1. [After explaining the relative functions of the judge 1825 anci jury the learned Judge continued his summing up as follows :] Now you may ask upon that what is meant by saying that the guilt of an accused person is proved As to that again, Ahmed varjoa8 cases have been cited for your instruction and various text books have been referred to. But 1 do not think myself, gentlemen, that we could take the matter further than the rule which the legislature baa laid down for our guidance in the Indian Evidence Act. That contains in a short compass what the legislature means by the use of the word 'proved', and I will read to you the definitions of 'proved', 'disproved', and 'not proved,' as contained in B. 3 of that Act. 'A fact is said to be proved when, after considering the matters before it, the Court (that is yourselves in the present case) either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.' What does that mean in plain language It means that you are prudent men, you consider the matters before you, and you say to yourselves 'Do we believe that such and such a fact exists V Or 'Do we believe that such and such an accused person is guilty Or 'Do we think that it is be probable that that fact is proved or that guilt is established, that under the circumstances of the particular case, we ought to act upon that supposition.' We cannot, in human affairs, prove anything with mathematical certainty and the law does not require it. The law does require that you as reasonable men should give to this case the consideration which you would give to your most important private affair, and having given that consideration fully and conscientiously, if you are of opinion that the accused are guilty or that their guilt is on probable that a prudent man would assume that they are guilty, then you would find them guilty. If you come to a conclusion short of that, then it would be your duty to hold that they are not guilty.
2. I will further point out to you what is meant by 'disproved', and that is contained in the same section. 'A fact is said to be disproved when, after considering the matter before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.' That is merely the converse of the previous proposition and that definition you may bear in mind when you come to consider whether any fact alleged by the prosecution is disproved by the evidence adduced on behalf of the defence or by the statements of the accused.
3. Further it is said 'A fact is said not to be proved when it is neither proved nor disproved,' That is a state of mind between two states of mind when you are unable to say precisely how the matter stands.
4. Now it is perfectly true that in considering whether a fact is proved or rather whether the guilt of person is proved you must to some extent bear in mind the consequence of your finding on that point. That is a matter which reasonable men no doubt will consider and they may say that in a trifling matter we would act on the assumption that the thing is proved but when it comes to the guilt of accused persons, the consequences are such that we may demand a higher standard.
5. Also something has been said to you about the meaning of the expression 'doubt' or 'reasonable doubt'. That is merely the same thing. In other words, if you feel a reasonable doubt, that is the doubt which reasonable men may reasonably entertain, not the doubt of a weak or vacillating mind, then the benefit of that doubt must be given to these accused persons.
6. Gentlemen, that is all that I need say upon those general questions which arise for your guidance. But there is another matter more special to this case on which I would say a word before proceeding further. The charge or one of the charges is a charge of conspiracy, and there is a special rule of law laid down in cases of conspiracy which you may have to take into your consideration. In Section 10 of the Indian Evidence Act the legislature says this :-
Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said done or written by any one of such persona in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party for it.
Now that means this. First, is there any reasonable ground to believe that any two or more of these accused had conspired together to commit an offence If you say yes, there is reasonable ground so to believe, or if you hold that any pesrson not called before the Court and not in the dock, here I am alluding to such persons as Zakaulla Khan and Abdul Karim, if you hold that these persons are conspirators, then the sets or the things done or said by any one of such persons become evidence against all such persons as you may find to be members of that conspiracy, and that is the rule that Section 10 enunciates. The meaning is clear if you analyse it, and it is simply this : it two persons conspire together to commit an offence, each is regarded as being the agent. of anotner and just as the principal is liable for the Shaw Ahmed acts of the agent, so each conspirator is liable for what is done by his fellow conspirator, in furtherance of the common intention which they had both entertained. First, you must find that there was a conspiracy, and, secondly, that the persons whom you wish to apply that doctrine joined that conspiracy before you can make any one of them responsible for anything said or done by others.
7. Again, I should like to deal a little further with the question of evidence in conspiracy cases and for that purpose I may read to you certain dicta taken from cases decided by learned Judges in England. 'Conspiracy,' gentlemen, 'is a matter of inference, deduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between them.' (per Grose J. in The King v. Brisac and Scott (1803) 4 East 164 . It was held by Lord Mansfield in The King v. Parsons (1762) 1 WBI. 392 'there was no occasion to prove the actual fact of conspiring, but that it might be collected from collateral circumstances.' And the matter is further and clearly put by Erie J. in another English case (Reg, v. Duffeld (1851) 5 Cox 404 in the following words (p. 434) :-
It does not happen one in a thousand times, when the offence of conspiracy is tried, that anybody comes before the jury to say-'I was present at the time when these parties did conspire together, and when they agreed to carry out their unlawful purposes'; that species of evidence is hardly ever to be adduced before a jury, but the unlawful combination and conspiracy is to be inferred from the conduct of the parties, and if you see several men taking several steps, all tending towards one obvious purpose, and you see them through a continued portion of time, taking steps that lead to an end, why it is for you to say whether those persons had not combined together to bring about that end, which their conduct so obviously appears adapted to effectuate.
