set aside unless something gross amounting to a complete misdescription of the whole bearing of the evidence has ocCJJrred. Mushtak Hussein v.The State of Bombay, [1953] S.C.R. 809, Ramkrishan Mithanlal Sharma v. The State of Bombay, [1955] l S.C.R. 903 and Arnold v. King Emperor, (1914) L.R. 41 I.A, 149, relied on. Per S. K. Das and Sarkar,-JJ.-Though the charge to the jury in.the present case was lengthy, the length was due in part to a protracted narrative of facts and the many disputed questions of fact to which the attention of. the jury had to be drawn, and as the Judge did state the several disputed points arising therefrom and their bearing on the main questions at issue, the jury were not misled. Held, that there was no misdirection and that the verdict of -.t, the jur.y could not be interfered with. Per Hidayatullah, J.-In his charge to the jury, in the present case, (1) the judge took each' witness, turn by turn, paraphrased his evidence, sentence by sentence and read out those portions which he did not paraphrase, without trying to.draw the atten- . tion of the jury to the relevancy or materiality of the various ·February, rz 2 SUPREME COURT REPORTS . [1960] z96o parts ; and did not make any difference between the testimony of the eye witnesses and of the formal witnesses in the Smt. Nagindra matter of t.reatment, (2) while telling the jury that they Bala Mslra could give the benefit of the doubt on proof of any individual . v. fact if they felt 'any doubt about the proof, the judge did Sunil Chandra Roy not at the same time caution them that the totality of facts must be viewed in relation to the offence charged and that the benefit resulting in acquittal could be given only if they felt that when all was seen and considered; there was doubt as to whether the accused had committed the crime or not, (3) the judge while explaining the ingredients of the offence of grievous hurt under s. 325 of the Indian Penal Code failed to tell the jury that grievous hurt was only an aggravated form of hurt and that even if they held that the accused did not cause a grievous injury it would be open to them to hold that he caused a simple injury which would bring the matter within s. 323 of the Code, and (4) omissions \Vere treated as contradictions and placed before the jury in complete disregard of s. 162 of the Code of Criminal Procedure, Held, that these defects amounted to misdirections and that the verdict could not be accepted. ## Text _Characters 0–39,983 of 83,567. This is a partial read: ask again with offset=39983 for what follows._ ,. THE ~UPREME COURT REPORTS SMT. NAGINDRA BALA MITRA AND ANOTHER v. SUNIL CHANDRA ROY AND ANOTHER (S. K. DAs, A. K. SARKAR AND M. HrnAYATULLAH. JJ.} Trial by Jury-Charge to the Jury-Duty'of Judge-Misdirection-Verdict of the jury, when could be interfered with-Code of Criminal Procedure, I898 (Act V of I898). ss. I62, 297, 323, 325. In a trial by jury, the judge should in his charge to the jury be careful to lead them to a correct appreciation of the evidence so that the essential issues in the case rriay be correctly determined by them after understanding the true import of the · evidence on the rival sides. Since a verdict of the jury depends upon the charge, if it fails to perform this basic purpose it cannot be regarded as a proper charge and if it contains also misdirections as to law, the verdiCt cannot be upheld; but if, upon the general view taken, the case has been fairly left within the jury's province, the verdict cannot be set aside unless something gross amounting to a complete misdescription of the whole bearing of the evidence has ocCJJrred. Mushtak Hussein v.The State of Bombay, [1953] S.C.R. 809, Ramkrishan Mithanlal Sharma v. The State of Bombay, [1955] l S.C.R. 903 and Arnold v. King Emperor, (1914) L.R. 41 I.A, 149, relied on. Per S. K. Das and Sarkar,-JJ.-Though the charge to the jury in.the present case was lengthy, the length was due in part to a protracted narrative of facts and the many disputed questions of fact to which the attention of. the jury had to be drawn, and as the Judge did state the several disputed points arising therefrom and their bearing on the main questions at issue, the jury were not misled. Held, that there was no misdirection and that the verdict of -.t, the jur.y could not be interfered with. Per Hidayatullah, J.