John Beaumont, C.J.
1. This case comes before the Court on a certificate of the Advocate General given under Clause 26 of the Letters Patent. He considers that the question, whether the learned Judge should have withdrawn the case from the jury on the ground that there was no evidence to go to the jury, is a question of law which requires to be considered by this Court.
2. The case in question was tried by Mr. Justice Lokur and a special jury, and in it three accused were charged with murder and abetment of murder. The actual murder was charged against accused No. 1, and abetment of murder against accused Nos. 2 and 3.
3. The material facts, which the jury accepted, appear sufficiently from the certificate of the Advocate-General. The murdered man, Hussain Aiman, and his son Noor Mahomed were living in a house in Bhisti Moholla, and on January 22, 1939, about 11 p.m., Noor Mahomed was returning to his house, when he was abused, by accused Nos. 1, 2 and 3 and a man named Hasham who were sitting on the otla of a house near to his house. A quarrel ensued and a fight started between Noor Mahomed and accused No. 2, and at that stage Hussein, the father of Noor Mahomed, came up and separated the contestants, and either Hasham or accused No. 3 shouted, 'Seize Hussein, do not let him go.' Thereupon accused Nos. 2 and 3 caught hold of the deceased Hussein. Hussein, when caught, was facing the otla and accused No. 3 was facing Hussein. Whilst Hussein was being held by accused Nos. 2 and 3, he shouted to his son Noor Mahomed 'Dawood, (that is accused No. 1) has a knife in his hand, run away.' Then Noor Mahomed ran away. Thereupon accused No. 1 jumped down from the otla and stabbed Hussein through the heart, and killed him. Accused No. 1 was found guilty of murder by the jury and was sentenced to be hanged, and no question about his guilt arises.
4. Accused Nos. 2 and 3 were found guilty of abetment of murder and were sentenced by the learned Judge to transportation for life, and the question before us is whether there was any evidence to go to the jury that they were guilty of abetment. Now, the law, I think, is free from doubt. Section 289 of the Criminal Procedure Code provides that 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. That section confers in terms a discretion on the Judge, but it is a discretion which must be exercised judicially, and when one considers the respective functions of the Judge and jury in a trial by jury,--functions which are prescribed in Sub-section 298 and 299--, it is quite clear that where the Judge is satisfied that there is no evidence to go to the jury, he must in his discretion withdraw the case from the jury, or, in other words, direct them to return a verdict of not guilty. That is clear, because all questions of law have to be decided by the Judge, and the question whether there is any evidence to go before the jury is a question of law. The jury have to decide all questions as to the reliability of the evidence, and it is for them to determine which view of the facts is true. The Judge may consider that the evidence led for the prosecution is very weak, that there are discrepancies in it, that it is of a type usually found to be unreliable, and that the story is inherently improbable. All such defects he ought to bring to the attention of the jury, but if the evidence is such that if it is believed by the jury, it must lead to a conviction, then the Judge is bound to leave the question to the jury, because it is for them to decide whether the evidence is to be believed or not. But if the Judge comes, to the, conclusion that, assuming that the jury believes the whole of the evidence placed before them, in law they cannot convict the accused, then he is bound to hold that there is no evidence to be placed before the jury, and he is bound to direct them in law to return a verdict of not guilty.
