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 Magistrates Court, should the evidence of such witnesses be disbelieved merely on the ground that they were not produced by the prosecution in the Committing Magistrates 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