Emperor vs Deboo Singh and others

Jwala Prasad, J.—This is an appeal by the Local Government under S. 417, Criminal P. C., against an order passed in a sessions trial by the Assistant Secessions Judge of Purnea, dated 16th April 1926, acquitting the accused of the charges laid against them.

The case arises out of a riot which took place on Tuesday 17th March 1925, at 2 p.m. between the two contending parties. In the riot, persons on both sides were injured.

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 :

Bandey Lal had a punctured wound small in size on the left elbow joint, slight in nature caused by a pointed weapon two lacerated wounds on the left middle finger and one ecohymosis on the right arm, slight in nature and caused by a blunt weapon.

Kusum Lal had an incised wound on the right parietal region of the head, severe in nature, caused by a sharp weapon, two lacerated wounds one on the head and the other on the left ring finger and four ecohymosis; one on the right forearm, two on the scapular region and one on the right leg. These were slight in nature and caused by a blunt weapon.

Hia Lal Mandal (P. W. 5) had one lacerated wound on the head and four ecohymosis. All of them were slight in nature and caused by a blunt weapon.

Giranand Mandal had a lacerated wound an ecohymosis and an abrasion; all slight in nature and probably caused by a blunt weapon.

Langru Khangar had two injuries on his person; one incised wound 5" x 2" x 2" in size, on the inner side of the right forearm at its middle and upper third. The muscles on the inner side of the forearm and the ulnae artery were injured; an incised wound 2" x 1" x 1/4" on the left arm at its front and upper third. The Sub-Inspector found him on 18th March at 9 a.m. at the house of Sundar Lal Mandal in Simarbani lying in great pain on a mat with the injuries described above. He stated to the Sub-Inspector that Kulanand had struck him and could not say anything more. There was blood on the mat on which he was lying and also on his shirt and clothes. Dried blood was found on his clothes, breast, under the collar bone and on the mat under the shirt which he was wearing and on the mat on which ha was lying. There was no bandage on the wounds. The Sub-Inspector sent him to the Raniganj hospital in a cart in charge of Kusum Lal Dafadar (P. W. 112). He died on way at Dhangara, contiguous to Simarbani. Learning of his death the Sub-Inspector held an inquest over his body and sent it to Arabia where post-mortem was held on 20th March. The stomach contained about two ounces of yellow fluid containing some food particles almost faucal in nature. The mucus membrane of the stomach was con jested here and there. The small intestine contained the same kind of fluid as well as red particles on the mucus membrane. The large intestine contained soft fasces and the mucus membrane was not congested. Consequently the doctor suspected opium poisoning and sent the viscera to the Chemical Examiner for analysis. The doctor was of opinion that the only important injury was that on the right forearm which in itself could not cause the death had attempts been made to stop the bleeding. Hence he wrote to the Sub-Inspector (Ex. 26) asking him whether there was any attempt made to stop bleeding. The Sub-Inspector replied that he had examined the wounds 20 hours after the occurrence and did not find any bandage on any of the wounds. The kurta which be was wearing was sticking to the wound on account of the blood having dried up. There was profuse bleeding on the clothes. The Chemical Examiner reported that no poisoning was detected in the viscera of the deceased. The doctor gave his final opinion that as the ulnar artery was cut on the right forearm profuse bleeding was probable, no attempt having been made to stop the bleeding, and that the death of Langru was due to shock and haemorrhage from injury No. 1.

Maini Misser of Shankarpur is the leader on the side of the accused. Accused 2 to 4, 6, 8 and 9 Jasodhar Misser, Jagonand Misser, Suga Misser, Sadanand Misser, Abhinandan Misser and Kulanand Misser are bis brothers. Deboo Singh, accused 1 of village Jainagar, is his cosharer. Accused 5 Radha Kant Jha of Shankarpur and accused 11 Sukan Chaudhari are his men. Kasi Khatwey is a stranger. Of these Jagonand Misser, Kulanand Misser, Radha Kant Jha, Giranand Singh, Abhinandan Misser, Sukan Chaudhari of Hirni, Kasi Khatwey, Genanand Misser and Jasodhar Jha received injuries. The last two died on the spot.

On the side of the accused the injuries were as follows :

Jagonand Misir had two incised wounds; one on the head and the other on the scapular region caused by a sharp edged weapon. He had also 117 gun shot wounds on different parts of his body : leg, thigh, arm, scapular region and chest. Four chharras were removed from his body. As the bullet could not be removed by the Raniganj doctor he was sent to the Sadar Hospital, Araria, on 22nd March.

