1. This is a petition made by a private party to revise the order of acquittal passed by the-Additional Sessions Judge, Cuddapah. The Government had a right of appeal but they did not choose to exercise that right. The case-relates to 45 persons as the accused with 27 charges against them which are indeed of a grave and serious character. All of them inter alia are charged with an offence of rioting armed with deadly weapons, an offence falling under Section 148, IPC
They are further charged with offences under Section 302 read with Section 149, Section 307 and Section 307 read with Section 149, IPC and Section 19(f) of Indian Arms Act. The incident took place in the broad day light when in the rattling sound of musketry and booming shots of un-licenced firearms law and order seemed to b$ temporarily paralysed and the whole village was struck with terror and filled, with horror. As many as four lives were lost and several persons who were made the targets of the assailants' gunshots were lucky enough to escape with only grievous or simple injuries. It is indeed a sensational case.
2. The C. I. D. Police Kurnool, in their attempt to bring the offenders to book, examined as many as 41 witnesses. All the accused pleaded not guilty. They however examined one witness in defence. The learned Sessions Judge found that all the four deceased died of gunshot wounds and some of the prosecution witnesses sustained gunshot injuries on the date of the incident but refused to believe the testimony of the injured, the dying declaration of one of the deceased and the sworn statements of the witnesses who belonged to the same village, on the ground that the prosecution story as revealed before the trial Judge was in some respects not quite in accord with the story narrated in the reports originally sent to the police before the investigation was started, that the statements of the witnesses before the police during investigation were in certain respects different from those in the witness for, that there were some omissions in the statements before the police and that since the village Magistrate belongs to the party of the deceased and some of the witnesses are related to the deceased their testimony on that account and on account of certain discrepancies and some inconsistency with the medical and fire arm experts' view is not entitled to credit. It is on these grounds that the learned Judge held that the prosecution did not bring home guilt to any of the accused and acquitted all the accused.
3. The learned Counsel appearing for the petitioner strenuously argued before us that the grounds on which the order of acquittal was Based are legally untenable, that the witnesses are not venal, that the injuries that most of them have sustained speak for themselves, that the discrepancies pointed out are of minor character and that the finding of the learned Judge is therefore perverse lacking in true perspective of the case.
4. We have heard the detailed arguments of the learned Counsel and before we express our view on the points canvassed, we think it necessary t0 point out the limited scope of this enquiry before us. It is a revision against acquittal. An appeal was open to the Government but they failed to avail of this remedy. As a matter of fact, the learned public prosecutor who appeared on behalf of the Government did not challenge the order passed.
Even if there was an appeal, the order of acquittal would have warranted interference only if it was wholly unreasonable. The principles laid down by the Privy Council in Sheo Swarup v. Emperor A.I.R. 1934 PC 227, (2) (A), in this behalf have been reiterated by the Supreme Court in Suraj Pal Singh v. State : 1952CriLJ331 ; Puran v. State of Punjab : AIR1953SC459 ; Bansidhar Mohanty v. State of Orissa (S) A.I.R. 1955 SC 5S5 (D) and Bhagwan Das v. State of Rajasthan (S) : 1SCR854 .
It is now well settled that in appeals1 against acquittal it is not sufficient that the High Court can come to a different conclusion. There must also be substantial and compelling reasons to Interfere with the order of acquittal. The powers of revision as controlled by the provisions of Section 439, Cr.PC are of necessity more limited in nature. That section reads thus:
439 (1) In the case of any proceeding the record of which has been called for by itself or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of appeal by Sections 423, 426, 427 and 428 or on a Court by Section 338, and may enhance the sentence; and when the Judges composing the Court of Revision are equally divided in opinion, the case should be disposed of in manner provided by Section 429.
2. No order under this Section shall be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his own defence.
3. Where the sentence dealt with under this section....
4. Nothing in this section applies to an entry made under Section 273, or shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction.
5. Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed.
Sub-section (5) bars proceedings by way of revision where there is a right of appeal but this bar does not extend to the case of a party who has no such right of appeal. A private party can therefore come in revision under Sub-section (5) where the Government failed to exercise the right of appeal. No doubt Section 439(1), Cr.PC confers the same powers as are exercisable by a Court of appeal and Section 423(1); gives wide powers to a Court of appeal but powers of revision being limited by subsection (4) unlike in appeals the order of acquittal cannot in any case be converted into one of conviction.
This bar, in effect, would mean an implied prohibition to impugned the correctness of inferences drawn from the evidence or findings of fact arrived at by the trial Court on appreciation of evidence. Thus in revisions against orders of acquittal this Court, short of determining questions of fact which may virtually lead to conversion of the order of acquittal into one of conviction, can pass all orders permitted under Section 423(1), Cr.PC
No doubt limitation specifically placed on the powers of this Court relates to actual conversion of order of acquittal into conviction but this does not mean that it is open to this Court to subject the material on record to such criticism as to lead the Court below in case of remand to pass an order of convic- tion being influenced by this criticism. this Court certainly cannot cause the same result produced indirectly what it has been prohibited to produce directly.