-In his charge to the jury, in the present case, (1) the judge took each' witness, turn by turn, paraphrased his evidence, sentence by sentence and read out those portions which he did not paraphrase, without trying to.draw the atten- . tion of the jury to the relevancy or materiality of the various ·February, rz 2 SUPREME COURT REPORTS . [1960] z96o parts ; and did not make any difference between the testimony of the eye witnesses and of the formal witnesses in the Smt. Nagindra matter of t.reatment, (2) while telling the jury that they Bala Mslra could give the benefit of the doubt on proof of any individual . v. fact if they felt 'any doubt about the proof, the judge did Sunil Chandra Roy not at the same time caution them that the totality of facts must be viewed in relation to the offence charged and that the benefit resulting in acquittal could be given only if they felt that when all was seen and considered; there was doubt as to whether the accused had committed the crime or not, (3) the judge while explaining the ingredients of the offence of grievous hurt under s. 325 of the Indian Penal Code failed to tell the jury that grievous hurt was only an aggravated form of hurt and that even if they held that the accused did not cause a grievous injury it would be open to them to hold that he caused a simple injury which would bring the matter within s. 323 of the Code, and (4) omissions \Vere treated as contradictions and placed before the jury in complete disregard of s. 162 of the Code of Criminal Procedure, Held, that these defects amounted to misdirections and that the verdict could not be accepted. CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 170 of 1956. Appeal by special leave from the judgment and order dated June 14, 1954, of the Calcutta High Court in Criminal Appeal No. 13 ofl954, arising out of the Judgment and order dated January 13; 1954, of the said High Court in Case No, 55 of 1953. Purshottam Tricumdas, H.J. Umrigar and B. P. Maheshwari, for the appellants. N. C. Chatter.iee, R. L. Anand and D, N .. Mukherjee, for respondent No. I. A. C. Mitra, A. M. Pal and P. K. Bose, for respondent No. 2. 1960. February 12. The Judgment of S. K. Das and Sarkar, JJ., was delivered by S. K. Das, J. Hidayatullah, J., delivered a separate.Judgment. s. K. Das J. S. K."DAs J.-This is an. unfortunate case in more than one sense. So far back as August II, 1950, there was some incident in premises No. 18, Bondel Road in Calcutta in the course of which one Col. S. C. Mitra; a Gynaecologist arid Surgeon, lost his life. Col. Mitra was the husband of petitioner No. l and father of petitioner No. 2. In connection with the Colonel's death, Sunil Chandra Roy, at present respondent No. 1, and his two brothers were placed on their trial for offences under ss. 302, 323 and 44 7 of the Indian Penal - .. :l - ) 3 S.C.R. SUPREME COURT REPORTS 3 Code. Very shortly put, the case against them was z960 that they had trepassed into 18, Bondel Road, following upon a quarrel regarding the supply of water to Sm~. 1Nr;J'.ndra premises No. 17, Bonde! Road which belonged to a av •tra petitioner No. 2 and consisted of several flats one of sunil Ch;ndra Roy which on the second floor was in occupation of Sunil as a tenant; thttt they had attacked Col. Mitra and s. K. Das J. petitioner No. 2; that Sunil had inflicted a blow or blows on the Colonel wnich caused his death and that one of his brothers Satyen had inflicted some minor injuries on the person of petitioner No. 2. There was also a charge a,gainst · Sunil for an assault alleged to have been committed on Mrs. Sati Mitra, wife· of petitioner No. 2. 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. 325 and 447 and Satyen under ss. 323 and 447, Indian Penal Code. So far as the third brother Amalesh was concern~d, his case was referred to the High Court as the learned Judge did not agree with the jury's verdict of not guilty. Sunil and Satyen appealed to the High Court against their convictions and sentences ; the State of West Bengal obtained a Rule for enhancement of the sentences passed on Sunil and Satyen. The appeal, the Rule and Reference were heard together. The appeal was allowed, anroμght -Ur. &chin Bose who exa,mined the 8 SUPREME COU~T REPORTS [1960] '96° Colonel and found him already dead. On receipt of Smt. Nagina,• the telephone message from Nirmal, Pushpa Pal, BalaMitra Officer-in-charge, Karaya Police Sta"tion, deputed a v. Head-cmrntable named lVIathura Singh, to go to No.18 sunilChandmRoy but when the constable arrived, the incident was over. The Officer-in-charge, Pushpa Pal, soon follows. K. Das J. ed and after obtaining from Nirmal a brief oral statement as to his version of the incident, proceeded to No. 17, Bonde! Road. On the staircase of the house at No. 17, Bondel Road, Puspha Pal met one Sarat Banerji, said to be a priest of a neighbourhood called Shitalatala. Pushpa Pal then went up and arrested the accused Sunil. The post-mortem examination of the Colonel's 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. 