Durga Charan Nunia vs Guru Charan Nunia and Others

K. Lahiri, J.—This is a revision from the order of acquittal passed by the Additional Sessions Judge, Cachar at Silohar in Criminal Appeal No. 25(4) of 1979.

The relevant facts are that a tiny incident of assault occurred between two groups of poor persons, way tack in 1977. The first informant-Petitioner protested against the action of the accused reaping paddy allegedly grown by him. At this, it is alleged, the accused hurt to the first informant and his sister. The police was informed, who investigated the case, submitted a charge-sheet against the accused. Learned Magistrate who tried the case convicted accused Gurucharan Nunia u/s 326 I.P.C. and sentenced him to suffer rigorous imprisonment for, six months and to pay a fine of Rs. 500/, in default, to suffer imprisonment for one month more and accused Ramjanam, Haricharan and Kalicharan were convicted u/s 323/34 and sentenced to pay fine of Rs. 200/ each, in default, to suffer rigorous imprisonment for 15 days each. On appeal by the accused the conviction and sentences were set aside. Against the order of acquittal the State has not preferred any appeal but the first informant has preferred this revision.

In an application u/s 401 of the Code of Criminal Procedure, "the Code" for short the High Court can merely set aside the order of acqutial and direct re-trial of the case. The provision expressly prohibits the High Court to convert the findings of acquittal into one of conviction. Should the poor parties be granted liberty to fight afresh another round of legal battle before the appellate Court and then to fight a war here?

Let me pass over this aspect and enter into the question as to the contours of powers of the High Court to set aside an order of acquittal in a revision. In the instant case a competent Court, on appreciation of the evidence; has acquitted the accused of the charges. Ordinarily, the findings reached by the learned Sessions Judge, should not be lightly brushed aside, more so, when the party prosecuting the case, namely, the State did not consider it to be a fit case for preferring an appeal against the order of acquittal. The dis-inclination of the prosecutor, namely, the State is a weighty consideration. It is indicative of the fact that interest of public justice did not call for interference of the order of acquittal or there was no manifest illegalities which resulted a mis-carriage of justice.

The basic principles governing exercise of revisional jurisdiction by the High Court against the order of acquittal, which could have been appealed against by the State, are set out hereinbelow:

(i) the revisional power ought not to be exercised lightly;

(ii) it may be exercised only in exceptional cases where the interest of public justice requires interference for the correction of manifest illegalities or for the prevention of gross mis-carriage of justice;

(iii) the power ought not to be exercised only on the ground that the Court below has taken a wrong view of the law or mis-appreciated the evidence on record. In short on re-appraisal of the evidence and on reaching a different view from the one taken by the trial Court the High Court should not interfere with an order of acquittal, as it would amount to exercise of the appellate power which the High Court does not possess u/s 401 of the Code;

(iv) unless the High Court reaches the conclusion that glaring defect have resulted in grave failure of justice, the power should not be

Let me now sum up the grounds upon which the High Court should interfere with an order of acquittal and direct re-trial of the case. The High Court may set aside an order of acquittal and direct re-trial in a revision from the order of acquittal preferred by the first-informant or the complainant-(i) If the trial Court has no jurisdiction to try the case but has acquitted the accused. It is a case of exercise of jurisdiction not vested in Court by law. The exercise or jurisdiction under such circumstances would be rendering an order of acquittal against the constitution and the law. It must not be allowed to stand; (ii) Where the trial Court has wrongly shut out material evidence which the prosecution desired to produce is support of the case. If legal evidence sought to be adduced is not permitted to enter into the records, it would amount to refusing to permit a party to exercise his statutory right. Apart from breach of statutory right it would amount to clear violation of "the principles of natural justice". The door of justice should not be closed to prevent inflow of legal evidence by the party; (iii) Where the Court admitted inadmissible evidence and used such evidence in rendering the order of acquittal. It is a breach of law by the Court and amounts to injustice; (iv) Where material evidence has been over looked by the Court. It is "slipshod order" or "a purported order" of acquittal "not a real order". If admissible evidence is rejected as inadmissible and an order of acquittal is rendered the order cannot be termed as a judicial order made in accordance with the constitution and the law. It is not judicial justice but amounts to judicial injustice; (v) Where the acquittal is based on compounding of offence which is invalid in law. It is apparent that the jurisdiction of the Court to compound an offence is circumscribed in Section 320 of the Code of Criminal Procedure. It is thus seen that the Court cannot in breach of the law permit a case to be compounded, and, render an order of acquittal. These are not exhaustive but illustrative cases. In short, where injustice is caused resulting in mis-carriage of justice the High Court should got aside the order of acquittal. Where injustice is writ large the High Court should interfere to uphold the cause of justice, otherwise, public interest would suffer. However, non-consideration of evidence by itself does not take within its fold non-consideration of inconsequential evidence or material evidence. If irrelevant materials are left out of consideration it is not a case in which the order of acquittal should be set aside. The evidence over-looked mast be material having a strong bearing on the finding of acquittal.

