Rachhpal Singh, J.
1. This is an appeal preferred on behalf of the Local Government against an order of an acquittal passed by the learned trial Magistrate. Thakur Sheo Sewak Singh, the respondent, was tried in the Court below for an offence contrary to the provisions of Section 323, I.P.C. The learned Magistrate who tried the case held that the case against the accused was not established. Bhola Nath, the complainant in this case, is a young lad of about 14 years of age and is a resident of Allahabad. The respondent was the city kotwal attached to the police station in Mirzapur Town.
2. On 21st April 1937, the complainant along with his father and some other relations went to Bindhiachal which place, we are informed, is at a distance of about six miles from Mirzapur Town. The party had gone there for the purpose of 'darshan'. It is alleged that on the evening of 22nd April the complainant and others went to Mirzapur Town in order to visit their relation Jagannath, At about 7-30 or 8 P.M. they happened to pass in front of the city kotwali. In the front wall of the kotwali building, over the gate, there is a clock fixed. The complainant says that he had an electric torch with him, which he flashed over the clock in order to see what the time was. This annoyed the respondent who happened to be sitting in open space inside the kotwali building. This innocent act of the complainant appears to have given offence to the respondent. The respondent abused the complainant and enquired as to who the fellow was who dared to throw torchlight and that he should be brought in his presence. Upon this two police constables came and dragged the complainant before the kotwal. The respondent kotwal asked the complainant why he had flashed his torch. The respondent caught hold of the ears of the complainant and twisted them with some force. The complainant says that after that he was given some blows with fists and some slaps. The complainant fell down and then the respondent sent for what the complainant calls a 'hunter' and with it gave several blows to him on his legs and thighs. The respondent also snatched the torch which the complainant had and smashed it. It was admitted by the respondent that the complainant had flashed his torch towards the police station. The respondent says that the complainant was throwing light with his electric torch on his family quarters where his wife and other family members ware. He further says that ha sent for the complainant and told him that
if he did it like that again in future then he would be punished. I warned him orally and caused no injuries to him and then let him go. I then entered a report about it in the general diary.
3. The respondent totally denied having beaten the complainant. He attributes his prosecution to the existence of ill-feelings between him and Mr. Yusuf Imam, a local Congress leader. At the very outset we I wish to make it clear that we are hearing the present case as an appeal against the order passed by the trial Magistrate and not as a Court of first instance. When this Court is hearing a case in an appeal against an order of acquittal certain points have to be kept in view. In Sheo Sarup v. Emperor 0043/1934 their Lordships made the following observations:
Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. (No limitation has been placed upon their power, unless it be found expressly stated in the Code.) But in exercising the power conferred by the Code and before reaching its conclusion upon facts, 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 the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he had been acquitted at the trial; (3) the right of the accused to benefit of doubt; and (4) the slow-TIOSS of an Appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.
4. We may also refer on this point to a Full Bench ruling of this Court Emperor v. Sheo Janak Pande : AIR1934All27 . It was held in that case that this Court ought to bear in mind in dealing with appeals against acquittals that there is a presumption of innocence in favour of the accused, still further strengthened by his acquittal and that the trial Court was in a better position to judge of the credibility of the witnesses examined before it and therefore great weight is to be attached to its view. Having made these observations as regards the legal position we may now proceed to consider the evidence which has been produced in this case in order to decide the question as to whether or not the accused respondent has committed the offence with which he was charged.
