Khedu Mahte vs The State of Bihar

K.S. Hegde, J.—This appeal by special leave is directed against the decision of single judge of the High Court of Judicature at Patna setting side the acquittal of the appellants and convicting them under Ss. 379/149, I.P.C. as well as under S 143, I.P.C.

The appellants were prosecuted before the Munisiff-Magistrate, 1st Class, Arrah for dishonestly cutting and removing the paddy crop in plots Nos 340 and 346 Performing to patta No. 82 in village Ibrahim Nagar District Shahbad. The complainant''s case is that those lands belonged to him and the appellant''s case is that those lands belonged to him and the appellants unlawfully trespassed into that property on November 19, 1961 and harvested the rice crop. The appellants pleaded not guilty to the charge. The learned trial magistrate held the appellants guilty and convicted them as mentioned earlier. In appeal the learned District Judge, Sahbad acquitted the appellants. He felt unable to rely on the persecution case for three different reasons. Firstly he came to the conclusion that the witnesses who spoke about the occurrence are all interested witnesses and it is unsafe to place reliance on their testimony. He secondly came to the conclusion that there was considerable delay in filing the complaint and the delay in question has not been explained by the prosecution and that circumstance throws doubt on the prosecution case. Lastly, he held that the non-examination of the police inspector who is said to have come to the place of occurrence at the time of the occurrence and seen some of the appellants harvesting the crop casts further doubt on the prosecution case. The High Court differing from the 1st appellate court held that there was no delay in filing the complaint nor was the non-examination of the police inspector a circumstance that went against the prosecution. It did not deal with the finding of the 1st appellate court that it is unsafe to place reliance, on the evidence of P. Ws. 1 to 4 as they were interested witnesses.

It is true that the powers of the High Court in considering the evidence on record in appeals under S. 417, Cr.P.C. are as extensive as its powers in appeals against convictions but that court at the same time should bear in mind the presumption of innocence of accused persons which presumption is not weakened by their acquittal. It must also bear in mind the fact that the appellate judge has found them not guilty. Unless the conclusions reached by him are palpably wrong or based on erroneous view of the law or that his decision is likely to result in grave injustice, the High Court should be reluctant to interfere with his conclusion. If two reasonable conclusions can be reached on the basis of the evidence on record then the view in support of the acquittal of the accused should be preferred. The fact that the High Court is inclined to take a doffs rent view of the evidence on record is not different to interface with the order of case.

The Learned appellate Judge has come on the conclusion that P. Ws. 1 to 4 are interested witnesses and it is unsafe to place reliance on their testimony. It is established in evidence that P. Ws. 1 to 3 are interested witnesses. They are the enemies of the appellants. This aspect of the case was not considered by the High Court at all.

The occurrence is said to have taken place on 19th November 1961 but the complaint in respect of the same was filed on 27th November 1961. The explanation given by the complainant for this inordinate delay was that he laid information about the occurrence before the police on the data of the occurrence itself, he was expecting the police to take up the investigation, as the police did not take up Investigation, he filed the complaint on 27th November 1961. This explanation has been rejected by the 1st appellate court. The complaint said to have been filed by the complainant has not been summoned nor proved. No satisfactory proof of any such complaint has been accused before the court. If a complaint under S. 154 had been filed, the same would have been registered and a final report under S. 173 submitted. None of those documents have been summoned, mach less prowed, Curiously enough, the learned judge of the High Court says that if the learned Sessions judge had looked into the diary of the magistrate, he would have found reference to the complaint filed by the complainant. In this Court we requested the Counsel for the State to look late the original records and inform as whether there is any references to a complaint filed by the complainant. After examining the records, he told us that there is no such reference. We do not know how the learned judge formed the impression that there was some reference in some record about the information laid before the police. In fact in this Court, Counsel for the State told as that what had happened was that before the occurrence, the complainant appears to have filed an application before the police mentioning that these was an apprehension of branch of peace. The delay of about 8 days in filing the complaint in a case of this nature throws a great deal of doubt on the prosecution story. It was the duty of the prosecution to explain the delay satisfactorily. Failure of the prosecution to do so is a circumstance of considerable importance.

According to the complainant as lands were reaping the crop, the Police hope happened to come there and the some of the appellants crop. If that be the Inspector of follow would have been an extremely importunateness. His evidence would have been useful determining the guilt of the accused. He is and disinterested person. No compensation given for not examining him. Strangely enough the learned judge of the High Court that there was no purpose in examination that inspector when he had failed to investigation the complaint made before him. As seen petitioner the alleged complaint appears to be an imaginary one. Therefore, the interface that the inspector of police was guilty of deflection of duty was unwarranted.

In view of our above conclusions it is unnecessary for us to consider the question of law canvassed by Mr. E.C. Aggarwal, learned Counsel for the appellant. But as the same has been argued we shall go into it. The appeal before the High Court was brought after obtaining specific leave under sub-S. (3) of S. 417, Cr. P.C. It appears that during the pendancy of the appeal, the appellant died. It was contested before the High Court and that contention repeated before us that the appeal abated in view of the death of the Appellant. This contention was rejected by the High Court. In support of that contention, Counsel for the Appellant relied on two decisions, one of Allahabad High Court in Hafiz Nehal Ahmad Vs. Ramji Das, and the other of Madras High Court in Thotham and Anr. v. Murugan and Ors. AIR 1958 Med. 624. The first decision has no application to the facts of the present case. That was an appeal under S. 476(B) of the Cr.P.C. It is true that the Madras decision was rendered in an appeal under S. 417(3) of the Cr.P.C. In our opinion, the learned single judge of the Madras High Court erred in thinking that the decision of the Allahabad High Court and any support to his conclusion that an appeal filed under S. 417(3), Cr.P.C. on the death of Appellant. The question of statement of criminal appeals is death with by 431 of Cr.P.C.. That question reads:

Every appeal under S. 411(1) or S. 417 shall finally abate on the accused and every other approve this Chapter (except an appeal sentence of life) shall abate on the death of the appellant.

From this section it is clear that as appeal under. 417 can only abate on the death of the accused and not otherwise. Once an appeal against an acquittal is entertained by the High Court, it becomes the duty of the High Court to decide the same irrespective of the fact the appellant either does not choose to prosecute it or unable to prosecute it for one reason or the other. The argument that while introducing sub-S (3) to S. 417, Cr. P.C., the Parliament overlooked the provisions contained in S. 431, does not deserve consideration. The language of S. 431 is plain and unambiguous. Therefore, no question of interpretation of that provision arises.

In view, of our finding on the merits of the case, we allow this appeal, set aside the judgment of the learned single judge of the High Court and restore that of the Sessions Judge. The appellants are on ball. Their bail bonds do stand cancelled.