1. This Rule was issued at the instance of a person on whose complaint the sessions case was started. The case was tried by the learned Additional Sessions Judge, 3rd Extra Court of 24-Parganas, leading to a majority verdict of not guilty by the Jury, accepted by the learned Judge, and ended in an acquittal of all the accused opposite parties. The Rule was issued by my learned brother P. N. Mookerjee, J. against this acquittal though the local Government has not filed any appeal.
2. As during the argument it appears that there is a good deal of confusion as regards the scope of a motion against an acquittal in a criminal case by the Court of Sessions, which might have perhaps resulted in further harassment of accused persons having to appear in this Court to defend themselves after they had defended themselves and spent money in the Magistrate's Court and the Sessions Court, I think it desirable that a few things must be printed out which are well established by uniform Court decisions not only of this High Court, but of other High Courts and which has received the fiat of the Judicial Committee of the Privy Council.
3. An acquittal must not be lightly disturbed because there may be a few i's not dotted or t's not cut, a Rule must not be issued in order to put the accused persons into further trouble except on strong grounds. There is a provision for appeal by the local Government in the Code of Criminal Procedure itself and matters of fact which can be well agitated by means of an appeal are not proper subject matter for interference by way of revision. Secondly, it is only under very exceptional circumstances that the verdict of an acquittal by a Jury is interfered with by the High Court, even when there is an appeal by the local Government. This should be remembered when Rules are issued in such cases. It should also be remembered that even in the case of an appeal against a conviction, in a trial by the Judge and Jury, mere misdirection would not result in any interference with the verdict of the Jury accepted by the Judge, and the Court of appeal must further come definitely to the conclusion that in fact there has been caused a failure of justice. It is not sufficient that it has tended or might have tended to cause a failure of justice. The Judicial Committee has made this quite clear now that it must be in fact an actual failure of justice which the appellate Court must be prepared to find before it will interfere, even in an appeal, with the verdict of the Jury. If the present revision petition be tested by any of the well established propositions which I have pointed out, it would be seen that there is nothing for which the revision petition deserved to be succeed.
4. The first point that has been raised before me is that an extra judicial confession of the accused persons has not been referred to by the learned Judge in his charge. Obviously, there is grave misconception as to what is or what is not evidence. If a confes-. sion of an accused person, extra-judicial _ or judicial, has to be admitted and placed before the Jury, then exactly what was said by the accused persons must be in evidence. A person's inference or a gist of what the accused might have said is neither evidence under any section of the Indian Evidence Act nor should a Judge, even if inadmissible evidence has crept in in the record, place it before the Jury. In the present case it is said that five prosecution witnesses, viz.; Nos. 4, 5, 8, 12 and 16 had stated that three of the accused persons asked them to settle the matter and some accused persons spoke of saving them. Not one of them said what was the actual statement made by any of the accused persons. It is only the statement or conduct of an accused person which is relevant or admissible in evidence under the Indian Evidence Act. An inference as to whether asking for a dispute to be settled is tantamount to making a confession may be highly interesting speculation but is rightly thought by the legislature in he evidence to be allowed to go in. The learned Judge therefore rightly did not place such alleged inferences by witnesses before the Jury. Further many of these very witnesses pretended to be eye-witnesses of the occurrence and as such eye-witness, it appears, the Jury were not prepared to believe their story. I fail to see that when most of them as eye-witnesses are disbelieved, how anything which might be inferred as perhaps inculpating though not necessarily so, could ever influence any verdict by the Jury.
5. The second point urged before me is that the learned Judge in his charge to the Jury, gave his opinion that the medical evidence was not clear. I fail to see what misdirection or non-direction, material or immaterial, there is in what the learned Judge has done. The learned Judge is entitled to place his opinion before the Jury, provided he has warned the Jury that they were not bound by his opinion on the facts. In the present case, the learned Judge gave such a warning. Indeed the learned Judge if in a case of this serious nature had refrained from giving the Jury the benefit of his opinion, it might have been considered that the learned Judge was giving a namby-pamby charge which had been repeatedly condemned by this Court.
6. The third point that has been urged before me is that the learned Judge told the Jury about circumstantial evidence, but did not point out to the Jury the weight of the so-called circumstantial evidence in the present case. Here again, there is great misconception of the law. Evidence is evidence. What is meant by direct evidence and by circumstantial evidence is that as proof one goes directly to establish the culpability of the accused person in the commission of the offence the other brings the guilt home to him by placing certain circumstances from which the inference is absolutely irresistible that the accused has committed the offence. It is as proof that circumstantial and direct evidence is to be dealt with. The learned Judge in an elaborate charge to the Jury dilated at great length about the distinction between direct evidence and circumstantial evidence, but he had the good sense not to direct the Jury upon circumstantial evidence where the guilt is sought to be brought home to the accused persons by evidence of eye-witnesses which, I have said, is labelled direct evidence when it is a question of proof. Circumstances before or after the occurrence or circumstances going tq corroborate the evidence of witnesses do not come within, what is known as, circumstantial evidence. Whether the guilt of the accused persons is established or not, in a case where there are eye-witnesses the question of guilt has to be determined upon the credibility of the evidence of such witness and in connection with the belief or dis-belief of the evidence of such witnesses other circumstances come in and have got to be Considered by the Jury but that is not a question of circumstantial evidence. No case of circumstantial evidence arose before the learned Judge and the Jury. Rightly therefore in spite of the lengthy charge the learned Sessions Judge did not rightly waste the time of the Jury further by dilating upon so-called circumstantial evidence as bringing home irresistibly the guilt of the accused persons though the guilt was sought to be established by the evidence of eye-witnesses.
7. It has also been said that in connection with the credibility of the prosecution witnesses the learned Judge pointed out that the prosecution witnesses were related to the, complainant. It has been urged that the complainant is also related to the accused and some of the prosecution witnesses were also related to the accused persons. As the learned Judge was discussing the question of what may be the interest of these persons in deposing in favour of the complainant, I do not see how anything could have been improved, as far as the trial of the case went, by mentioning the relationship of some of them also to the accused.
8. Finally it has been urged that in connection with the discussion of the direct evidence, the learned Judge has mentioned that the Sadar door or the main entrance was closed allowing (sic) (?) according to some witnesses and he might have pointed out to the Jury that from time to time it might have been opened or closed so that the witnesses who pretended to have seen through closed solid doors were really not telling lies but were seeing those things when doors might have been opened from time to time. There is no such evidence.
9. It is unnecessary to dilate upon a point like this. A charge is based upon evidence not flights of fancy,
10. The result therefore is that this Rule is discharged.