1. (September 13, 1933.)--Sheo Janak Pandey, Brahmin, was charged in the court of the Assistant Sessions Judge of Ballia under Section 376, of the Indian Penal Code, with the rape of Musammat Ratni, a small girl 12 years of age. The learned Assistant Sessions Judge acquitted the accused. The Local Government appeals.
2. At or about noon on October 25, 1932, in the village of Piaria this small girl was engaged in cutting grass in an arhar field. It was alleged by the prosecution that Sheo Janak Pandey, a youth of 16 years of age, came to her and asked her to go with him to a neighbouring field in order to help him to put a bundle upon his head. The girl refused and was threatened by Sheo Janak Pandey. She went with him to his arhar field, and there she was ravished. To prove this case the prosecution called two eye witnesses, Bechu and Rajrup. These witnesses stated that they also were engaged in cutting grass in a neighbouring field; that they heard the shouts of the girl and ran up to her assistance; that they saw the accused lying, on top of the girl and that on their approach the accused ran away into the jungle. The father of the girl, BabuRam, also gave evidence. He was also engaged in a neighbouring field. On hearing the girl's cries, he ran to her assistance and found her lying in the arhar field with her clothes turned up and stained with blood. He says he saw the accused running away to the jungle and Bechu and Rajrup chasing him. Another witness Bhuilotan gave evidence that he saw the accused later washing his dhoti, which was spotted with blood, at a tank near the village. He asked the accused what had happened and he said that a boil had burst and so he was cleaning his dhoti. The girl herself gave evidence, and the Civil Surgeon proved that injuries existed consistent with rape.
3. First Information Report was made by the girl herself at the nearest thana that afternoon. In this report she told the story which she related in the box, and recorded the fact that Bechu Ahir and Rajrup Ahir had come to her assistance and that Sheo Janak had then fled away. She also mentioned that her father had arrived and he had seen Sheo Janak running away. The defence hardly cross-examined any of these witnesses except to raise the question of enmity which they alleged existed between the girl's father and the accused. The enmity alleged was said to be occasioned by a very minor matter concerning a drain which ran from the house of Sheo Janak Pandey through the courtyard of BabuRam. The learned Judge on this properly comes to the conclusion that there was no real cause of enmity.
4.On this evidence a clear case of rape had been made out by the prosecution. The defence did not allege in the lower Court, and does not allege in this Court that rape had in fact not been committed. It is perfectly clear from the medical evidence that this little girl had been raped by some one. There was no reason why Sheo Janak Pandey should have been falsely accused.
5. After the defence evidence was closed, however, a defence of alibi was produced by the accused. We may say that, on the face of it, it is the most complete evidence of alibi that we have ever seen or that it is possible to imagine. The brother of the accused was a constable attached to the Kotwali in Benares, which is at a distance of some 80 miles from village Piaria. He gave evidence that his young brother, the accused, had been living with him in the Kotwali for some four or five months before October 25, that he had been employed by a Benares Mahajan, and that from October 21, to 27, the accused had been ill in the Kotwali and a local Homeopathic doctor had attended him calling to see him on every one of these days. He further said that a distant relation of the accused was very ill on October 20, and was being attended by a Sadhu at Ballia; that an uncle of the accused had telegraphed to the witness asking him to send the boy from Benares back to the village in order that he might see his dying relative and that the witness himself replied by telegram on the morning of October 26, that the accused was ill and could not travel. Both these telegrams were produced in court. Ram Yad Pandey, the uncle of the accused, gave evidence that he had telegraphed about the illness of Raju Pandey, whom he described as a distant uncle of the accused, to Sheopujan Pandey on the date of occurrence from the nearest Railway Station, and that he had had a reply on October 26 or 27, from Sheopujan Pandey by telegram. He further produced a post-card dated October 25 and bearing a post-stamp of that date. This post-card was written by the accused and was received by the witness on October 27. The post stamp of October 25, is also on the post-card. In that post-card Sheo Janak Pandey said that he was lying up with fever, that he was having the treatment of the doctor of Godaulia for the last three or four days, that the fever was high for two days and that he had loose motions also.
6. Hansraj, who is alleged to have been the employer of the accused in Benares, gave evidence that he had employed him from May 1, until November 3 or 4, and that the accused had been away from duty ill in the last week of October. Dr. S.P. Bose of Benares was called. He said that he kept a register of patients; that he attended Sheo Janak Pandey in the Kotwali at Benares visiting him every day from October 22, till October 27; that Sheo Janak Pandy was suffering from fever and had loose motions and that he had been paid the fee of Rs. 10 or 15 for the visits.
