Rajvi Roop Singh, J.C.
1. This is an appeal by Srimati Ramani Bala Devi, against the order of acquittal by Shri Bimal Deb, Magistrate first class, Tripura, dated 29.3.1962.
2. The facts leading to this appeal are Just a few and simple.
3. In order to understand trio case, a brief resume of the facts of the case is given below:
4. The prosecution case, as disclosed by Srimati Raman Bala Devi, appellant In her complaint, lodged before the S.D.M., Sadar, on 20.4.61, is that on 19.4.61, at about 5-00 p.m., while returning from the house of Madhab Chandra Debnath, when she reached on the road near the house of Shri Kamala Malakar, Kanai Malakar, Kamala Malakar and Mohan Lal Das, assaulted her due to previous enmity. When she was being beaten she raised an alarm, which attracted the passers by, who rescued her. After that she went to the Doctor, and got her injury examined by him, and then filed the complaint the next day in the Court of S.D.M., Sadar.
5. The S.D.M., Sadar, transferred the case to the file of Shri Bimal Deb, Magistrate First Class, who examined her and summoned all the 3 accused persons under Section 323 I.P.C.
6. The accused appeared in compliance with the summons and denied the charge. Srimati Kamala Malakar, while denying the charge pleaded that on the day of occurrence the wife of Gurudas caught her by the hair and Ramani inflicted blow on her person with a sharp weapon and due to that she received serious injury, and remained confined to bed in the hospital as an indoor patient for a couple of days. When her husband lodged a complaint against them in the Police Station about this occurrence, this complaint has been filed against them in order to counterblast that case.
7. The prosecution examined as many as 4 witnesses In order to bring home the charge against the accused persons. The accused respondents did not examine any witness In their defence, but filed the F.I.R. of the case under G.K. No. 402 of 1961, an out-door ticket of V.M. Hospital in the name of Kamala Malakar and 2 discharge certificates of Kamala Malakar. The F.I.R. of G.R. No. 402 of 1961 was lodged by Kanai Malakar against the accused Ramani Bala Debnath, Gurudas Debnath, Krishna Kanta Debnath, wife of Gurudas, Priya Das Kaibarta Das and Hachineea Kaibarta Das, under Sections 148/324, read With Section 149 I.P.C.
8. The learned Magistrate after considering the evidence led by the complainant held, that the prosecution utterly failed to prove the case against the accused persons beyond reasonable doubt, so they are entitled to acquittal. He, therefore, acquitted them by giving the benefit of doubt.
9. The complainant-appellant, being aggrieved by the Judgment of the learned Magistrate, has come In appeal to this Court.
10. The learned Counsel for the appellant vehemently urged that in this case the learned Magistrate delivered the judgment without appreciating the evidence, therefore it is a bad judgment, and hence it should be set aside. In order to show that the learned Magistrate delivered the Judgment without writing and appreciating evidence, he pointed out that in this case 4/5 dates were given for delivering judgment, but as the judgment was not ready so the case was adjourned every time. Lastly, 29.3.62, was fixed for delivering the judgment. On that date, upto 4-30 p.m., the judgment was not delivered and on the enquiry by the learned Advocate for the appellant, the learned Magistrate informed that the judgment would be delivered on 31.3.62 as it was not ready. Thereafter, on 31.3.62, when the Advocate came to know that the Judgment was pronounced on 29.3.62, he requested the learned Magistrate for allowing him to read the judgment, but he was not allowed to see it. On that the learned Advocate presented an urgent application for the copy of the judgment, but the copy of the judgment was not supplied to him till 4.4.62. In view of these circumstances. It should be presumed that the learned Magistrate delivered the judgment without writing and signing it on 29.3.62. It is therefore an illegality which is not curable under Section 537 Cr.P.C. and hence the judgment should be set aside.
11. This argument of the learned Advocate for the appellant is devoid of force. There is nothing on the record to show that in this case the learned Magistrate informed the learned Counsel for the appellant that the Judgment shall be delivered on 31.3.62. From the record it appears that 29.3.62 was fixed as the date for delivering the judgment, and it was delivered on that very day. In the presence of this documentary evidence, no reliance can be placed on the mere saying of the learned Advocate for the appellant. If there was any such thing as alleged by the learned Advocate in that case it was his duty to file an affidavit to substantiate this fact.
12. From the evidence on the record, it is obvious that the Judgment was pronounced on 29.3.62, A reading of the judgment also shows that it was delivered after the appreciation of the evidence.
13. Now, the only argument of the learned Counsel for the appellant is that it was delivered in his absence. But his mere absence on the notified date for delivering the judgment does not invalidate the Judgment. On this point, tie Sub-clause (3) of Section 366 is quite clear. According to this section, no judgment delivered by any Criminal Court shall be deemed to be invalid by reason only of the absence of any party or his pleader on the day or from the place notified for the delivery thereof, or of any omission to serve, or defect in serving, on the parties or their pleaders, or any of them, the notice of such day and place.
14. Besides that in this case, the learned Counsel for the appellant had the notice of the date of delivery of the judgment, therefore his present contention does not stand to reason.
15. The learned Counsel for the appellant next urged that by the testimony of all the eye-witnesses, it was overwhelmingly proved that the accused were the persons who belaboured Sreemati Ramani Bala Devi. But the learned Magistrate, without appreciating the evidence acquitted the accused persons, and hence the judgment of the Magistrate is clearly wrong. As this Judgment has caused a serious miscarriage of justice, so it should be set aside and the accused be convicted.
