Patna High Court
Emperor vs Deboo Singh on 27 February, 1927
Equivalent citations: 120IND. CAS.634
JUDGMENT Jwala Prasad, J.
1. This is an appeal by the Local Government under Section 417 of the Code of Criminal Procedure against an order passed in a sessions trial by the Assistant Sessions Judge of Purnea, dated the 16th April, 1926, acquitting the accused of the charges laid against them.
2. The case arises out of a riot which took place on Tuesday, the 17th March, 1925 at 2 p. M. between the two contending parties. In the riot persons on both sides were injured.
3. Sundar Lal Mandal of Simarbani is the leader of the party representing the prosecution in the present case. His sons and nephews Bandey Lal Mandal, Kusum Lal Mandal, Hia Lal Mandal and Giranand and his servant Langru Khangar received injuries. The following were the injuries on their persons:
* * * * *
4. Maini Misser of Shankarpur is the leader on the side of the accused. Accused Nos. 2 to 4, 6, 8 and 9 Jasodhar Misser, Joganand Misser, Saga Misser, Sadanand Misser, Abhinandan Misser, and Kulanand Misser are his brothers. Deboo Singh accused No. 1 of village Jainagar is his co-sharer. Accused No. 5 Radha Kant Jha of Shankarpur and accused No. 11 Sukan Chaudhari are his men. Kasi Khatwey is a stranger. Of these Joganand Misser, Kulanand Misser, Radha Kant Jha, Giranand Singh, Abhinandan Misser, Sukan Chaudhari of Hirni, Kasi Khatwey, Genanand Misser and Jascdhar Jha received injuries. The last two died on the spot.
5. On the side of the accused the injuries were as follows:
* * * * *
6. The Sub-Inspector reached Shankarpur at 11 p. M. on the 17th March the day of the occurrence. He found the aforesaid two deceased and the six injured: the dead bodies near the Khairbana 500 steps northeast of Shankarpur and the injured persons on the stage of the theatre of that mela. He found dried blood under the dead bodies which had fallen from their wounds. The injured persons were not in their hosh and could not make any statement. The next day, on the 18th March at 9 A.M. he went to Simarbani and found Langru Khangar servant of Sundar Lal Mandal in his house, with two wounds on his body and dried blood on his clothes, mat etc., as already described. He did not find the other injured men on the side of the prosecution and learnt that they had gone to Araria.
7. More persons were injured on the side of the accused than on the side of the prosecution. The injuries were severer on the side of the accused than on that of the prosecution. There were not less than 195 gun shot wounds on the person of the injured men on the side of the accused besides bullet wounds. Thirty-six charras were removed from their persons. Two of them died on the spot and two others were in a dangerous condition and the bullets had penetrated so deep that they could not be found even by means of a probe. There were incised wounds also. On the side of the prosecution the injuries were slight in nature, caused by a blunt weapon except two injuries : one caused by a sharp weapon and the other by a pointed weapon. Only one man died on the side of the prosecution. None of the two injuries received by him was sufficient in the ordinary course to cause death had the bleeding been stopped. He survived two days after he received the injuries. Thus, the riot was a serious one in which persons on both sides were injured the accused faring worse. Each party is accusing the other. The complainant's case is that the accused party came in a large mob from Shankarpur to Simarbani fair three miles away to loot their mela and attacked the complainant and his party and in order to protect themselves they fired a gun which resulted in the death of the two men on the side of the accused and injuries on the person of others. On the contrary, the case of the accused is that they were attacked by the complainant and his party who came in a mob of 400 to 500 men to disperse their mela at Shankarpur and killed two on their side and injured others with lathis, sharp cutting weapons, spears and gun shots. The prosecution says that the occurrence took place at Simarbani. The accused say that it took place at Shankarpur. The two versions gave rise to two counter-cases. The case against the accused was tried first and that against the complainant and his party is awaiting the result of this case, and has not received judicial decision yet.
8. The accused are eleven in number. All of them have been charged under Section 147 of rioting as well as of culpable homicide not amounting to murder under Section 304 read with Section 149 of the Indian Penal Code. Accused No. 1 Deboo Singh was separately charged under Section 304, Indian Penal Code for culpable homicide not amounting to murder for causing the death of Langru Khangar. Accused Nos. 4 and 5 were also charged with causing hurt under Section 324, Indian Penal Code. Accused Nos. 1 to 5 and 9 were also charged under Section 148, Indian Penal Code for being armed with deadly weapons in the unlawful assembly.