It is manifest therefore that this Court in the exercise of its revisionary jurisdiction would not ordinarily take upon itself the task of weighing evidence afresh and that what it would consider is whether the trial was regularly conducted and the law has been clearly understood and applied to the proved or admitted facts of the case and that there has been no misstatement of evidence which has led to a wrong conclusion. Even on general principle, ordinarily as observed by Lord Sumner in Hontestroon v. Saga Porack 1927 AC 37 at p. 47 (P):
The higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case.
These observations were quoted with approval in Joseph Eva Ltd. v. Reeves (1938) 2 All ER 115 (G). The Supreme Court laid down the scope of revisional powers in this behalf in Logendranath Jha v. Polailal Biswas : 2SCR676 . It has been observed therein that in the absence of any error on a point of law it would not be open to the High Court to reappraise the evidence and reverse the findings of fact on which the acquittal is based.
In that case their Lordships had to consider a case where the High Court had reviewed the evidence at some length and found that the judgment of the learned Sessions Judge was perverse as it displayed lack of true perspective and there was a complete misdirection In looking to the minor discrepancies in the case and ignoring the essential matters so far as the case was concerned.
Their Lordships held 'by merely characterising the judgment of the trial Court as perverse and lacking in perspective the High Court cannot reverse pure findings of fact based on the trial Court's appreciation of the evidence in the case'.
This view has been reiterated in Harihar Chakravarty v. State of West Bengal : AIR1954SC266 . Their Lordships further observed:
The revisional jurisdiction conferred on the High Court under Section 439, Cr.PC is not to be lightly exercised, when it is invoked by a private complainant against an order of acquittal against which the Government has a right of appeal under Section 417. It could be exercised only in exceptional cases where the interests of public justice require interference for the correction of a manifest illegality, or the prevention of a gross miscarriage of justice. This jurisdiction is not ordinarily invoked or used merely because the lower Court has taken a wrong view of the law or mis-appreciated the evidence on record.
In this view of the law on the subject we now proceed to judge the merits in this case. To start with, we cannot help remarking that the judgment of the trial Court is far from being satisfactory. Though it purports to conform with the provisions of Section 367, Cr.PC compliance with some of its requirements seems to be more or less formal and not substantial. The points for determination have not been set out fully.
That seems to have been the reason why there is no separate finding on each charge. That apArticle the reasons given do not indicate clearly whether all or any of the ingredients of the offences with which the accused were charged were fully considered in the light of the evidence adduced and whether the verdict of not guilty in fact relates to all those charges. It may be remembered that apart from the offences under Penal Code there was also a charge under Section 19(f) of the Arms Act.
There is ample material on record that the deceased died of gunshot wounds and that the injuries inflicted on some of the witnesses examined are the result of gunshots. That seems to be conclusion of the learned Judge also. The cause and effect being thus ascertained, the learned Judge did not think it necessary to enter into a detailed discussion as to why the offence under Section 19(f) was not established. It was necessary for the learned Judge to expressly state the reasons therefor rather than, make us guess the same from the tenor and implied meaning of the observations made by him in the course of his judgment.
This in our opinion is the most unsatisfactory way of deciding criminal cases where as many as 27 charges fall for determination. It must be remembered that Section 367, Cr.PC' which is not exhaustive does contemplate that all the points for determination should be kept clearly in view by the Judge and the reasons for their decision should be fully set out and they should clearly show that the entire material which has a bearing on those points has been fully considered and judicially determined.
We also feel that the judgment of the trial Judge in some of its aspects lacks in clarity of thought, proper understanding of certain legal principles and due arrangement of ideas in proper sequence. We' may in this behalf refer to paragraph 61 of the judgment which notwithstanding the observation in the last sentence leaves us in doubt, as to the exact meaning that the learned Judge seeks to convey in view of the tenor and the line of argument adopted in the preceding few lines. There are some of the observations which we think it necessary to make in passing. Notwithstanding such defects, we feel that the judgment in question merely on such defects cannot in revision be interfered with.
5. We now proceed to consider whether there are any merits in this revision. Much of the argument of the learned Counsel turns round the question which in its ultimate analysis is virtually a question of appreciation of evidence, , It is argued that the minor discrepancies in relation t0 the facts that preceded the occurrence have weighed with the trial. Judge, and the learned Judge has failed to take into account that these discrepancies can be due to bad memory, inattention to details, natural elasticity of human impressions, and natural difference in facility of discretion.
It is further argued that the relationship of some of the witnesses who had in fact sustained injuries was deemed to be a sufficient ground for rejection of their evidence and that a finding of acquittal based on such grounds cannot be allowed to stand. But we have already observed that questions relating to pure finding of fact are beyond the scope of this revision.
6. It is then argued that the learned Judge has been influenced by material which is not evidence and cannot be admitted as such. In this behalf our attentions are invited firstly to the statements made before the police which the learned Judge is said to have used them as substantive evidence or for purposes of contradiction without conforming to the provisions of Section 145 of the Evidence Act.
