Evidence at preliminary in quiry. Procedure after examination of witnesses for prosecu tion. Defence. 288. The evidence of a witness duly taken 1 in the presence of the accused before the committing Magistrate may, in the discretion of the presiding Judge2, if such witness is produced and examined, be treated as evidence in the case 3. 289. When the examination of the witnesses for the prosecution and the examination (if any) of the accused are concluded, the accused shall be asked whether he means to adduce evidence. If he says that he does not, the prosecutor may sum up his case; and if the Court considers that there is no evidence that the accused committed the offence, it may then, in a case tried with the aid of assessors, record a finding, or, in a case tried by a jury, direct the jury to return a verdict, of not guilty. If the accused or any one of several accused says that he means to adduce evidence and the Court considers that there is no evidence that the accused committed the offence, the Court may then, in a case tried with the aid of assessors, record a finding, or, in a case tried by a jury, direct the jury to return a verdict, of not guilty. If the accused or any one of several accused says that he means to adduce evidence, and the Court considers that there is evidence that he committed the offence, or if, on his saying that he does not mean to adduce evidence, the prosecutor sums up his case and the Court considers that there is evidence that the accused committed the offence, the Court shall call on the accused to enter on his defence. 290. The accused or his pleader may then open his case, stating the facts or law on which he intends to rely, and making such comments as he thinks necessary on the evidence for the prosecution. He may then examine his witnesses (if As to the presumption that the evidence was duly taken, see the Evidence Act, sec. So. 2 The exercise of this discretion by a Sessions Judge is of course open to revision by the High Court on appeal, 11 Bom. H. C. 282, per West J. 3 9 Mad. 85. This section does not enable a Court trying a cause to take a witness's deposition bodily from the Magistrate's record, and to treat it as evidence before itself, 7 All. 863, approving of Phear J.'s remarks in 12 Ben. App. 15. The Judge should put to the witnesses whom he proposes to contradict by their former statements the whole or such portions of their depositions as he intends to rely upon in his decision, so as to afford them an opportunity of explaining their meaning, or denying that they had made any such statements, and so forth, 7 All. 863-4, per Straight J. 4 11 Bom. H. C. 102. any) and after their cross-examination and re-examination (if any) may sum up his case. accused as 291. The accused shall be allowed to examine any witness Right of not previously named by him, if such witness is in attendance; to exami but he shall not, except as provided in sections 211 and 231, nation and summoning be entitled of right to have any witness summoned, other than of witthe witnesses named in the list delivered to the Magistrate by nesses. whom he was committed for trial1. sessors. 292. If the accused, or any of the accused, has stated, Prosecutor's right when asked under section 289, that he means to adduce of reply. evidence, the prosecutor shall be entitled to reply 2. 293. Whenever the Court thinks that the jury or assessors View by should view the place in which the offence charged is alleged jury or asto have been committed, or any other place in which any other transaction material to the trial is alleged to have occurred, the Court shall make an order to that effect, and the jury or assessors shall be conducted in a body, under the care of an officer of the Court, to such place, which shall be shown to them by a person appointed by the Court. Such officer shall not, except with the permission of the Court, suffer any other person to speak to, or hold any communication with, any of the jury or assessors, and, unless the Court otherwise directs, they shall, when the view is finished, be immediately conducted back into Court. or assessor 294. If a juror or assessor is personally acquainted with any When juror relevant fact, it is his duty to inform the Judge that such is the may be excase, whereupon he may be sworn, examined, cross-examined amined. and re-examined in the same manner as any other witness. sessors to 295. If a trial is adjourned, the jury or assessors shall Jury or asattend at the adjourned sitting, and at every subsequent attend at sitting, until the conclusion of the trial 3. adjourned sitting. Locking-up 296. The High Court may, from time to time, make rules 4 as to keeping the jury together during a trial before such jury. 1 The Judge however may, if he thinks fit, permit the summoning of witnesses not so named, 8 All. 668. 2 "In applying secs. 289 and 292 the construction most favourable to the prisoner should be adopted, 10 Cal. 1024; and see 14 Cal. 245. Where the accused stated when asked under sec. 289 that he meant to adduce evi- 3 See secs. 318 and 332, infra. See the Bombay Government Gazette, 24th June 1875, Part I. p. 653. Charge to jury. Court lasting for more than one day, and, subject to such rules, the presiding Judge may order whether and in what manner the jurors shall be kept together under the charge of an officer of the Court, or whether they shall be allowed to return to their respective homes. F-Conclusion of Trial in Cases tried by Jury. 297. In cases tried by jury, when the case for the defence and the prosecutor's reply (if any) are concluded, the Court shall proceed to charge the jury, summing up the evidence for the prosecution and defence1, and laying down the law by which the jury are to be guided 2. 