5. Now, the question is, on which side of the line this case comes. Is it a case of no evidence which can justify a conviction, or is it a case of weak evidence which the jury nevertheless would be entitled to accept? Nobody suggests that the evidence against accused Nos. 2 and 3 is of a convincing character. The learned Judge gave a very full and fair summing-up, indeed, so full is the summing-up that both sides have agreed that it is not necessary to have a transcript of the evidence, because the learned Judge has correctly summarised all the material evidence. The bulk of his charge is, of course, directed to the case against accused No. 1, with which we are not concerned, but in the early part of his summing-up he explains to the jury accurately the nature of abetment. He points out that under Section 107 of the Indian Penal Code abetment may be of three characters, either by instigation, or by conspiracy, or by aiding or assisting, and then, at a later stage of his summing-up, he deals with the case against accused Nos. 2 and 3 specifically. There was no evidence that accused Nos. 2 and 3 had instigated accused No. 1 to stab Hussein, but the learned Judge discusses the two other aspects.-of abetment--active assistance, and previous conspiracy. He points out that as against accused Nos. 2 and 3 there is no evidence at all that they took any active part in the actual stabbing. He also points out that the whole incident took place in a few minutes and that it is not alleged that accused No. 1 shouted out that Hussein should be stabbed. He points out further that if accused Nos. 2 and 3 were locking away from the otla, they could not expect that accused No. 1 would immediately come down from the otla and stab Hussein. He says that abetment requires that the persons abetting must intend to facilitate the commission of the offence. Then he says
If accused Nos. 2 and 3 did not seize Hussein intending that he should be stabbed by accused No. 1, then they cannot be said to have abetted the commission of the offence by accused No. 1. It was pointed out to you in the course of the arguments that as accused Nos. 2 and 3 were holding Hussein, they could; not see what the accused No. 1 was doing as their backs were turned towards him. I accused No. 1 had shouted to accused Nos. 2 and 3, ' Seize Hussein, I am coming to stab him,' then they might perhaps have let him go or prevented accused No. 1 from stabbing him. There is no evidence to show that accused Nos. 2 and 3 had their attention directed towards accused No. 1. Unless you assume that there must have been a conspiracy; beforehand and in pursuance of that conspiracy accused Nos. 2 and 3 caught hold of Hussein, you cannot say that accused Nos. 2 and 3 abetted the commission of the crime.
So that the learned Judge seems definitely to express the view that unless the jury found abetment by means of previous conspiracy, there was no evidence of abetment; there was no evidence, that is to say, of actually aiding in the commission of the murder. Then the learned Judge goes on to discuss the evidence relating to previous conspiracy. He says:
It is admitted that accused Nos. 2 and 3 did not speak to accused No. 1, nor, did accused No. 1 say anything to accused Nos. 2 and 3 or to the deceased before he stabbed the deceased. It was done all of a sudden.
Then he says:
Accused Nos. 2 and 3 themselves did not know why they were called upon to seize the deceased. It may be that Hasham wanted merely to detain Hussein. Hussein had gone there as a peacemaker to settle the quarrel between accused No. 2 and Noor Mahomed Noor Mahomed ran away and then Hasham or some one from the crowd may have thought of keeping Hussein in order to settle the dispute once for all. In these circumstances unless there was a previous conspiracy that Hussein should be seized and stabbed, it would be difficult for you to hold accused Nos. 2 and 3 guilty of abetment. But the presence of Hussein there was accidental. It is, therefore, to my mind clear that on the evidence accused Nos. 2 and 3 cannot be held to have conspired with accused No. 1 for stabbing the deceased Hussein.
So that the learned Judge has really held that there was no evidence of abetment by active assistance or previous conspiracy, and there was no suggestion of abetment by instigation. I think, therefore, that if the learned Judge's attention had been drawn to Section 289 of the Criminal Procedure Code, he would have held that there was no evidence to go to the jury. Unfortunately, his attention was not directed to that section, and he left the case to the jury, and, no doubt, much to his surprise and regret, the jury brought in a unanimous verdict of guilty against accused Nos. 2 and 3.
6. It is argued by Mr. Khambatta for the Crown that in point of fact there was evidence, weak perhaps, but still evidence fit to be left to the jury. The evidence has not been transcribed, and, as I have said, we are judging from the summing-up of the learned Judge. To my mind the learned Judge has ruled upon the question, which it was for him to rule upon, and he has in fact held in his summing-up that there was no evidence against accused Nos. 2 and 3 of abetment, and, if that is so, as a matter of law he was bound to withdraw the case from the jury. There is no material before us which would justify our differing from the learned Judge on his view of the law. The error arises from the fact that, having decided the question of law, and held that there was no evidence to go to the jury, he did not adopt the correct course and direct the jury that in law they were bound to return a verdict of not guilty.
7. I think, therefore, that we must set aside the verdict of the jury as against accused Nos. 2 and 3. Of course, they might undoubtedly have been held guilty of assault under Section 352, and, therefore, they have not much to complain of, if they have spent some time in prison. We set aside the verdict and sentence as against accused; Nos. 2 and 3 and direct that they be acquitted and set at liberty.
N.J. Wadia, J.
8. I agree and have nothing to add.
9. I agree.