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. In the opinion of Dr. Majumdar who carried out the post-mortem 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_. The post-mortem report was not signed till the 2nd September, 1950, and not until the pathological report and the chemical report had been obtained. The defence of Sunil was that he did not strike or assault the Colonel, either by a fist blow or a blow with a l'Od like substance. The defence further was that the fist blow on the left tern pie of the Colonel was not specifically mentioned by any material witness until after the post-mortem 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 Colonel. The main suggestion on beha.lf of the defence was that the Colonel - • ... \ 3, S.C.R. SUPREME COURT REPORTS 9 was an old man with heart trouble and 'his pathor96o logical condition was such that he was excited at the Smt. Nagindra time of the incident and fell down on a rough surface, Bala Mitra either on the passage or on the masonry letter box, v. and hurt himself. The injury was such that it could Sunil Chandra Roy not be caused by one blow of a rod or rod-like substance. The defence against the charge of criminal s. K. Das f. trespass was that Sunil entered the com pound of No. 18, Bondel Road at the invitation of Purna Mali, who asked Sunil to come and see if the pump was working, the pump being within the compound of No. 18, Bondel Road. Sunil did not, however, assault the Colonel in any way. It is in the context of the aforesaid two versions that we have to consider the charge to the jury and examine the criticisms made thereto. We must make it clear that we are not called upon at this stage to give our findings on any of the disputed questions of fact. That was the function of the jury, and the jury had given their verdict. The limited question before us is whether that verdict is vitiated by reason of any serious misdirection by the , Judge or of any misunderstanding on the part of the jury of the law laid down by him, which in fact has occasioned a failure of justice. This Court said in Mushtak Hussein v. The State uf Bombay (1): "Unless therefore it is established in a case that there has been a serious misdirection by the Judge in charging the jury which has occasioned a failure of justice and has misled the jury in giving its verdict,· the verdict of the jury cannot be set aside." In a subsequent decision, Ramkishan Mithanlal Sharma v. The State of Bombay(2) this Court observed that s. 297, Criminal Procedure Code, imposed a duty on the Judge in charging the jury to sum up the evidence for the prosecution and defence and to lay down the law by which the jury were to be guided; but summing up for the prosecution and defence did not mean that the Judge should give merely a summary of the evidence; he must marshall the evidence so as to give proper assistance to the jury who are required to decide which view of the facts is true. This Court It) [1953] S.C.R. 809 at 815. (2) (1955] I S.C.R. 903 at 930. 2 • 10 SUPREME CQURT REPORTS [1960) r960 referred with approval to the following observations made by the Privy Council in Arnold v. King EmSmt. N•gindra peror (') : . Bala Milra v. "A charge to a jury must be read as a whole. If Sunil Chandra Roy there are salient propositions of law in it, these will, of course, be the subject of separate analysis. But in s. K. Das J. a protracted narrative of facts the determination of which is ultimately left to the jury, it must needs be that the view of the Judge may not coincide with the view of others who look upon the whole proceedings in black type. It would, however, not be in accordance with usual or good practice to treat such cases as cases of misdirection, if, upon the general view taken, the case has been fairly left within the jury's province. But in any case in the region of fact their Lordships of the Judicial Committee would not interfere unless something gross amounting to a complete misdescription of the whole bearing of the evidence has occurred." Bearing the aforesaid