24 May 1951
Supreme Court


Case number: Appeal (crl.) 17 of 1951






DATE OF JUDGMENT: 24/05/1951


CITATION:  1951 AIR  316            1951 SCR  676  CITATOR INFO :  F          1955 SC 584  (3)  R          1962 SC1788  (5,6,8)  RF         1968 SC 707  (8)  R          1970 SC 272  (10)  RF         1973 SC2145  (4,8)  R          1975 SC 580  (4)  R          1978 SC   1  (15)  R          1986 SC1721  (9)

ACT:     Criminal  Procedure Code (V of 1898), s. 439  (4)--Revi- sion  against  acquittal--High Court’s  powers--Reversal  of findings of facts--Impropriety of.

HEADNOTE: Though sub-s. (1) of s. 439 of the. Criminal  Procedure Code authorises the High Court to exercise in Its discretion any of the powers conferred on a court of appeal by s.  423, yet sub-s. (4) specifically excludes the power to "convert a finding  of acquittal into one of conviction."   This.  does not  mean  that  in dealing with a revision  petition  by  a private party against an order of acquittal, the High  Court can  in  the absence of any error on a point of  law  re-ap- praise  the  evidence and reverse the findings of  facts  on which the acquittal was based, provided only it stops  short of  finding the accused guilty and passing sentence on  him, by ordering a re-trial.

JUDGMENT:    CRIMINAL APPELLATE JURISDICTION:  Criminal Appeal No. 17 of 1951.    Appeal against a Judgment and. Order dated 22nd January, 1951, of the High Court of Judicature at Patna (Imam J.)  in Criminal Revision No. 1533 of 1950   677     S.P. Sinha (P.S. Safeer and K.N. Aggarwal, with him) for the appellants. The respondent did not appear.



   1951. May 24. The Judgment of the Court was delivered by     PATANJALI SASTRI J.--This is an appeal by special  leave from  an  order  of the High Court of  Judicature  at  Patna setting aside an order of acquittal of the appellants by the Sessions Judge, Purnea, and directing their retrial.     The  appellants  were prosecuted  for  alleged  offences under  sections 147, 148, 323, 324, 326, 302 and 302/149  of the  Indian  Penal  Code at the instance of  one  Polai  Lal Biswas  who lodged a complaint against them before  the  po- lice.  The prosecution case was that, while the  complainant was harvesting the paddy crop on his field at about 10  a.m. on 29th November, 1949, a mob of about fifty persons came on to  the field armed with ballams, lathis and  other  weapons and  that  the  first appellant Logendranath  Jha,  who  was leading  the mob, demanded a settlement of  all  outstanding disputes  with the complainant and ,said he would not  allow the  paddy to be removed unless the disputes  were  settled. An  altercation followed as a result of which  Logendra  or- dered an  assault by his men.  Then Logendra and one of  his men,  Harihar,  gave ballam blows to one of  the  labourers, Kangali, who fell down and died on the spot. Information was given to the police who investigated the case and  submitted the  charge-sheet.  The committing Magistrate found  that  a prima  facie case was made out and committed the  appellants to the Court of Sessions for trial.     The  appellants pleaded not guilty alleging inter  alia, that Mohender and Debender, the brothers of Logendra (appel- lants 2 and 3) were not present in the village of  Dandkhora with  which  they had no concern, as all the lands  in  that village  had been allotted to Logendra at a previous  parti- tion,  that Logendra himself was not in the village  at  the time of the occurrence but arrived 678 soon  after and was dragged to the place at the instance  of his  enemies in the village and was placed under  arrest  by the Assistant Sub-Inspector of Police who had arrived  there previously. It was also alleged that there were two factions in  the  village, one of which was led by one  Harimohan,  a relation  of the complainant, and the other by Logendra  and there had been numerous revenue and criminal proceedings and long-standing  enmity between the families of these  leaders as  a result of which this false case was foisted  upon  the appellants.     The  learned  Sessions Judge examined  the  evidence  in great  detail and found that the existence  of  factions  as alleged by the appellants was true. He found, however,  that the  appellants’ plea of alibi was not  satisfactorily  made out,  "but  the truth of the prosecution", he  proceeded  to observe,  "cannot be judged by the falsehood of the  defence nor  can the prosecution derive its strength from the  weak- ness of the defence. Prosecution must stand on its own  legs and must prove the story told by it at the very first stage. The manner of occurrence alleged by the prosecution must  be established  beyond doubt before the accused persons can  be convicted".  Approaching the  case in this manner and seeing that  the basis of the prosecution case was that  Polai  had batai  settlement  of the disputed land and had  raised  the paddy crop which he was harvesting when the occurrence  took place,  the learned Sessions Judge examined the evidence  of the  prosecution  witnesses  who belonged  to  the  opposite faction critically and found that the story of the  prosecu- tion  was  not acceptable. Polai, who was  alleged  to  have taken  the  land on batai settlement from his  own  maternal grandmother Parasmani who brought him up from his childhood, was  only  19 years old and unmarried and was  still  living



