M.S. Nesargi, J.
1. Trial in Sessions Case No. 31 of W74 was taken up by the Additional Sessions Judge, Gulbarga as against these petitioners only. They were accused Nets. 21 to 24 as a the charge-sheet presented against 27 accused persons. They had been fathom as absconding along with three order persons. Those three persons were discharged at one stage or the other. The prosecution evidence was closed on 14-8-1973. On that day, the defence contended after examination of the accused and during the hearing of the prosecution and the defence by the learned Additional Session Judge that the accused viz., the petitioners were entitled to be acquitted under Section 232 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'New Code'). The learned Additional Sessions Judge rejected the contention of the defence and called upon the accused to enter on their defence. It is this order that is challenged in this criminal petition.
2. Shri Appa Rao, learned Counsel for the petitioners urged that in view of Section 232 of the New Code, it was in-comment on the learned Additional Sessions Judge to record his reasons why he rejected Ute contention of the defence and called upon the accused to -enter upon their defence and the learned Additional Seasons Judge having failed to record the reasons, the order in question is bad in law. He nextly contended that the learned Additional Sessions Judge has in the resume' attached to the order in question merely enumerated the arguments advanced 'by the counsel on both aides and that it does not satisfy the provisions of Section of the new Code. We continuing his arguments, he urged that P.Ws. 1, 2 and 14 to 17 have 'been examined as eye-witnesses in this case, but P.Ws. 14 to 17 have not supported the prosecution and have not stated anything about these four petitioners. In regard to P.Ws. 1 and % he pointed out that this Court has in Criminal Appeal No. 449 of 1972 (Kant)' assessed the value of their evidence in paragraph 21 of the Judgment and has held that their evidence cannot be taken t its face value unless there was independent reliable evidence corroborating their evidence as against individual accused persons. He urged that there is absence of such evidence corroborating the evidence of P.Ws. 1 and 2 as against these petitioners and, hence, the petitioners are entitled to be acquitted.
3. Shri Kurnaga, learned) High Court Government Pleader appearing on behalf of the State, urged that under Section 232 of the new Code, the Additional Sessions Judge had no power to assess1 the evidence of P.Ws. 1 and 1 and come to a conclusion that it amounted to no evidence' and as such there was no force in the contention of Shri Appa Rao. He argued that there was circumstantial evidence as against these petitioners to show that they had taken part in the victory procession held immediately after the commission of the offence and that some witnesses had seen them prior to the commission of the offence and after the commission of the offence, near about the scene of offence, and the value to be attached to this circumstantial evidence has to be, in law, gone into only while recording the judgment.
4. Shri Appa Rao relied on the meaning of 'no evidence' as stated in Svoud's Judicial Dictionary and also drew support from the decisions in Emperor v. Thokarsi Nara AIR 1941 Bom 125 :42 Cri LJ 513) (FB), Emperor v. Dawood Hasbom AIR 1941 Bom 123 :42 Cri LJ 470) (FB) and Norendra Nath Mozumdar v. State : AIR1951Cal140 . In those decisions, Section 280 of the Code of Criminal Procedure, 1898 (hereinafter referred to as the 'old Code') has been interpreted. Section 289 of the old Code reads as follows;-
289 (1) When the examination of the witnesses for the prosecution and the examination (if any) of the accused are concluded, the accused shall be asked whether he means to adduce evidence:
(2) If he says that he does not, the prosecutor may sum up Ma case; and, if the Court considers that there is no evidence that the accused committed the offence, it may then, th a case tried by the Judge himself, record a finding or, in a case tried by a jury, 'direct the jury to return verdict of not guilty. (3) XX XX XX(4) XX XX XX
5. Section 232 of the Code reads as follow-
232. If, after taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defence on the point, the Judge considers that there is no evidence that the accused committed the offence, the Judge shall record an order of acquittal.
It is to be noticed that Section 289 of the Old Code applies equally was to the cases tried by the jury. The Bombay High Court has in the case reported in AIR 1941 Bom 125 :42 Cri Lj 513) (FB) (Emperor v. Thokarsi Nam) held to follows:
Under Section 289, Criminal Procedure Code, if the Court considers that there is no evidence that the accused committed the offence, ft 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 i 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 and and it may be difficult sometimes 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 improbable 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 Judge, after the prosecution case is closed, comes to the conclusion that, assuming that the jury believe every word of the prosecution evidence, nevertheless 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.
In the decision reported in : AIR1951Cal140 (Norendr Nath Mozumdar v. State), P. B. Mukhart J, has held as follows:
where there are no grounds in the evidence taken as a whole upon which any Tribunal could properly as a matter of legitimate inference arrive at a conclusion that the accused was guilty and any conclusion on the available materials would be mere conjecture or guess, which are not in law or grounds on which to base a, verdict then the jury should not be allowed to gambit and speculate on possible inference.
7. In Stroud's Judicial Dictionary, IV Edition, it is stated that the words 'no evidence' means 'no reasonable evidence.'
8. The Supreme Court has, in my opinion, settled the point in P Item v. State of U.P. 1976 SCD 52,. The Supreme Court has held that what Section. 2X9 of the Old Cod requires to be done is that if the trial Judge comes to the conclusion that there is evidence to show that the accused had committed the offence, then the accused should be called upon to enter upon his defence and that the value to toe attached to that evidence is not to be considered at that stage. Hence, it is dear that under Section 289 of the on Code, the Sessions Judge was required to come to the conclusion that there was evidence to show that the accused had committed the offence and at that time, he was not to decide what value was to be attached to that evidence. As Section 232 of the new Code stands, I and unable to see any difference in the legal pasrto Hence, I hold that even trader Section. 232 of the new Code, the Sessions Judge has to deckle whether there is evidence to snow that the accused has committed the offence, but at that stage he allowed not consider what value should be attached to such evidence. If he finds that there is no evidence within the meaning, of what is narrated above, then he has power to acquit the accused-petitioners.
9. This position in law shows that it was necessary for the Additional Sessions Judge to look into the prosecution evidence adduced before him and' the material brought out in the examination of the accused and then decide whether there was evidence or not.
10. In view of the foregoing, it would be necessary to consider the contention of Shri Apps Rao that in paragraph 21 of the Judgment of this Court in Criminal Appeal No. 449 of 1972 (Kant) it has been held that the evidence of P.Ws. 1 and 2 cannot be taken at its face value unless independent reliable evidence corroborating the evidence of P.Ws. 1 and 2 as against individual accused was forthcoming, and that in this case there is no such evidence to corroborate the evidence of P.We. 1 and 2 as against these petitioners.
11. Reading of the resume the arguments before the Lower Court shams that this contention had been advanced before it. That being so, it is for the Additional Sessions Judge to consider the contention and decide the question.
12. For the foregoing reasons, I allow the petition, set aside the order in question calling upon the petitioners to enter on their defence, and direct the Additional Sessions Judge to consider only the above narrated contention of the defence and pass an order.