5. It will be seen that the case is one in which a responsible police officer is an accused person and the probabilities are that it has assumed an importance because of that fact alone. Had the accused not been a police officer and the case had been between two private citizens, it would not have been given the importance which it has assumed. We have already pointed out that a portion of the prosecution story has not been challenged by the accused in the present case. The complainant flashed his torch towards the police station. That fact is admitted. The complainant says that the accused Sub-Inspector issued orders in pursuance of which the two constables dragged him before the accused respondent and that his ears were pulled and some slaps were given. Further, the complainant says that he was beaten with a rod. The accused's version is that he only gave a warning to the complainant that he should not have flashed his torch because the ladies of the accused's family were living in the building and that nothing else was done. Now, it is possible that the accused may have beaten the complainant and it is also possible that he may have given a warning to the complainant and that the complaint has been greatly exaggerated because of the unpopularity of the kotwal or of the police with the general public. The learned Magistrate had to bear in mind this matter. In the present case we are of opinion that the action of the complainant in flashing his torch towards the kotwali building was a boyish act and no reasonable man would have treated such a trifling matter seriously. We however find that the accused who is holding the responsible position of a kotwal thought it otherwise. Quite an innocent act of the complainant appears to have annoyed him and it would seem that his dignity as a kotwal had been offended by a childish act of the complainant and he went to the length of ordering two constables to catch hold of the complainant and to produce him before him (the accused). It appears to us that there was no justification for the accused for doing this and his conduct in directing the two constables to catch hold of the complainant was a gross misuse of his authority as a police officer holding a responsible position. We think that there was no occasion for the accused Sub-Inspector to have made such an unnecessary exhibition of his bad temper and bad manners. It is behaviour of this kind which makes the police unpopular. The defence story that the complainant was flashing light with his torch on the zenana quarters of the accused is totally absurd and silly on the face of it. The complainant was walking along with members of the family in a public street and it is impossible to believe that he had any intention of annoying anyone. He could have no idea that his innocent playing with the torch would upset the kotwal. We feel satisfied that the complainant flashed the torch on seeing a clock fixed over the gate of the kotwali, in order to see what the time was. But even if we suppose that he threw light on any other part of the building, we think that there was no reason for the accused to get upset. We hold that there was no justification for the accused to have given orders under which the complainant was dragged before the kotwal accused by two police constables. The action of the accused was wholly without justification and in very bad taste. We have condemned the action of the kotwal, but we cannot forget that he is an accused person and is therefore entitled to ask that he should not be convicted until the charge against him is established beyond any reasonable doubt in spite of the fact that his behaviour has not been what one had a right to expect from a man holding a responsible position. It appears to us that it is very necessary that a case of this kind should be considered with great caution. There are Government servants who have to perform certain duties in discharge of their official position which sometimes make them unpopular with the public. Oases are not unknown where a very ordinary action of theirs is magnified and grossly exaggerated. Those public servants are just as much entitled to judicial protection as any other citizen. In the present case, the 'central question,' to use the phrase of the learned Deputy Government Advocate was whether the accused had given a beating to the complainant. The learned trial Magistrate after a consideration of the evidence produced in the case was not satisfied with the prosecution evidence. He has given benefit of doubt to the accused. What we are asked to see is whether his view is correct. The evidence produced in the case has been read over to us by the learned Deputy Government Advocate. After a consideration of the same we see no reason to interfere with the view taken by the learned trial Magistrate.
6. It has been urged before us that the learned Deputy Magistrate was not right in taking into consideration the extrinsic question as to who were helping the complainant and certain other points of this kind. We cannot agree with this view. The accused had taken a plea that he was not on good terms with Mr. Yusuf Imam, the Local Congress leader, and that is why he was being prosecuted. The learned Magistrate has taken into consideration this plea. It is our opinion that having regard to the facts of this case it was necessary to consider this point. The accused is charged with an offence under Section 323, I.P.C. But we find that some people were anxious to turn this alleged ordinary beating case into a very serious offence. The prosecution got one of their witnesses to produce a telegram which was sent to the Superintendent of Police soon after the alleged marpit. It is printed at p. 5 and runs as follows : 'Come kotwali son beaten by kotwal nearly dead.' The sender's name is said to be Ram Dass, but the Circle Inspector who produced the telegram stated that he could not find who had sent it. The telegram shows that there were some people who in their desire to implicate the accused went to the length of making a most serious charge of attempted murder. Then we have at p. 7 a letter said to be from the Secretary, Mirzapur City Congress which appeared in the 'Pratap' newspaper. It runs thus:
Information has been received that in the night of 2nd April a police officer brutally assaulted a boy of Allahahad who often lives here. It is alleged that he sustained fracture and remained unconscious for a long time. His condition is said to be serious.... Police took the boy to some unknown place. People say that this occurrence has created a great sensation in Allahabad. Enquiries are being made into the matter on behalf of the Congress Committee.
7. Then we have a telegram sent by Mr. Yusuf Imam to Allahabad at p. 5. It runs:
Panna Lal (Bhola Nath) son Bachoo Lal's beaten by police here, please ascertain and have him examined medically, great excitement in city.