9. They were tried by the Assistant Sessions Judge of Purnea originally with the aid of three Assessors. One of the Assessors absented himself after the trial commenced and the trial had, therefore, to be continued and concluded with the two Assessors only. Assessor No. 1 found all the accused guilty of the offences with which they were charged. Assessor No. 2 found accused No. 10 Kasi Khatwey not guilty of any of the charges. He also found that the charges under Sections 304-149 and 324, Indian Penal Code were not proved against any of the accused. He found the accused were guilty of rioting accused No. 6 Sadanand Misser, accused No. 8 Abhinandan Misser, accused No. 11 Sukan Chaudhari and accused No. 7 Gira-nand Singh guilty under Section 147, Indian Penal Code and accused No. 1 Daboo Singh accused No. 4 Suga Misser, accused No. 3 Jogan and Misser, accused No. 9 Kula-nand Misser, accused No. 2 Jasodhar Misser and accused No. 5 Radha Kant Jha guilty under Section 148, Indian Penal Code.
10. The learned Sessions Judge disagreeing with the Assessors acquitted the accused of all the charges. The Assessors gave grounds for their opinion. They did not agree in some of the material points in the case. The learned Assistant Sessions Judge considered the opinion and the grounds given by them. He came to the conclusion that the account of the occurrence as given by the prosecution has not been established. The Court has arrived at this view upon an examination of the evidence given by the prosecution. The witnesses examined have been disbelieved. The circumstances connected with the occurrence and leading up to it have been held to be against the prosecution and in favour of the innocence of the accused. The Court has held that the occurrence did not take place at or near Simarbani-Mela where the prosecution alleged it to have taken place. In other words, the Court has held that the place of occurrence has been changed. The Court has further held that the accused were not members of an unlawful assembly and that they did not form into a mob or haseri of 400 to 500 men armed with deadly weapons and attack the complainant and his party as alleged by the latter.
11. The Crown is dissatisfied with the decision of the Court below and has appealed against the decisions. We are asked to examine the evidence and to hold that the view taken by the Court below is wrong and the Court ought to have believed the witnesses on behalf of the prosecution and ought to have held that the case against the accused was established. We are asked to set aside the order of acquittal and upon the evidence adduced in the case to convict the accused of the charges laid against them.
12. A question has been raised at the Bar as to the way in which we should deal with the case, being an appeal against an order of acquittal. There have apparently been divergent judicial pronouncements on the point: vide Empress of India v. Gayadin 4 A. 148 : A.W.N. (1881) 159, Queen Empress v. Gobardhan 9 A. 528 : A.W.N. (1887) 156, Queen-Empress v. Ghulam Muhammad 10 P.R. 1897 Cr., Emperor v. Mangat 11 P.R. 1903 Cr. : 142 P.L.R. 1903, Queen-Empress v. Bibuti Bhusan Bit 17 C. 485, Queen-Empress v. Karigowda 19 B. 51, Queen-Empress v. Prag Dat 20 A. 459 : A.W.N. (1898) 117, Deputy Legal Remembrancer of Bengal v. Amulya Charan 22 Ind. Cas. 736 : 18 C.W.N. 666 : 15 Cr.L.J. 160, Deputy Legal Remembrancer, Bihar and Orissa v. Matukdhari Singh 32 Ind. Cas. 137 : 20 C.W.N. 128 : 17 Cr.L.J. 9, Emperor v. Kunja Dusadh 67 Ind. Cas. 506 : 3 P.L.T. 396 : 23 Cr.L.J. 410 : A.I.R. 1923 Pat. 119 and King-Emperor v. Chattar Singh 7 P.R. 1904 Cr. : 1 Cr.L.J. 781 : 97 P.L.R. 1904.
