ORDER

Seth, J. - Applicant Khyali was tried by a jury in the Court of the Assistant Sessions Judge of Kanpur of an offence u/s 375, Penal Code. The jury returned a unanimous verdict of guilty and the learned Assistant Sessions Judge convicted and sentenced him to undergo rigorous imprisonment for a period of three years and to receive a punishment of 15 stripes under the Whipping Act. Khyali appealed against his conviction and sentence to the Sessions Judge of Kanpur and it was argued before the Court of appeal that the charge to the jury was vitiated on account of misdirections and omissions and dhat, therefore, the verdict of the jury should be set aside. The learned Sessions Judge did not accept this contention and dismissed the appeal, hence this application in revision,

2. Mr. Sri Narain Sahai, the learned Counsel for the applicant, has taken the same points before me. In particular, he has urged with considerable force that the charge is bad inasmuch as the Judge did not point out to the jury that the applicant was entitled to the benefit of doubt. He has further urged that the charge is not a fair charge inasmuch as the learned Judge had expressed his opinion on evidence in a manner which left no option to the jury, but to convict the applicant.

3. In support of his first contention, learned Counsel has strongly relied upon the case in Basil Ranger Lawsrence v. Emperor AIR 1933 P.C. 218. There is no doubt that it is universally recognised as an elementary principle of natural justice that an accused person is entitled to the benefit of doubt and that a Judge charging a jury should point that out to them. In my opinion, the learned Assistant Sessions Judge has not been remiss in his duty in this behalf. After commenting on the evidence produced on behalf of the prosecution, the learned Judge observes as follows:

You have to consider if the depositions of Mt. Rup Rani and Piswa together with the medical evidence the Chemical examiner's report about the dhotis, the dhotis themselves, and the danda, prove the guilt of the accused beyond all reasonable doubt.

4. Learned Counsel contends that this is not the same thing as saying that the accused is entitled to the benefit of doubt. I am unable to accept this contention. To say that an accused person is entitled to the benefit of doubt and to say that the charge against him should be proved beyond all reasonable doubt is the same thing. It is only a difference of the manner in which it is expressed. Indeed, the very case relied upon by the learned Counsel supports this view. Lord Atkin delivering the judgment of their Lordships of the Privy Council observed as follows in the course of his judgment:

But, speaking generally it has to be remembered that it is an essential principle of our criminal law that a criminal charge has got to be established by the prosecution beyond reasonable doubt, and it is essential that the tribunal of fact should understand this. Unless the Judge makes sure that the jury appreciate their duty in this respect, his omission is as grave an error as active misdirection on the elements of the offence, and a verdict of guilty given by a jury who have not taken this fundamental principle into account is given in a case where the essential forms of justice have been disregarded.

It would appear that what their Lordships say is that the tribunal of fact should understand that the criminal charge should be established beyond reasonable doubt. It is not required that the expression "the accused is entitled to the benefit of doubt" should always be used. In my opinion the charge in the present case is not Open to attack on this ground.

4. The next contention of the learned Counsel has led me to read the entire charge, and I find that on more than one occasion in the course of that charge the learned Assistant Sessions Judge has impressed upon the jury that they were the judges of facts. After explaining the law to she jury, the learned Judge proceeds to observe as fol