principles in mind, we proceed now to consider the criticisms made on behalf of the petitioners against the learned Judge's charge to the jury. We had earlier classified the criticisms under five different heads, and we shall deal with them one by one. We shall refer to the main points urged under each head, avoiding a detailed reference to the evidence on minor points which do not advance the case of the petitioners any further. The first criticism is that the charge to the jury, read as a whole, is nothing but a summary of the evidence witness. by witness and a summary of the arguments of counsel which the jury had already heard; that the learned Judge did not state the points for decision under separate heads, nor did he oollate and marshall the evidence topic-wise so as to assist the jury to come to their conclusion one way or the other, but left the jury with a mass of unnecessary details which was mor~ likely to confuse than to help them. Learned counsel for the petitioners has pointed out that in the appeal from the judgment of Mitter, J., in an earlier stage of this very case, (1) [1914] L.R. 41 I.A. 149. ·- - ........ ! \ -- ' 3 S.C.R. SUPREME COURT REPORTS 11 Chakravarti, C. J., had said in Sunil Chandra RO]J and Another v. The State (1): "But I feel bound to say that the function of a Smt. Nagindra 'Bala Mitra \ charge is to put the jury in a position to weigh and v. \ assess the ·evidence properly in order that they may Sunil Chandra Roy J come to a right decision on questions of fact which, - . under the law, is thei~ respo~sibi~ity. T~e .charge s. K. Das J. ·. must therefore address itself pnmanly to pomtmg out what the questions of fact are, what the totality of the evidence on each of the questions is, how the different portions of that evidence, lying scattered in -the depositions of several witnesses, fit with one another, what issues or subsidiary questions they raise for decision and what the effect will be according f as one part or another of the evidence is believed or dis believed." It was argued that what was condemned in an earlier stage of this case has happened again. We are unable to accept this line of criticisms as substantially correct. It is, indeed, true that the learned Judge followed the method of placing the evidence witness-wise rather than topic-wise. He started ~ his summing-up by stating: "I now propose to take up the prosecution witnesses.individually with a view to sum up the evidence of each witness and the suggestions made to each by the counsel for the accused." But the real point for consideration is not whether the learned Judge followed one method rather than another : the real point is-did he properly discharge his duty under s. 297, Criminal Procedure Code by giving the jury the help and guidance to which they were entitled ? Did he marshall the evidence in such a way as to bring out the essential points for decision and the probabilities and improbabilities bearing on the disputed questions of fact on which the jury had to come to their conclusion? The learned Judge gave a lengthy charge to the jury ; and in summing up the , evidence of each witness, he did state the· disputed "'- points arising therefrom and their bearing on the main questions at issue, viz. whether Sunil had trespassed into 18, Bondel Road and had assaulted the Colonel in the manner alleged by the prosecution. \1) 57 C,W.N. 962 at 1001. 12 SUPREME COURT REPORTS [1960] r960 The length of the charge was due in part to a protracted narrative of facts and the many disputed Snit. Nag;ndra questions of fact to which the attention of the J 0ury Bala Mitra 1 v. had to be drawn. The principle laid down by the sunilChandraRoy Privy Council in Arnold's case (3) and accepted by this Court as correct is that it would not be in accordance s. K. Das J. with good practfoe to trertt a case.as a case of misdirectiolil if, upon the general view taken, the case has been fairly left within the jury's province, and this Court will not interfere unless something gross amounting to a complete misdescription of the whole bearing of the evidence has occurred. Learned counsel for the petitioners has taken us through the entire charge to the jury and while we may agree that some ·unnecessary details (e.g. how the spectacles of Mrs. Sati Mitra fell down) -could have been avoided by the learned Judge, we are unable to say that the method followed by the learned Judge did not focus attention of the jury to the questions of fact