Ganga Singh vs Rambhajan Singh and Others

Macpherson, J.—This is an application in revision by the private prosecutor to set aside the acquittal of the opposite party by the Sessions Judge of Gaya on appeal.

There is no question that the High Court has power u/s 439 of the Code of Criminal Procedure to set aside an acquittal by a Subordinate Court. In not a few instances this Court has exercised the power and the case of Jitan Dusadh v. Domoo Sahoo 37 Ind. Cas. 519 : 1 P.L.J. 264 : 20 C.W.N. 862 : 18 Cr. L.J. 151 : 2 P.L.W. 409 is an example. But an examination of those instances appears to indicate that in practice the exercise of the power has been largely restricted to cases which have not been tried out. For instance the case cited dealt with an acquittal u/s 247 of the Code of Criminal Procedure. The practice of the Court accords with the rule laid down by Jenkins, C.J., in Faujdar Thakur v. Kasi Choudhuri 27 Ind. Cas. 186 : 42 G. 612 : 19 C.W.N.184 : 21 C.L.J. 53 : 16 Cr. L.J. 122. That rule has been quoted with approval by a Bench of this Court of which I was a member in Gulli Bhagat v. Narain Singh 77 Ind. Cas. 734 : 5 P.L.T. 404 : 2 Pat. 708 : 25 Cr. L.J. 446; (1924) AIR (Pat.) 283 : 2 P.L.R. 165 and 187 Cr., and Rajkishore Dubey v. Kamto Peshwar Dubey 39 Ind. Cas. 311 : 44 I.A. 137 : 15 A.L.J. 475 : 1 P.L.W. 661 : 19 Bom. L.R. 510 : 21 C.W.N. 818 : 26 C.L.J. 13 : 6 L.W. 71 : 22 M.L.T. 31 ; (1917) M.W.N. 522 : 18 Cr. L.J. 471 : 86 L.J.P.C. 140 : 33 M.L.J. 555 : 44 C. 876 : 11 Bur. L.T. 54 : 13 N.L.R. 100 (P.C.) (Criminal Revision No. 229 of 1923). Thus the power of interference in revision with a judgment of acquittal is sparingly exercised and ordinarily only in cases where it is urgently demanded in the interests of public justice.

But it is not possible nor would it be expedient to lay down a general principle. The Court will interfere where the circumstances require it. And in the present case there is a differentiating consideration which was apparently not present in previous cases and which may have induced the Division Bench to issue a rule. The acquittal of the accused in the Sessions Court consequentially nullified an order of the Magistrate u/s 545 granting financial compensation to the private prosecutor

The facts necessary for an appreciation of the case for the petitioner are briefly as follows: There is a pind which is plot No. 22 of Patkhaulia running north and south between the Diwarthan ahar (plots Nos. 10 to 21 of Patkhaulia) on the west and plot No. 23 of Patkhaulia and plot No. 483 of Majhauli on the east. Plot No. 483 is north of plot No. 23. East of plot No. 483 is plot No. 484 and east of plot No. 484 is plot No. 486 of the same village. The natural flow of the water is south to north. The prosecution case was that a gem or embankment extended from the pind east-ward in the northern part of plots Nos. 483, 484 and 486, the object of which was to hold up the water so that the dhan fields to the north might be irrigated therefrom, and that the accused cut 25 cubits of that gera in plot No. 483 near the pind, so that the water behind the gem flowed away and was lost and thus the supply of water for agricultural purposes was diminished. The accused denied the existence of any such gera and asserted on the authority of the fard-ab-pashi that the surplus water of the ahar flowed by a kanwah (overflow) situated in plot No. 21 at the northern end of the pind eastward into plot No. 483 of Majhauli and then back southward into plot No. 23 of Patkhaulia and then eastward. The complainant''s case was that that kanwah no longer existed, the outlet being by a pakka bhao (opening) in the southern end of the pind from the ahar into plot No. 23. The accused contended that the bhao does not affect the kunwah, the former being intended to drain the ahar and the latter to discharge the surplus water when the ahar is full.

The Police reported the case to be false and the complainant impugned the report of the Investigating Sub-Inspector. The Trying Magistrate made a local inspection and found a gera, existing in plots Nos. 184 and 486, and it is now clear that the gera in these plots as well as abroad bandh north of plot No. 23 do exist, the former apparently being made after the preparation in 1914 of the Survey Map. In his judgment the Magistrate held that the gera, had existed for some years, that half of the gera across plot No. 483 had been cut by the accused, and that the opening which exists therein was not due to kanwah water passing through. He convicted the opposite party some u/s 430 and some u/s 430 read with Section 114, Indian Penal Code, and sentenced them to fines half of which he directed to be given to the complainant as compensation u/s 545 of the Code of Criminal Procedure.

In appeal the learned Sessions Judge found that the case for the prosecution was not true, and that the appellants did not commit the offence for which they have been convicted. He accordingly allowed the appeal and directed the fines to be refunded.

