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Whether S 163 of Evidence Act is applicable to Criminal law?


Decided On: 27.02.1930

Government of Bengal Vs. Santiram Mondal

Citation: AIR 1930 Cal 370

1. This is an appeal by Government against an order of acquittal passed on the unanimous verdict of a jury on charges under Sections 194, 193 and 211, I.P.C.

2. To understand the question of law which has been raised, the facts out of which the appeal arises may be stated as follows. On 5th March 1928, a number of men employed in the Railway workshops at Lilooah under Mr. W.C. Mould, Deputy Chief Mechanical Engineer E.I. Ry., went on strike. On 8th March the workshops were closed down. On 28th March the Agent E.I. Ry. received a deputation of strikers, but-their demands were refused. In the afternoon a large number of strikers proceeded to Bamangachi, between Howrah and Lilooah, and the result of their attitude was that the police were obliged to disperse them by force. Riflle fire was opened and the result is said to have been that one person was killed, one died in hospital and two others were wounded : more, according to the assertion of the accused. After the dispersal, the District Magistrate Mr. G.S. Dutt was informed of the occurrence by Mr. Jones A.S.P., and came to Bamangachi, where he made enquiries and examined Mr. Jones, the accused Santiram Mondal and others. On 2nd April 1928 the accused lodged a complaint before a Magistrate of Howrah charging Mr. Mould and Mr. Jones, together with two other railway officials, Messrs. Withinshaw and Hitchcock, and Major Hewatt, Officer in Charge of the E.I.R. Auxiliary Force, with offences under Sections 147, 148, 149, 302, 304, 325 and 326, I.P.C., that is to say, putting it comprehensively, rioting and murder. The complaint contained the allegation, among others, that after Mr. Sturgis, Mr. Within Shaw, Major Hewett and Mr. Jones had taken over a rifle each from some of the Gurkha guards:

Mr. Mould came running from the direction of the loco quarters and snatching off a gun from a Gurkha guard fired it without any previous warning at the strikers. One man was hit and foil down by the side of the road. Then Withinshaw, Hewett and Mr. Jones began firing at random. I saw seven or eight men lying on the ground wounded bleeding and insensible.
3. This complaint of Santiram Mandal was taken up by the District Magistrate, and on 9th May 1928 was dismissed by him under Section 203, Criminal P.C., after a judicial enquiry in the course of which Santiram was examined on oath. In the meantime, by 2nd April 1928, the District Magistrate, in the course of his departmental enquiry started on 28th March, had recorded the statements of Captain Christie of the Eastern Frontier Rifles, Mr. Jones, Santiram Mondal, Messrs. Venables, Hannay, Mould, Severs and others.

4. Following on the dismissal of that complaint under Section 203, Criminal P.C., Mr. Mould moved the District Magistrate under Section 476, Criminal P.C., praying that a complaint should be filed against Santiram Mondal charging him with offences under Sections 211 and 193, I.P.C. The accused filed a petition in answer, showing cause. The complaint was made on 14th June 1928, and the accused was committed to the Sessions. He was tried by the Sessions Judge and a mixed jury of five persons, who on 23rd March 1929 found the accused not guilty and he was acquitted.

5. The case for the prosecution was that the allegations of Santiram Mandal against Mr. Mould and the others in his complaint and in his evidence were intentionally false, that Mr. Mould had not been at Bamangachi on 28th March at all nor participated in the incidents there, and that no firing had taken place except by the Gurkhas under orders of Captain Christie. In support of this various witnesses were examined, including most of those who had made statements before Mr. G.S. Dutt in the course of his departmental enquiry from 28th March to 2nd April.

6. On the question of law the main point argued before us relates to the procedure adopted at the Sessions trial with regard to these statements and the way they have been dealt with. Briefly stated, the matter stands thus. On behalf of the accused at the trial, notice was given to the Crown to produce them. They were called for, produced, and inspected: not only so, but the statements themselves were placed in the hands of the prosecution witnesses by the defence and they were cross-examined upon them. Nevertheless the Judge refused to admit them on the record with the exception of only a portion of Captain Christie’s statement, and they were accordingly not before the jury.