16. The learned Counsel for the respondents, is order to controvert this argument of the learned Counsel for the appellant, strongly urged that the appeal against acquittal is an extra-ordinary remedy, therefore it should tie exercised sparingly. He also pointed out that the settled practice is that the Courts should not interfere with the order of acquittal.
17. Now before discussing and weighing the evidence of prosecution witnesses in meticulous details, shall discuss the law on this point.
18. As regards the question of the powers of the High Court in regard to appeals against acquittal, opinions differed in the several High Courts. In 1934, when the question was raised before the Privy Council in the case Sheo Swamp v. Emperor AIR 1934 PC 227 (2) Lord Russell of Killowen repudiated the view apparently supported by that judgments of some Courts in India, that the High Court has no power or Jurisdiction to reverse an order of acquittal on a matter of fact, except in cases in which the lower Court had 'obstinately blundered', or has 'through incompetence, stupidity or perversity' reached such 'distorted conclusions as to produce a positive miscarriage of justice', or has in same other way so conducted or misconducted itself as to produce a glaring miscarriage of Justice or has been tricked by the defence so as to produce a similar result'. It was held that Sections 417, 418 and 423 give to the High Court full power to review at large the evidence upon which the acquittal was founded, and to reach the conclusion that the order of acquittal should be reversed. There is no limitation upon that power. But in exercising that power and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at the trial, (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.
19. When the matter came for the first time before the Supreme Court in 1950, In the case Prandas v. State reported in : AIR1954SC36 it was heard by six Judges and agreeing fully with Sheo-Swarup AIR 1934 PC 227 (2) (sup.), it was held that it is not correct that the High Court has no power to reverse an acquittal order, unless it is perverse or the lower Court has misdirected itself causing a miscarriage of justice, and the principles laid down in that case were reaffirmed. Since then in a number of cases the principles enunciated by the Privy Council in Sheo-Swarup AIR 1934 PC 227 (2) have been wholly approved and also reproduced in some decisions of the Supreme Court.
20. Again, in the year, 1957, the case of Balbir Singh v. State of Punjab, came before the Supreme Court (S) : 1957CriLJ481 and in this case their Lordships observed that it is now well settled that though the High Court has full power to review the evidence upon which an order of acquittal is founded, it is equally well settled that the presumption of innocence of the accused person is further reinforced by his acquittal by the trial Court and the views of the trial Judge as to the credibility of the witnesses must be given proper weight and consideration; and the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses must also be kept in mind, and there must be substantial and compelling reasons for the appellate Court to come to a conclusion different from that of the trial Judge.
21. In view of these rulings, it is clear that the High Court has full power to review the evidence, upon which an order of acquittal is founded, but it should be slow in setting aside an acquittal order till there are no 'substantial and compelling' reasons for doing so.
22. Now, in the light of the principle as laid down by the Privy Council, and the Supreme Court, I shall examine the evidence led by the appellant in order to see as to whether there are substantial and compelling reasons for setting aside the order of acquittal.
23. From the copy of F.I.R. and other documents filed by the respondents, it appears that there was a ?scuffle between the two ladies only, that is, the appellant and the respondent Kamala Malakar, and clue to that both or them received injuries. But it is surprising to note that all the P.Ws. have denied this' fact. By this, it is obvious mat they have not spoken the truth. At the time of argument, the learned Advocate admitted that there were cross cases about this incident, but they were tried separately by different Magistrates. It was unfortunate that they were not tried by one and the same Magistrate. If they had been tried by the same Magistrate in that case the Magistrate would not have found much difficulty in arriving at right decision. Any way it is an established fact that there were two cross complaints, and in the scuffle that took place on 19.4.61, the appellant and the respondent Kamala Malakar were injured. When there were injuries on both sides (the accused and the complainant) in that case it was the duty of the prosecution to explain cogently how the accused sustained injuries and who was the aggressor. Without such explanation, the prosecution evidence could not be complete and no Court would be prepared to act on evidence which leaves a lacuna. In the instant case, the prosecution did j not explain the Injuries on the person of the respondent; so in view of the lacuna left, the prosecution is not entitled to succeed. I, therefore, find that in the light of these facts, the finding of the learned Magistrate is correct and It cannot be assailed easily. The learned Counsel for the appellant further contended, that the F.I.R. of the cross case which has been produced In this case is not admissible in evidence, but the learned Magistrate admitted it in evidence, so on that account also the judgment should be treated as perverse. This argument too is without substance. Where an occurrence forms the subject of two cross cases, the first information report in one case is admissible in the counter case in which the informants themselves stand their trial, though in. every case the entire statement may not be admissible. In view of the occurrence being the subject of two cross cases it is admissible in evidence.
24. The learned Counsel for the appellant further urged that the Outdoor ticket and the two discharged certificates are inadmissible in evidence, so the Magistrate should not have admitted them in evidence. By admitting them in evidence he erred and hence he came to an erroneous finding.
25. The learned Counsel for the respondents in order to rebut this argument contended that they are the public documents and admissible In evidence on the combined effect of Sections 35 and 74 of the Evidence Act. I too feel that there is no force in the contention of the learned Counsel for the appellant. These documents have been produced to show the entries in the Official Register made by a public servant in the discharge of his official duties, therefore they are admissible in evidence.
26. No other argument was advanced 6y the learned Advocate.
27. In view of the reasons mentioned above, I am constrained to hold that there is no force In this appeal and it is hereby dismissed.