KUMAR NAIK Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) Trial in SC.31 of 1974 was taken up by the Addl Sessions Judge Gulbarga as against these petitioners only. They were accused Nos.21 to 24 in the. charge-sheet presented against 27 accused persons. They had been shown as absconding along with three other persons. Those three persons were discharged at one stage or the other. The prosecution evidence was closed on 14-8-1975. On that day, the defence contended after examination of the accused and during the hearing of the prosecution and the defence by the learned Addl Sessions Judge that the accused viz, the petitioners were entitled to be acquitted under S.232 CrlPC, 1973 (hereinafter referred to as the New Code'). The learned Addl Sessions Judge rejected the contention of the defence and called upon the accused to enter on their defence. It is this order that is challenged in this criminal petition. Shri Appa Rao, learned Counsel for the petitioners urged that in view of S.232 of the New Code, it was incumbent on the learned Addl Sessions Judge to record his reasons why he rejected the contention of the defence and called upon the accused to enter upon their defence and the learned Addl Sessions Judge having failed to record the reasons the order: in question is bad in law. He nextly contended that the learned Addl Sessions Judge has in the resume attached to the order in question merely enumerated the arguments advanced by the Counsel on both sides and that it does not satisfy the provisions of S.232 of the New Code. While continuing his arguments, he urged that PWs. 1, 2 and 14 to> 17 have been examined as eye-witnesses in this case, but PWs. 14 to 17 have not supported the prosecution and have not stated anything about these four petitioners. In regard to PWs.1 and 2; he pointed out that this Court has in CrlA.449 of '72 assessed the value of their evidence in para, 21 of the judgment and has held that their evidence cannot be taken at its face value unless there was independent reliable evidence corroborating their evidence as against, individual accused persons. He urged that there is absence of such evidence corroborating the evidence of PWs1 and 2 as against these petitioners and, hence, the pttitioners are entitled to be acquitted.

(2.) Shri Kuranga, learned High Court Govt Pleader appearing on behalf of the. State, urged that under S.232 of the New Code, the Addl Sessions Judge had no power to assess the evidence of PWs. 1 and '2 and come to a conclusion that it amounted to no evidence' and as such there was no force in the contention of Shri Appa Rao. He argued that there was circumstantial evidence as against these petitioners to show that they had taken part in the victory procession held immediately after the commission of the offence and that some witnesses had seen them prior to the commission of the offence and after the commission of the offence, near-about the scene of offence, and the value to be attached to this circumstanial evidence has to be in law, gone into only while recording the judgment. Shri Appa Rao relied on the meaning of 'no evidence' as stated in Stroud's Judicial Dictionary and also drew support from decisions in Emperor v. Thokarsi Narsi AIR. 1941 Bom. 125., Emperor v. Dawood Hasham AIR. 1941 Bom. 123. and Norendra Nath Mozundar v. State AIR. 1951 Cal. 140.. In those decisions, S.289 of the CrlPC, 1898 (hereinafter referred to as the Old Code') has been interpreted. Section 289 of the Old Code 'reads as follows : 289(1):-When 'the examination of the witnesses for the prosecution and the examination (if any) of the accused are concluded, the accused shall be asked whether he means to adduce evidence (2) If he says that he does not, the prosecutor may sum up his case; and, if the Court considers that there is no evidence that the accused committed the offence, it may then, in a case tried by the judge himself, record a finding or, in a case tried by a Jury, direct the Juryto return a verdict of not guilty"..... Section 232 of the New Code reads as follows 232.-If, after taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defence on the point the Judge considers that there is no evidence that the accused committed the offence, the Judge shall record an order of acquittal." It is to be noticed that S. 289 of the Old Code applies equally well to cases tried by the Jury. The Bombay High Court has in the case Emperor v. Thokarsi Narsi held as follows :' Under S.289, CrlPC, if the Court considers that there is no evidence that the accused committed the offence, it may, in a case tried by a Jury, direct the Jury to return a verdict of not guilty. No doubt, the word used is may' and not 'must', but it is well-settled that if the Judge comes to the conclusion that there is no evidence to go to the Jury, it is the duty of the Judge to direct the Jury that in law they must acquit. In applying any rule, there are always cases on the border line and it may be difficult sometimes to say on which side the particular case falls. But the general principle which governs the present matter is to my mind perfectly clear. It is the function of the Jury, in a trial by Jury, to determine whether the evidence is true and if the' Judge thinks that the prosecution evidence, if true, will lead to a conviction, then he is bound to leave the case to the Jury. He may think that the prosecution story is inherently improbable that the evidence is discrepant, and that it Is of a class which is generally unreliable for example, the evidence of discharged servants; but if he'thinks that though weak the evidence if true will justify a conviction, he must leave the case to the Jury, cautioning them, of course, about the weak points in the evidence. But if Judge, after the prosecution case is closed, comes to the conclusion that, assuming that the Jury believe every word of the prosecution evidence, nevertheless they will not be justified in convicting, then he is bound in law to say so and to direct the Jury that in law they must bring in a verdict of not Fuilty and he ought not in such a case to leave the matter to the Jury.

(3.) In the decision in Narendra Nath Mozumdor v. State, P.B.Mukharji, J: has held as follows : Where there are no grounds in the evidence taken as a whole upon which any tribunal could properly as a matter of legitimate inforence arrive at a conclusion that the accused was guilty and any elusion on the available materials would be mere conjecture or guess, which are not in law or justice permissible grounds on which to base a verdict then the Jury should not be allowed to gamble and speculate on possible inference. In Stroud's Judicial Dictionary, IV Edn, it is stated that the words 'no evidence' mean 'no reasonable evidence'. The Supreme Court has, in my opnion settled the point in Pati Ram v. State of 17. P.1970 SCD. 52. . The Supreme Court has held that what S.289 of the Old Code requires to be done is that if the trial Judge comes to the conclusion that there is evidence to show that the accused had committed the offence, then the accused should be called upon to enter upon his defence and that the value to be attached to that evidence is not to be considered at that stage. Hence it is clear that under S.289 of the Old Code, the Sessions Judge was required to come to the conclusion that there was evidence to show that the accused had committed the offence and at that time, he was not to decide what value was to be attached to that evidence. As S.232 of the New Code stands. I am unable to see any difference in the legal position. Hence, I hold that even under S.232 of the New Code, the Sessions Judge has to decide whether there is evidence to show that the accused has committed the offence, but at that stage he should not consider what value should be attached to such evidence. If he finds that there is no evidence within the meaning of what is narrated above then he has power to acquit the accused-petitioners.