7. The learned Judge in his charge to the jury, however, refers to these statements in what is said to be an objectionable manner. Take for instance the cross examination of Mr. Venables, wnere a passage from the previous statement was put to him as being inconsistent with his evidence.

Q, Did you in toe departmental enquiry tell Mr. Dutt, that you were busy with a few constables in keeping the mob out from the compound

A. No, I did not.

Q. 1 put it to you tint on the other hand you told Mr. Dutt this.

I was all the time fully employed in trying to keep the workers inside the loco shed pacified and at work.

A. I did.

Q. Is that correct?

A, Yes.

Q. As a matter of fact to Mr. Dutt you did not say a single word about the firing.

A. No.

Q. I put it to you again that having been reminded of that, you will still swear that you were not in the loco shed and were engaged, with constables on the compound.

A. Yes. I was not in the loco shed all the.time.

8. This is referred to by the learned Judge in his charge in this manner:

It has been brought to the notice of the jury by the defence that in his earlier state meat before Mr. Dutt this witness stated that, he was all the time fully employed in trying to keep the strikers inside the loco shed specified and at work, and it is argued that his present version of keeping back the crowd from the compound was not mentioned before. Mr. Venables explains that he was not in the loco shed all the time. Jury to consider.
9. The jury having been told to consider were, however, deprived of the assistance of the complete statement itself. The complete statement which has been, placed before us shows the matter in. another light, and the quotation referred to by the Judge may well be said to giver a wrong impression, standing by itself, in forming their judgment. Similarly m regard to a witness named Gordon, who speaks to a meeting with Mr. Mould at Howrah, he is also cross-examined on his previous statement, and as to this, though the whole statement was not before the jury, the Judge tells the jury:

The story of Mr. Gordon going to platform-1 was not given to the District Magistrate Mr, Dutt at the initial stage,
10. Then much was also made by the defence of an answer recorded in the re-examination of this witness, (a slip, according to the prosecution), which might suggest that on 28th the witness and Mr. Mould had travelled on the train only as far as Bamangachi. The whole earlier statement would have shown that the previous story was and that it corroborated the evidence of this witness on the point. Then again another witness named Dunsdon, giving evidence as to a meeting with Mr. Mould at Howrah on 28th was cross-examined upon his statement to Mr. Dutt, in the following terms.

Q. Did you then to Mr. Dutt say that you met Mr. Mould at Howrah station at 4-15p.m.

A. It is extremely improbable that I said that I had met Mr. Mould at 4-15.

Q. Do you sea that recorded in fact? (witness looks into the record and says).

A. Yes, I see it recorded.

Q, You signed that statement?

A. I signed it without reading it.

Q. Do you attach any value to your signature?

A. Yes.

Q. As Superintendent of way and works do you sign documents without knowing what you are signing?

A. No.

Q. Can you on that statement point out anything which you might describe as inaccurate?

A. No, as far as I can see, the rest is all correct. I notice at the conclusion of the statement it is recorded that the times I have mentioned are very approximate.

Q. Therefore you might have mentioned the time as 4-15 approximately.

A. I should say it was a mistake in recording.

11. The learned Judge deals with it in his charge thus:

In this Court Mr. Dunsdon has said that he met Mr. Mould on platform No. 6 at about 4-15p.m. In the departmental enquiry he said before Mr. Dutt that he met Mr. Mould at 4-15. It is argued by the prosecution that this might be a mistake on the part of the recording Magistrate as this timing does not fit in with other timings given by the witness an the same statement before Mr. Dutt Mr. Dunsdon in other portions of his statement before Mr. Dutt said that when going up to Bally in a train he passed through Bamangachi at about 4-10p.m. and when he was returning by the train to Howrah he passed Bamangachi again at 5 p.m. It is argued by the defence that the witness was giving various stories and therefore got confused over the timings. Jury So decide what view they will take.
12. Obviously if the whole statement had been before the jury they would have been in a position to say for themselves whether the mistake was one of recording or not and how if at all it affects he credibility of the witnesses’ story and the whole case. We have had the statement laid before us, and it is quite obvious from the other facts and times mentioned therein, that the witness is aright in saying it is a mistake in recording. The jury could have seen that for thmselves, had the statement not been kept from them.