1 The Judge should give a full and detailed statement of the evidence on both sides; he should point out the legal bearing of it, 3 Suth. Cr. 69; and what weight the jury ought to attach to the several parts. His omission to do so, if the accused is thereby prejudiced, amounts to such an error in law as would justify a Court of Appeal in setting aside the verdict, 5 Bom. H. C., Cr. Ca. 85, 94; and see 9 Suth. Cr. 51. He should tell the jury what are the principal points in the evidence, and how they bear for or against the prisoner, 6 Suth. Cr. 72: 25 Suth. Cr. 54. He may warn them not to disbelieve a mass of otherwise consistent evidence because in minor and immaterial points the witnesses made different statements, I Suth. Cr. 17. Of course, where there is no legal evidence for the prosecution, the judge should direct the jury to acquit, 7 Suth. Cr. 39. If it be necessary to refer to a previous conviction of the accused, he should tell them to try the present case on its own merits, and warn them not to allow the previous conviction to influence their minds, 6 Suth. Cr. 64, per Norman J. He should not give a positive opinion as to the guilt or innocence of the prisoner, as Native juries are too apt to follow it, without paying any attention to the facts of the case, I Suth. Cr. 26, per Glover J.; but see Suth. 1864, Cr. 5, per Jackson J. Nor 2 should he tell the jury that the prisoner had previously been of bad character, 10 Suth. Cr. 39. Nor should he suggest that the prisoner be recommended to mercy, 14 Suth. Cr. 46. Nor should he say that a witness is deserving of credit when there is no evidence on the subject, 10 Suth. Cr. 58. so far as to make them understand the law as bearing on the facts, 8 Cal. 751, per Field J. For instance, where the prisoner is charged under sec. 304 of the Penal Code, the Judge should point out the distinction between the two classes of culpable homicide mentioned in that section, and direct them to find specially under which, if either, the prisoner was guilty, 6 Ben. Appx. 86. So on the trial of prisoners for the offence of belonging to a gang of persons associated for the purpose of habitually committing thefts (Pensl Code, sec. 401), the Judge should point out clearly, 1. the necessity of proof of association, and, 2. the need of proving that that association was for the purpose of habitual theft, and that habit is to be proved by an aggregate of acts, 6 Mad. H. C. 121. So where the evidence of an accomplice is uncorroborated, the Judge should tell the jury that it is unsafe and contrary both to prudence and practice to convict on such evidence, 6 Bom. H. C., Cr. Ca. 57: see, too, 1 Mad. 394: 1 Bom. 475: 21 Suth. Cr. 69; and, where the accomplice 298. In such cases, it is the duty of the Judge(a) to decide all questions of law arising in the course of the trial, and especially all questions as to the relevancy of facts which it is proposed to prove, and the admissibility of evidence1 or the propriety of questions asked by or on behalf of the parties; and, in his discretion, to prevent the production of inadmissible evidence, whether it is or is not objected to by the parties; (b) to decide upon the meaning and construction of all documents given in evidence at the trial 2; (c) to decide upon all matters of fact which it may be necessary to prove in order to enable evidence of particular matters to be given 3; (d) to decide whether any question which arises is for himself or for the jury, and upon this point his decision shall bind the jurors *. The Judge may, if he thinks proper, in the course of his summing up, express to the jury his opinion upon any question of fact, or upon any question of mixed law and fact, relevant to the proceeding 5. Illustrations. (a) It is proposed to prove a statement made by a person not being a witness in the case, on the ground that circumstances are proved which render evidence of such statement admissible. speaks as to two or more persons having been concerned in the same offence, that his testimony should be confirmed as to all the prisoners, not only as to the circumstances of the case, but also as to the identity of the prisoners, 3 Bom. H. C., Cr. Ca. 57. But the Judge should not argue and dispose of legal objections raised by the prisoner's counsel, 8 Suth. Cr. 88, col. 1. He should lay down' the law, but not discuss it. See 8 Cal. 739. As to setting aside a verdict where the Judge has misdirected the jury, see secs. 423, cl. (d), 537. The question for the Appellate Court to consider is whether the tendency of the charge has been upon the whole to give a correct or an incorrect direction to the mind of the jury. It would be wrong to criticise the direction of a Judge in a Mufassal Court as if it were the As e. g. whether a communication 2 There is no exception in case of a libel or a threatening letter; see in England, Taylor, §§ 46, 47. 3 as, for instance, when the question is whether a confession should be excluded on account of some previous threat or promise, Taylor, § 23. 4 See more as to the duties of a Judge, 20 Suth. Cr. 41, per Markby J. But where the jury say they are uncertain as to the section of the Penal Code applicable to the case of one of the prisoners, the Judge ought not to hand them a copy of the Code leaving them to decide under what section the offence fell, 14 Cal. 164. Duty of Duty of jury. It is for the Judge, and not for the jury, to decide whether the existence of those circumstances has been proved. (b) It is proposed to give secondary evidence of a document the original of which is alleged to have been lost or destroyed. It is the duty of the Judge to decide whether the original has been lost or destroyed. 299. It is the duty of the jury (a) to decide which view of the facts is true, and then to return the verdict which under such view ought, according to the direction of the Judge, to be returned; (b) to determine the meaning of all technical terms (other than terms of law) and words used in an unusual sense which it may be necessary to determine, whether such words occur in documents or not 1; (c) to decide all questions which according to law are to be deemed questions of fact2; (d) to decide whether general indefinite expressions do or do not apply to particular cases, unless such expressions refer to legal procedure, or unless their meaning is ascertained by law, in either of which cases it is the duty of the Judge to decide their meaning. Illustrations. (a) A is tried for the murder of B. It is the duty of the Judge to explain to the jury the distinction between murder and culpable homicide, and to tell them under what views of the facts A ought to be convicted of murder, or of culpable homicide, or to be acquitted. It is the duty of the jury to decide which view of the facts is true, and to return a verdict in accordance with the direction of the Judge, whether that direction is right or wrong, and whether they do or do not agree with it 3. (b) The question is whether a person entertained a reasonable belief on a particular point,-whether work was done with reasonable skill or due diligence. Each of these is a question for the jury. 1 Taylor, § 45. 2 e. g. whether a provocation was grave and sudden enough to prevent the offence from amounting to murder (Penal Code, sec. 300), II Cal. 412. The jury decide whether the accused has been previously convicted, 21 Suth. Cr. 40. 3 When the existence of a specific intention is essential to the com mission of a crime, it is probable (though the law nowhere says so) that the jury, in deciding whether an offender had that intention, should take into account the fact that he was drunk when he did the act which, if coupled with that intention, would constitute such crime. See Stephen's Digest, art. 29. |