P L D 1958 Dacca 371 (PLP)

In support of its case the prosecution examined some 19 witnesses. It is not necessary for us in the present case to go into the details of the evidence adduced herein. It will be sufficient to say that in this case the prosecution could not adduce any direct evidence of any kind whatsoever to establish the complicity of the appellant with the crime charged. The case against him depended solely upon circumstantial evidence and here again the only circumstances that the prosecution could succeed in establish ing against the appellant were three in number, namely, (1) that the appellant was one of the three persons who visited the house of the deceased on the morning of the 22nd of March 1955, but remained behind at the house of the deceased when his companions had left ; (Since his companions have been discharged by the committing Court and have not been examined as witnesses in the Court of Session, what they said to him when they left was clearly inadmissible in evidence) ; (2) that the appellant induced the deceased to accompany him at night on the pretext of going to the mela and they in fact left towards the west, in which direction the village of Mangalgram also lay, although the village of the appellant lay in a different direction, namely, the north ; (3) the presence of some undigested rice and dal found by the doctor who held the p9st‑mortem examination in the bowels of the deceased. This last circumstance was relied upon by the prosecution for drawing a further inference therefrom that, since according to the evidence of the doctor it takes 2 to 5 hours to completely digest food, the presence of the undigested food in the bowel indicated that the deceased must have been murdered soon after he left his house in the company of the appellant. The appellant was tried by a jury consisting of nine persons who unanimously returned a verdict of guilty against the appellant and the learned Sessions Judge of Pabna, accepted the said unanimous verdict, convicted the appellant of the said charge and sentenced him to transportation for life. It is against this conviction that the present appeal has been preferred. The learned Counsel placing the case of the appellant before us has assailed the charge delivered to the jury by the learned Sessions Judge on more than one ground. It is not necessary for us, however to deal with each and every one of the said grounds having regard to, the view that we have formed of the first ground taken on behalf of the appellant which is also suggested by ground No. 3 of the grounds of appeal submitted from Jail. The contention of the learned Counsel is that since the only evidence of the complicity of the appellant with the crime charged was of a circumstantial nature and, the prosecution could only establish three and only three isolated circumstances which the learned Judge himself told the jury were dot conclusive circumstances, he ought not to have thereafter left the matter to the jury but should have, according to the provisions of subsection (2) of section 289 of the Code of Criminal Procedure, directed the jury to return a verdict of not guilty in so far as he had not done so, he had failed to discharge a duty imposed upon him by law, namely, to give such a proper direction in law to the jury. Therefore, the charge had been vitiated by a serious misdirection on a point of law. We have gone through the charge delivered to the jury and we find that the learned Judge sets out three and only three circumstances as having been established against the appellant before us and at the end of each of the paragraphs dealing with each of the aforesaid circumstances, the learned Judge concludes his direction to the jury by saying that the circumstance is by no means a conclusive circumstance to show that the appellant had anything to do with the murder. But in the penultimate paragraph of his charge, he concludes as follows :‑ " The circumstances mentioned above against Abdul Ali are by no means conclusive when taken individually. But you may consider whether taken together they lead you irresistibly to the conclusion that it was he who took Ayejuddin out of his house on the false pretext of going to the mela with the intention or with the knowledge that he might be murdered, then it may be said that the charge of abetment against him has been proved by the circumstances. If, however, you can explain away the circumstances, then you cannot hold him guilty. Your suspicion is not sufficient to displace the presump tion of his innocence." On behalf of the State, it was at first urged that under the law the Sessions Judge had no power at all to withdraw the case from a jury. Obviously, in making this argument, the learned Advocate misconceived the scope of the provisions of section 289 of the Code of Criminal Procedure, for, when the same were pointed out to him, he promptly corrected himself and argued that what the section contemplated was that only when no evidence exists at all, it is the duty of the Judge to direct the jury to return a verdict of not guilty. According to him, even if there is a ‑scintilla of evidence, the matter must be left