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13. As regards the efforts made by the prosecution to have these statements exhibited, these have not been denied, and they appear again and again in the Sessions record, usually after the statement had been pub into the hand of witness 1 and questions asked upon it in cross examination. A petition was submitted by the prosecution for the admission of these statements, on which the learned Judge passed an order dated 11th March 1929. From what is there stated it appears that the contention was that the defence was bound to tender the documents under Section 163, Evidence Act, upon which the learned Judge remarks:

No case law in support of this proposition in a criminal trial in which the Crown is the prosecutor is placed before ma or can be found in any of the commentaries, I hold that Section 163, Evidence Act has no application to the present case.
14. The learned Judge adds that it was not argued that the statements should be admitted under Section 74, Evidence Act, and he holds that these cannot be admitted in evidence as public documents. The opinion of the learned Judge touching the effect of Section 163, Evidence Act seems to be based upon the idea that the section can have no applicability to criminal trials, at any rate where the Crown is the prosecutor. There is, however, nothing to support this view, and no such limitation is to be found in the wording of the section itself. In the argument before us no such contention was sought to be upheld. The contention before us has been that Section 163 does not apply, having regard to the nature of the documents in question, though it is admitted that the other conditions specified in the section have been fulfilled. It is conceded that notice to produce was given to the Crown, that the defence called for the documents and they were thereupon produced and inspected, and, it may be added, they were mostly used for cross examining the several witnesses. It is, however, said that the section does not apply to this kind of document but that it necessarily contemplates only that class of document to which the party calling for it would have no access unless his opponent produces it, which is inaccessible because in the exclusive possession of the ether party. Then it is argued, these were not in the exclusive possession of the other side, because such statements, which were recorded de partmentally by a public officer in his executive capacity, cannot be said to be in the exclusive possession of the prosecution. This is tantamount to saying that the Crown as prosecutor is a different person from the Crown that had recorded the statements, and there is no substance in such contention. The Crown undoubtedly has exclusive possession of such a document, whether it be in one department or another. We are of opinion that it was not a judicial enquiry, nor was the evidence given upon oath, and it seems to us that no question arises of these statements being public documents, but that they were documents in which Section 163, Evidence Act, could properly be applied, and that the defence were bound to put them in. The further contention is that if they are to be admitted, they cannot be put in or at any rate used without proof. But the section itself ‘says that the party calling for it is bound to give it as evidence if required to do so, and that certainly means that it goes in as a record of the particular proceeding and that it can be looked at to see what it includes or omits. Moreover the writing of the statements and the signature by the Magistrate have been proved. It is not a sufficient answer to say that in certain cases the witnesses were asked certain questions based upon these statements when re-examined by the prosecution, and that therefore the prosecution could have got in the whole of the statements in that way as evidence. They were entitled to have the statements themselves in evidence, they made every effort to do so, and they could not foresee the manner in which the learned Judge would place the matter before the jury. Next, two further passages are objected to by the Crown as being misdirections in the charge. In dealing with the charge under Section 211 the Judge says:

It should be established by the prosecution beyond reasonable doubt that the circumstances are not merely consistent with the guilt of the accused but entirely inconsistent with his innocence.
15. In point of fact this passage is to be found in a judgment of Mookerjee, J., in Ram Prasad v. Emperor MANU/WB/0362/1912 : 17 C.W.N. 379 in deciding case where two Judges of the Criminal Bench had differed, arriving at different conclusions on a view of the facts in the case, particularly the effect of an entry in an account book. Mookerjee, J. says that the vital point in the case was whether the petitioner was deprived of a sum of Rs. 101 to which the entry m question related, and he came to the conclusion that the entry was not suspicious and that there was no reasonable-ground for the theory that certain words had been added to the entry to corroborate the charge of theft. Having found that to be so it was unnecessary to do more than give effect to that finding: it would seem therefore that there is good ground for the contention of the Advocate-General that the passage objected to is obiter. The objection is to the words “entirely inconsistent” and we think that there was no need to have formulated the proposition in that way or to go beyond what was laid down in) the Full Bench case Hurjee Mull v. Imam Ali [1904] 8 C.W.N. 278 which laid down the test in other terms, that in a case dependent upon circumstantial evidence the incriminating facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt. It would perhaps not have mattered if the learned Sessions Judge in the present case had placed the passage in question before the jury and then proceeded to explain it to them further in the light of the principle enunciated in Hurjee Mull’s case: but he has not done so. He might also have pointed out to the jury while dealing with this subject that it was not so much in the present case a question of the probative value of circumstantial evidence, but of the weighing of direct testimony of witnesses. Standing as it does, in the way in which the learned Judge has made use of it, it seems to us to amount to a misdirection.