Kulanand had 30 gun shot wounds on different parts of his body : eyebrow, cheek, jaw, chest, arms and lumbar region; two bruises caused by a blunt weapon. Seven chharras were removed from his person.

Radha Kant Jha had 17 gun shot wounds on the thigh, leg and lumbar region. Four chharras were removed from his parson.

Giranand Singh had 30 gun shot wounds.

Sukan Chaudhari had one gun shot wound on the scapular region. The bullet had penetrated inside the right chest and the front of the chest was swollen. The doctor of Raniganj could not measure the depth of it even by the full length of probe. Therefore he was sent to Araria hospital. The injury was dangerous in nature.

Kasi Khatwey, who was examined on 14th April more than three weeks after the occurrence, had one old scar marked" on the left forehead with an ecohymosis in connexion therewith 11/2" in length. The injury was the result of a lacerated wound caused by a. blunt weapon, probably three weeks old.

Gena Misser had one lacerated wound circular 21/2" x 2" on the left abdominal wall through which the omentum was protruding. On opening the abdomen the abdominal cavity was found full of blood and the left kidney was found lacerated. 21 shots were removed from the abdominal cavity. There was a lacerated wound on the inner side of the right knee-joint 4" x 3" in size. The joint was open and the head of tibia was fractured to pieces in the inner side. The death was due to shock and haemorrhage from the gun shot injuries. He was shot from a close range from the front.

Jasodhar Jha had two incised wounds on the body; a lacerated wound circular 11/2" x 11/2" in front of the abdomen through which a. portion of the omentum was protruding. On opening the abdomen the whole cavity was found full of blood. The left side of the base of the sacrum and the portion of the base of the ilium near it was found smashed to pieces. Coils of intestines were also injured. He had also a lacerated and circular wound on the left buttock 11/2" x 11/2" midway between the tip of the coccyx and the ischium. The two injuries were communicating with each other and were caused by a gun shot (bullet). The death was due to shock and haemorrhage. There was profuse bleeding in both the cases.

The Sub-Inspector reached Shankarpur at 11 p.m. on 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 north-east of the 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 hoshe and could not make any statement. The next day, on 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.

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 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. 36 chharras were removed from their person. 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 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''s 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.

The accused are 11 in number. All of them have been charged under S. 147 of rioting as well as of culpable homicide not amounting to murder under S. 304 read with S. 149, I.P.C. Accused 1, Deboo Singh was separately charged under S. 304, I. P. C., for culpable homicide not amounting to murder for causing the death of Laugru Khangar. Accused 4 and 5 were also charged with causing hurt under S. 324, I. P. C. Accused 1 to 5 and 9 were also charged under S. 148, I.P.C. for being armed with deadly weapons in the unlawful assembly.

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 1 found all the accused guilty of the offences with what they were charged. Assessor 2 found accused 10, Kasi Khatwey, not guilty of any of the charges. He also found that the charges under Ss. 304, 149 and 324, I. P. C., were not proved against any of the accused. He found the accused were guilty of rioting; Accused 6, Sadanand Misser, accused 8, Abhinandan Misser, accused 11, Sukan Chaudhari and accused 7, Giranand Singh guilty under S. 147, I. P. C. and accused 1, Deboo Singh, accused 4, Suga Misser, accused 3, Joganand Misser, accused 9, Kulanand Misser, accused 2, Jasodhar Misser and accused 5, Radha Kant Jha guilty under S. 148, I. P. C.

The learned Sessions Judge disagreeing with the assessors acquitted the accused of all the charges. The assessors gave grounds for their opinions. 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 attacked the complainant and his party as alleged by the latter.

The Crown is dissatisfied with the decision of the Court below and has appealed against the decision. 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.

A question has been raised at the Bar as to the way in which we should deal with this 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 [1881] 4 All. 148: (1881) A.W.N. 159, Queen-Empress v. Gobardhan [1887] 9 All. 528, Queen-Empress v. Gulam Muhammad [1897] 10 P.R. 1897 Cr., Queen-Empress v. Manget [1903] 11 P.R. 1903 Cr., Queen-Empress v. Bibhuti Bhushan Bit [1890] 17 Cal. 485; Queen-Empress v. Kari Gowda [1895] 19 Bom. 51; Queen-Empress v. Prag Dutt [1898] 20 All. 459: (1898) A. W. N. 117; Deputy Legal Remembrancer of Bengal v. Amulya Charan Awan [1913] 18 C. W. N. 665: 22 I. C. 736: 15 Cri. L. J. 160; Deputy Legal Remembrancer of Bihar and Orissa v. Matukdhari Singh [1915] 20 C. W. N. 128: 32 I. C. 137: 17 Cr. L. J. 9; Em-peror v. Kunj Dusadh A. I. R. 1923 Pat. 119 and King Emperor v. Chhatar Singh [1904] 7 P. R, 1904 Cr.: 97 P. L. R. 1904..

