CHAP. III. evidence. There may be other cases to the same effect. But there is no uniform current of decisions which would justify us in holding that the law in this respect in the mofussil was different from the established law of England, and from that which was administered in the late Supreme Court, and is now administered by this Court in the exercise of Original Criminal Jurisdiction. It would require a uniform train of decisions to justify us in holding that the Law of Evidence to be administered by the Court, upon such a point as this, is different in the exercise of the Appellate Criminal Jurisdiction from that which is acted upon in the exercise of Original Jurisdiction."

In his judgment in the same case, L. S. Jackson, J., adds :"In the vacancy, as it were, of any rule upon the subject, we ought probably to adopt, on the Appellate Side of this Court, the same principles of evidence which are recognized in the exercise of Original Jurisdiction. At any rate, we are not at liberty to adopt any principle of exclusion which is not admitted there, and has not the sanction of ancient practice in the late Nizamut Adawlut."

On the other hand, a few months later, the majority of a Full Bench of the same Court (1) held that, contrary to the doctrines of English law, in the mofussil a wife is competent to give evidence for or against her husband. Sir Barnes Peacock based his opinion upon the practice of the late Nizamut Adawlut, and the inapplicability of the English rule of exclusion to the natives of India, and to their social institutions and relations.

The Commissioners appointed to prepare a body of substantive law for India, in their (fifth) Report to Her Majesty, speak of "the customary Law of Evidence prevailing in those parts of British India where the English law is not administered." They say: "This customary law has not assumed any definite form; the Mahomedan law, since the enactment of the new Code of Criminal Procedure, has ceased to have any validity in the Country Courts, even in criminal matters; and those Courts have in fact no fixed rules of evidence, except those contained in Act II of 1855. They are not required to follow the English law as such, although they are not debarred from following it where they regard it as the most equitable" (2).

In the ordinary Common Law and Criminal Courts of England, the course of procedure is to entrust to a Jury of twelve

(1) Queen v. Khyroolla, 6 Sutherland's Weekly Reporter (Cr.), 21; see post, p. 131. (2) See the remarks of their Lordships of the Privy Council, quoted, post, p. 351.

individuals, specially summoned for the purpose, the determination CHAP. III. of the fact involved in the trial, leaving to the Court the application of the law. This is not, however, the case with all the Courts of the country; and, as an ordinary one, subject to provision for invoking the aid of a Jury in certain prescribed cases, the practice of other Civil Courts,—namely of Equity, Bankruptcy, Probate, Divorce, and Matrimonial Causes, the Ecclesiastical, Admiralty, and County Courts,-constitutes the Judge the arbiter of the fact, as well as of the law.

The High Courts of the Indian presidencies, except in cri- Indian Courts. minal cases, and the Small Cause Courts, are in conformity with the principle of the latter in leaving the decision to the Judge; as are the mofussil Courts in reference to civil business.

Regulation law, in the case of criminal trial, provided for the Native Courts of India, at all events in Bengal, when presided over by a Commissioner of Circuit, or Judge of Session, the power of availing themselves, under the discretion of the Judge, of the assistance of respectable natives, either for the purpose of constituting a punchayet for the institution of enquiries apart from the Court; Assessors to sit with it, and aid it by its observations, particularly in the examination of the witnesses; or persons to be employed more nearly as a Jury, attending during the trial of a case, suggesting points of enquiry, and after deliberation delivering their verdict. In cases too, involving the religious prejudice of Mahomedans or other classes, the Regulations more especially enjoined a trial under the assistance of the Jury (1).

Apart from the difficulty which was often found to exist of finding natives of the prescribed character within the locality, the Judge was not bound by the verdict of the Jury even when suinmoned; so that practically in the native Courts too, not only in civil, but in criminal cases, the mofussil Judge, for the most part, had the fact to determine for himself, as well as the law.

The Criminal Procedure Code now provides that the Local Government may order that the trial of all offences, or of any particular class of offences, by any Court of Session, shall be by Jury in any district, and that in a trial before the Court of Session not by Jury, the trial shall be conducted with the aid of two or more Assessors as members of the Court. The opinion of each Assessor is to be given orally, and to be recorded in writing by the Court, but

(1) Beaufort's Digest of Criminal Law, Sections 1244-5.

CHAP. III. the decision is vested exclusively in the Judge, from whose decision there is an appeal. In trials by Jury, the Jury is to consist of five persons, or of such number, being an uneven number, and not being less than five, or more than nine, as the Local Government shall direct. For the conviction or acquittal of the accused, there must be a majority of four, where the Jury consists of five persons; of five where it consists of seven; of six where it consists of seven; of six where it consists of nine, otherwise the Jury will be discharged, and there will be a new trial before a Jury consisting entirely of other Jurors; but if, on the new trial, the accused shall not be found guilty by a majority consisting of such a number as aforesaid, he shall be acquitted (1).

Not governed by Native Law of Evidence.

Supreme and
High Courts.

Both the Hindu and Mahomedan Codes of Law which once prevailed in India, or in different portions of it, had certain rules of evidence of their own; and many of them very much at variance with those of English law.