16. The other passage is one taken from the case of Queen v. Ahmad Ally 11 W.R. Cri. 25 where it is said that the:

true rule is that no man can be convicted of giving false evidence except on proof of facts which if accepted as true show not merely that it is incredible but that it is impossible that the statements of the party accused made on oath can be true.
17. That passage again must be taken, in all fairness, with reference to the nature of the particular facts with which it dealt, and it will be observed that the main point in that case was whether a doctor in giving expert evidence of his opinion, might or or might not be mistaken:

The evidence of the medical man (at p. 27) or other skilled witness, however eminent, as to what he thinks may, or may not have taken place under a particular combination of circumstances, however confidently he may speak, is ordinarily a mere matter of opinion. Human judgment is fallible. Human knowledge is limited and imperfect,
18. and so on. Here again we think the passage objected to must be taken as a misdirection, not from anything wrong in itself, but from the use made of it by the learned Judge without explaining to the jury wherein and how far it could be said to apply to the evidence in the present case, which is of a different nature and not dependent upon expert opinion at all.

19. Clearly the matters above referred to are misdirections upon essential points arising in the case, and as will hereafter appear from a consideration of the evidence, we think that the verdict is erroneous owing to such misdirections, and that such misdirections have in fact occasioned a failure of justice: also that if the rejected evidence had been received it ought to have varied the decision, the verdict of the jury and the order of acquittal based thereon should therefore in our opinion be reversed.

20. The charges which the accused had to meet were under Sections 211, 193 and 194, I.P.C. Of these the Advocate-General does not press the charges under Section 194. The charge under Section 211 is:

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that you on or about the 2nd day of April 1928 at Howrah, with intent to cause injury to Mr, W.C. Mould filed a complaint under Sections 147, 149, 302, 304, 325 and 326, I.P.C., before Mr, B.N. Mukherji, Deputy Magistrate, charging the said Mr. W.C. Mould with having committed the offence of rioting with murder etc. knowing that there was no just or lawful ground for such complaint.
21. The charges under Section 193 as to giving false evidence related to (1) a statement before the Deputy Magistrate on 3rd April 1928 in support of the accused’s complaint:

Then Mr. Mould came running from the Loco, snatched up a gun from a Gurkha and shot a man who was standing under a banian tree on the side of the road and the man dropped down and did not move again.

(2) a statement on or about the 7th April 1928 in the enquiry before the District Magistrate Mr. Dutt:

I saw Messrs. Mould, Hewett, Withinshaw and Jones take a rifle each from the hand of she Gurkha Military Police riflemen.
(3) a statement on or about the 14th April 1928 in the course of deposition at the enquiry by the District Magistrate Mr. G.S. Dutt:

I said that Mr. Mould fired the very first shot and that the subsequent shots were fired by the other Europeans named by me.
22. Before going into the evidence, it is convenient to notice that at the scene of the occurrence, the railway runs in general direction of north and south while the bridge carrying the road way over it runs east and west. The bridge has an eastern approach from the Grand Trunk Road, while the western approach slopes down from the bridge into what is called the old Benares Road, having the loco shed immediately to the north, and a little further on, to the south, a walled enclosure called a graveyard, a latrine, and beyond that again a musjid with a banian tree. (The judgment then discussed evidence and proceeded). To summarise the evidence, the evidence of Captain Christie, Mr. Jones and Mr. Hannay, definitely states that the firing was done by the Indian rifle-men and not by Europeans. There is no half way house between this evidence being either true, or on the other hand calculated and deliberate perjury with a view to crush the accused. If false, it involves the formation of a conspiracy between all these persons: and it involves particularly the suggestion that Captain Christie had the readiness and presence of mind to concoct a false story straight away, and get it supported. His statement in Court as to the details of the occurrence is substantially and solidly supported in the essential points by the statement made to the Magistrate, Mr. Dutt, immediately after the occurrence and recorded by him on that very evening of the 28th March at which time it does not appear that the question of Mr. Mould’s participation in the affair had become of importance though it does appear later, and it is obvious that the conspiracy must have already taken shape by the 2nd April by which time Messrs. Hannay, Christie, Venables,. Mould, Dunsdon, Gordon and Jones had all given statements substantially in accord with their present testimony.