7. Chandrika Prasad, Head Constable, was also called. He said that he was the Head Moharrir at the Benares Kotwali since May 1932; that the accused lived with Sheopujan Pandey, Constable, at the Kotwali from the month of May; that he remembered that at the end of October Sheo Janak was ill and that Dr. Bose had come to the Kotwali and treated him.
8. This evidence is absolutely conclusive, if it is true, that on October 25, the date of the rape, the accused had been absent from his village Piaria for some five months and was actually lying ill on October 25, in the Kotwali at Benares some 80 miles away. On this evidence the learned Assistant Sessions Judge came to the conclusion that the evidence threw sufficient doubt upon the case for the prosecution to entitle him to give the accused the benefit of it. This is, in our opinion, a curious finding. If the defence evidence was true there could be no doubt whatever about the innocence of the accused. It is clear that the Judge did have doubt about the truthfulness of this defence evidence.
9. We cannot believe for a moment that the defence evidence is true. If it is true, all these facts, were in the possession of the relatives of the accused in village Piaria on October 25, and 26, 1932. They knew that the accused had been away from the village for five months; they knew of the illness which is a fact-of the relative of the accused; they knew that Ram Yad Pandey, the uncle of the accused had sent a telegram on the actual day of the occurrence to Sheo Janak Pandey in Benares; they knew that on October 26, a wire had been received that Sheo Janak was lying ill in Benares; and yet not a word was said of this story to the Investigating Officer on October 26, when he interviewed Ram Yad Pandey. All he was told, was that the accused was on that day the 26th in Benares, which was probably true. When the post card arrived on October 27, providing conclusive evidence that on the 25th the accused was in Benares and ill, this document was not produced to the investigating Police Officer. The telegrams also were not produced, Three months later, on January 25, 1933; the accused was examined before a Magistrate. He was there asked: 'Did you on October 25, 1933, ravish Musammat Ratni', and he said, 'No, I will give my explanation before the court of Sessions'. This conclusive proof of the innocence of the boy was not produced even at this date before the Magistrate. Further, it was never suggested to any of the prosecution witnesses in cross-examination in the Sessions Court. It was produced at the close of the prosecution case for the first time. On these facts alone we are prepared to find that we cannot believe the defence. Section 114 of the Evidence Act enacts that:
The court may presume the existence of any fact which it thinks likely to happen, regard being had to the common course of natural events and human conduct.
10. There is an irresistible presumption that on October 25, 26, and 27, this evidence did not exist. It is impossible to believe that alibi evidence of this strength and. conclusiveness would not have been produced at once by the accused or his relatives. It cannot be said that the accused or his relatives would be frightened to produce this evidence to the Police. The evidence finally produced showed-if-true that the boy himself resided in the Kotwali and was under the protection of the Police.
11. Apart from this, which, in oar opinion, is conclusive, a close examination of the evidence produced by the defence also shows that it is false. Neither of the telegrams produced bears the hour of despatch. This, by itself is not of great importance, but telegrams as a rule do bear this information. The post-card alleged to have been sent by Sheo Janak rom Benares on October 25th is much too complete a document. He relates in it the exact evidence given by the doctor some four months later in court in the doctor's exact words. He even informs his relatives that he is being treated by 'the doctor of Godaulia,' a fact which could not have been of the slightest interest to these villagers, and that the doctor had been attending him for the last three or four days. This post-card is much too good to be true. Further his brother, the Constable, had just come back from the village according to his evidence, and yet the accused in the post-card asks for information which he clearly must have known. This part of the post-card has merely been put in for the purpose of not making his other statement about the doctor too conspicuous. There is a further fact that according to the Police rules, it was absolutely forbidden that strangers should live in the Kotwali. The Head Constable of the Kotwali said that under the rules no stranger could live in the Kotwali. This Head Constable had arrived at, the Kotwali in May, 1932. The accused is alleged to have been living at the Kotwali when the Head Constable arrived. The Head Constable was in no way a friend of Sheo pujan Pandey, Constable, and it is, to put it at the least, extremely unlikely that a Head Constable would have permitted the accused to live in the Kotwali and thus make himself liable to disciplinary action for the sake of a man who was subordinate to him and who was not related to him.
