1. The appellant Mokbul Khan was found guilty under Section 325 by a unanimous verdict of the Jury and the learned Sessions Judge of Pabna agreeing with this verdict has sentenced the appellant to two years rigorous imprisonment and a fine of Rs. 200. The facts briefly are these : The appellant and his brother Mansur had an altercation with the complainant about an exchange of labour. One Pro-dhan Babu Khan came to arbitrate. Mokbul and Mansur began to beat complainant. Poiz Bepari protested. Mokbul struck him on the head with a lathi and Mansur on the side. He fell down and shortly expired. Defence was that the case was entirely false. In order to understand Mr. Chowdhury's point a few more facts are necessary. The occurrence took place at night. The only witness as to what happened is the complainant Mahajan and the case of the prosecution depends on the belief or disbelief of his evidence and also of the witnesses to whom it is alleged he stated what had occurred immediately or shortly after the occurrence. After Mahajan had been examined the Public Prosecutor apparently considered his evidence in some respect hostile and with the leave of the Court proceeded under Section 154 to cross-examine him apparently with the view of getting rid of some part of his evidence which was unfavourable to the prosecution. That this was done has not been challenged by the Grown Mr. Chowdhury argues that it is not open to the Grown to cross-examine its own witness merely for the purpose of discrediting him so far as a portion of his evidence is concerned. The effect of discrediting a witness as to a part of his evidence is to discredit him as regards the whole. Therefore the Crown had by seeking to discredit their own witness said that he was not a witness on whom they relied. As he was the only witness on whom the prosecution relied to ask the Court to convict the accused it was the duty of the Judge to have directed the jury that there was no evidence and that they should return a verdict of not guilty. As to the position of a witness who has been declared hostile and the party calling him allowed to cross-examine him we have been referred to two cases. The first case is the case of Satyendra v. Emperor A.I.R. 1923 Cal. 463. In that case it was held that where a party was allowed to cross-examine his own witness the effect of that cross-examination must be to discredit the witness altogether and not merely to get rid of part of his testimony and that hence the witness's evidence must be excluded altogether. I presume that this means so far as it supports the case for the prosecution for, obviously, the defence would I think be entitled to rely on so much of his evidence as supported their case. Otherwise a party who found that his witness had given evidence which supported his adversary's case could get rid of this evidence by declaring him hostile. The other case to which we have been referred is Khijiruddin Sonar v. Emperor A.I.R. 1926 Cal. 139 a decision to which I was my self a party. There it was also held following the dictum of Lord Campbell in Faulkner v. Brine (1858) 1 F. & F. 254 that the result of allowing a party to cross-examine his own witness was to discredit him altogether. In other words a party cannot be allowed to say that his witness is a truthful witness so far as part of his evidence is concerned but an untruthful witness so far as some other portion is concerned. Therefore it seems that once a party cross-examines his own witness he must be held to no longer rely on him.
2. Mr. Chowdhury argues therefore that the position is thus : the prosecution have discredited or sought to discredit their own witness. He is the sole witness to prove their case.
3. It is the duty of the Judge to determine whether any evidence has been given on which the jury could properly find the question for the party on whom the onus lay. Emperor v. Upendra Nath Das (1914) 19 C.W.N. 653.
4. Mr. Chowdhury argues that the prosecution has cross-examined their own witness. In other words they seek to discredit him and do not rely on him. They cannot ask the jury to find for the prosecution on the testimony of a witness whom they have themselves discredited. Hence the Judge should have told the jury that there was no evidence on which they could find the accused guilty and directed them to find a verdict of not guilty. Not having done so the Judge has misdirected the jury.
5. This contention in the circumstances seems to me to be well founded.
6. In view of the prosecution treatment of their own witness there was no evidence on which the accused could have been found guilty and therefore no evidence to go to the jury and the Judge should have directed them accordingly. There has been a serious misdirection therefore and we are obliged to set aside the verdict of the jury and the sentence passed by the Judge agreeing with the jury's verdict. In the circumstances of the case it would obviously be useless to re-try the accused and we order he be acquitted.
7. I agree.