23. On the question of the absence of Mr. Mould from Bamangachi, the namesi of the various witnesses and the evidence they gave have already been referred to, and it is to be noticed especially that the definite suggestion through out has been that all these witnesses, mot excluding Captain Christie and Mr. Hannay, are conspiring to perjure themselves with the object of keeping Mr. Mould out of it. That appears from what was put be Mr. Hannay in cross-examination, that he had himself removed Mr. Mould in his car; as also from the suggestion that it was the railway officials who did the firing, including Mr. Mould. The facts themselves really lie within a small compass. On the one side, repeated statements by the accused that Mr. Mould and others fired and killed: and against that a Solid body of evidence to show that the firing was done only by the Gurkhas and not by any Europeans, including Mr. Mould who was not there.

24. Santiram’ s statement.

25. It will be convenient here to mention the different statements of the accused.

26. The first is his statement in the departmental enquiry by Mr. Dutt made on 29th March 1928. He deals first of all with the disturbance on the eastern approach, when he says Mr. Sturgis “snatched a rifle from a Gurkha. So did Mr. Withinshaw and Major Hewett and Mr. Jones.” He then says that Mr. Sturgis turned back with the other Europeans, who went towards the western side of the bridge. He then goes on to say:

I followed Mr. Sturgis up to the lamp post No. 219/7 on the (western approach). I thon saw Mr. Mould, Mr. Haanay, Mr. Collett and other Sahibs came rushing from the loco yard on the north of the bridge western approach on to the west end of the approach.
27. Then he says the police and the Gurkha choukidars began to use their lathis and the crowd began throwing stones. He says, immediately that happened, rifle fire was opened. Shots were fired over the brick wall at the men standing behind the brick wall Then comes the most important statement for the present case, his first recorded statement of the part taken by Mr. Mould and others:

Mr. Mould, Mr. Jones, Mr. Withinshaw and Major Hewett rushed behind the crowd into the maidan beyond the public latrine with rifle in hand, and began to shoot people indiscriminately with their rifles at random. Altogether 14 or 15 shots were fired. Then Mr. Withinshaw came back from the maidan beyond the public latrine with a wound on his eye. I was standing all the time near Mr. Sturgis half way up the western approach of the bridge.
28. Let it be noted that, here the place of firing is put in the maidan behind the crowd, indiscriminate shooting, and 14 or 15 shots fired.

29. Next in order comes the petition of complaint filed by the accused on 2nd April 1928. Here he says that after the affair on the eastern side, Mr. Sburgis, Mr. Withinshaw, Major Hewett and Mr. Jones ran across with rifles back to the western side, and. he himself ran after them. Then he speaks of the fight between the crowd and the police with lathis, and then says that while all this was goiug on Mr. Mould came running from the loco quarters and:

snatching off a gun from a Gurkha Guard, fired it without any previous warning at the strikers. One man was hit and fell down by the side of the road. Then Withinshaw, Hewett and Mr. Jones began firing at random. I saw seven or eight men lying on the ground wounded, bleeding and insensible.
30. This statement differs materially from the other, in that it is now suggested that Mr. Mould took his rifle from a guard, that Mr. Mould is credible with one shot which hit a man, while the others fired indiscriminately. There is no mention of the shooting on the maidan from behind the crowd, and the indication is rather that the firing was somewhere from the western approach, seeing that Mr. Mould and the others had got their rifles from the Gurkhas.