12. With regard to the evidence of Dr. Bose, we have carefully inspected his register of patients. In our opinion, the register has been fabricated for the purpose' of this case. It was a register alleged to have contained daily entries for a period of five months. Entries were supposed to have been made in it daily. The register is absolutely clean. _ No book kept in the course of business by a doctor over the space of five months could possibly have been as clean as this book is. The entries are beautifully and carefully written in-- not the sort of entries one would expect if they had been made every day.- Further there is curious alternation in the colour of the ink used. It is clear to us that the Police interested in the defence of this case had told the doctor that it was important in these cases to have a register not written throughout in the same ink. The doctor, therefore, has, on an average, written three pages of the register in blue ink and then three pages in black ink. This gives the most curious appearance to the book.' Under no conceivable set of circumstances could it be possible for a doctor in the course of his practice to have used inks in this curious rotation. According to the evidence this village boy was drawing Rs. 10 a month in his employment. We do not believe that he was in employment in Benares, but if he were, it is clear that at that rate of pay he could not afford to call in a doctor to see him regularly every day for a common and minor disease like fever and loose motions nor would his brother, the Constable, have been prepared to pay a Doctor for a slight illness of this character. Further the Kotwali was quite close to a hospital where the boy could have had treatment for nothing. It is impossible to believe, under these circumstances, that people in the position of the Constable and the accused would have gone to the extraordinary procedure for them of calling a private practitioner and paying him the sum--to them a large one--of Rs. 10 or Rs. 15. The doctor himself says that the Government hospital is nearer to the Kotwali than his house. He further says that he does not pay any income-tax and yet his register shows a most extraordinarily flourishing business for a doctor whom the Judge describes as a young Homeopathic Physician. He further said that he kept no register of fees. We have no hesitation in coming, therefore, to the conclusion that Dr. Bose has given false evidence, and has forged the register for the purpose of this case.
13. We also note that although Ram Yad Pandey alleges that the telegraphed for the accused to come to the death-bed of his distant relative and also gave evidence of the deep affection existing between the accused and this dying man, no information whatever was tent to the accused when his affectionate relative died. Further although the dying man had much nearer relatives, it does not appear that his own nephews even were present at the deathbed of their relative; nor did Ram Yad Pandey think it necessary to send telegrams to them, or even to go himself. With regard to the evidence of Hansraj, the alleged employer of the accused, he said that he kept no register of the servants employed at his mills, nor any register of what salary he paid them. He further said that this youth Sheo Janak Pandey was the supervisor of all the servants. We find it difficult to believe this witness and are satisfied that he is also in the conspiracy.
14. We are of opinion that the learned Assistant Sessions Judge, overwhelmed by the nature of the defence, although he doubted it, made up his mind that he must act upon it, and he therefore criticised the prosecution evidence to justify his finding. The criticisms are unimportant and on very minor matters. For instance, he says of Bhuilotan Ahir, who was the witness that gave evidence, that he saw Sheo Janak that very day near the village washing a blood-stained dhoti, that his evidence is not direct on the point of rape. Of course it is not but it is very important on the point as to whether this accused was in the village on October 25, and whether he in fact did have a blood-stained dhoti. He further throws doubt on the evidence of the two Ahir eye-witnesses on the ground that they said that the accused jumped up when they were four or five paces distant and ran away. The learned Judge comes to the conclusion that if that was a fact, they could have caught the accused. There is ho evidence as to the respective capabilities of the eye-witnesses or the accused in the matter of running and everyone knows that villagers ideas of distances are very inaccurate. The point is that there is no cross-examination of the slightest importance of any of the prosecution witnesses nor is there any reason for any of the prosecution witnesses to give false evidence against the accused. Indeed there is no earthly reason why the accused should have been falsely implicated at all. If he in fact had been out of the village for five months it is perfectly clear that everyone in the village must have known it and that he was staying with his brother, the Police Constable. Under these circumstances, no one would have been sO insane as to implicate this accused for no reason. If there had been any reason to implicate any one of the family, there was no reason why Ram Yad Pandey himself who was present in the village should not have been implicated. The girl herself having been raped in broad daylight must have seen her assailant. It is more than probable that her assailant must have been of the village or the neighbourhood. If he was, she must have known him. There is no reason for her to have allowed her real assailant to escape. If on the other hand, her assailant was unknown to her, she and her parents would never have implicated some one whom they must have known was absent from the village for this length of time.
15. We are satisfied, therefore, beyond any, doubt that the prosecution case was proved to the hilt, and that the defence evidence was false from beginning to end. The documents which were produced have been fabricated for the purpose of the de fence.