which they had to decide or did not give help and guidance to the jury to arrive at their conclusion on those questions. We are far less satisfied that anything amounting to a complete misdescription of the whole bearing of the evidence has occurred in' this ca.se. · As to the observations which Chakravarti, C.J.; had made, it is well to remember that they were made in respect of an earlier charge to the jury which, to use the words of the learned Chief Justice, was " all comment or mere comment in the main." · Having carefully perused the present charge to the jury, we think, on a general view, that the case has been fairly left within the jury's province, in spite of the criticism so strenuously made that the charge to the jury contained a mass of details which need not have been placed before the jury. In a protracted narrative full of details, it is perhaps easy to find fault with a charge to the jury on the ground of prolixity. The question before us is not whether the charge to the jury is perfect in all respect : the question is-has something gross occurred amounting to a complete misdescription of the whole bearing of the evidence? We are unable to say that there has been any such gross misdirection by the learned Judge. (t) [1954) L.R. 4' I.A. 149 - • ' .. 3 S.C.R. SUPREME COURT REPORTS 13 The second criticism relates to certain misdirecI96o tions alleged to have been committed by the learned Judge in placing.the evidence of the eye-witnesses as Smt. Nagimba Bala Mitra also of medical witnesses. No useful purpose will be v. served by referring to each and every example given Sunil Chandra Roy before us ; we shall confine ourselves to some of the salient points and state the general impression we 5 · I<. Das J. have formed. In placing the evidence of e~ch eyewitness, the learned Judge referred to the suggestions made by the defence. The comment is that he placed the suggestions in such a way as to create the impression in the. minds of the jury that they were true, even though they had been repudiated or explained by the witness. We may give some examples. Nirmal telephoned to his brother Dr. Lalit Mitra immediately after Col. Mitra was pronounced to be dead. The suggestion to Nirnial was that he had not told his doctor brother then that his father had been beaten,· but had said only that his father had " fainted ". This suggestion was placed before the jury with reference to Nirmal's deposition before the committing Magistrate. Nirmal said before the committing Magistrate that he did not Ul'le the English word ' fainted' but had said in Bengali that ' father has become unconscious'. The complaint of the petitioners is that Nirma.I's explanation has not been properly placed ?efore the jury. But the learned Judge says in his charge that the jury had seen the earlier deposition qf Nirmal, and if that is so, the distinction between ' fainting ' and ' becoming unconscious ' in explanation of the suggestion made to Nirmal does not assume any great importance. It was next suggested to Nirmal that he had told the Police that his father - had heart trouble. This suggestion was put before the jury in the following way: "The case was put by the defence that the Colonel had heart trouble and that Nirmal was confronted with, contradiction that he told the Magistrate and the police that his father had heart trouble. Nirmal had denied it." Nirmal's explanation was that he did not tell the Magistrate or the police that his father had heart 14 SUPREME COURT REPORTS [1960] z960 trouble; he merely said that his father used to have occasional palpitation of heart when he ate too much Smt. Nagindra or took irregular meals. Pushpa Pal, the investigating Bala Mitr~ v. police officer, understood this to mean heart trouble sunil Chand.a Roy and he recorded "heart trouble " in Nirmal's statement. Pushpa Pal admitted that even if Nirmal had s. K. Do• J. stated that Col. Mitra had palpitation of heart, he would ha.ve recorded it as heart trouble. This part of the evidence of Pushpa Pal also the learned Judge placed before the jury. It cannot, therefore, be said that the learned Judge misled the jury iu any way or left the jury with the impression that Nirmal had admitted that his father had heart trouble. Similar ·comments were made with regard to the placing of the evidence of other eye-witnesses, but their general effect is the same. They do not, in our view, establish that the jury were misled on any of the points in dispute. We