Straight, J. in the case of Empress of India v. Gayadin (Supra), referred to above, dealing with an appeal by Government from an acquittal observed as follows:

The power given to the Local Government by S. 272, Criminal P. C. 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 S. 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 egregious 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 witnesses 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.

Holmwood and Sharfuddin, JJ., in the case of Deputy Legal Remembrancer of Bengal v. Amulya Awan (Supra), 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.

In the case of Emperor v. Kunj Dusadh (Supra), 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 conclusions of facts which could not be said to be unreasonable and distorted.

Chitty, J., in an unreported case (Government Appeal No. 8 of 1914) referred to in the case of the Deputy Legal Remembrancer of Bihar and Orissa v. Matukdhari Singh (Supra), held that the appeal from an acquittal does not stand on a different footing with regard to the consideration of evidence to 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.

Chatterji, J., in the case of Emperor v. Chhatar Singh (Supra), 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 S. 417 of the present Code of 1898. The statute has placed both the classes of cases on 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 the 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 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 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 a 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 right 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 on the subject and the authorities, Chatterji, J., with whom Clark, C. J., agreed, summed up as follows:

(1) Under the Criminal Procedure Code 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 incompetence, 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 sot aside than would be necessary in the case of a judgment of conviction.

It would thus seem that there has been no real difference in the principles that graded 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 diffident 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 a 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 demeanor 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, therefore, be judged in the light of these observations.

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 the 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 to see,. 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, lathes, etc.

The occurrence is said to be the outcome of a dispute between two parties. In order to appreciate the contentions of the parties it is necessary to give briefly a history of the dispute between them. The Court below has clearly and fully given it in its judgment, the accuracy whereof has not been disputed. The judgment discussed evidence and concluding that the Court was right in rejecting the explanation of the absence of footprints of men and as to his having found hoof-marks of animals proceeded. The assessors agree that no marks of footprints or hoofs were found in the locality. One of the assessors says that it was due to the fact that the land was not ploughed that night and was ploughed some days before. The other assessor was of opinion that the footprints must have been there.

Considering the opinion of the Sub- Inspector and the divergent opinions of the assessors the Court below was right in holding that no marks of footprints or hoofs were found. This throws great doubt as to the place of occurrence being that alleged by the prosecution. (The judgment then discussed evidence and proceeded.) It omits altogether the firing of the gun by Bandey Lal. The prosecution story as now stated was not disclosed until the complaint petition was lodged on the l8th at Araria. The defence gave their story soon after the occurrence when the Sub-Inspector was on his way, to the place of occurrence hearing of an apprehension of a breach of the peace and of a riot being committed on both sides. The Sub-Inspector went back to the hospital and the thana to find the persons killed on the side of the accused and the injured men. He started from the thana until he reached Shankarpur. He had not the prosecution version of the occurrence and started an inquiry into the case of the accused at Shankarpur. There he found the two persons killed and the injured men also on behalf of the accused. He was given the empty cartridges also. The next day when he went to Shankarpur he did not find any foot marks of men or hoofmarks of animals and the field ploughed up. He found the manufactured blood at Hialal''s field No. 520 and thus the attempt of the prosecution to mislead the Sub-Inspector succeeded. One of the assessors does not accept that the marpit took place at Simarbani as alleged by the prosecution in field No. 520 or in fields Nos. 514 to 520. According to him the place of occurrence has been changed and the place of occurrence was where the wounded persons were loaded in the carts. That also could not be the place of occurrence as there was no blood found there. In any event according to him the place of occurrence is not that as alleged by the prosecution. The Court below has accepted the view that the place of occurrence is not as alleged by the prosecution.

A number of witnesses have been examined in this case to show in support of the prosecution case that the place of occurrence was at Simarbani. They are partisan witnesses. The Court was not inclined to accept their evidence inasmuch as it was not corroborated by the unchangeable circumstantial evidence in the case which points to the fact that the occurrence did not take place at Simarbani and the prosecution had manufactured evidence to hoodwink the police investigation. Thus the evidence of the chowkidars and the constable deserves consideration.

