JWALA MOHAN Vs. STATE

JUDGEMENT

(1.) The following question has been referred to a Full Bench by a Bench which is hearing an appeal by Jwala and others against their conviction under section 396, Indian Penal Code, by the Additional Sessions Judge of Kheri:

(2.) The question referred to us is essentially a question of fact and not of law. It does not involve the application or even interpretation of any statutory provision. Whether a person is a competent witness or not may be a question of law governed by the Evidence Act. Once it is found as a matter of law that he is competent to give evidence, whether his evidence on a certain matter is admissible or not is again a question of law governed by the Evidence Act, which contains the provisions as to what statements of a witness are admissible and what inadmissible. After a witness has been found to be competent to give evidence and has made a statement which is admissible in evidence, a third question arises, it being whether it should be believed or not and this essentially is a question of fact. Neither the Evidence Act nor any other Act lays down any law governing the question which statement of a witness should be believed or should not be believed. Whether a statement of a witness should be believed or not depends upon so many circumstances that it is impossible to lay down hard and fast rules. Even in respect of an accomplice,

(3.) I mast strongly protest against any attempt on the part of a Judge of a High Court to impose his will not only upon an inferior Court, but also upon other Judges of the High Court. When a question of fact is presented before him, he is certainly free to decide it in any way that he thinks proper, but he has no jurisdiction to disguise his finding of fact into a finding of law and impose it upon the whole world. Just as he has the discretion in the matter, so also has any other Judge of the High Court (and also any Judge of an inferior Court) and no jurisdiction vests in him to deprive them of the discretion conferred upon them by the legislature. A Judge of a High Court may give an advice or instruction to a judge of an inferior Court, but it is nothing more than a counsel of prudence; it is not a ruling of law, and a judge of an inferior court does not act illegally in going against it. There are a couple of recognised counsels of prudence, such as that it is dangerous to convict an accused on the sole testimony of an approver, and the number of such counsels should not be extended arbitrarily.