“We now go on to third head of criticism viz. the learned Judge’s exposition of the law relating to the two charges on which Sunil was tried. These charges 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 occasioned 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 guilty for an offence under S. 323, Indian Penal Code, if they came to the conclusion that Sunil gave a blow to the Colonel with a flexible rod, but did not cause the fracture. In the circumstances of the case, however, we do not think that the failure to direct the Jury that it was open to them to return a verdict of guilty on a minor offence occasioned any failure of justice.
If the eye-witnesses for the prosecution were believed, it would be undoubtedly a case under S. 325 Indian Penal Code; if on the contrary, the eye-witnesses were not believed and the defence version was accepted that the Colonel sustained the injuries by a fall, then there would no case even under S. 323 Indian Penal Code”.[ Smt. Nagindra Bala Mitra and another Versus Sunil Chandra Roy and another- AIR 1960 SC 706 : (1960) 3 SCR 1 : (1960) CriLJ SC 1020]