1. The Sessions Judge having examined five witnesses for the prosecution, and there being no further direct evidence of the offence, asked the jury whether they wished to hear any more evidence, and on their stating that they did not believe the evidence and wished to stop the case, the Judge recorded a verdict of acquittal, We are unable to approve of the procedure adopted by the Sessions Judge. It is not warranted by any provision of law, and it might, under certain circumstances, lead to a failure of justice.
2. It appears that there were, in this case, two other witnesses examined before the Magistrate, and bound over to give evidence at the trial, whose evidence, if believed, would have corroborated the case for the prosecution, and might possibly have led the jury to form a different opinion of its credibility. No final opinion as to the falsehood or insufficiency of the prosecution evidence ought to be arrived at by the Judge or jury until the whole of that evidence is before them, and has been considered, and the jury ought, if need be, to be cautioned by the Judge to this effect. If, however, at the end of the prosecution evidence, the Public Prosecutor waives his right to sum up the evidence, where he has such right, and the jury then express an opinion that the evidence is incredible and the Judge agrees with them in such a case, we do not, as at present advised, say that it is necessary for the Judge to go through the formality of summing up the case to the jury. Their opinion might, in that case, we think, be at once accepted as a verdict. But we are clearly of opinion that this should not be done until the whole of the prosecution evidence has been duly recorded. In the present case, looking to the evidence recorded and all the circumstances, we do not think it necessary to do more than point out the proper procedure for the future guidance of the Sessions Judge.