There is no doubt that statements made before the police cannot be used as substantive evidence by any side. But there is nothing in the judgment which suggests that it has been used as such. Of course, it has been used for purposes of contradiction which is permitted by law provided only that the formalities of Section 145, Evidence Act have been complied with. Evidently, omissions also are sought to be used as contradictions.
But it should be remembered that all omissions are not contradictions and hence it was not open to the trial Court to make use of such omissions to show that the witness has said in the Court something which he did not say before the police. The trial Judge indeed has made use of omissions of this nature as well but such instances are rare and cannot be said to have materially affected the result.
So far as contradictions are concerned, it was essential to put the previous statements to the witness and there is nothing to suggest in the statements of the witnesses that they were actually put to them in exact words to the extent sought to be contradicted; but it is argued that the statements were there at the time the questions were put and the attention of the witnesses was drawn to them and the answers of the witnesses were in fact given in relation to the portion of their statements sought to be contradicted though those portions were not written in quotation marks.
Thus it is argued was a substantial compliance with the provisions of Section 145. The question whether there has been a compliance with Section 145 or not is purely a question of fact. The question is not one of form but of substance. If there has been substantial compliance that will be sufficient in law. That has been the view taken in Bhagwan Singh v. State of Punjab : 1952CriLJ1131 . Judged from this point of view, the argument 1 the petitioner would fail since there has compliance with Section 145 in substance.
7. It is next contended that the first information report was used as though it was substantive evidence and also for contradicting the witnesses other than the informants. It is well settled that first information report can be used only for corroboration under Section 157 or for contradiction under Section 145 of the Evidence Act. Nor can it be used as a basis for conviction or acquittal. Its importance may lie in the fact as to what was the initial version of the case as stated to the police. It all depends upon from which quarter the information came, whether from a person aggrieved or an eye-witness or a stranger.
In this particular case the village munsif who was in his house with doors closed and would not dare to come out for fear of his own life has sent three reports. One is Ex. P-47 and this was sent on the information given by P.W. 6 who knocked at the door of his house and told from outside that A-l to A-3 and some others attacked the house of Bandi people and were firing their guns.
One hour later the village Munsif was informed by P.W. 31 who. similarly knocked his door and told him that A-l to A-3 and some others were firing and that four persons had died. Thereupon he wrote a report Ex. P-46 and took the thumb impression of P.W. SI. He sent this report through P.W. 30. Thereafter at about 5 P. M. in the evening the village Munsif went t0 P.W.'s house and recorded the statement of P.W. 1 who was present.
This Ex, P-l was sent to the police immediately but was received by the Sub-Inspector in the night when he was on his way to the place. Ex. P-l contains a detailed account whereas the two. others contain the names of A-l and A-3 and also mention that there were others and also the crowd. We do not think much can turn upon these reports to the benefit of the accused. It appears however much capital was made of the version in Exs. P-46 and P-47 which obviously did not and could not contain a detailed account under the circumstances in which they were sent.
However the learned Judge does not appear to have based his acquittal mainly or substantially on Exs. P-46 or P-47 or Ex. P-l. Under these circumstances the plea raised is not very material to warrant the exercise of our powers in revision. There is of course a further plea with regard to the admissibility or otherwise of Ex. P-l but that should not detain us inasmuch as it is not of much consequence.
The only other argument that remains for consideration is the dying declaration of the fourth deceased which has been ignored by the trial Judge on the ground that it bears striking resemblance with the statement of P.W. 14 and hence it may be deemed to be a prompted and not a true and voluntary statement. The statement of P.W. 14 contained in Ex. P-12 certainly could not be made use of as a piece of evidence.
However the fact to be considered is whether under the circumstances of the case the dying declaration by itself can be sufficient to lay the guilt at the doors of the accused. Dying declarations no doubt are important pieces of evidence as they are made under a sense of impending death, concerning circumstances with regard to which the deceased is not likely to be mistaken. A dying person would invariably tell the name or names of the actual culprits if he knows them. When only one person was pointed Out, by the dying person, to have caused his death, the statement will ordinarily be entitled to great truth unless of course there are circumstances to cast doubt on the same.
The learned Judge has pointed out that the deceased was accompanied by several persons who used to talk to him on their way to the hospital and therefore it is quite possible that the dying declaration that he made implicating many persons may be an induced or prompted case. Be that what it may, that was a matter of opinion under the circumstances of the case.
Therefore merely because that the learned Judge has been influenced by the statement made by P.W. 14 which itself is inadmissible cannot be a sufficient ground to interfere with his finding. It is further significant that in arriving at the conclusion the medical and fire arms experts' opinion has also weighed with the Judge and obviously enough such opinion cannot be lightly brushed aside. No further points were raised. It is clear that the points canvassed are not sufficient to warrant the exercise of our extraordinary revisionary powers. The petition therefore will fail. We accordingly dismiss the same.