It is now contended that his judgment is vitiated by an illegality patent on the face of the judgment in that he made use contrary to law of the final report of the Investigating Sub-Inspector of Police who was not examined as a witness. In support of the contention reference is made to the remarks of their Lordships of the Judicial Committee in Dal Singh v. Emperor 39 Ind. Cas. 311 : 44 I.A. 137 : 15 A.L.J. 475 : 1 P.L.W. 661 : 19 Bom. L.R. 510 : 21 C.W.N. 818 : 26 C.L.J. 13 : 6 L.W. 71 : 22 M.L.T. 31 ; (1917) M.W.N. 522 : 18 Cr. L.J. 471 : 86 L.J.P.C. 140 : 33 M.L.J. 555 : 44 C. 876 : 11 Bur. L.T. 54 : 13 N.L.R. 100 (P.C.). In reply Mr. Hasan Imam for the opposite party submits that the Judge had materials before him on the record and came to conclusions thereon on which he was bound to acquit and only tested them by a reference to the Police papers.

The learned Sessions Judge first considered whether the gera exists and found that it did not extend cross the narrow strip of land in plot No. 483 up to the pind. He pointed out that the Magistrate in his inspection note had merely spoken of the gera at this point as non-existent and continued.

Obviously the most important witness on this point was the Sub-Inspector who enquired into the case, and must have seen the place very soon after the occurrence. For some unexplained reason he has not been examined. If a substantial embankment, described by the prosecution,"witness as thigh, high and three to three and a half cubits broad, had just been removed by the appellants for a distance of twenty to twenty-five cubits, as alleged the Sub-Inspector must have seen marks of demolition, and, as he has not been examined, I feel bound to point out that, in his final report he makes the following remarks, "the alleged gera. 25 cubits in length which was said to have been cut did not appear to have been freshly cut, rather it looks like a water course through which the surplus water of the villages Tekra, Madarpur and Patkhaulia ahar No. 22 flows." It appears therefore that had the Sub-Inspector been examined, he would not have supported the prosecution on this important point.

It would seem, therefore, that a view adverse to the prosecution case that a gera existed in plot No. 483, suggested itself to the Appellate Court because the Investigating Sub-Inspector had not been examined and that the Court tested that view by reference to an opinion which the Sub-Inspector had recorded on the point at issue.

The learned Judge then considered whether the kanwah still existed and after pointing out that on this point also the evidence of the Sub-Inspector would have been important, he found on the evidence on the record that it did exist in plot No. 21. He proceeded:

I find therefore that the prosecution has failed to show that any gera existed in plot No. 483 or that the kanwah had ceased to exist or that, the ahar no longer drains through plot No. 483 as recorded in Sarvey; rather it appears to me that the appellants are right on all these points.

He next pointed out that the band north of plot No. 23 did not affect the case as the water now flows direct east from that point, and found as follows:

It is clear therefore that although a gera exists in plots NOS. 484; and 486 and no doubt holds up a certain amount of water for the irrigation of paddy it is confined to those plots, and did not extend into plot No. 483.

It is obvious that on such findings an acquittal must follow. But in the final paragraph of his judgment the learned Judge went on to give further reasons for holding that the prosecution case as presented to the Court was not true. Most of them are based on the record but he also again referred to the final report in connection with certain alleged statements of prosecution witnesses to the Investigating Officer as to which they had been cross-examined, and remarked. "Here again the Sub-Inspector was a necessary witness in the case."

In referring to the final report of the Investigating Officer for the purposes mentioned the learned Sessions Judge erred in law. The final report and diary of the Investigating Officer might be used to suggest means of further elucidating points which needed clearing up but only of elucidating them by legal evidence. Thus the Sessions Judge on a perusal of the final report might well have examined the Sub-Inspector as a witness or directed him to be examined by the Trying Magistrate, and in that manner his testimony as to what he saw on the spot and what was said to him by witnesses, would subject to all just exceptions have become legal evidence.

But the mere fact that there has been an error of procedure is not by itself good ground for setting aside an acquittal. An error of procedure of a grave character would afford ground for interference but not a mere error of improper admission of evidence, which was not essential to a result which might have been come to wholly independently of it. Such is the law as laid down by their. Lordships of the Judicial Committee in Dal Singh v. Emperor 39 Ind. Cas. 311 : 44 I.A. 137 : 15 A.L.J. 475 : 1 P.L.W. 661 : 19 Bom. L.R. 510 : 21 C.W.N. 818 : 26 C.L.J. 13 : 6 L.W. 71 : 22 M.L.T. 31 ; (1917) M.W.N. 522 : 18 Cr. L.J. 471 : 86 L.J.P.C. 140 : 33 M.L.J. 555 : 44 C. 876 : 11 Bur. L.T. 54 : 13 N.L.R. 100 (P.C.) in respect of a conviction and the latter part of it is certainly not less applicable to an acquittal. In the present case it has been found that the testimony of the first independent person who visited the place of occurrence has been, withheld by the prosecution so that an inference as to the non-existence of a gera in plot No. 483 may be drawn, that the prosecution story as to kanwah is false, and that of the accused true, that the entry in the Record of Rights as to the course of irrigation through plot No. 483 which is in favour of defence, has not been rebutted, that there was delay in lodging the first information and that there is no reference therein to the mob of 109 men mentioned in the evidence in Court, which fact leads to an inference that it is a subsequent development in the prosecution case. These findings, none of which are vitiated by an error of law, are when taken in combination at least as consistent with the truth of the defence as with the truth of the prosecution story, and clearly the acquittal might have been, and from the tenor of the judgment apparently would have been reached on these, considerations independently of the inadmissible evidence, An examination of the record also satisfied me that a different result is not probable, if a re-hearing of the appeal is directed.

In these circumstances the order of acquittal ought not to be set aside in revision. The Rule is accordingly discharged.