Cautioning the Jury.-(a). A Judge should caution a jury not to accept the evidence of an approver, unless it is corroborated; the omission to do so amounts to misdirection-Queen-Empress v. Arumuga, I. L. R. 12 Mad. 196. Vide also (1) Queen-Empress v. Bepin Biswas, I. L. R. 10 Cal. 970; (2) Queen v. Elahi Buksh, 5 W. R. Cr. 80; (3) Queen-Empress v. O'Hara, I. L. R. 17 Cal. 642; (4) Queen v. Sadhu Mundul, 21 W. R. Cr. 69; (5) Queen v. Khotub Sheikh, 6. W. R. Cr. 17; (6) Queen v. Bykunt Nath Banerji, 10 W. R. Cr. 17.

(b). It is undoubted that a Judge, in cases where the material supporting the charge against the prisoner is afforded by the evidence of an approver, is bound very carefully to warn the jury of the infirmity which necessarily attaches to that evidence. He is bound also to call to their attention the circumstance, if it be, in fact, the case, that the approver is speaking under the influence of a conditional pardon, that is, a pardon conditional upon his telling the truth to the satisfaction of the Crown, who is the prosecutorQueen v. Mohes Biswas, 19 W. R. Cr. 16.

(c). It would be error in a summing up if a Judge, after pointing out the danger of acting upon the uncorroborated evidence of an accomplice, were to tell the jury that the evidence of the accomplice was corroborated by evidence of a fact which did not amount to any corroboration at all. Remarks of Bayley J., in Queen-Empress v. Maganlal, I. L. R. 14 Bom. 115.

134. No particular number of witnesses shall
in
any case be required for the proof
of any fact.

Number witnesses.

of

By this section the Judge is left unfettered in determining, in each case, whether the evidence is sufficient. According to the present Act, the evidence of a single witness is sufficient proof of any fact if the Court or the jury believe him.

A conviction upon the statement of a complainant is lawfulKulum Mondul v. Bhowaniprosad, 22 W. R. Cr. 32.

The law of England is different. In regard to treason and misprison of treason, the rule is that no person shall be indicted, tried, or attained thereof, but upon the oaths and testimony of two lawful witnesses, either both to the same overt act, or one to one, and the other to another overt act of the same treason, unless the accused shall openly without violence confess the same; and further, that, if two or more distinct treasons of divers heads or kinds shall be alleged in one indictment, one witness produced to prove one of

these treasons, and another, another, shall not be deemed to be two witnesses to the same person.

CHAPTER X.

OF THE EXAMINATION OF WITNESSES.

Order of production and examination of witnesses.

135. The order in which witnesses are produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively, and, in the absence of any such law, by the discretion of the Court.

Law as to Examination of Witnesses in Civil Cases.- Vide Chapter XV of the Code of Civil Procedure, and Chapter XXV as to examination by commission.

Law as to Examination of Witnesses in Criminal Cases.- Vide Chapter XXV of the Code of Criminal Procedure, Chapter XL as to examination by commission, and Chapter XLI as to certain special rules of evidence.

Evidence of every witness to be taken.-(a). Every party to a suit is entitled to have all the witnesses whom he desires to call, and is ready at the trial, heard by the Court, whatever opinion the Court may form by anticipation as to the probable value of the evidence when it shall be given-Looloo Singh v. Rajendur Laha, 8 W. R. 364. Vide also (1) Nilkanth Surmah v. Soosela Debia, 6 W. R. 324; (2) Gopee Ojha v. Hurgobind Singh, 12 W. R. 229.

(b). It is not the business of a Court to determine what witnesses shall be examined. The parties must select their own witnesses and call upon the Court to examine such of them as they may offer for examination-Morno Moyee Debee v. Bheem Coomar Chowdhry, 6 W. R. 231.

(c). It is the duty of a Sessions Court to examine all the witnesses sent up by the committing Magistrate. That Court is not justified in rejecting any of the witnesses so sent up, unless it has good reason to believe that such witness came into court-house with a predetermined intention of giving false evidence-Queen-Empress v. Bankhandi, I. L. R. 15 All. 6.

(d). In the case of Jeswant Sing-jee, Ubby Sing-jee v. Jet Sing-jee, Ubby Sing-jee, 2 Moo. I. A. 424, the defendant tendered 58 witnesses

to prove his allegations; the Zillah Court having taken the depositions of thirty of these witnesses, refused to permit the remaining 28 to be examined, on the ground that, being to prove the facts deposed to by those already examined, it was unnecessary to take their depositions. The Judicial Committee remitted the case back to the Sudder Court, being of opinion that the refusal by that Court to admit the examination of the witnesses tendered was irregular, and that no decision could be come to upon the merits under such circumstances.

