KHYALI Vs. EMPEROR

JUDGEMENT

(1.) Applicant Khyali was tried by a jury in the Court of the Assistant Sessions Judge of Kanpur of an offence under Section 375, Indian Penal Code. The jury returned a unanimous verdict of guilty and the learned Assistant Sessions Judge convicted and sentenced him to undergo rigorous imprisonment for a period of three years and to receive a punishment of 15 stripes under the Whipping Act. Khyali appealed against his conviction and sentence to the Sessions Judge of Kanpur and it was argued before the Court of appeal that the charge to the jury was vitiated on account of misdirections and omissions and dhat, therefore, the verdict of the jury should be set aside. The learned Sessions Judge did not accept this contention and dismissed the appeal, hence this application in revision,

(2.) Mr. Sri Narain Sahai, the learned Counsel for the applicant, has taken the same points before me. In particular, he has urged with considerable force that the charge is bad inasmuch as the Judge did not point out to the jury that the applicant was entitled to the benefit of doubt. He has further urged that the charge is not a fair charge inasmuch as the learned Judge had expressed his opinion on evidence in a manner which left no option to the jury, but to convict the applicant.

(3.) In support of his first contention, learned Counsel has strongly relied upon the case in Basil Ranger Lawsrence V/s. Emperor 20 A.I.R. 1933 P.C. 218. There is no doubt that it is universally recognised as an elementary principle of natural justice that an accused person is entitled to the benefit of doubt and that a Judge charging a jury should point that out to them. In my opinion, the learned Assistant Sessions Judge has not been remiss in his duty in this behalf. After commenting on the evidence produced on behalf of the prosecution, the learned Judge observes as follows: You have to consider if the depositions of Mt. Rup Rani and Piswa together with the medical evidence the Chemical examiner's report about the dhotis, the dhotis themselves, and the danda, prove the guilt of the accused beyond all reasonable doubt.