Ramdhari Singh constable (P. W. 109) deputed to Shankarpur says that on Tuesday 17th in the morning he saw Kulanand and Jagonand in the mela. At 4 to 4.30 p. m. he saw in the nautch-ghar these men and Giranand and others wounded. He also saw Genanand Missir and Jasodhar Jha''s dead bodies lying in Khairbana. The Sub-Inspector arrived in the night of that day and saw the injured men and dead bodies. He stated to the Sub-Inspector that night that he "heard shouts of gun in Shankarpur mela" and that he had seen a crowd of men gathered near Khairbana and heard phat phat of gun fire at about 2 to 3 p. m. He also said that some men told him that Simarbani haseri would go to loot Shankarpur mela while others said that Shankarpur haseri would go to loot Simarbani mela and that he was asking the Shankarpur shopkeepers, as they were much frightened, not to go away. The Shankarpur men were running away on hearing the gun-fire. The sound of gun-fire came from the Khairbana side which is northwest of the mela. Ramautar Singh constable (P. W. 110) says that he heard the gun-fire at 1 or 11/2 mile north of Khairbana and there was great notice on that side. After the gun-fire it was stated to him that two men had been killed. Hearing this he went to the Khairbana and found that two men had fallen down dead and their clothes wet with blood. There was blood on the ground near those bodies. Tilak Dusadh chowkidar (P. W. 98) is father of Ajodhya chowkidar and cousin of Sukul chowkidar, (P. Ws. 1 and 3). He was a witness for Pratap Mandal in a criminal case brought by him against. Gena Singh, Suga and Kulanand in the Subdivisional Officer''s Court. Sukal was a witness in a Nut''s case against Maini Missir. He himself (Tilak) brought a criminal case against Jagonand. There has been a dispute between his family and that of Maini Missir. He stated before the Sub-Inspector that a haseri was seen at 2 p. m. north-east of Shankarpur fair and be heard the sound of phat phat coming from the north-east. He saw the dead ''bodies north-east of Shankarpur mela five or seven bighas from it. This witness could not be favourably disposed towards accused. He says that there was blood on the body of the injured men and that blood had also fallen on the ground. He went to the place of occurrence after the fight was over and so also constable Gayadin Dobey (P. W. 2) and Sukal chowkidar (P. W. 3). Sheolal dafadar was apparently sent to the thana to lodge information of an apprehension of a breach of the peace as men on both sides were collecting. He went from Simarbani and did not know anything from personal knowledge what was taking place at Shankarpur. His information shows that at least the people of Simarbani were preparing themselves to commit a riot.

Considering the evidence of the constables and the chowkidars the Court below was not unreasonable in its inference that the occurrence did not take place at Simarbani as alleged by the prosecution. The learned Assistant Sessions Judge had the advantage of having the witnesses before him and he, upon an appreciation of their evidence, has come to the conclusion that the prosecution failed to prove their version of the occurrence. He has also held that the prosecution had good motive to commit the riot inasmuch as they had sustained a severe loss by the accused holding a competitive mela within a short distance from him which was an established one and had been successfully held for the last eleven or 12 years. Main Missir the head member of the family of the Missir accused, along with accused 1. Deboo Singh, started their fair in 1924 which caused a loss of about Rs. 2,500 to Sundarlal Mandal, so much so, that he tried to stop the mela by private negotiations with Maini Missir through Deboo Singh his debtor. The negotiations failed and when the notice for the mela in 1925 was promulgated he went to the Magistrate and asked for a notice under S. 144, Criminal P. C, prohibiting the accused from holding their mela a few days before his own mela commenced in 1925. The chief grievance alleged in the application before the Subdivisonal Officer was that the accused mela of Shankarpur would continue till after the mela of Simarbani would commence and he emphasized the necessity and urgency of the accused being compelled to stop the mela before bis own Simarbani mela commenced. The Magistrate refused his prayer by his order of 26th February 1925. The Magistrate suspected that the complainant would use means:

either to outshine his rival (the accused) and give better advantages to the mela people to come to his mela four days before the expiry of the other one (accused''s mela) or use compulsory means to force them to desert it prematurely.