(e). The fact of a witness not having been named in the plaintiff's list of witnesses, is no ground for refusing to examine him when produced--Rakhal Dass Mudi v. Protap Chundra Hazra, 12 W. R. 455.

Duty of Prosecution as to calling Witnesses.—(a). It is primâ facie the duty of the prosecution to call all the witnesses who prove their connection with the transactions connected with the prosecution, and who must be able to give important information. The only thing that can relieve the prosecutor from calling such witnesses is the reasonable belief, that, if called, they would not speak the truth-Empress v. Dhunno Kazi, I. L. R. 8 Cal. 121. Vide also (1) Queen-Empress v. Ram Sahai Lall, I. L. R. 10 Cal. 1070; (2) Queen-Empress v. Stanton, I. L. R. 14 All. 521; (3) Empress v. Kali Prosunno, I. L. R. 14 Cal. 245; (4) Empress v. Bankhandi, I. L. R. 15 All. 6.

(b). In a trial before a Court of Session or a High Court, the Public Prosecutor conducting the case for the Crown is not bound to call as a witness for the Crown or to put into the witness-box for the purpose of cross-examination any of the witnesses appearing in the calender as witnesses for the Crown, who, in his opinion, is a false witness, or is likely to give false testimony if put into the witnessbox. But he should not refuse to call or put into the witness-box for cross-examination a truthful witness returned in the calender as a witness for the Crown, merely because the evidence of such witness might, in some respects, be favourable to the defence-QueenEmpress v. Durga, I. L. R. 16 All. (F. B.) 84. Vide also QueenEmpress v. Tulla, I. L. R. 7 All. 904.

Examination of Witnesses by Commission in Criminal Cases.(a). A Hindu lady having been summoned as a witness on behalf of an accused, applied under sec. 503 of the Code of Criminal Procedure to be examined by commission on the ground (inter alia) that she was a purdahnashin, and that her enforced appearance in the Criminal Court would entail a forfeiture of her dignity and position in Hindu society. Held, that such application was properly made under the section, and that, under the circumstances of

the case, the order prayed for could be made-In the matter of the Petition of Din Tarini Debi, I. L. R. 15 Cal. 775. Vide also In the matter of the Petition of Basant Bibi, I. L. R. 12 All. 69.

(b). Witnesses in criminal cases should not be examined by commission except in extreme cases of delay, expense or inconvenience— In the matter of the Petition of Farid-un-nissa, I. L. R. 5 All. 92.

Judge to decide

(c). In a criminal case, the issue of a commission would be a most unsatisfactory course of proceeding, and one dangerous to the interests of the prisoner-Empress v. R. P. Counsell, I. L. R. 8 Cal. 896. 136. When either party proposes to give evidence of any fact, the Judge may ask the as to admissibility party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant, and not otherwise.

of evidence.

If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last-mentioned fact must be proved before evidence is given of the fact first mentioned, unless the party undertakes to give proof of such fact and the Court is satisfied with such undertaking.

If the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion, either permit evidence of the first fact to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact.

Illustrations.

(a). It is proposed to prove a statement about a relevant fact by a person alleged to be dead, which statement is relevant

under section thirty-two. The fact that the person is dead must be proved by the person proposing to prove the statement, before evidence is given of the statement.

(b). It is proposed to prove, by a copy, the contents of a document said to be lost. The fact that the original is lost must be proved by the person proposing to produce the copy, before the copy is produced.

(c). A is accused of receiving stolen property knowing it to have been stolen. It is proposed to prove that he denied the possession of the property. The relevancy of the denial depends on the identity of the property. The Court may, in its discretion, either require the property to be identified before the denial of the possession is proved, or permit the denial of the possession to be proved before the property is identified.

(d). It is proposed to prove a fact (A) which is said to have been the cause or effect of a fact in issue. There are several intermediate facts (B, C and D), which must be shown to exist before the fact (A) can be regarded as the cause or effect of the fact in issue. The Court may either permit A to be proved before B, C or D is proved, or may require proof of B, C and D before permitting proof of A.

Function of the Judge.-The Judge has not only to decide on the admissibility of evidence, but also on the evidence and facts on which the legal admissibility depends. Questions of relevancy are generally questions of great nicety. The different instances of the connection between cause and effect which occur most frequently in judicial proceedings, and the rules which allow the reception of statements made by third parties under special circumstances, of opinions of experts, of character evidence, and of secondary evidence, have been enumerated in Parts I and II of the Act. The Judge in deciding the question of admissibility should bear those sections in mind. If he has doubts as to the relevancy of a fact suggested, he can, if he thinks it will lead to anything relevant, ask about it himself under sec. 165 post.

Improper Admission or Rejection of Evidence.-The improper admission or rejection of evidence in India has no effect at all, unless the Court thinks that the evidence improperly dealt with either turned, or ought to have turned, the scale.-Step. Evi., 73. Vide sec. 167 post.