It is a fundamental principle of Jurisprudence, however, that, in every country, the law of its own Courts,-the lex fori,' as it is termed,-not only prescribes generally to all its suitors its own course of procedure, but adopts its own rules of evidence as those upon which the issues depending before it are to be tried; however much in transactions originating in foreign localities a deference is yielded to the lex loci contractus,'—that is, the law or usage of the country in which the obligation was contracted; and though, 21 Geo. III, c. 70, s. 17, preserved to the Hindu and Mahomedan inhabitants of the city of Calcutta (2) in all matters of contract and succession, their own laws and customs, it failed to attach, as part of this, their peculiar Laws of Evidence; and the English law, subject to modification by Indian enactment, has prevailed in Calcutta from the institution of the Supreme Court.

Similarly it was enacted for the mofussil (3) that in suits regarding succession, inheritance, marriage, and caste, and all religious usages and institutions, their own laws were to be preserved to the Hindus and Mahomedans respectively. This of course did not constitute the Hindu or Mahomedan Law of Evidence the law of the mofussil Courts.

(1) Act XXV of 1861, and Act VIII of 1869, ss. 322 and sqq.

(2) This provision was subsequently extended to Madras and Bombay by 37 Geo. III, c. 142, s. 13.

(3) Bengal Regulations IV of 1793, s. 15, and VII of 1832, s. 9; and Act XXI of 1850.

But a notion was at one time abroad that the Mahomedan CHAP. IIÌ. Law of Evidence was that which was to prevail even in the Mahomedan British Courts in the mofussil. However, this has long since been Law-how exploded in all the presidencies.

So long indeed as the 'futwa,' or certificate of the Law Officer of the Court, in cases involving the application of Mahomedan law, was allowed, as it originally was, to furnish a rule for decision, some practical difficulty was presented by the opposition in which this futwa was constantly found to the principles of the English Law of Evidence. But this was got rid of, in the Bengal Presidency, by a Regulation so old as 1793, which provided that, in cases where the evidence given on a trial would be deemed incompetent by the Mahomedan law, solely on the ground of the persons giving such evidence not professing the Mahomedan religion, the Law Officer of the Sessions Court was to declare what would have been his futwa supposing such witnesses had been Mahomedans. In such cases the Court was not to pass sentence, but to transmit the record of the trial, with such futwa, to the Nizamut Adawlut; and that Court, provided it approved of the proceedings held on the trial, was to pass such sentence as it would have passed had the witness been of the Mahomedan religion (1).

To supply an illustration:-There are few crimes less likely to be committed in the presence of a number of beholders than rape. Yet, for a conviction for this, Mussulman law requires the testimony of at least four eye-witnesses. In an otherwise clearly established case of rape, accordingly, which is to be found among the reports of the Nizamut Adawlut, Oodaisen's case (2), the futwa of the Law Officer of the Court of Circuit had declared that this condition not having been complied with, a conviction could not be sustained, and the prisoner ought to have been discharged; but the Law Officers of the Nizamut Adawlut declared that, though there was no full legal proof of the prisoner's guilt, yet from the strong circumstantial evidence against him, he was liable to discretionary punishment by Acoobut. The prisoner was accordingly sentenced to receive 30 stripes with a corah, and to imprisonment for seven years.

Under the Madras law, the like difficulty as to the futwa was got over by a Regulation (XV of 1803) authorizing the

(1) Beaufort's Digest of Criminal Law, Section 623.

(2) 1 Nizamut Adawlut, p. 212.

dealt with.

CHAP. III. Judge to dispense with it.

Inaptitude of Native Law of Evidence.

False testimony permitted by.

Thus (to borrow Mr. Norton's illustration), suppose the case of a fact proved by only one witness, and that a woman. The Mahomedan Law Officer might declare the case not proved, because, according to the Mahomedan law (save in certain exceptional cases), the evidence of a woman was not receivable. The Judge might then askSuppose the woman were a man? The second futwa would declare that, under such circumstances, the fact would have been proved. The Judge might then act upon the second futwa (1).

So long ago as the year 1829, the Fouzdaree Adawlut stated to Government that they considered themselves, by Regulation I of 1818, released from following the Mahomedan Law of Evidence, and that they had accordingly turned to the law of England as their legitimate guide, and as the acknowledged source of the provisions previously enacted in the Regulations of the Madras Government for the conduct of judicial proceedings (2).

The Native Law of Evidence of India would, for the most part, be wholly inapplicable, no less to the course of procedure in the Courts, than to the wants and habits of modern times; and that even so far as the natives themselves are concerned.

A Code of Evidence could not very well find a place in a British Court, or be administered by British lawyers, which contained such articles as the following, taken from the ancient native law of India.

66

According to Hindu Law as found in the Mitacshara :—“ A man may speak falsely in a case involving death to any of the tribes ;"-what is meant by the tribes' being explained by the passage:"Where it is probable that, by speaking truth, death may happen to a Sudra, a Vaisya, a Cashetry, or a Brahmin, then a witness may speak falsely; he SHOULD NOT speak truth" (3).

Indeed this is but an offshoot of the law of Menu, which declares: Never shall the king slay a Brahmin, though practising all possible crimes. No greater crime is known on earth than slaying a Brahmin, and the king therefore must not even form in his mind an idea of killing a priest" (4): a pious tenderness for the class, not however very unlike what once existed in a law nearer the home of English lawyers, known by the name of