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PETITIONER: KHEDU MOHTON AND ORS.

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT: 17/08/1970

BENCH: HEGDE, K.S. BENCH: HEGDE, K.S. DUA, I.D.

CITATION:  1971 AIR   66            1971 SCR  (1) 839  1970 SCC  (2) 450  CITATOR INFO :  RF         1972 SC 622  (27,30)  D          1973 SC 460  (17,18)  RF         1973 SC1204  (7)  RF         1973 SC2195  (6)  R          1976 SC 980  (9)  F          1976 SC2032  (2)

ACT: Code  of Criminal Procedure (Act 5 of 1898), ss. 417(3)  and 431--Appeal  against  acquittal--Death  of   complainant--If appeal abates. Practice and Procedure--Powers of appellate court in appeals against acquittal.

HEADNOTE: The  appellants were prosecuted for dishonestly cutting  and removing  the paddy crop of the complainant.  The  complaint was  filed  8  days after, the incident.   The  trial  court convicted  them.  The appellate court acquitted them on  the grounds.   :  (1)  that  the  prosecution   witnesses   were unreliable; (2) that there was considerable delay in  filing the  comPlaint for which no explanation was given;  and  (3) the Inspector of Police who was alleged to have been an eye- witness of the occurrence was not examined.  The complainant filed  an appeal to the High Court under s.417(3)  Cr.  P.C. During the pendency of the appeal the complainant died.  The High  Court  set  aside  the  acquittal  and  convicted  the appellants. In appeal to this Court, HELD  :  (i) The question of abatement of  criminal  appeals is.,  dealt with by s.431 Cr.  P.C., and according  to  that section an appeal under s.417 can only abate on the death of the  accused and not otherwise.  Therefore, once the  appeal against  acquittal  is  entertained by the  High  Court,  it becomes its duty to decide it on merits even though the com- plainant died. [842 G-H] Thothan v. Murugan, A.I.R. 1958 Mad. 624, overruled. (ii) Unless the conclusion that the accused were not guilty, reached by the first appellate court, was palpably wrong, or was  based  on  an erroneous view of the  law  or  that  the decision  was likely to result in grave injustice, the  High

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Court should be reluctant to interfere with that conclusion. If two reasonable conclusions can be reached on the basis of the  evidence  on  record then the view in  support  of  the acquittal of the accused should be preferred. [840 H, 841 A] (iii)     In  the  present case, the  prosecution  witnesses were  obviously-, interested witnesses being the enemies  of the  accused, and the explanations given by the  complainant for  the delay  in  filing  the  complaint  and  the  non- examination   of  the  Inspector  of  Police   were   false, therefore,  the  High Court erred in  interfering  with  the order of acquittal. [841 B-C]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 162  of 1967. Appeal  by special leave from the judgment and  order  dated May  3, 1967 of the Patna High Court in Criminal Appeal  No. 40 of 1965. 840 E.   C. Agrawala, for the appellants. B.   P. Jha, for the respondent. The Judgment of the Court was delivered by Hegde,  J. This appeal by special leave is directed  against the decision of single judge of the High Court of Judicature at  Patna setting aside the acquittal of the appellants  and convicting  them under ss. 379/149, I.P.C. as well as  under s. 143, I.P.C. The   appellants   were  prosecuted   before   the   Munsiff Magistrate,  1st  Class, Arrah for dishonestly  cutting  and removing the paddy crop in plots Nos. 340 and 346 pertaining to  khata No. 82 in village Ibrahim Nagar District  Shahbad. The  complainant’s case is that those lands belonged to  him and the appellants unlawfully trespassed into that  property on  November  19,  1961 and harvested the  rice  crop.   The appellants  pleaded not guilty to the charge.   The  learned trial  magistrate held the appellants guilty  and  convicted them  as mentioned earlier.  In appeal the learned  District Judge, Shahbad acquitted the appellants.  He felt unable  to rely  on the prosecution case for three  different  reasons. Firstly  he  came to the conclusion that the  witnesses  who spoke about the occurrence are all interested witnesses  and it  is  unsafe  to place reliance on  their  testimony.   He secondly came to the conclusion that there was  considerablE delay in filing the complaint and the delay in question  has not been explained by the prosecution and that  circumstance throws  doubt on the prosecution case.  Lastly he held  that the  non-examination of the police inspector who is said  to have  come  to the place of occurrence at the  time  of  the occurrence  and seen some of the appellants’ harvesting  the crop casts further doubt on the prosecution case.  The  High Court differing from the 1st appellate court held that there was  no  delay  in filing the complaint  nor  was  the  non- examination of the police inspector a circumstance that went against  the prosecution.  It did not deal with the  finding of  the  1st  appellate court that it  is  unsafe  to  place reliance  on  the evidence of P.W.s. 1 to 4  as  they were interested witnesses. It is true that the powers of the High Court in  considering the  evidence on record in appeals under s. 417,  Cr.   P.C. are   as  extensive  as  its  powers  in   appeals   against convictions  but that court at the same time should bear  in mind  the presumption of innocence of accused persons  which presumption  is  not weakened by their acquittal.   It  must

