JUDGMENT

Bennet, J. - This is a criminal appeal on behalf of one Sri Krishen who has been convicted by a jury and sentenced by the learned Sessions Judge of Allahabad u/s 408, Penal Code, on 2 charges to 5 years' rigorous imprisonment and fine of Rs. 500 and in default six months' further rigorous imprisonment on each charge. The points which have been taken by learned Counsel for the appellant are that there was misdirection to the jury. In ground No. 1 it was alleged that the Judge did not even tell the jury that they were judges of evidence and facts. This however is admitted to be inaccurate as on the last page of the judgment the Judge clearly stated to the jury:

You have to judge from the circumstances and evidence referred to above whether the guilt of the accused is proved beyond reasonable doubt.... If you entertain any reasonable doubt as to the guilt of the accused Sri Kishen he is entitled to the benefit of the doubt.

2. The case therefore is distinguished from the ruling relied on by learned Counsel in Natabar Ghose v. Emperor (1908) 35 Cal 531, as in that ruling it is stated on p. 533:

He has made no reference to the separate function of the jury as the sole judges of fact.

3. Learned Counsel also alluded to Khijiruddin Sonar v. Emperor 1926 Cal. 139 at p. 376, where the duty of a Judge in making a charge to a jury was laid down - a passage with which I agree. The particular passages which are stated to be objectionable are as follows : (a) On p. 57 : "There is absolutely no reason to disbelieve Ram Prasad and Kunjbehari Lal." Now under the Criminal Procedure Code, Section 297, it is the duty of the Judge to sum up the evidence for the prosecution and defence, and in Section 298(2) it is provided:

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.

4. The point which was in issue was whether when money was received from the Imperial Bank of India, Allahabad, by the Kayastha Pathshala Intermediate College, the money was put in charge of the accused who was the accountant of the Pathshala or not. Evidence for the prosecution that it was put in his charge was given by Ram Prasad and Kunjbehari Lal. Their evidence is corroborated by the evidence of Narbada Prasad, cashier of the Imperial Bank, and Mr. Gokul Chand, late principal, and also by certain cash slips. Now, it was the duty of the Judge to set out the prosecution evidence on this point to the Jury and he did so. It was his further duty to set out any evidence on the point tendered by the defence and if there was no such evidence to say so. Learned Counsel admits that there is no such evidence. There is merely a denial by the accused on p. 45 that Ram Prasad and Kunjbehari Lal made over these particular amounts to him. This denial has been mentioned by the Judge at the bottom of p. 58.

5. The Judge therefore was right in drawing the attention of the jury to the fact that there was no evidence to contradict this evidence for the prosecution. It was further the duty of the Judge to point out that there was nothing shown in cross-examination of the witnesses for the prosecution which would discredit their evidence within the meaning of the Evidence Act. I do not consider that the Judge meant to indicate any more than these points by his expression : "There is absolutely no reason to disbelieve Ram Prasad and Kunjbehari Lal." I understand him to mean, and I think that the jury would understand him to mean, that there was no evidence by the defence to contradict their evidence on this point and further that their evidence had not been discredited in any way by cross-examination. The next passage complained of is on p. 58 dealing with the same matter and is as follows:

In addition to the evidence referred to above a look at the cash slips Ex. MM, dated 13th April 1928 and Ex. NN, dated 3rd November 1928, leaves no doubt that Sri