1. It is no doubt fair of the prosecution to produce the book to give the prisoner an opportunity of seeing if the entry is there, but I think the book itself is not relevant to disprove the alleged transaction by the absence of any entry concerning it.
2. During the progress of the trial, Mr. Gasper put certain documents into the hand of the witness for the prosecution, and having proved them by cross-examination, tendered them in evidence, and had them marked as exhibits on behalf of the prisoner, at the same time intimating that he would contend that by so doing he did not give the counsel for the prosecution the right of replying upon his case in the event of no witnesses for the defence being called.
3. When the case for the prosecution had closed, Mr. Gasper had stated that he did not intend to call any witnesses.
4. Mr. Mullick contended that under Section 292, coupled with Section 289 of the Criminal Procedure Code, he was entitled to a reply, in consequence of the documents above referred to having been put in. He argued that it was impossible for the prosecution to predicate what use the defence intended to make of the documents which had been put in.
5. Mr. Gasper was not called upon.
6. You knew when summing up your whole case that they had been used for a certain purpose in cross-examination, and you had an opportunity of observing upon them. The Criminal Procedure Code being a penal statute, the principle to be applied in construing those sections is, that the construction most favourable to the prisoner must be adopted. In this view I hold that under Section 292 the prosecution is not entitled to a reply.