must, however, mention two more points, one in connection with a person called Sarat Banerji and the other with regard to Mrs. Nagendra Bala Ghose. SaratBanerji, it appears, was a priest who brought some holy water, and there was some evidence to show that such water was sprinkled on the Colonel soon after the incident. Sarat Banerji was not examined in the case, and the question naturally arose whether he was present at the time of the incident and if so, when did he come. to 18, Bonde! Road? A number of prosecution witnesses were crossexamined on this point, and the learned Judge repeatedly referred to this matter in summing up the evidence of those witnesses. We do not agree with learned counsel for the petitioners that the learned Judge committed any misdirection in drawing the attention of the jury to this matter. As to Mrs. Nagendra Bala Ghose, the criticism was that the learned Judge usurped the function of the jury. About this witness the learned Judge said: "Now, gentlemen, in cross-examination she was cross-examined on her eyesight. She did succeed in pointing out to an old man in Court. That is in answer to Q. 30. But further ahead she could not see properly. She is far too old a woman on whom any reliance can be placed having regard to her state of - - 3 S.C.R. SUPREME COURT REPORTS 15 health and having regard to her state of vision and .I960 her power of memory. She was called by the prosecuSmt. Nagindra tion only to meet the defence suggestion that she was Bala Misra there at the time of the incident in Prof. Mahanti's · v. place and was being kept back." . SwnilChandra Roy It was submitted before us that Mrs. Ghose was no doubt old, but she was a respectable and reliable wits. K. n,., f. ness who was staying in a neighbouring house from the verandah of which the place ofincident was visible t . therefore, it was argued that the learned Judge was not justified in expressing himself so strongly against this witness, and in doing so, he improperly dissuaded the jury from forming their own opinion about her evidence. Having examined her evidence, we are unable to hold that the comments of the learned Judge were unjustified or that he wrongly influenced the jury against the witness. It must be stated here that the learned Judge had cautioned the jury that they were not bound by his opinion on a question of fact and were free to act on their own opinion. This brings us to the medical evidence. The two doctors of importance who were examined in the case were Dr. Majumdar, who made the· post-mortem examination, and Dr. Kabir Hussain,· Professor of Forensic and State Medicine in the Calcutta Medical College. Those two doctors expressed widely divergent views as to the probable cause of the injuries sustained by Col. Mitra and also of his death. The learned Judge rightly placed before the jury these divergent views. Dealing with the evidence of Dr. Majumdar, the learned Judge said: "Suggestions were made to Dr. Majumdar in cross. examination.that in case a fist blow was given on the left temporal region whether any external injury was to be expected. He said that external injury was expected and there was no external injury mentioned in the post-mortem report in this case. Then Dr. Majumdar's opinion is that such a man cannot be expected to talk. It is also Dr. Majumdar's .. .opinion that the injury was due to a fall and he does not think that the injuries Nos. 1, 2 and 3 could be ca.used by a lathi blow or a blow by a .rod. .A,v9or~iqg t9 M.s 9tUQ.i9P., ~4~ fr{l;9tnr~ Wt'l-.1' P.liSP 4.l.l~ to a f11ll.. " 16 SUPREME COURT REPORTS [1960] x96o It, is contended that this must have misled the jury in Smt. N•gimlra thinking that there was no external injury on the site Bala Mitro of the fracture on the left temporal region and therev. fore it could not have been ca.used by a fist blow. Our Suni!Chandra Roy attention was drawn to the evidence of Dr. Kabir Hussain, who opined that the haemorrhage on the s. K. Das f. inner ~urface of the scalp near the site of the fracture was an external injury. The point to be noticed in thi~ connection is that the learned Judge did not omit to place before the jury what Dr. 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. Kabir Hussain and the answers given by him on this point. The 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. Both the doctors were asked questions as tow hether the injuries sustained by Col. Mitra could 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. On this point again the two doctors disagreed ; the learned Judge did place before the jury the different views expressed by the two doctors. A-grievance has been made before us that in summing up the evidence of Dr.