Judgement

Appeal (No. 11 of 1934) by special leave from convictions, and sentences of transportation for life, passed on each of the appellants by the High Court (April 20, 1933) upon appeals under s. 417 of the Code of Criminal Procedure from orders of acquittal passed by the Sessions Judge of Cawnpore (Septem ber 29, 1932), upon a trial, with assessors, for murder and other offences.

The question arising upon the appeal was whether the High Court had rightly interpreted its powers and functions under the Code having regard to the nature of the appeal.

The learned judges (Thorn and Bennett JJ.), following Queen-Empress v. Prag Dat (( 1898) I. L. R. 20 A. 459.), held that in considering whether the offence was or was not proved there was no distinction between an appeal from an acquittal and an appeal from a conviction. The appeal is reported at I. L. R. 55 A. 689.

The terms of the material provisions of the Code appear from the judgment of the Judicial Committee.

1934. July 5. Pritt K.C. and Sidney Smith for the appellants. There has been a series of decisions of Indian High Courts that upon an appeal from an acquittal the appellate Court is not entitled to interfere with the decision of the trial judge upon the facts unless he has acted perversely or otherwise improperly, or has been deceived by fraud Empress of India v. Gayadin (( 1881) I. L. R. 4 A. 148.); Queen-Empress v. Robinson(( 1894) I. L. R. 16 A. 212.); Deputy Legal Remembrancer of Bengal v. Amulya Dwan (( 1913) I. L. R. 18 C. W. N. 666.); King-Emperor v. Deboo Singh (( 1927) I. L. R. 8

P. 496.); King-Emperor v. U San Win. (( 1932) I. L. R. 10 R. 312.) Though the words of the Code draw no distinction between an appeal from a conviction and an appeal from an acquittal, the volume of authority has established a rule analogous to that in English criminal law requiring corroboration where certain offences are charged. It is conceded that there have been decisions in India taking a contrary view Queen-Empress v. Prag Dat (1) ; King-Emperor v. Sheo Janak Pande (( 1933) 31 All.

L. J. 1573.) ; Public Prosecutor v. Lakhshmamma (( 1930) 59 Mad. L. J. 520.) ; but it is submitted that the view contended for is right in principle and should have been given effect. Even if that view is erroneous the High Court disregarded the ordinary rules applicable to criminal cases, such as the presumption of innocence, also the weight attaching to the view of the trial judge. Though special leave might not have been granted on those grounds alone, the case being now before the Board effect should be given to them, as they resulted in a miscarriage of justice Knowles v. The King. ([ 1930] A. C. 366.)

Dunne K.C. and W. Wallach for the Crown. The Code draws no distinction between an appeal from an acquittal and an appeal from a conviction, and no such distinction can be imposed by judicial decision Queen-Empress v. Bibhuti Bhusan Bit (( 1890) I. L. R. 17 C. 485.); Deputy Legal Remembrancer, Behar and Orissa v. Matukdhari Singh. (( 1915) 20 C. W. N.128.) A similar view has been expressed in Madras Re Sinnu Goundan (( 1914) I. L. R. 38 M. 1028, 1034.); and has been acted upon in Bombay Queen-Empress v. Karigowda. (( 1894) I. L. R. 19 B. 51.) The cases are careful to point out that the ordinary rules with regard to criminal trials apply nevertheless; there is no ground for suggesting that they were not applied in this case. The cases relied upon for the appellants followed, directly or indirectly, the judgment of Straight J. in Empress of India v. Gayadin. (( 1881) I.

L. R. 4 A. 148.) But the appeal there was under s. 272 of the Code of 1872. The right to appeal from an acquittal there given was limited and previously had not existed.

Pritt K.C. replied.

July 26. The judgment of their Lordships was delivered by

LORD RUSSELL OF KILLOWEN. This appeal was brought by special leave from a judgment of the High Court of Judicature at Allahabad, which reversed an order of acquittal passed by the Sessions