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also  bear  in mind the fact that the  appellate  judge  had found  them not guilty.  Unless the conclusions  reached  by him are palpably wrong or based on erroneous view of the law or that his decision is likely to result in grave injustice, the  High  Court should be reluctant to interfere  with  his conclusions.  If two 841 reasonable  conclusions can be reached on the basic  of  the evidence on record then the view in support of the acquittal of the accused should be preferred.  The fact that the  High Court  is inclined to take a different view of the  evidence on record is not sufficient to, interfere with the order  of acquittal. The learned appellate judge has come to the conclusion  that P.Ws.  1 to 4 are interested witnesses and it is  unsafe  to place  reliance  on their testimony.  It is  established  in evidence  that P.Ws. 1 to 3 are interested witnesses.   They are the enemies of the appellants.  This aspect of the  case was not considered by the High, Court at all. The  occurrence Is said to have taken place on November  19, 1961  but the complaint in respect of the same was filed  on November 27, 1961.  The explanation given by the complainant for this inordinate delay was that he laid information about the  occurrence  before  the  police  on  the  date  of  the occurrence  itself; he was. expecting the police to take  up the  investigation;  as  the  police did  not  take  up  the investigation,  he  filed the complaint  on  27th  November, 1961.   This  explanation  has  been  rejected  by  the  1st appellate  court.  The complaint said to have been filed  by the  complainant  has  not been  summoned  nor  proved.   No satisfactory  proof of any such complaint has  been  adduced before  the  court.  If a complaint tinder s. 154  had  been filed,  the  same  would have been registered  and  a  final report under s. 173 submitted.  None of those documents have been  summoned  much  less proved.   Curiously  enough,  the learned  judge  of the High Court says that if  the  learned Sessions Judge had looked into the diary of the  magistrate, he would have found reference to the complaint filed by  the complainant.  In this Court we requested the Counsel for the State  to  look  into the original  records  and  inform  us whether  there is any reference to a complaint filed by  the complainant.   After examining the records, he told us  that there is no such reference.  We do not know how the  learned judge formed the impression that there was some reference in some  record about the information laid before  the  police. In  fact  in this Court Counsel for the State told  us  that what  had happened was that before the occurrence, the  com- plainant  appears  to have filed an application  before  the police  mentioning that there was an apprehension of  breach of peace.  The delay of about 8 days in filing the complaint in a case of this nature throws a great deal of doubt on the prosecution  story.  It was the duty of the  prosecution  to explain   the   delay  satisfactorily.    Failure   of   the prosecution  to  do  so undoubtedly  is  a  circumstance  of considerable importance. According to the complainant, as the appellants were reaping the  crop  the Police Inspector happened to come  there  and that he- 842 had  seen  some of the appellants harvesting the  crop.   If that  be  so  the Inspector of Police  would  have  been  an extremely  important witness.  His evidence would have  been useful  in  determining the guilt of the accused.  He  is  a disinterested  person.   No explanation was  given  for  not examining  him.  Strangely enough the learned Judge  of  the

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High Court opined that there was no purpose in examining the inspector  when he had failed to investigate  the  complaint made  before  him.  As seen earlier, the  alleged  complaint appears  to  be an imaginary one.  Therefore  the  inference that  the inspector of police was guilty of  dereliction  of duty was unwarranted.  In  view of our above conclusion, it is unnecessary for  us to  consider the question of law canvassed by Mr. E.  C.  A- agarwal, learned Counsel for the appellant.  But as the same has been argued we shall go into it.  The appeal before  the High  Court was brought after obtaining special leave  under sub-s.  (3)  of s. 417, Cr.P.C. It appears that  during  the pendency  of  the  appeal, the  complainant  died.   It  was contended  before  the High Court and  that  contention  was repeated  before  us that the appeal abated in view  of  the death  of the complainant.  This contention was rejected  by the High Court.  In support of that contention, Counsel  for the appellant relied on two decisions one of Allahabad  High Court  in  Nehal Ahmad v. Ramji(1) and the other  of  Madras High  Court in Thothan and anr. v. Murugan and  ors.(2)  The first  decision  has  no application to  the  facts  of  the present  case.  That was an appeal under S. 476 (B) of  the, Cr.   P.C. It is true that the Madras decision was  rendered in  an  appeal  under  s. 417(3) of the  Cr.   P.C.  In  our opinion,  the learned single judge of the Madras High  Court erred  in thinking that the decision of the  Allahabad  High Court  lent  any support to his conclusion  that  an  appeal filed under S. 417(3), Cr.  P.C. abates on the death of  the complainant.  The question of abatement of criminal  appeals is  dealt with by s. 431 of Criminal Procedure  Code.   That section reads               "Every appeal under S. 41 1 A, sub-s. 1 )  or               s. 417 shall finally abate on the death of the               accused  and  every other  appeal  under  this               Chapter  (except an appeal from a sentence  of               fine)  shall abate on the death of the  appel-               lant." From  this section it is clear that an appeal under  s.  417 can only  abate  on  the death  of  the  accused  and  not otherwise.    Once  an  appeal  against  an   acquittal   is entertained  by the High Court, it becomes the duty  of  the High  Court to decide the same irrespective of the fact  the appellant either does not choose to prosecute it (1) A.I.R. 1925 All. 620. (2) A.I.R. 1958 Mad 624. 843 or unable to prosecute it for one reason or the other.   The argument that while introducing sub-s. (3) into s. 417,  Cr. P.C., the Parliament overlooked the provisions. contained in s. 43 1, does not deserve consideration.  The language of s. 431  is  plain and unambiguous.  Therefore  no  question  of interpretation of that provision arises. In  view of our finding on the merits of the case, we  allow this  appeal, set aside the judgment of the learned  single judge  of  the High Court and restore that of  the  Sessions Judge.   The appellants on bail.  Their bail bonds do  stand cancelled. V.P.S.                               Appeal allowed. 844