31. The next statement of the accused is his statement on solemn affirmation made on 3rd April when examined in support of his complaint. This is the statement containing the passage forming the charge under Section 193, that Mr. Mould came running from the loco quarters, seized a gun from a Gurkha, and shot a man standing under a banian tree at the side of the road, and the man dropped down and did not move again: then that Withinshaw, Jones and Hewett began to shoot at random and about 7 or 8 men were wounded. This again differs from the earliest statement very much as the last one did. Mr. Mould is credited with shooting a particular man instead of firing indiscriminately, and there is no suggestion of the shooting from the maidan behind the crowd: rather it is suggested from the statement that he followed Mr. Sturgis that the shooting was from the western approach.

32. The next statement is one before the Magistrate on 7fch April and contains the statement forming the subject matter of the second charge. Here he states definitely for the first time that the Military Police did not fire a single shot: he still says he was near a particular lamp post on the western bridge approach near Mr. Sturgis when the firing took place. It is important to bear this in mind on the question of the possibility of bonafide mistake. He adds that 35 men were wounded and two died, in addition to three carried away by the Gurkhas and he clearly remembers seeing eight men hit with bullets. Then later he says that he saw Mould, Hewett, Withinshaw and Jones take a title each from the hands of the Gurkhas, and adds that Captain Christie was not there at the time of the occurrence, but arrived afterwards.

33. The fifth and final statement we have been referred to is Ex. B the petition by which he showed cause in the proceedings under Section 476, Criminal P.C., and which he puts forward as representing his case when in the Sessions trial whether he had anything to say. This also is important on the question of bonafide mistake, because it contains no suggestion of that kind, but on the other hand maintains the attitude of justification by the accused as a person present at the spot who saw Mr. Mould doing the acts in person. For instance, it states that Mr. Mould should consider himself fortunate to escape trial for murder: that he instituted no false complaint, and that to the best of his observation, knowledge and belief he saw Mr. Mould take the part ascribed to him: and that attitude of justification is maintained throughout the remainder of the petition.

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34. In his argument for the defence in this Court based upon the whole of the evidence after it had been placed before us, Mr. Chatterji has not attempted to substantiate any such conspiracy (as re-ferred to above) on the part of the prosecution witnesses. He recognizes that if the evidence of the prosecution witnesses in its essential points is accepted, as we do accept it, then Santiram’s statements could not have been true. He does not say that Mr. Mould or any prosecution witness has perjured himself or deposed falsely, but he says that he can suggest good reasons from the evidence why the jury and the Court could and should come to the conclusion that, at the worst, having regard to the circumstances attending the events of 28th March the statements of witnesses and Santiram’s statements, the benefit of reasonable doubt should be given to the accused: or, as he subsequently put it, that from all the facts it cannot be said to be unreasonable for the jury or for the Court to say that it would not be quite safe to convict a man on these charges. Or, he says, the jury may have given effect to what they thought was a bona fide mistake on the part of the accused in the confusion and excitement of the moment, whereby he may have been led to confuse his impressions with direct knowledge. At any rate it is suggested that it would be not unreasonable for the Court or the jury to say that it was not satisfied that the prosecution had proved affirmatively that Mr. Mould could not have been present at the scene of the occurrence, or that the accused could not be under the honest but mistaken impression that Mr. Mould was there.

35. Some of the circumstances so relied upon have already been indicated in dealing with the evidence of the witnesses. It is, therefore, for instance, admitted that some European officers were at the scene of the occurrence, some of whom saw Santiram, and some of whom he must have seen. Then it is said that with reference to the evidence of Mr. Mould’s movements on 28th, there is no corroboration of his statements as to his lunch at the Club; no one else speaks of it. Also there is no corroboration of the statement that he went to the Chief Mechanical Engineer’s office after lunch. Then as regards the period after 3-30 it is said there was no necessity for his return to Head Office, and curious that if he did so, he should meet Mr. Hannay by chance and be told to go to Mr. Gumbrill, and that then he should have been directed into Mr. Sewer’s room on the way. The interview with Mr. Gumbrill is one of comparatively late introduction in the case, and it is in evidence that this is the only draft notice or proclamation with which either Mr. Mould or Mr. Gumbrill ever had to do. Then as regards the Howrah meetings, it is said that Mr. Mould had information of the disturbances (though not of the shooting) before he left, and though not strictly responsible for anything at Bamangachi because his place was at Lillooah, still he would naturally be anxious to avert any clash or catastrophe and give his assistance, besides having a natural human interest in the matter. Then it is said that it is unlikely that Mr. Mould should be in a position to remember the details of all his movements on the 28th, there are certain discrepancies in his long cross-examination, and he is not altogether candid in what he says about whom he asked to give evidence for him. Then again it is admitted that Mr. Sturgis in the affair on the eastern slope had taken over a rifle from one of the riflemen. The accused had started his accusations as soon as the District Magistrate arrived, and some of the persons mentioned have not been called as witnesses.

