Desai, C.J. - (1.) The following question has been referred to a Full Bench by a Bench which is hearing an appeal by Jwala and others against their conviction under section 396, Indian Penal Code, by the Additional Sessions Judge of Kheri: "Where the prosecution in support of its case adduces evidence of identification of an accused by witnesses in the trial of the case in Sessions Court, and does not produce those witnesses in the Committing Magistrate's Court, should the evidence of such witnesses be disbelieved merely on the ground that they were not produced by the prosecution in the Committing Magistrate's Court for the said purpose?" The necessity for referring the question arose because of a conflict of views among Judges of this Court. It was pressed before the learned Judges, who referred the question, that it was a question not of law but of fact, but they felt compelled to refer it for an authoritative decision because in some decisions it was placed on the same footing as a question of law and subordinate Courts were also treating it as such or were taken to task for not treating it as such.
(2.) The question referred to us is essentially a question of fact and not of law. It does not involve the application or even interpretation of any statutory provision. Whether a person is a competent witness or not may be a question of law governed by the Evidence Act. Once it is found as a matter of law that he is competent to give evidence, whether his evidence on a certain matter is admissible or not is again a question of law governed by the Evidence Act, which contains the provisions as to what statements of a witness are admissible and what inadmissible. After a witness has been found to be competent to give evidence and has made a statement which is admissible in evidence, a third question arises, it being whether it should be believed or not and this essentially is a question of fact. Neither the Evidence Act nor any other Act lays down any law governing the question which statement of a witness should be believed or should not be believed. Whether a statement of a witness should be believed or not depends upon so many circumstances that it is impossible to lay down hard and fast rules. Even in respect of an accomplice, "It is not a rule of law that the evidence of an accomplice must be corroborated in order to render a conviction on his evidence valid; but it is a general rule of practice that the Judges should advise juries not to convict on the evidence of an accomplice unless it be corroborated, and this is a matter entirely for the discretion of the Judge before whom a case is tried", per Lord Atkinson in the King v. Christie, (1914) AC 545. Section 114 of the Evidence Act permits, but does not compel, a Court to presume that an accomplice is unworthy of credit unless corroborated. He is a competent witness and it is for the Court to Judge, as a matter of fact, whether his evidence should be believed or not. It may hold that it should not be believed unless corroborated, but if it, considering all the circumstances of the case, chooses to believe it, even though uncorroborated, and convicts the accused solely on its basis, the conviction is not against any law; this is made clear by section 133 of the Evidence Act. Barring these two provisions contained in sections 114 and 133 of the Evidence Act, there are no provisions dealing with the question of believing or not believing a witness; the matter has been left at the sound discretion of the Court. The function of a Court, whether a civil court or a criminal court, is to decide whether a certain fact is proved or not. A civil court has to decide whether a certain fact in issue is proved by the party on whom the onus lay and a criminal court has to decide whether the commission of the offence by the accused is proved. A fact is said to be proved, vide section 3 of the Evidence Act, "when after considering the matters before it the Court either believes it to exist or considers its existence so probable that a prudent man ought, in the circumstances of the particular case, to act upon the supposition that it exists". The law after laying down which persons, are competent to give evidence and which are not and what evidence is admissible and what not, has left it to the Court to decide whether the evidence should be believed or not and, if believed, what weight should be attached to it or what effect should be given to it. It has not given any guidance to the Court in deciding whether the evidence should be believed or not or what weight should be attached to it or what effect should be given to it; these matters have been left at the sound discretion of the Court to be exercised on consideration of all circumstances. When the legislature itself has left these matters at the discretion of the Court without attempting to fetter it by laying down any hard and fast rules, it is not open even to the highest Court to fetter the discretion of not only lower Courts, but also of itself, by laying down hard and fast rules, because it would be tantamount to legislating. Law is invariable and a finding on a question of law must be given according to the law regardless of circumstances. If the circumstances have to be considered at all, it is only for the purpose of seeing whether the law is applicable or not. A finding of fact on the other hand is one which depends upon, or varies with, facts and circumstances of the case and is not governed by any rule at all. If a person is found guilty of causing simple hurt to another he must be punished with imprisonment or fine regardless of all circumstan- ces, because that is a matter of law. What punishment should be inflicted upon him depends upon circumstances of the case and is not a matter of law. The only question of law that may arise in the matter of sentence is that it should not exceed a certain limit. Subject to that limit not being exceeded, the law has laid down no rule governing the discretion of the Court in inflicting the sentence. A finding of law is not a matter of discretion as a finding of fact is. The distinction between a matter of law and a matter of fact must be maintained by Courts and they must not convert a matter of fact into a matter of law by propounding a certain result to follow invariably from a given state of facts regardless of all other circumstances. The discretion that is confided upon inferior Courts by the legislature cannot be taken away by the High Court by laying down certain rules to be followed by them regardless of circumstances.
(3.) I mast strongly protest against any attempt on the part of a Judge of a High Court to impose his will not only upon an inferior Court, but also upon other Judges of the High Court. When a question of fact is presented before him, he is certainly free to decide it in any way that he thinks proper, but he has no jurisdiction to disguise his finding of fact into a finding of law and impose it upon the whole world. Just as he has the discretion in the matter, so also has any other Judge of the High Court (and also any Judge of an inferior Court) and no jurisdiction vests in him to deprive them of the discretion conferred upon them by the legislature. A Judge of a High Court may give an advice or instruction to a judge of an inferior Court, but it is nothing more than a counsel of prudence; it is not a ruling of law, and a judge of an inferior court does not act illegally in going against it. There are a couple of recognised counsels of prudence, such as that it is dangerous to convict an accused on the sole testimony of an approver, and the number of such counsels should not be extended arbitrarily.;