with  his grandmother. He did not claim to be a bataidar  of any other person. "In these circumstances", said the learned Judge,  "it does not appear to me to be probable that  Polai would have been allowed to maintain himself by running  adhi cultivation of his mamu’s land in the lifetime of    679 his  nani who has brought him up from his infancy  like  her own child.  Nor does it appeal to me that the unmarried  boy Polai  would have  undertaken upon himself the task of  run- ning batai cultivation of the lands of his mamu where he has been  living since his childhood without any  trouble,  more particularly  in view of the heavy expenses  of  cultivation brought  out by the evidence of Tirthanand (P.W.  14)".  He, therefore, disbelieved the whole story that Polai had  taken the  lands of his grandmother or his uncles as bataidar  for cultivation and that he was engaged in harvesting the  paddy crop on the lands at the time of the occurrence. This  false story,  in  his opinion, "vitally affected  the  prosecution case  regarding the alleged manner of the  occurrence".   He also  found a number of discrepancies and contradictions  in the  evidence  of the prosecution witnesses, which,  in  his view,  tended  to show that the prosecution  was  guilty  of concealment  of the real facts. ’ ’In view of such  conceal- ment  of real facts," the learned Judge concluded, "it  does not  appear to me to be possible to apportion liability  and to  decide which of the two parties commenced the fight  and which acted in self-defence.  Such being the position, it is not  possible  at all to hold either party  responsible  for what took place.  In such a view of the matter coupled  with the fact that the manner of occurrence alleged by the prose- cution  has not been established to be true beyond doubt,  I think that the accused persons cannot be safely convicted of any of the offences for which they have been charged."   The learned  Judge accordingly acquitted the appellants  of  all the charges framed against them.     Against  that  order the complainant Polai  preferred  a revision petition to the High Court under section 439 of the Criminal  Procedure Code.,  The learned Judge who heard  the petition  reviewed the evidence at some length and  came  to the  conclusion  that the judgment of the  learned  Sessions Judge could not be allowed to stand as the acquittal of  the appellants  was  "perverse’ ’. In his opinion,  "the  entire judgment displays a lack 680 of  true  perspective in a case of this kind.  The  Sessions Judge  had completely misdirected himself in looking to  the minor  discrepancies in the case and ignoring the  essential matters  so far as the case is concerned," and there was  no justifiable  ground for rejecting the  prosecution  evidence regarding  the cultivation and harvesting by Polai.  And  he concluded  with the warning "I would, however, make it  per- fectly clear that when the case is re-tried, which I am  now going to order, the Judge proceeding with the trial will not be  in  the least influenced by any  expression  of  opinion which I may have given in this judgment."     On behalf of the appellants Mr. Sinha raised two conten- tions.  In the first place, he submitted that having  regard to section 417 of the Criminal Procedure Code which provides for  an appeal to the High Court from an order of  acquittal only at the instance of the Government, a revision  petition under  section  439 at the instance of a private  party  was incompetent, and, secondly, that sub-section (4) of  section 439  clearly showed that the High Court exceeded its  powers of revision in the present case in upsetting the findings of fact  of  the trial Judge. ’ We think it is  unnecessary  to



express  any  opinion on the first contention of  Mr.  Sinha especially as the respondent is unrepresented, as we are  of opinion  that  his second and  alternative  contention  must prevail.     It will be seen from the judgment summarised above  that the  learned Judge in the High Court re-appraised  the  evi- dence  in the case and disagreed with the  Sessions  Judge’s findings  of fact on the ground that they were perverse  and displayed  a lack of true perspective. He went further  and, by way of "expressing in very clear terms as to how perverse the  judgment of the court below is", he indicated that  the discrepancies  in the prosecution evidence and  the  circum- stances of the case which led the Sessions Judge to discred- it the prosecution story afforded no justifiable ground  for the  conclusion  that the prosecution  failed  to  establish their case.  We are of opinion that the learned Judge in the High Court did not properly appreciate the 681 scope of inquiry in revision against an order of  acquittal. Though  sub-section(1)  of section 439 authorises  the  High Court  to  exercise, in its discretion, any  of  the  powers conferred  on a court of appeal by section 423,  sub-section (4) specifically excludes the power to "convert a finding of acquittal into one. of conviction".  This does not mean that in  dealing  with  a revision petition by  a  private  party against  an order of acquittal, the High Court could in  the absence  of  any  error on a point of  law  re-appraise  the evidence  and  reverse the findings of facts  on  which  the acquittal  was  based,  provided only it  stopped  short  of finding the accused guilty and passing sentence on him.   By merely  characterising  the judgment of the trial  Court  as "perverse"  and’  lacking in perspective",  the  High  Court cannot  reverse  pure findings of fact based  on  the  trial Court’s  appreciation of the evidence in the case.  That  is what  the  learned Judge in the court below  has  done,  but could not, in our opinion, properly do on an application  in revision  filed by a private party against  acquittal.    No doubt, the learned Judge formally complied with  sub-section (4)  by directing only a retrial of the  appellants  without convicting them, and warned that the court retrying the case should  not be influenced by any expression of opinion  con- tained in his judgment.  But there can be little doubt  that he  loaded  the dice against the appellants,  and  it  might prove difficult for any subordinate judicial officer dealing with  the  case  to put aside altogether  the  strong  views expressed  in  the  judgment as to the  credibility  of  the prosecution  witnesses and the circumstances of the case  in general.     We  are  of opinion that the learned Judge in  the  High Court  exceeded his powers of revision in dealing  with  the case  in the manner he did, and we set aside his  order  for retrial of the appellants and restore the order of acquittal passed by the Sessions Judge. Appeal allowed. Agent for the appellant: Kundan Lal Mehta. 682