EMPEROR Vs. SHANKAR BALWANT KULKARNI

JUDGEMENT

(1.) At the outset what we observe is that the learned Sessions Judge would have probably acquitted the accused were it not for the opinion of the Assessors. He seems to be of the opinion that in a Sessions case the Assessors are the judges of all questions of fact. That view of the law is erroneous. The Assessors are, no doubt, to assist the Judge but nowhere in the Code of Criminal Procedure has the Legislature invested the Assessors with the power of appreciating the evidence so as to bind the Judge. The theory of trial with the help of Assessors is that the system of Assessors forms, as it were, a stage towards the ultimate introduction of trial by a Jury. That was the object with which the Assessors system was introduced in the earlier years of the introduction of Criminal Law by the British Indian Legislature in this country. The opinion of the Assessors must have, no doubt, regard paid to it but after all it is the Judge who is to decide the case on the facts as well as law. His is the final responsibility.

(2.) Having made this preliminary remark, I ought to say that the evidence in this case is of so evenly balanced a character that it would be unsafe to rest the conviction upon it. The learned Sessions Judge seems to be himself of that opinion; because, he says, had the case rested upon the evidence of the eye- witnesses, Kondiram and Laxman, he would have acquitted the accused. There he is right. Those are the witnesses who, as the record shows, are hostile to the accused. But he rests the conviction on the opinion of the Assessors, and on the testimony of Dhanaji, Mukta and Jayram. But even these witnesses are not free from, the taint of hostility. Dhanaji says that one of his uncles, against whom there is a case pending under Chapter VIII of the Criminal Procedure Code, has absconded but he professes ignorance of the fact whether accused No. 2 was a witness in the case or rot. Mukta and Jayram, both of them, have admitted that they had at some time or other given evidence against the accused. Therefore, what evidence is there on which one can put one s finger and say that it is of such a certain and definite character that we must rely upon it?

(3.) Then, there is this, improbability: the prosecution case is that accused No. 2 was caught red-handed. Is it likely that accused No. 2, a Kulkarni of fifteen years standing, would have gone to set fire to the house and, instead of running away after he had set fire, that he would have waited there until a crowd assembled.