13. Straight, J., in the case of Empress of India v. Gayadin 4 A. 148 : A.W.N. (1881) 159 referred to above, dealing with an appeal by Government from an acquittal observed as follows:
The powers given to the Local Government by Section 272 of the Criminal Procedure Code are of an exceptional and unusual character; and while we fully recognize the necessity for their existence in this country, we are equally clear that they should be most sparingly enforced; and in respect of pure decisions of fact, only in those cases where, through the incompetence, stupidity or perversity of a subordinate tribunal, such unreasonable or distorted conclusions have been drawn from the evidence as to produce a positive miscarriage of justice. It is not because a Judge or a Magistrate has taken a view of a case in which Government does not coincide, and has acquitted accused persons, that an appeal from his decision must necessarily prevail, or that this Court should be called upon to disturb the ordinary course of justice, by putting in force the arbitrary powers conferred on it by Section 272. The doing so should be limited to those instances in which the lower Court has so obstinately blundered and gone wrong as to produce a result mischievous at once to the administration of justice and the interests of the public. We cannot say in the present case that the Sessions Judge so egregiously and foolishly erred in his conclusions, as to the respondents Gayadin and Binda, that we feel ourselves bound either to convict those two persons, or to order a new trial, He had the witness. before him, and consequently the best opportunity of judging their truth, and he appears to have conducted the inquiry with care and patience, and to have weighed and considered the facts to the best of his ability. It may be, as we have already remarked, that we might have arrived at a view other than that formed by him, but holding his decision to be an honest and not unreasonable one, of which the facts were susceptible, we unhesitatingly dismiss this appeal
14. Holmwood and Sharfuddin, JJ., in the case of Deputy Legal Remembrancer of Bengal v. Amulya Charan 22 Ind. Cas. 736 : 18 C.W.N. 666 : 15 Cr.L.J. 160 observed that: "In appeal from an acquittal we cannot interfere unless the judgment of the Court below is wrong and perverse, or without jurisdiction and based upon obvious errors in procedure. Nothing of the kind appears. The learned Magistrate has given his mind to the case, and even if he had been wrong his decision is one which we should be bound to uphold; because it would be based at the most on a doubtful weighing of facts and not on any irregularity or negligence,, or other matter going to the jurisdiction or to the regularity of the trial."
15. In the case of Emperor v. Kunja Dusadh 67 Ind. Cas. 506 : 3 P.L.T. 396 : 23 Cr.L.J. 410 : A.I.R. 1923 Pat. 119 this Court declined to interfere with an order of acquittal where the Assessors and the Sessions Judge had carefully weighed the evidence and arrived at conclusion of facts which could not be said to be unreasonable and distorted.
16. Chitty, J., in an unreported case (Government Appeal No. 8 of 1914), referred to in the case of the Deputy Legal Remembrancer, Bihar and Orissa v. Matukdhari Singh 32 Ind. Cas. 137 : 20 C.W.N. 128 : 17 Cr.L.J. 9 held that an appeal from an acquittal does not stand on a different footing with regard to the consideration of evidence from an appeal from a conviction and that no distinction is drawn in the Code of Criminal Procedure between an appeal from an acquittal and an appeal from a conviction. There are no special rules for dealing with the evidence in an appeal from an acquittal which, it is expressly provided in the Code, may lie on a question of fact. Due weight must, of course, be given to the decision of the Court below and the reasons advanced for that decision. Only one broad rule can be laid down with regard to the consideration of evidence in all criminal cases and that is that the innocence of the accused person must be presumed and the burden lies upon the prosecution of completely rebutting this presumption. If after the consideration of the whole evidence any doubt is felt by the Court as to the guilt of any accused person he is entitled to the benefit of that doubt and the verdict must be in his favour.
17. Chatterji, J., in the case of King Emperor v. Chaltar Singh 7 P.R. 1904 Cr. : 1 Cr.L.J. 781 : 97 P.L.R. 1904 reconciled the above views. He rightly pointed out that an appeal from an acquittal stands on the same footing as an appeal from a conviction. The right of appeal from an acquittal was created for the first time by the Code of Criminal Procedure of 1872 and is continued in the subsequent Codes, being Section 417 of the present Code of I898. The Statute has placed both the classes of cases on an equal footing The difference, however, arises from certain rules of adjudication and conduct which criminal Judges in India invariably follow and which are mainly derived from the Criminal Law of England. They are founded on natural justice and sound sense and are not inconsistent with but are expressly or tacitly recognized by the Indian law. One of these is that every man is to be presumed innocent until his guilt is established; another, that if there is a reasonable doubt, the accused must have the benefit of that doubt. These are principles of the English Criminal Law of evidence which are clearly in accord with the provisions of the Indian Evidence Act under the heads of proof and burden of proof, and their value lies in their being clear statements of the law of evidence applicable to criminal judicature which are very convenient for the practical guidance of the Court. An appellant from a judgment of conviction can always invoke the support of these principles if he can show that the facts of his case come within their purview. An appellant from a judgment of acquittal has, on the contrary, to work in the face of these principles and to satisfy the Court that the accused can derive no benefit from them on the facts of the case under appeal. His task thus is naturally more difficult than that of the convict appellant. Again, in all cases of appeal the general rule is that the appellant is called upon to show that the lower Court's judgment is wrong. This applies to criminal appeals as well and necessarily to appeals from