Although the common design is the root of the charge, it is not necessary to prove that these two parties came together and actually agreed in terms to have this common design, and to pursue it by common means, and so to carry it into execution. This is not necessary, because in many oases of the moat clearly established conspiracies there are no means of proving any such thing, and neither law nor common sense requires that it should be proved. If you find that these two persons pursued by their acts the same object, often by the same means, one performing one part of an act, and the other another part of the same act, so as to complete it, with a view to the attainment of the object which they were pursuing, you will be as liberty to draw the conclusion that they have been engaged in a conspiracy to effect that object.' (Per Coleridge J. in Regina v. Murphy (1837) 8 C. & P. 297 .
9. Further it has been laid down in another case that,
It is not necessary to prove that the conspirators actually met; nor is it necessary to show that they have corresponded or communicated in any way; and there may be cases in which the Court will infer a conspiracy even though a the defendants are unknown to each other.
10. And again as to the agreement necessary to constitute conspiracy, that agreement is not such a contract between the conspirators as, if the purpose had been lawful, would have given ground for a law-suit. It is a consent between them to do a certain act.
11. If a general conspiracy exists, you may go into general evidence of its nature, and the conduct of its members, so as to implicate men who stand charged with acting upon the terms of it, years after those terms have been established, and who may reside at a great distance from the place where the general plan is carried on.' (per Lord Kenyon in Rex v. Hammond and Webb (1799) 2 Esp. 719 .
12. Further, and this is the rule which I have already explained to you,
when concert has once been proved, each party is the agent of all the others, and acts done by him in pursuance of the common design are admissible against his fellow conspirators. It is immaterial whether the conspirator whose acts it is sought to put in evidence is indicted with the defendant or not.
13. But as to that, you will observe that I have already told you that you cannot apply that rule against anybody until it is proved that he is a conspirator.
14. As to what is meant by ' agreement' in cases of conspiracy, 1 would read you this, which is again a citation from a well-known English case :-
Now first the crime of conspiracy is completely committed, if it is committed at all, the moment two or more have agreed that they will do, at once or at some future time, certain things. It is not necessary in order to complete the offence, that any one thing should be done beyond the agreement. The conspirators may repent and stop, or may have no opportunity, or may be prevented, or may fail. Nevertheless the crime is complete; it was completed when they agreed,
15. The nest thing that I propose to do is to deal with the charges against these accused persons,..
16. The first charge again is on the same lines as those that I have dealt with already. It falls into two portions, first murder, and, secondly, aiding and abetting one another in the commission of murder. As to the first charge in view of the gravity of this matter, I will just restate briefly the principle which you have to apply when a number of persons are gathered together to commit a crime. That is dealt with in Section 34 of the Indian Penal Code:-
When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persona is liable for that act in the same manner as if it were done by him alone.
17. Now what does that mean? It is intended to provide for those oases when a number of persons for instance join together with the intention of murdering another. One person causes the death of the object of the attack, say by firing at him with a pistol. The intention of all of them was to murder that man and in those circumstances the law says that each of those persons is liable for the act done; that is, the firing of the pistol, because that act was done in furtherance of the common intention of all of them. But it is only where there is a common intention to commit a particular act that that principle applies and you cannot apply it in this case, unless you find reason to believe that there was a common intention here to murder the deceased man Bawla. If there was and if one of the accused shot him in furtherance of that common intention then if you cannot say which accused fired the fatal shot all are equally liable for that which was done in furtherance of the common intention of all. Those are the considerations which arise as regards the first portion of this charge. Was there an act which caused the death of Bawla Did the person who did that act intend to cause death or bodily injury sufficient in the ordinary course of nature to cause death or did he know that the act was so imminently dangerous that death was the most probable consequence. In those circumstances the person who did that act is guilty of murder and in judging a man's intention you have to consider the nature and quality of his act. If a man fires a pistol at another and shoots him in the body it is open to you to hold that he intended to cause his death; it is open to you to hold that he intended to cause bodily injuries sufficient in the ordinary course of nature to cause death; it is open to you to hold that he knew that the act was so imminently dangerous that death was the most probable result. In any of those circumstances if the act done causes the death and if the intention or knowledge was such as I have described, the man who did that act is guilty of murder. [The rest of the summing up is not material to this report.]