8. Having regard to the above-mentioned exaggeration which we find in the telegram sent to the Superintendent of Police, Mirzapur, and the letter which appeared in the 'Pratap' Newspaper, the learned Magistrate was justified in going into these matters in deciding the case. The prosecution witnesses as regards the alleged beating were complainant and his relations Raja Earn Basant Lal. There were three other witnesses who have been described as disinterested witnesses. They are Bishwa Nath Kalwar, Badho Mallah and one Kulada Prasad who styled himself as 'Chief Secretary' to the Local Congress Office.
9. The learned Magistrate has mentioned in his judgment at pp. 50 and 51 several reasons which in his opinion made the story for the prosecution doubtful. We may mention only a few points which go to throw doubt on the prosecution case. It is true that when the complainant was examined by a doctor at Allahabad some injuries were found on his body. But the prosecution has not been able to give any satisfactory reasons why the complainant was not examined by a medical man immediately after the alleged beating given to him. It appears that the prosecution was aware of this weak point and thus we see that an attempt was made to fabricate evidence to get over this difficulty. The story put forward was that the complainant was taken to the shop of one Doctor Bhargava but that he was absent. We are not prepared to believe this story. If Doctor Bhargava was absent then his compounder could have been asked to supply necessary medicine to the complainant. It has come out in evidence that there was another doctor whose shop was close by and that was Doctor Nur Muhammad. But no attempt was made to approach this doctor. No explanation has been given as to why the complainant was not taken to the Government hospital at Mirzapur or the dispensary at Bindhiachal where the complainant is said to have spent the night. When the boy returned to Allahabad admittedly for two days his injuries were not examined by a doctor. It is said that he had fever. But that was more reason why he should have been examined by a doctor. We do not believe the story that the complainant was taken for examination to Doctor Bhargava's dispensary soon after the assault. It appears to us that somehow no action in this matter was taken for some days and then later on the complainant was sent to a medical man at Allahabad. The accused in these circumstances is entitled to say that it is possible that injuries found on the complainant may have been received by him some time before or after the incident at the kotwali.
10. The story that the complainant immediately after the beating given to him was taken to the shop of Behari Lal Halwai at Mirzapur appears to us to have been fabricated. No attempt was made to examine Behari Lal as a witness. Nor was any suggestion made that at the time Behari Lal was not at his shop. We are in agreement with the argument of learned Counsel for the respondent that this story about the visit to Behari Lal's shop has been fabricated with a view to show that some of the prosecution witnesses actually saw the injuries on the person of the complainant. But it is strange that in the complaint there was no mention of this important piece of evidence. We think that the learned Magistrate has given very good reason for not accepting the story that the complainant was taken to the shop of Behari Lal Halwai after the assault on him. Babu Kulada Prasad, the Congress Secretary, says that at the time of the beating given to the complainant there were about 100 to 150 men present. It is somewhat difficult to believe that the accused could have beaten the complainant in the presence of such a large gathering and more specially when the Congress Secretary was present. No explanation is given as to why the boy was not taken to the place of the S.P. Collector of the District or to some other responsible officer when the kotwal is said to have beaten him in the presence of 100 or 150 men. Nor is it explained why his injuries were not shown to some respectable witness or witnesses in the city. It is also somewhat difficult to believe the statement of B. Kulada Prasad when he says that after seeing the beating given to the complainant he left the place. It is strange that among such a large crowd he did not get hold of some one who should give help to the complainant.
11. The prosecution case was that Raja Ram a relation of the complainant immediately noted the names of some of the persons who had seen the marpit and who have been examined as witnesses. But we find that this story does not fit in with the statement of the complainant which he made on filing the complaint. There the complainant said that he would endeavour to find out the names of his witnesses. But at another stage of the case he said that he knew the names of the witnesses but was afraid to mention them. But where was the necessity to make a wrong statement on the point? He could have said that he knew the names but would not disclose them.
12. Having given our consideration to the entire evidence produced in the case, we are of opinion that the view of the learned Magistrate that the case against the accused is doubtful is correct and in these circumstances we see no justification for upsetting his decision. It can be said that it is possible that if we had been hearing the case in the first instance we might have taken a view different from the one taken by the learned trial Magistrate. That however is no ground for interfering in appeal. The above cited observations of their Lordships of the Privy Council have to be borne in mind. The decision of the trial Court is entitled to great weight and this Court should interfere only when it is satisfied that the view of the trial Magistrate was wrong and that it was contrary to the weight of the evidence. In the present case we think that the trial Magistrate could have come to the conclusion at which he has arrived. For the reasons given above the appeal stands dismissed.