16. It is, however, strenuously urged on behalf of the defence that there is no ground for interference with the acquittal order of the learned Additional Sessions Judge. We have been referred to several authorities of this Court. In Empress v. Gayadin 4 A. 148 : A.W.N. 1881, 159 it was laid down that an order of acquittal should not be interfered with on a Government appeal, unless the Judge was incompetent, stupid or perverse and came to unreasonable or distorted conclusions and had obstinately blundered. This view was followed in the case of Empress v. Gobardhan 9 A. 528, by a Full Bench and also in Empress v. Robinson 16 A. 212 : A.W.N. 1901, 49. A contrary view was held in Empress v. Prag Dat 20 A. 459 : A.W.N. 1898, 117, and in Emperor v. Ram Adhin Singh : AIR1931All439 . In the latter case one of us was a member of the Bench. It was held there that a Government appeal could be allowed where the learned Judge had misappreciated the material evidence, or had obviously blundered, or even where the balance of evidence was against the accused. On reference to the Act itself, Sections 417, 418 and 423, Criminal Procedure Code, we find no warrant for the view expressed in the earlier cases alluded to above. In this country unfortunately a Government appeal against an acquittal is a necessary part of public policy. The sections above quoted make no difference whatever between an appeal against conviction and an appeal against an acquittal. With the greatest respect to the earlier authorities, it appears to us that the judgments alluded to above do not construe the sections, but have altered the Statute Law.
17. No blame can be attached to the Judge in this case for his decision. He was deceived by a very clever conspiracy to defeat the ends of justice.
18. In view of the fact, therefore, that we disagree in common with other Benches of this Court with the earlier view and of the fact that it is of the utmost importance both for Government and accused persons to have an authoritative statement of the law on this point, we formulate this question of law as follows:
19. What are the conditions which justify an interference with the order of acquittal passed by a lower Court?
20. Further we would like the larger court to answer this question:
21. Where, as in this case, it cannot be said that the Judge in the lower Court has been incompetent, stupid or perverse, or come to unreasonable or distorted conclusions or has obstinately blundered, but has been deceived by the extremely clever nature of a false defence supported by forged documents, is it impossible for a Court of Appeal to interfere with his decision and allow a Government appeal.
22. We direct that the two points formulated above be laid before the Chief Justice with the request that he form a Bench large enough to deal authoritatively with these questions and decide them.
23. The Government Advocate, for the Crown.
24. Messrs. A.P. Pandey and J.C. Mukerjee for the Accused.
Judgment of the Full Bench
25. The questions have been referred to this Full Bench. They are:
(1) What are the conditions which justify an interference with the order of acquittal passed by a lower Court?
(2) Where it cannot be said that the Judge in the lower Court has been incompetent, stupid or perverse or has come to unreasonable and distorted conclusions or has obstinately blundered, but has been deceived by the extremely clever nature of the false defence supported by forged documents, is it impossible for a Court of Appeal to interfere with his decision and allow a Government appeal?
26. The provisions in the Code of Criminal Procedure relating to an appeal from Government are containedin Sections 417 to 423 of Chap. XXXI. Section 417 allows the Local Government to direct the Public Prosecutor to present an appeal to the High Court from an original or Appellate Court of acquittal passed by any court other than ft High Court; there are no restrictions, placed on this power given to the Local Government. Section 418 which was first added to the Act of 1882 furthar provides that an appeal may lie on a matter of fact as well as a matter of law except where the trial was by jury, in which case the appeal shall lie on a matter of law only. It clearly allows' questions of fact to be gone into afresh by the Appellate Court. Then Section 423 (1)(a) lays down that the Appellate Court in an appeal from an order of acquittal may reverse such order and direct that further enquiry be made or that the accused be retried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law. This section also contains no restrictions on the powers of the Appellate Court in reversing the finding of the court below and setting aside an acquittal.
27.The reference to this Court has been made principally because of certain observations contained in the case of Empress v. Gayadin 4 A. 148 : A.W.N. 1881 159 which has been followed more or less in some of the later cases. But it has to be conceded by the learned Counsel for the accused that so far as the sections of the Code themselves are concerned no distinction appears to have been drawn between appeals from acquittals and appeals from convictions. Whatever distinctions have been laid down in cases have been based on other considerations. In a criminal case the accused starts with a presumption of innocence in his favour and when the evidence is not convincing and there is a reasonable doubt, the benefit of such doubt is to be given to him. In an Appellate Court considerable weight has to be attached to the opinion of the trial Court which has recorded an opinion in favour of the accused. In view of these circumstances the accused is in a better position when an appeal is preferred by Government from his acquittal.
28. Before considering the principles which should underlie the disposal of an appeal from an acquittal it will be convenient to review briefly the cases of this Court on which reliance has been placed by Counsel. In Empress v. Gayadin 4 A. 148 : A.W.N. 1881 159, quoted above, Straight, J., in delivering the judgment of the Court remarked:
We are not prepared to say that, had it been our task to try them, as well as the persons who have been convicted, we might not nave taken a view of their conduct similar to that expressed by our late colleague Mr. Justice Spankie in his judgment in the appeal of Madari and the others. But it does not appear to us that this is quite the test to be applied in determining this appeal by Government from the acquittal of Gayadin and Binda. On the contrary, we think it would be an inaccurate and inappropriate one.