acquittals. In all questions of fact the Court of first instance which had the witnesses before itself has a great advantage over a Court of Appeal which deals with the evidence second-hand. Great regard is therefore, as a rule, paid to the opinion of the first Court on the oral evidence and a Court of Appeal is ordinarily reluctant to differ from its view for cogent grounds. In an appeal from conviction this regard is tempered somewhat by considerations of fairness to the accused in deciding the question of his guilt which the highest principles of Criminal Law enjoin on the Courts but such considerations have no application in an appeal from an acquittal where naturally the Court is chary of disturbing the finding of the first Court rejecting the evidence against the accused as unreliable and declaring his innocence. The cumulative effect of the above considerations appear to create a considerable difference between an appeal from a conviction and one from an order of acquittal as regards the decision of their subject-matters, though both appeals are placed on the same footing in the Statute Law of procedure. Though the statutory rights of appeal both against convictions and acquittals are equal, the appellant in the latter class of cases has a substantially more difficult task in getting the judgment set aside. Upon a careful examination of the history of the legislation of the subject and the authorities, Chatterji, J., with whom Clark, C.J. agreed, summed up as follows:
(1) under the Code of Criminal Procedure both classes of appeals are on an equal footing;
(2) in order to justify interference with a judgment of acquittal on a question of fact, it is sufficient if the finding is clearly wrong on the evidence and unreasonable in the opinion of the Appellate Court, whether or not the unreasonableness amounts to perversity, stupidity or in competence, or the Court below can be said to have obstinately blundered in coming to it;
(3) but that upon sound principles of criminal jurisprudence the indications of error in the judgment of acquittal ought to be clearer and more palpable and the evidence more cogent and convincing in order to justify its being set aside than would be necessary in the case of a judgment of conviction.
18. It would thus seem that there has been no real difference in the principles that guided the seemingly contrary decisions referred to above. In short, in an appeal from an acquittal as in the case of an appeal from a conviction, the appellant is entitled to go into facts and ask the Appellate Court to take a view of the facts different from that taken by the trial Court. But the accused in an appeal from an acquittal retains his right of being presumed to be innocent until the charge is fully brought home to him. He has the right which he had in the trial Court of being given the benefit of reasonable doubt as to his guilt. He must also have the benefit of the opinion of the trial Court upon the credibility of the witnesses whom that Court had the advantage of seeing face to face and judging of their demeanour and he has the right to ask that the acquittal should not be set aside unless the trial Court has taken a perverse view of the evidence and has arrived at an unnatural and distorted conclusion. The present appeal must, there fore, be judged in the light of these observations.
19. In the present case no error of law or procedure has been urged nor has any serious omission by the trial Court to consider the material evidence on behalf of the prosecution been pointed out. The only point, therefore, for consideration is whether the conclusions arrived at by the Court below are the legitimate inferences arising from the facts proved in case. Due weight must be given to the opinion of the Assistant Sessions Judge upon the evidence and as to the credibility of the witnesses who were actually examined by him and whom he had the advantage of seeing. The accused must be presumed to be innocent and it must be shown that there is no reasonable doubt upon the evidence in the case as to the guilt of the accused and the benefit of any such doubt should be given to them. The onus is upon the prosecution to prove that the accused are guilty and that the decision of the Court below is wrong. The prosecution must stand or fall upon its own legs. It can gain no strength from the weakness or improbability of the case of the accused or the version of the occurrence stated by them. In fact, their case has not been judicially tried. Bearing these in our minds let us now examine the prosecution case, which shortly is that the accused in a body of 400 to 500 men came from Shankarpur to Simarbani fair of the complainant three miles apart in order to disperse it and attacked the complainant and his party and assaulted them as described above. The accused reverse the version and say that the complainant and his party came to disperse their Shankarpur fair and killed two of them and injured others with gun shots, swords, lathis, etc.
20. [His Lordship discussed the evidence and concluded as follows: ]
21. The conclusions arrived at by the trial Court cannot in any sense be said to be unreasonable, far less perverse or distorted, and this is a case in which the appeal based as it is entirely upon facts and the weighing of the evidence seems to be unsubstantial if not wholly unjustifiable. We have been taken through the whole of the evidence. We have considered the probabilities and the circumstances. We are not prepared to differ from the view taken by the Court below. It is difficult to say that any Court would have taken a view different from that taken by the Court below which has thoroughly gone into the case and its judgment is a lucid statement of the facts, a complete summary of the evidence and fair comments thereon and reasonable conclusions drawn from them. A mere perusal of the judgment would show that the Court below has bestowed great care and attention and has weighed the evidence carefully and has placed its view lucidly and hardly anything can be usefully added to the judgment of the Court below. I do not feel inclined to differ from the conclusions arrived at by the Court below.
22. Accordingly, I uphold the judgment of the Court below and the order of acquittal and dismiss the appeal.
Mullick, J.
23. I agree that sufficient reason has not been shown for setting aside the acquittal.