36. In considering and weighing the value of these suggestions as bearing upon the case, we cannot be blind to the fact that the essential facts of the prosecution case have been established by a compact and weighty body of testimony in regard to the events which took place at the scene of the occurrence itself. That testimony is clear that Mr. Mould was not there, that he did not participate in the firing, that the firing was done by the riflemen alone, and not by any European at all. It is corroborated in its essential details by the statements recorded by Mr. Dutt immediately after the occurrence in the case of the most important witnesses. The accused’s case has been, not that there was room for a bona fide mistake on his part, but that as an eye witness on the spot he saw Mr. Mould, and saw him and the others fire, though no other witness has suggested any such thing. To say that the prosecution story has been displaced and proved to be untrue would be idle: and no such contention is put forward before us. To say that the facts or inferences above referred to so weaken the prosecution case that any question of reasonable doubt could arise in the minds of the jury or of the Court is in our opinion an untenable position. We have considered the matter with the most anxious care. If we accept the evidence of the prosecution witnesses in the main essentials of the case-as we do, that evidence is so overwhelming and so conclusive that there is no room for saying that the other facts-relied on might have impaired or do impair the prosecution case to such act extent as to make it not unreasonable) for the jury or for the Court to hold that there was a doubt and that it was-not a case for conviction. Still less is there any foundation for suggesting that there is room to imagine that there was any case of honest mistake or bona fide confusion: that has never been the defence case, and there is no reasonable foundation for it in the record.

37. As already stated we have reversed the verdict of the jury and the order of acquittal based thereon. The question then is whether we should order a retrial, or whether we should proceed to dispose of the matter ourselves. For the defence it is argued that the alternative powers given to the Court for dealing with the case on appeal under Section 423(1)(a), Criminal P.C., show that those powers are intended to be exercised according to the different circumstances prevailing in each case. In the present case it is said that, if certain evidence did not go to jury which should have gone, the proper course would be to send the case back to the jury for their verdict on the case with the additional evidence before them. Thus it is said that an order for new trial is the course which was followed in Wafadar Khan v. Queen Empress [1894] 21 Cal. 955 and in All Fakir v. Queen Empress [1898] 25 Cal. 230. On the other hand it is to be observed that there is nothing in the language of the Code to differentiate the way in which the powers of the Court are to be exercised according as it is a jury trial or not: the language is wide enough and comprehensive enough to enable the Court to deal with the matter itself on an appeal, though in a jury trial. If as we hold there has been misdirection, and the Court is of opinion that the verdict of the jury is erroneous owing to that misdirection, and that it has in fact occasioned a failure of justice, there is no reason why in a proper case the Court may not assume to deal with the whole case itself, under the powers and duty conferred upon it by law: see Taju Paramanik v. Queen Empress [1898] 25 Cal. 711. No doubt the action which the Court will be inclined to take will depend upon the circumstances of the particular case. To deal with the whole case itself, it would no doubt require to have all the materials before it, as we have in the present lease. In the present case, also, it is nearly two years since the events out of which case arises, and in all the circumstances we consider it to be in the best interests of justice to deal with the matter ourselves. For the reasons stated above we find the accused guilty of the offences under Sections 211 and 193 under which he has been charged and sentence him to 5 years’ R.I. under Section 211, I.P.C. and three years under each of the charges under Section 193, I.P.C., all the sentences to run concurrently. The charges under Section 194 are not pressed: the accused is accordingly acquitted of those charges.

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