29. The learned Judge went on to say:
The powers given to the Local Government by s 272 of the Criminal Procedure Code are of an exceptional and unusual character; and while we fully recognise the necessity for their existence in this country, we are equally clear that they should be most sparingly enforced; and, in respect of pure decisions of fact, only in those cases where through the incompetence, stupidity or perversity of a subordinate tribunal such unreasonable or distorted conclusions have been drawn from the evidence as to produce a positive miscarriage of justice.
30. So far as this sentence goes it refers to the powers given to the Local Government by Section 272 of the Criminal Procedure Code of 1872, and the cases in which the Local Government should enforce such powers. It does not clearly refer to the power conferred on the High Court to interfere in appeal. The learned Judge then proceeded to remark:
It is not because a Judge or a Magistrate has taken a view of a cause in which Government does not coincide, and has acquitted accused persons that an appeal from his decision must necessarily prevail, or that this Court should be called upon to disturb the ordinary course of justice by putting in force the arbitrary powers conferred on it by Section 272.
31. It is possible that the learned Judge here again was referring to the power conferred on the Local Government and considered that the mere fact that the Local Government was of opinion that the view taken by the Magistrate was wrong did not make it incumbent upon the High Court to set aside that finding. But later passages in the judgment indicate that the learned Judge meant to apply the same principles to the interference by the Appellate Court in appeals from acquittals and considered that,
the doing so should be limited to those instances in which lower Court has so obstinately blundered and gone wrong as to produce a result mischievous at once to the administration of justice and to the interests of the public.
32. In that particular case the Bench, finding that the Sessions Judge had not 'so egregiously and foolishly erred in his conclusions,' did not feel bound either to convict the accused or to order a new trial. The Bench properly remarked that the learned Sessions Judge had the witnesses before him and consequently had the best opportunity of judging their truthfulness and he appeared to have conducted the enquiry with Care and patience and to have weighed and considered the facts to the best of his ability. It might be that the Bench might have arrived at a view other than that formed by him, but holding his decision to be an honest and not an unreasonable one, they unhesitatingly dismissed the appeal. It is not possible to quarrel with the conclusions of the learned Judge. The trouble has been caused by some of the observations made which indicated that there were only a few instances in which an Appellate Court can intervene.
33. With regard to this case it must be pointed out that the case arose under Act X of 1872 and the Bench had to consider the provisions of that Act. There was no provision therein similar to that contained in Section 418 of the present Code, where it is emphasised that an appeal lies on matters of fact as well as matters of law.
34. Gaya Din's case 4 A 148 : A W N 1881, 159. has been referred to in. a few subsequent cases including two Full Bench cases of this Court in Emperor v. Chhotu 9 A 52. and Empress v. Gobardhan 9 A 528. respectively.
35. In the first case, which was that of Queen-Empress v. Chhotu 9 A 52, the matter came up before the High Court on the revisional side and the Full Bench had to answer the question whether, when a Magistrate had discharged an accused person under Section 253, Criminal Procedure Code, the High Court or Court of Session, under Section 437, had jurisdiction to direct further enquiry on the same materials. The power to interfere on the revisional side was discretionary, and it is also clear that in case of discharge the Magistrate ordinarily considers the evidence produced on behalf of the prosecution so flimsy and inconclusive as not to necessitate the framing of a charge or the calling upon the accused to enter on his defence, It was in connection with the provisions of that section that the Full Bench remarked at the end that the discretion of the court should be regulated under the circumstances mentioned in Gaya Din's case 4 A 148 : A W N 1881, 159. We do not think that this Full Bench case can be said to have confirmed the observations made by Straight, J., in an earlier case with regard to appeals from, acquittals.