-Kabir Hussain the learned Judge failed to draw the attention of the jury to the answers given toquestions 73, 74 and 75 by which the doctor categorically negatived the suggestion of the defence that a fracture of the temporal bone of the kind sustained by the Colonel could be caused by a fall on a hard substance. It is true that the answers to questions 73, 74 and 75 were not specifically placed before the jmy, but reading the charge relating to the medical evidence as a whole, we find that the learned Judge sufficiently indicated to the jury the disagreement between the two doctors on the main questions of fact and the reasons which each doctor gave for his opinion. It was the province of the jury to accept one opinion or the other. The learned Judge concluded his summing up of the medical evidence in these words: ''Now, gentlemen, when a medical witness is called in as an expert he is not a witness of . fact ... Medical - - --J. .. - 3 S.C.R. SUPREME COURT REPORTS 17 evidence of an expert is evidence of opinion, not of z96o fact. Where there are alleged eye-witnesses of h d h Smt. Nagindra physical violence whic is sai to ave caused the Bala Mitra hurt, the value of medical evidence by prosecution is v. only corroborative. It proves that the injuries could Sunil ChandraRoy have been caused in the manner alleged and nothing more. The use which the defence can make of the s. K. Das f. medical evidence, or any medical evidence which the defence might itself choose to bring, is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye-witnesses. Therefore, you must remember this particular point of-view that if you believe the eye-witnesses, t.Q.en there is no question of having it supported by medical evidence; unless the medical evidence again in its turn goes so for that it completely rules out all possibility that such injuries could take place in the manner alleged by the prosecution and that is a point which you should bear in mind, because if you accept the evidence of the eye-witnesses, no question of further considering the medical evidence arises at all. The only question in that case when you consider the medical evidence is to test the eye-witnesses' version as to whether any of the particular injuries shown in the report can be caused in the manner alleged by the prosecution. But if you don't believe the eye-witnesses, then consideration of the medical evidence in any manner becomes unnecessary. " We do not think that any exception can be taken to the observations made above in the context of the two versions which the jury had to consider. One version was that the Colonel had been assaulted and thereby sustained the injuries; the other version was that he had sustained the injuries by a fall on a rough surface like the masonry letter box. None of the two doctors were giving direct evidence of how the injuries were caused ; they were merely giving their opinion as to how in all probability they were caused. The learned Judge was, therefore, right in directing the jury in the way he did about" the medioal evidence in the case. We may also point out here that the learned Judge drew the attention of the jury also to the evidence of Dr. Suresh Sinha, who said that the 3 18 SUPREME COURT REJ?ORTS [1960] . 196o fracture on the .temporal region could be the indirect effect of the other injuries sustained by the Colonel. Smt. Nagindra Bala Mit•a We now go on to third head of criticism viz., the S .1 Chv.d R learned Judge's exposition of the Ja.w relating to the "uni an ra oy 'l • T h two charges on which Sum was tned. hese c argcs s. K. Das J. the learned Judge correctly explained with reference to the relevant provisions of the Indian Penal Code. But he made one error. Dealing with the word 'voluntarily' in s. 325, he said: "The word 'voluntarily' means what it says; it means 'of one's free will'." Perhaps, the learned Judge forgot that the word is defined in s. 39, Indian Penal Code, and that definition should have been placed before the jury. We do not, however, think that this minor lapse misled the jury in any way or occasione-d a failure of justice. There is one more point in this connection. The learned Judge did not tell the jury that it was open to them to return a verdict of guilt.y for an offence under s.