1. In this second appeal the only question that arises is whether the defendant committed assault on the plaintiff. The defendant was prosecuted and was convicted of the assault and the District Munsif thereupon took the remarkable view that the question of whether the assault had or had not been committed was concluded in the Civil Court. He says that the issue 'Whether the assault complained of is true' was unnecessarily framed because the defendant had been convicted by a competent Court and the conviction had been upheld in appeal. He expressed the view that the finding of the Criminal Court and the consequent conviction of the defendant was conclusive proof of the assault.
2. On appeal the learned Subordinate Judge does not appear to have expressed any definite view regarding the correctness of the holding of the Munsif but decided the case on the merits in favour of the defendant. The question raised is of some importance and I think it right to express my view. In a civil action for assault which is an action in tort the fact that the defendant has been convicted or acquitted in a Criminal Court is relevant only as to the fact of the conviction or acquittal and it is totally irrelevant on the question whether the conviction or acquittal was right, that is to say, whether the assault was or was not committed. In other words it is a record of the proceeding in a Criminal Court and nothing more and a Civil Court, should, in my opinion, embark upon an enquiry before it on the same facts without being influenced in any way whatever by the conclusion at which the Criminal Court has arrived; in other words, what may be a plea of 'autrefois acquit' or 'autrefois convict' under Section 403, Criminal Procedure Code cannot possibly be a plea of 'res judicata' as the learned District Munsif seems to have thought. My attention has been drawn to a decision of the Calcutta High Court in Dinomoni Chowdhrani v. Brojo Mohini Chozvdhrani in which the Court expressed the view that police orders are generally admissible in evidence on general principles as well as under Section 13 of the Indian Evidence Act to show the fact that such orders were made. I do not think that that decision does anything more than lay down what I have ventured to suggest is the law already, vis., that records in criminal proceedings are proof of the fact of conviction and have nothing to do with whether the conviction is right or not in so far as a Civil Court is concerned. Another case is quoted Collector of Gorakhpur v. Ram Sundar Mal a decision of the Judicial Committee but I do not think that the decision of the Board in that case has any bearing whatever on the point before me. It is laid down that on general principles and under Section 30 orders made under the Criminal Procedure Code are admissible for certain limited purposes but there is nothing that I have heard or read either in the authorities or in the Evidence Act or anything in the text books to suggest that the facts in a criminal case in any way conclude the facts in a Civil Court. The Judge sitting in a Civil Court is entitled, if he wants, to disbelieve every word of the evidence of a witness even if the same evidence was accepted as to every word by a Magistrate or even by a jury. An example of relevancy of criminal proceedings in actions of tort is that if in an action for malicious prosecution there has been a conviction upheld on appeal, the fact of the conviction and the fact of its being upheld in appeal may no doubt be ingredients and important ingredients when the trial Court has to consider the question of reasonable and probable cause but neither the conviction nor the finding of the Appellate Court in any way affects the fact and it is always open to a defendant in the case of an acquittal to attempt to negative its correctness. This matter has been fully argued before me by the learned Advocate for the appellant and I do not think it necessary to give notice to the respondent as I am clear as to what the position is. It would be a remarkable position if under a system which does not allow an accused person to give evidence on oath that same person should be shut out in a civil suit based on the same facts from denying them on oath. It would lead to the result that a conviction would for ever bar an accused person from defending an action in tort on the merits.
3. One striking example would be that a motor driver convicted of negligent driving in a criminal Court would be unable to deny that he was negligent in answer to a civil suit.
4. The second appeal is dismissed. It has been in any case decided on the facts ultimately by the lower Appellate Court.