36. The second Full Bench is that of Queen-Empress v. Gobardhan 9 A 528. Sir John Edge, C. J. at p. 556 pointed out that he had in a previous case expressed his approval of the principle enunciated in Gaya Din's case 4 A 148 : A W N 1881, 159. but he did not think that case applied to the case before him. The learned Chief Justice did not quote the exact observation made in Gaya Din's case 4 A 148 : A W N 1881, 159. At any rate, he did, not consider that that observation was applicable to the case before him. No doubt Brodhurst, J., at p. 572 after quoting that
the doing SO should be limited to those instances in which the lower Court has so obstinately blundered and gone wrong as to produce a result mischievous at ones to the administration of justice and the interest of the public,
37. held that in that particular case he did not think that it could be possibly said that 'the Sessions Judge had so obstinately blundered and gone wrong.' The learned Judge did not cite with approval the other passage quoted by us from the judgment in Gaya Din's case 4 A 148 : A W N 1881, 159. On the other hand, Straight, J., who had delivered the judgment in Gaya Din's case 4 A 148 : A W N 1881, 159. remarked at p. 574:
I can only say that when I made the observations I did on that occasion, I could not expect that they would be exhaustive of every possible condition or state of things that might arise, and I certainly had not present to my mind a case like that before me, in which as I shall by and by have to point out, the Sessions Judge has overlooked the main and crucial circumstance which goes to corroborate the evidence of the accomplice, namely, the disappearance of Gobardhan from his village contemporaneously with the undoubted murder of Nehal Singh. Under such circumstanuces I confess I cannot feel that I am in any way departing from, or doing violence to the principle laid' down in Empress v. Gaya Din 4 A 148 : A W N 1881, 159. by entertaining this appeal and determining one way or the other as to the guilt of the respondents
38. It is therefore obvious that the learned Judge himself thought that the list of instances in which the Appellate Court could interfere as given in Gaya Din's case 4 A 148 : A W N 1881, 159. was by no means exhaustive and that he did not think that he was in any way departing from the principle laid down therein if he interfered in a case where the Sessions Court had overlooked what be considered to be a main and crucial circumstance, namely, the disappearance of accused from the village which was corroborative of the evidence of the accomplice. In view of this expression of opinion we can only say that the use of the word 'only' on p. 149 in Gaya Din's case 4 A 148 : A W N 1881, 159. was very unfortunate as it was certainly not intended by the learned Judge to confine the interference in appeal to cases enumerated in that judgment. The admission that the list is not exhaustive removes the restriction which has been considered to have been placed by that judgment on the power of the Appellate Court to interfere. Gaya Din's case 4 A 148 : A W N 1881, 159. was followed by Tyrell and Blair, JJ., in Empress v. Robinson 16 A 212 : A W N 1901, 49. Tyrell, J., being one of the learned Judges who had decided Gaya Din's case 4 A 148 : A W N 1881, 159. The observations were quoted on p. 214 and it was considered that they had been satisfactorily laid down. But in that particular case the Bench came to the conclusion that the decision of the Sessions Judge was an honest and not an unreasonable one of which the facts were susceptible. It is therefore not surprising that they rejected the appeal preferred on behalf of Government.
39. We next come to a string of cases in which the view expressed in Gaya Din's case 4 A 148 : A W N 1881, 159. has been departed from to a very considerable extent. In Empress v. Pragdat 20 A 459 : A W N 1898, 117. Sir Louis Kershaw, C. J, and Mr. Justice Knox at p. 46 quoted the observation made in Gaya Din's case 4 A 148 : A W N 1881, 159. without commenting on it and then on p. 464 they pointed out that:
With reference to the contention based upon Gaya Din's case 4 A 148 : A W N 1881, 159. it must not be forgotten that the learned Chief Justice and Mr. Justice Straight in Empress v. Gobardhan 9 A 528. did not consider that they were departing from and doing violence to the principle laid down in the case and did, set aside an order of acquittal where they were satisfied that the Sessions Judge had overlooked important circumstances. Indeed it is not easy to see any, distinction in the Criminal Procedure Code between a right of appeal against an acquittal and a right of Appeal against a conviction. In both cases the appellant has to satisfy us that there does exist some good and strong ground apparent upon the record for interfering with the deliberate determination by a judge who has had all the evidence before him and has arrived at the determination with that great advantage in his favour.
40. Being satisfied upon the evidence that all the accused had committed the offence, they felt no hesitation in convicting them. This case was followed by Knox, A. J. C. and Banerjee, J. in Queen-Empress v. Tinmal 21 A 122 : A W N 1898, 208.
41. In Emperor v. Ghure 22 Ind Cas 984 : 36 A 168 : 12 A L J 231 : 15 Cr. L J 200, Richards, C. J., and Knox, J., when considering the argument on behalf of the accused, that they ought to follow the ruling in Empress v. Robinson 16 A 212 : A W N 1901, 49, which had followed the earlier ruling in Gaya Din's case 4 A 148 : A W N 1881, 159. observed:
In our opinion the law is correctly laid down in the case of Empress v. Prag Dat 20FN A 459 : A W N 1898, 117.
42. Following the law laid down in that case they proceeded to examine the evidence, and coming to the conclusion that the Judge had not erred in acquitting the accuse I they dismissed the appeal.