to the jury and the Judge cannot direct them to return a verdict of not guilty. It appears to us that this agreement of the learned Advocate for the State is also misconceived, for, the scintilla theory, as pointed out in the Full Bench decision of the Calcutta High Court in the case of the King‑Emperor v. Upendra Nath Das (19 C W N 653), is now exploded, Chief Justice Jenkins there pointed out, when dealing with the duties of a Judge under section 289, that‑ " It would therefore come within the duty of the Judge to determine whether any evidence had been given on which the jury could properly find the question for the party on whom the onus of proof lies, for that is a question of law. We have heard much of a scintilla of evidence and its paralysing effect on the power of the Judge to assist the jury ; that is an argument that might possibly have possessed some force in the early party of the last century. But the scintilla theory is now exploded. It is not enough to say that there, was some evidence. A scintilla of evidence clearly would not justify the Judge in leaving the case to the jury. There must be evidence on which they might reasonably and properly conclude the fact to be established." In this case, their Lordships also relied on certain dicta of Lord Blackburn wherein His Lordship pointed out the respective functions of the Judge and the jury and observed that although it is the function of the jury to say whether a particular inference is to be drawn from a particular set of facts proved, yet it is the Judge to determine as a matter of law whether from those facts proved that further inference can legitimately be drawn. Again, in the case of Ashnuddin Sardar and others v. King Emperor (32 C L J 89), it appears that in a case where the evidence on one question of fact, even if believed, had very little weight, the evidence on another fact, if believed, did not show that the accused was connected with the crime and the evidence on a third fact amounted to nothing in itself, Walmsley and Sir Syed Shams‑ul‑Huda, JJ., held that ‑in such circumstances the Judge ought not merely to have invited the jury to acquit but should p have gone further and said that there was no evidence against him. This view also seems to be supported by a decision of their Lordships of the Privy Council in a case from Ceylon: In the case of Stephen Senevirathne v. The King (41 C W N 65), Lord Roche, when delivering the opinion of the Board, pointed out that where there are " no grounds on the evidence taken as a whole, upon which any tribunal could properly as a matter of legitimate inference, arrive at a conclusion that the Appellant was guilty and any conclusion on the available materials would be, and is, mere conjecture or guess, which are not, in law or justice, permissible grounds on which to base a verdict. The only proper direction to the jury in these circumstances was that they must return a verdict of not guilty or that they could not safely or properly find any other verdict." The principles laid down in these decisions have been well summed up by Chief Justice Beaumont in a Full Bench decision in the case of Emperor v. Thokarsi Narsi (A I R 1941 Bom. 125) thus :‑ " Under section 289, Criminal P. C., 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 some times 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 impro bable, 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 the Judge, after the prosecution case is closed, comes to the conclusion that, assuming that the jury believe every word of the prosecution evidence, never theless 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 guilty, and he ought not in such a case to leave the matter to the jury." Applying this principle, with which we respectfully agree, to the present case, it is clear from a perusal of the charge itself that the learned Judge himself was of the view that even if the prosecution evidence was to be believed in the present case in toto, the circumstances established by that evidence could not conclusively establish the complicity of the appellant before us. Indeed, we may even go further and say, having regard to the circumstances which we have set out earlier, that they did not even constitute a scintilla of evidence against the appellant in 't the present case. If that be so, then it was, in our opinion, not sufficient merely to invite the jury to acquit the accused but the learned Judge should have gone further and clearly, in no uncertain terms, directed the jury that it was their duty to carry out his directions as being directions on a point of law and return a verdict of not guilty. In so far as he has failed to do so, in the case, we are satisfied that he has caused a grave prejudice to the accused, as is manifest from the perverse verdict that the jury has returned in this case. We, therefore, allow this appeal, set aside the verdict of the jury and the conviction and sentence of the appellant. We accordingly also acquit him of the said charge under section 302/ 109 of the Pakistan Penal Code and direct that he be set at liberty forthwith, if not wanted in any other connection. HASAN, J.‑I agree. Z.A.S.