1. This is a criminal appeal on behalf of one Sri Krishen who has been convicted by a jury and sentenced by the learned Sessions Judge of Allahabad under Section 408, Penal Code, on 2 charges to 5 years' rigorous imprisonment and fine of Rs. 500 and in default six months' further rigorous imprisonment on each charge. The points which have been taken by learned Counsel for the appellant are that there was misdirection to the jury. In ground No. 1 it was alleged that the Judge did not even tell the jury that they were judges of evidence and facts. This however is admitted to be inaccurate as on the last page of the judgment the Judge clearly stated to the jury:
You have to judge from the circumstances and evidence referred to above whether the guilt of the accused is proved beyond reasonable doubt.... If you entertain any reasonable doubt as to the guilt of the accused Sri Kishen he is entitled to the benefit of the doubt.
2. The case therefore is distinguished from the ruling relied on by learned Counsel in Natabar Ghose v. Emperor (1908) 35 Cal 531, as in that ruling it is stated on p. 533:
He has made no reference to the separate function of the jury as the sole judges of fact.
3. Learned Counsel also alluded to Khijiruddin Sonar v. Emperor 1926 Cal. 139 at p. 376, where the duty of a Judge in making a charge to a jury was laid down - a passage with which I agree. The particular passages which are stated to be objectionable are as follows : (a) On p. 57 : 'There is absolutely no reason to disbelieve Ram Prasad and Kunjbehari Lal.' Now under the Criminal Procedure Code, Section 297, it is the duty of the Judge to sum up the evidence for the prosecution and defence, and in Section 298(2) it is provided:
The Judge may, if he thinks proper, in the course of his summing up, express to the jury his opinion upon any question of fact, or upon any question of mixed law and fact, relevant to the proceeding.
4. The point which was in issue was whether when money was received from the Imperial Bank of India, Allahabad, by the Kayastha Pathshala Intermediate College, the money was put in charge of the accused who was the accountant of the Pathshala or not. Evidence for the prosecution that it was put in his charge was given by Ram Prasad and Kunjbehari Lal. Their evidence is corroborated by the evidence of Narbada Prasad, cashier of the Imperial Bank, and Mr. Gokul Chand, late principal, and also by certain cash slips. Now, it was the duty of the Judge to set out the prosecution evidence on this point to the Jury and he did so. It was his further duty to set out any evidence on the point tendered by the defence and if there was no such evidence to say so. Learned Counsel admits that there is no such evidence. There is merely a denial by the accused on p. 45 that Ram Prasad and Kunjbehari Lal made over these particular amounts to him. This denial has been mentioned by the Judge at the bottom of p. 58.
5. The Judge therefore was right in drawing the attention of the jury to the fact that there was no evidence to contradict this evidence for the prosecution. It was further the duty of the Judge to point out that there was nothing shown in cross-examination of the witnesses for the prosecution which would discredit their evidence within the meaning of the Evidence Act. I do not consider that the Judge meant to indicate any more than these points by his expression : 'There is absolutely no reason to disbelieve Ram Prasad and Kunjbehari Lal.' I understand him to mean, and I think that the jury would understand him to mean, that there was no evidence by the defence to contradict their evidence on this point and further that their evidence had not been discredited in any way by cross-examination. The next passage complained of is on p. 58 dealing with the same matter and is as follows:
In addition to the evidence referred to above a look at the cash slips Ex. MM, dated 13th April 1928 and Ex. NN, dated 3rd November 1928, leaves no doubt that Sri Kishen was the sole accountant in charge of the cash in hand, and used to keep the money in his charge.
6. It appears to me that the argument in regard to this is similar and that the Judge was within his rights under Section 298(2) in expressing his opinion on this question of fact to the jury. Learned Counsel suggested that the jury might have misunderstood this expression of opinion and might have thought that they were bound by the opinion of the Judge on this point of fact. I do not think it was necessary for the Judge on every occasion on which be expressed his opinion on a point of fact to tell the jury that they were sole judges of questions of fact. He did make that statement quite clearly to the jury' at the end of his charge in the passage which I have already quoted. The next point is on p. 59 and is in full:
If this was true, the accused must have noted in the cash book, the amount which remained with the principal, in the column provided for it. This plea is therefore an afterthought to shirk the liability for the amounts in question.
7. I think the Judge was right in giving his opinion that the omission to make a note in the cash book that a certain amount remained with the principal indicated that the plea that the principal retained certain amounts was an afterthought. The next point is on p. 62 and is as follows:
When the prosecution proved that the amounts in question came to the hands of the accused and that he failed to account for it or deposit it in the Post Office or the Imperial Bank of India, it was not necessary for the prosecution to prove the actual mode of mis-appropriation, because it was best known to the accused only what he did with the amount, and the strong inference is that he retained the amounts entrusted to him and has failed to account for it satisfactorily. This view is supported by Emperor v. Kadir Bux (1911) 33 All. 249.
8. I do not see anything objectionable in this exposition of the law. The next objection taken is that the Judge's charge to the jury is wholly onesided. Under Section 297 Criminal P.C., the Judge must sum up the evidence for the prosecution and defence. There was no evidence for defence. It therefore follows that only the evidence for the prosecution remained to be summed up and of course it will appear to be a discussion only of evidence for the prosecution. The next paragraph states:
That in view of the defence of the accused this learned Judge misdirected the jury when he told them that they were not concerned in this case with the fact that the accused could not be expected to have retained large amounts from 1st July 1927 to 28th March 1928, as remarked in the auditor's report Ex. N.
9. The allegation in this ground is a misquotation of the judgment. The judgment contained the passage in inverted commas at the botton of p. 60 and the top of p. 61, and proceeded to say : 'But we are not concerned with all those items in this case.' What the Judge meant was that in the report of the auditor there were allegations that a large number of items had been misappropriated. Two only of those items formed the subject of the trial. The Judge was correct in telling the jury that the question of the other items was not before them.
10. I see no reason to hold that there was any misdirection to the jury. As regards sentence this accused was found not guilty by a jury on another charge and a reference was made by the learned Sessions Judge against that verdict of the jury in Crl. Reference No. 79 of 1935, which was allowed on 24th April 1935. The Bench of this Court in that similar case of criminal breach of trust imposed a sentence of three years rigorous imprisonment and directed that it should be concurrent with the sentence of five years' rigorous' imprisonment in the present case. I agree with the view of the Bench that a sentence of three years' rigorous imprisonment for offences of this nature is sufficient and accordingly I allow this appeal to the extent that I maintain, the conviction under Section 408, Penal Code, and I reduce the sentences from five years' to three years' rigorous imprisonment on each count concurrently and the sentence of fine on each count of Rs. 500, and in default of payment six months further rigorous imprisonment will stand. The accused was granted bail by this Court, but was not released in view of the fact that a sentence of imprisonment was running against him.