43. In Emperor v. Baldeo Koeri 133 Ind. Cas. 795 : (1931) A L J 1002 : L R 12 A 98 Cr : Ind. Rul. : AIR1931All712 . a Bench of this Court of which one of us was a member had to consider this point again. The Bench pointed out that the plain language of Section 423, Criminal Procedure Code, clearly indicates that the legislature never intended to recognise any difference between an appeal against a conviction and an appeal against an acquittal, although an appeal from the verdict of the jury stands upon a different basis. They then pointed out that:
In an appeal from an order of acquittal it ought to be remembered that there is always a presumption in favour of the innocence of the accused. The presumption very materially affects the question of onus which except within a limited range of cases lies upon the Crown; and where the finding of the subordinate tribunal is in favour of the accused the burden lies upon the prosecution to prove that the finding reached by the court below was not justified by the evidence. Where the evidence against the accused is too scanty or insufficient to support the charge, the finding of the court below cannnot be displaced. Again where the case is somewhere on the border line or very near it or it was possible for the court, upon the balance of probabilities, to hold a person guilty, or not guilty, the reversal of the order of acquittal is not only undesirable and inexpedient but is calculated to cause a miscarriage of justice. Where, however, the balance of evidence is distinctly against the accused or where material evidence has been misappreciated, overlooked or ignored, this Court is bound to step in as much in the interest of the administration of justice as of the public generally.
44. The learned Judges obviously intended the expression 'misappreciation of material evidence' to an overlooking and ignoring the real significance and importance of the material evidence.
45. By the words 'a distinct balance of evidence' They did not mean a mere balance of probabilities, but an overweighing evidence. We fully accept the view expressed in that case as quoted above. The Bench then went on to quote passages from the previous cases including cases of Gaya Din 4 A 148 : A W N 1881, 159, Gobardhan 9 A 528, Robinson 16 A 212 : A W N 1901, 49. and Timmal 21 A 122 : A W N 1898, 208. referred to above. Then the observation made in the last-mentioned case was quoted, namely:
The right vested in the Local Government is a right which should be exercised with care and caution, at the same time it should undoubtedly be exercised when the need for it is apparent.
46. and the learned Judge approved of what had been said above. We do not think that this case endorsed the view expressed in Gaya Din's case 4 A. 148 : A.W.N. 1881, 159. On the other hand, the learned Judge clearly pointed out that they would accept the observations with some variation and remarked:
If the lower Court has obviously blundered, we have a clear duty to interfere. It is not necessary that the lower Court should have obstinately blundered or erred in its conclusion egregiously or foolishly.
47. In the case of Emperor v. Autar : AIR1925All315 . Walsh, J., at p. 307 observed:
Taking a broad view of this matter, we need only say that an appeal by Government must be considered on its merits just as any other appeal always must be. The onus is on the appellant and this onus is all the heavier if the judgment appealed from is one which approaches the consideration of the question from a correct point of view and gives the accused the benefit of a reasonable doubt which exists in the mind of the Judge.
48. Lastly, in the case of Emperor v. Skeo Dayal : AIR1933All535 another Bench of this Court pointed out that Section 418 as amended by Act XVIII of 1923 provides for an appeal on a matter of fact where an acquittal is by a Judge trying the case with assessors and that no condition is imposed on this Court in an appeal of this nature. They remarked:
All that this Court has to see is whether the offence charged is proved against each of the accused persons and for this purpose this Court has to take the! definition of 'proved' given in the Indian Evidence Act.'
49. They referred to the cases of Gaya Din 4 A 148 : A.W.N 1881, 159. Robinson 16 A 528. an Prag Dat 20 A 459 : A.W.N 1898, 117. and quoted with approval a passage in the last-mentioned judgment to the effect that it is not easy to see any distinction in the Criminal Procedure Code between a right of appeal against an acquittal and a right of appeal against a conviction.
50. This is a brief survey of the case law so far as this Court is concerned. It is not necessary to examine the case of the other High Courts.
51. No doubt the trial court has an advantage over an Appellate Court inasmuch as it is able to see the witnesses, mark their demeanour and form a first-hand impression of their credibility. This is all the more so in criminal cases where the evidence mainly consists of oral evidence except the First Information Report, post mortem report or expert evidence. In cases of forgery and misappropriation there may however be considerable documentry evidence. On the other hand, in civil cases the evidence very often is both oral and documentary, and the Appellate Court is able to judge the oral evidence in relation to the documentary evidence. Where the evidence is purely oral the trial Court is in an advantageous position and its opinion as regards the credibility of the witnesses must be given due weight.
