SRI KISHEN Vs. EMPEROR

JUDGEMENT

(1.) This is a criminal appeal on behalf of one Sri Krishen who has been convicted by a jury and sentenced by the learned Sessions Judge of Allahabad under Section 408, Indian Penal Code, on 2 charges to 5 years rigorous imprisonment and fine of Rs. 500 and in default six months further rigorous imprisonment on each charge. The points which have been taken by learned Counsel for the appellant are that there was misdirection to the jury. In ground No. 1 it was alleged that the Judge did not even tell the jury that they were judges of evidence and facts. This however is admitted to be inaccurate as on the last page of the judgment the Judge clearly stated to the jury: You have to judge from the circumstances and evidence referred to above whether the guilt of the accused is proved beyond reasonable doubt.... If you entertain any reasonable doubt as to the guilt of the accused Sri Kishen he is entitled to the benefit of the doubt.

(2.) The case therefore is distinguished from the ruling relied on by learned Counsel in Natabar Ghose V/s. Emperor (1908) 35 Cal 531, as in that ruling it is stated on p. 533: He has made no reference to the separate function of the jury as the sole judges of fact.

(3.) Learned Counsel also alluded to Khijiruddin Sonar V/s. Emperor 1926 Cal. 139 at p. 376, where the duty of a Judge in making a charge to a jury was laid down - a passage with which I agree. The particular passages which are stated to be objectionable are as follows : (a) On p. 57 : "There is absolutely no reason to disbelieve Ram Prasad and Kunjbehari Lal." Now under the Criminal Procedure Code, Section 297, it is the duty of the Judge to sum up the evidence for the prosecution and defence, and in Section 298(2) it is provided: The Judge may, if he thinks proper, in the course of his summing up, express to the jury his opinion upon any question of fact, or upon any question of mixed law and fact, relevant to the proceeding.