If the order of acquittal can be sustained even without the inadmissible evidence treated as admissibly, the order of acquittal should not be interfered with. I reach the conclusion on the authority of the decisions of the Supreme Court in D. Stephens Vs. Nosibolla, ; Logendra Nath Jha and Others Vs. Shri Polailal Biswas, , K. Chinnaswamy Reddy Vs. State of Andhra Pradesh, ; Mahendra Pratap Singh Vs. Sarju Singh and Another, ; Khetrabasi Samual etc. Vs. The State of Orissa, ; Satyendra Nath Dutta and Another Vs. Ram Narain, and Ayodhya Dube and Others Vs. Ram Sumer Singh,

Now, let me proceed to dispose of the case. As alluded to the trial Court convicted the accused Gurucharan u/s 326 I.P.C. and the other accused Under Sections. 323/34 I.P.C. On appeal learned judge reached the conclusion that the prosecution had failed to establish beyond reasonable doubt that the paddy in question lad been grown by the first informant as claimed by him. Learned Judge held that the Magistrate was in doubt whether the informant had grown the paddy reaped by the accused persons. Thereafter, learned Judge considered the testimony of three defence witnesses and on the testimony of the defence witnesses learned Judge held that the parcel of land where the accused persons were reaping paddy had been purchased by the accused. They had grown the paddy which they harvested. As such, learned Judge reached the conclusion that the accused persons were exercising their lawful right. While they were reaping the paddy the first informant and his party illegally obstructed the accused and the latter ousted them from the land by force, which the accused had every right. While dealing with the question of grievous hurt learned Judge, on appreciation of the evidence, reached the conclusion that accused Gurucharan did not cause any grievous hurt, at best the injury was a simple hurt. Learned Judge reached the conclusion on appreciation of the evidence that the accused exercised their lawful right and the injuries inflicted were simple and acquitted the accused. It cannot be said that the findings reached by him were perverse. Even if the High Court takes a view different from the one taken by the learned Sessions Judge the order of acquittal ought not to be set aside unless the finding of the learned Judge is found to be perverse and/or liable to be set aside to uphold the public interest. It was just a private dispute between two parties. I find that the prosecution has failed to establish that the paddy has been grown by the first informant as alleged or the land was in hit possession. As such the foremost ingredients of the prosecution case fell apart. In the instant case the accused persons have established by evidence and preponderance of probabilities that they were in actual physical possession of the land, they had grown the paddy and the prosecution witnesses prevented them to exercise their right to harvest the paddy. Under these circumstances, the accused had undoubted right of private defence of property. They exercised their right and ousted the intruders from the land. the prosecution story regarding possession of the land by the first informant and growing of paddy by him has been shattered by the testimony of the defence witnesses. In Munshiram v. Delhi Administration AIR 1968 SC 762 ; Rajnikant Vs. State of Maharashtra, it has been ruled that even where the accused does not plead self-defence it is open to the Court to consider such a plea if it is available to the accused from the materials on record. The accused were in settled possession of the land, they grew the paddy, they were sought to be forcibly prevented from exercising their right and therefore, they had the right of private defence which was exceeded by the accused. To judge whether the right of private defence has been exceeded, a person can not weigh things in too fine a set of scales or use the golden scales. The reasonable apprehension in the mind of an accused exercising the right of self defence is to be judged objectively with reference to the events and deeds at that crucial time and in the total situation of the surrounding circumstances vide Yogendra Morarji Vs. State of Gujarat, ; Amjad Khan Vs. The State, and Biran Singh and Others Vs. The State of Bihar, Even if the accused in the heat of the moment carries his defence a little further than what was precisely necessary when calculated with precision and exactitude by a calm and unruffled mind, the law makes due allowance for it; vide Mohd. Ramzani Vs. State of Delhi, ; Dominic Varkey Vs. The State of Kerala, Jaidev v. State of Punjab AIR 1962 SC 612 and Yad Ali v. State of Assam (1986) 1 GLR 429.

For the foregoing reasons I find no merit in the application and; accordingly the petition is dismissed.