52. Further, there is a presumption of innocence in favour of an accused person and that presumption not only continues where he has been acquitted but considerably strengthened. It is also a well recognized principle of law that in case of doubt the benefit of doubt should be given to the accused person and as observed above, considerable weight has to be attached to the opinion of the court which heard the witnesses. In an appeal from an acquittal the accused starts with all these points in his favour and therefore there is no doubt that an Appellate Court would hesitate and feel great reluctance in interfering with the finding of the court below and coming to a different conclusion.
53. It is very difficult to lay down any hard and fast rule or to give an exhaustive list of all the circumstances in which an Appellate Court can interfere in an appeal from an acquittal. Cases may arise where the trial Court has obviously and clearly gone wrong, where it has overlooked important pieces of evidence or has attached undue importance to insignificant circumstances or has altogether ignored important and significant matters or has committed an irregularity in procedure. In all such cases an Appellate Court would be fully justified in interfering if after bearing in mind that there is a presumption in favour of the accused, that full weight should be attached to the opinion of the Judge who heard the witnesses and that the benefit of any doubt that there may be in the mind of the Appellate Court should be given to the accused, if the court is satisfied that the accused is guilty. If, bearing all these circumstances in mind, the Appellate Court is fully convinced that the trial Court has gone clearly wrong and that, without any question of doubt, the conclusion that the accused was not guilty is incorrect or erroneous, it would be the duty o the Appellate Court to intervene. We think that when an appeal is preferred by Government it is unnecessary to consider whether it was proper for the Government to prefer an appeal or not. It is the duty of the court to go into the facts and to form a definite and independent opinion on the facts, but it would not, of course, light-heartedly interfere unless satisfied that there has been a clear miscarriage of justice. If we were to confine the power of interference of an Appellate Court to only these cases where, through the incompetence, stupidity or perversity of the subordinate tribunal, such unreasonable and distorted conclusions have been drawn from the evidence as to produce a positive miscarriage of justice, the result would be that the provisions contained in Sections 417 and 423 would almost become a dead letter. In most cases courts are not incompetent, stupid or perverse, and ordinarily they do not draw Unreasonable and distorted conclusions.
54. That it is essential for an Appellate Court to attach great weight to the opinion of the trial Court is also apparent from the observations made by their Lordships of the Privy Council in a civil case in the Bombay Cotton . v. Raja Bahadur Moti Lal Shiv Lal 29 Ind. Cas. 229 : 19 C.W.N 617 at p. 620 : 17 M.L.T 108 : 28 M.L.J 593 : 21 C.LJ 528 : 17 Bom L.R 455 : 2 L.W 521 : 39 B 386 : (1915) M.W.N 783 : 42 1 A 110 (P.C). That observation must be quoted as it would certainly govern a criminal case as well:
It is doubtless true that on appeal, the whole case, including the facts, are within the jurisdiction of the Appeal Court. But generally speaking it is undesirable to interfere with the findings of fact of the trial Judge who sees and hears the witnesses and has an opportunity of noting their demeanour, specially in cases where the issue is simple and depends on the credit which attached to one or other of the conflicting witnesses. Nor should his pronouncement with respect to their credibility be set aside on a mere calculation of probabilities by the court below. In making these observations their Lordships have no desire to restrict the discretion of the Appellate courts in India in the consideration of evidence. They only wish to point out that where the issue is simple and straightforward and the only question is which set of witnesses is to be believed, the verdict of a Judge trying the accused should not be lightly disregarded.
55. These observations made by their Lordships are in our opinion directly in point. Where, of course, two views are possible and each view is reasonable on the evidence and the learned Sessions Judge has taken, one view, then even if the Appellate Court, had it been sitting as a trial judge, would have taken the other view, it should not ordinarily interfere, unless it be shown that there was some irregularity in procedure or that there had been some other serious defeat which necessitates a reexamination of the entire evidence and a fresh conclusion. But even this is a mere rule of caution and sound practice, and not any rule of law.
56. As remarked above, it is not possible, to lay down any exhaustive list of the conditions which would justify interference with the order of acquittal passed by a lower Court.
57. Our answer to the first question is that if the Appellate Court, after bearing in mind that there is the 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 has to be attached to its view, is nevertheless fully convinced that the conclusion of the trial Court was clearly wrong and its conclusion was contrary to the weight of the evidence, it would be fully justified in setting aside the order of acquittal.
58. As regards the second question, we think that the answer to the first question covers this question as well. The mere fact that it is not possible to hold that the lower Court has been incompetent, stupid or. perverse or has come to an unreasonable and distorted conclusion or has obstinately blundered would not be sufficient to prevent the Appellate Court from allowing an appeal against an acquittal if it were fully convinced that the court below has been misled by the extremely clever nature of some false defence supported by a forged document.