D WESTON Vs. PEARY MOHAN DASS

JUDGEMENT

(1.) Before passing to the evidence I will deal with the question of the standard of proof required of the plaintiff in a case such as this, to which both the judgment and the argument have referred. The learned Judge has cited in support of his views in this matter the case of Jarat Kumari Dassi v. Bissessur Dutt (1911) I.L.R. 39 Calc. 245, 255 which was heard by the Chief Justice and myself. I wish to point out that the observations to which Mr. Justice Fletcher refers are to be found in the judgment of the Chief Justice, and that the separate judgment which I then delivered contains the grounds on which I disposed of that appeal.

(2.) In my opinion there is but one rule of evidence which in India applies to both civil and criminal trials, and that is contained in the definition of the terms "proved" and "disproved" in Section 3 of the Evidence Act. This Act, to use the language of the Chief Justice in the case cited, "in conformity with the general tendency of the day, adopted the requirements of the prudent man as an appropriate concrete standard by which to measure proof." The test in each case is, would a prudent man after considering the matters before him (which vary with each case) deem the fact in issue to be proved or disproved? In a matter of this kind the conscience of the Court can never be bound by any rule, but that which coming from itself dictates a conscientious and prudent exercise of its judgment. And speaking for myself where, whatever be the form of the proceeding, charges of a fraudulent or criminal character are made against a party thereto, it is right to insist that such charges be proved clearly and beyond reasonable doubt, though the nature and extent of such proof must necessarily vary according to the circumstances of each case. There is a presumption against crime and misconduct, and the more heinous and improbable a crime is, the greater of necessity is the force of the evidence required to overcome such presumption I cannot myself imagine a Court saying to a party, who, as in this case, may be a person-holding a high and responsible position, with a previous unblemished record: "It is true that I have reasonable doubts whether you did the grossly criminal acts with which you are charged, but I find that you did so all the same." And this exclusion of reasonable doubt is all that the so-called " criminal proof" requires. What I understand the Chief Justice to have held, and with this part of his judgment I agree, is, that the English rule in these matters (whatever it be, for authorities are not at one) does not, as such, apply to India. He proceeded, however, to say that the presumption against misconduct is not (as I have also said) without its due weight, though (he adds) the standard of proof, to the exclusion of all reasonable doubt required in a criminal case, may not be applicable. That is not that it is not applicable, but it possibly may not be. For this, two English cases are cited. Apart from the fact that the English authorities are not uniform on the subject, in my opinion the reasons which exclude the application of the English rule (whatever it may be) in this country, also exclude as authorities the cases which are said to embody and interpret it. Whatever, however, be the standard of proof applicable, and assuming it to be as the learned Judge puts it, the plaintiff has in my opinion, for the reasons which I give in my review of the facts to which I now proceed, failed to satisfy it.

(3.) After the decision of this Court in the criminal appeal, the Government deputed the Commissioner" of Burdwan, Mr. D. J. Macpherson, to inquire into and report upon the charges made against the police in respect of the alleged conspiracy. This was done on the 10th June, 1909, and on following days. Mr. Macpherson, who has been called in this case, took the evidence of witnesses in the presence of Mr. K. B. Dutt, who was implicated by the informers reports and who is said to have been the chief complainant and spokesman for the others. Some of the statements of the witnesses in that enquiry have been put in and used, and the witnesses for the plaintiff have been considerably cross-examined as to important discrepancies between these two statements then and now made. learned Counsel for the respondent has rightly objected to the admission of any statement which, is not relevant to evidence actually given at the trial. The depositions at the enquiry are only admissible either to corroborate or contradict evidence given here. Mr. Macpherson then made a report, and a question arose about its production. I cannot see myself how a finding on a departmental inquiry or Mr. Macpherson s opinion in the matter could under any circumstances be evidence" before us. But in any case the Government claim, as it was entitled to do, privilege. We have been told that in the House of Commons the Secretary of State declared that it was not advisable that the report should be published during the pendency of these proceedings. A similar privilege was claimed for a confidential diary of the Maulvi. Mr. Justice Fletcher allowed both claims of privilege. A suggestion was, however, made in cross-examination on behalf of the plaintiff that the Government claimed this privilege because it knew that the documents would, if produced, falsify the defence and that it did not, to use counsel s word, "dare", therefore to produce them. The question in which this unfounded suggestion that Government was assisting a case known by it to be false was made was a scandalous one and was very rightly disallowed by Mr. Justice Fletcher. The supposition is not be tolerated that the Government of this country, one of whose functions is to administer justice through the very Court in which this accusation was made, was itself party to a conspiracy to defeat the just claims of the plaintiff by wrongfully withholding that which, if produced, would establish the falsity of a defence of its officers which they had further aided by public money. The suggestion serves, however, as a leading sample of the reckless and unfounded charges which have been made throughout this case.