He also instituted a civil suit praying for an injunction against the accused holding the mela as stated above. This was pending. His attempts failed and the accused mela commenced on 23rd February and continued even after the mela of Simarbani commenced on 10th March; and on the day of occurrence the mela had not altogether ceased. Therefore the learned Assistant Sessions Judge holds that the complainant had a motive to break the mela of the accused. He had this in his view, for, shortly before he had taken out a license for a gun and was practising at it.

The prosecution says that the accused were under the impression that the dead body of an unknown person was thrown by Sundarlal Mandal and Bandey Lal Mandal with a view to disperse their mela on 15th March. The Sub-Inspector who was in the mela of Simarbani and had come to Shankarpur was informed of the dead body of an unknown person having been thrown near Lachhadhar were the cattle fair of Shankarpur was located. He found that the man had a natural death and was thrown by some shopkeeper in order to avoid chhootak He did not suspect any foul play. He however, stated in his report that Maini Missir suspected that the dead body was thrown by Sundarlal Mandal and Bandey Lal Mandal in order to disperse his mela. The prosecution says that incensed at this incident and labouring under the misapprehension Maini Missir collected a mob and in a sort of retaliation marched to Simarbani fair in order to loot it. The Court below has rejected this theory. This is surely a development. It is not mentioned in the first information or in the complaint petition of Bandey Lal or his statement on oath. It is strenuously maintained there that the reason of the occurrence was that the complainant had brought civil and criminal cases for stopping the fair of the accused and that the motion before the District Magistrate was pending. The incident of the dead body of an unknown person being found there is not at all a sufficient motive for the accused to take a mob of 400 to 500 men to Simarbani, three miles away from their own mela, to commit the riot.

In any case the Court below is not unreasonable in supposing that the accused were not to gain anything by taking a mob to disperse the Simarbani fair. Their fair was not at all losing in any way by the Simarbani fair. In fact, their fair had approached to its close and was breaking up. Sundar Lal Mandal, and Bandey Lal Mandal the complainant''s party, on the other hand, were losing by the continuance of the fair of Shankarpur. It was the source of permanent loss to them, for a fair held previous to the Simarbani fair in close proximity was bound to reduce the customers of that fair, whereas Shankarpur fair was to gain by the fair being held at Simarbani soon after or in continuance of their own fair, inasmuch as more customers and shopkeepers would be attracted to the Shankarpur fair in order to have a second chance at Simarbani to dispose of their goods or to make purchases.

The real case is that Sundar Lal and Bindey Lal were deeply hurt by the accused not only holding their mela just two weeks before theirs but continuing it after the commencement of their Simarbani mela. This was expressly stated by them in the petition before the Magistrate under S. 144, Criminal P. C. and in the civil suit. The Magistrate refused to issue notice under S. 144 remarking as observed above. This shows that the Magistrate got at the real situation and suspected that instead of the accused trying to commit a breach of the peace the probability was that the complainant would use compulsory means to disperse their Shankarpur mela prematurely and to desert it permanently. After having failed in their attempts to stop the Shankarpur fair of the accused or to allow it to be continued after their own Simarbani mela commenced, the complainant''s party found that there was no other course left to them but to disperse by force the continuity of the Shankarpur mela after their own mela commenced.

The probability is against the complainant and in favour of the accused''s version. The motive was with the complainant, and not with the accused, to commit a riot. The place of riot pointed out to be at Simarbani showed no trace of it. The complainant defaced and disfigured the place of occurrence. To account for the absence of footprints and blood they fabricated evidence by sprinkling blood of a ruminant animal in plot 520 and by throwing empty cartridges and an empty cartridge box in. the field. The place of occurrence pointed out by the accused at Shankarpur had empty cartridges which were handed over to the Sub-Inspector and which could come not from them but from the side of the complainant who had shortly before indented a gun and had taken out a license for it. The blood found underneath the dead bodies on the side of the accused and under the five injured persons lying in the theatre near Khairbana of Shankarpur lends support to the case of the accused.

In any event the prosecution case has not been established. The prosecution no doubt, has examined a considerable number of witnesses but has omitted to examine very material witnesses of Shankarpur who were first examined by the Sub-Inspector when he had been to that spot. The police witnesses, such as, the dafadars, constables and chowkidars who were examined shortly after the arrival of the Sub-Inspector have disproved the case of the prosecution.

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 throughly 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 he usefully added to the judgment of the Court below. I do not feel inclined to differ from the conclusion arrived at by the Court below.

Accordingly I uphold the judgment of the Court below and the order of acquittal and dismiss the appeal.

Mullick, J.

I agree that sufficient reason has not been shown for setting aside the acquittal.