R.N. Misra, J.
1. This revision application under Section 439 Cr. P. C. is directed against the judgment of acquittal in a sessions trial by which the learned Sessions Judge of Bolangir-Kalahandi acquitted the opposite party of an offence punishable under Section 302 I. P. C. The informant is the petitioner. In spite of notice the opposite party has not entered appearance.
2. There were some litigations pending between Harischandra Pradhan (deceased) and the opposite Party over unauthorised cultivation of Gochar lands by the opposite party. The deceased and the opposite party belonged to two different but neighbouring villages. The opposite party is a washerman by profession. On 26-8-68. the opposite party had come to the village of the deceased to the house of one Danara Biswal. At that time P. W. 7 Barbu. a nephew of the deceased, was returning from his field. Near the house of Danara, P. W. 7 and the accused met each other. The accused accosted by questioning P. W. 7 as to why he had impounded the cattle of his (the opp. party). There was some altercation going on when the deceased uncle of P. W. 7, and the mother of the deceased (PW. 8) came to the spot and intervened. The accused threw down the bundle of paddy and with an axe gave a blow on the head of the deceased. He fell down and succumbed to the injury soon thereafter. From medical evidence it transpired that his parietal and occipital bones of the skull were fractured and the brain got ruptured and lacerated.
The accused ran away to his village. The petitioner gave information at the nearby outpost. P. W. 12. the A. S. I. of police who was in charge of the outpost rushed to the spot and found Hartschandra the victim to have already died. In due course the accused was charge-sheeted for an offence punishable under Section 302 I. P. C.
The accused was arrested on the same day. An injury on his head was found and upon his report a case was registered against P. W. 7 and another. But during investigation no evidence to support the allegation was found and, therefore, that matter ended in a final report. No protest was raised and the matter ultimately got finality.
13 witnesses in all were examined for the prosecution including 4 eye-witnesses. P. W. 7 the nephew of the deceased, P. W. 8 the mother of the deceased, and P. Ws. 9 and 10 two outsiders figured as eye-witnesses to the occurrence. Besides these four, the informant P. W. 1 who is the elder brother of the deceased, P. W. 2 the Doctor who held the postmortem examination. P. W. 3 the Revenue Inspector who prepared the spot map, P. W. 4 the Sarpanch who came to prove the earlier litigation between the parties, P. Ws. 5 and 6 who were seizure witnesses. P. W. 11 who was a witness to the inquest and P. Ws. 12 and 13 who were the Investigating Officers were examined by the prosecution.
3. The learned Sessions Judge by his judgment dated 12-12-69 in Sessions Trial No. 10-K of 1969 acquitted the opposite party. The main grounds advanced by him in support of the conclusion of acquittal may be summarised thus:
(1) P. W. 7 is inimical to the accused and suppressed the incident regarding the injury on the accused; P. W. 8 made conflicting statements and seemed to belong to the opposite camp. P. Ws, 9 and 10 were found to be guilty of suppressing the truth.
(2) The prosecution had suppressed the injury on the accused and offered no explanation for it.
(3) the accused was entitled to the benefit of the right of private defence and it cannot be said that he had exceeded that right when he caused the death of the deceased.
(4) The counter case should have been committed to the court of session and should have been tried along with this case so that the truth of the matter would have come out.
(5) The prosecution was guilty of laches in not examining the Doctor who had examined the accused in respect of his injuries.
(6) No independent witness appeared to have come up to support the prosecution story of the accused dealing the fatal blow to the deceased without provocation and without apprehension of his life.
Many other comments were made indicating deficiencies in the prosecution case.
4. It is contended that the judgment of the learned Sessions Judge is vitiated in law. The Court has also failed to take into consideration the material evidence on record. It has drawn inferences which were not. at all warranted and it has proceeded on wrong premises both of fact and law and has landed itself in utter confusion.
5. I shall proceed to discuss the infirmities both of fact and law in the judgment of the learned Sessions Judge
(a) In paragraph 2 of the judgment the learned Sessions Judge has stated.
It is in evidence that the accused at or before the time of incident received serious head injury so much so that when the I. O. went for investigation after F. I. R. found the accused almost unconscious and brought him to the spot in a Khatia and there is evidence on the side of P. Ws. that he was also not able to talk.There is no evidence that the accused received the injury on his head at the time of the incident which was the subject matter of trial. That is why the learned Sessions Judge has put it in his judgment as 'at or before the time of incident'. It is also not correct that the accused was found unconscious and that he was not able to talk. P. W. 12 the I. 0. has clearly stated.
In the night of incident I went to accused's house. His head was bleeding He was able to talk. I brought him to the spot in a Khatia.Thus the statement of the learned Sessions Judge is clearly contrary to the evidence. The accused was conscious and he was able to talk at the relevant point of time.
(b) Exts. A and B are the certificates in support of the injury on the accused. They would go to show that the accused was admitted into the hospital on 27-8-68 and was discharged on 3-9-68. His total stay at the hospital was 7 or 8 days. The learned Sessions Judge has not indicated, for reasons best known to him. the period of total stay in the hospital which was available to be drawn from these two documents and which would have given, an impression regarding the gravity of the injury the accused sustained.
(c) The learned Sessions Judge observes.
No independent witness appeared to have come up to support the prosecution story of accused dealing the fatal blow to the deceased without provocation and without apprehension of his life, so as to eliminate chance of right of private defence.This statement is wrong. There are four eye-witnesses P. Ws. 7, 8. 9 and 10, As already indicated. P. W. 7 is the nephew and P. W. 8 the mother of the deceased. P. Ws. 9 and 10 are outsiders. P. W. 7 has clearly supported the case of the prosecution. P. W. 8 has stated.
My grand daughter informed about the quarrel between the accused and P. W. 7. my grandson. I and my son Harischandra. the deceased, came. Danar, Niran, Baikuntha, Barbu were there along with others. Seeing my son. the deceased. accused put down the bundle of paddy and struck him with an axe. My son fell down.P. W. 9 has stated,
I had been to the land of Basu in the morning with plough. In the afternoon I came to him for my wages. Basu asked me to call his ploughman called Bhitek Goud. I saw Harischandra. the deceased, and his mother going near the village lane. Harischandra asked accused as to why he was quarrelling with his nephew. Then accused brought out the tangia. from his shoulder and struck the deceased on the head. Harischandra fell down, accused fled.P. W. 10 who is a Gram Rakshi stated.
I had gone to the house of Nata Nariha for purchasing fowl. On my way back I saw near the cowshed of Danar Biswal accused and Babru quarrelling. I separated them. Thereafter Harischandra came. He asked accused as to why he was quarrelling. His mother also came with him. Accused assaulted Harischandra with a tantia on the head.In view of this state of evidence it is indeed difficult to understand as to how the learned trial Judge stated in the manner he did and which has been extracted above.
The comment of the learned Sessions Judge that P. Ws. 9 and 10 were guilty of suppression of truth and. therefore, should be discarded seems to be based entirely on his own surmises. He has also not indicated in clear terms as to what truth they suspressed. The material portion of the comment in his own words may now be extracted:
P. W. 9 who supports the prosecution story admits that there were two factions in the village, one is led by Danar Biswal. and another by the deceased party but he denies to be belonging to the prosecution party. He also suppresses truth to say that he did not see injury on the head of the accused. His statement to I. O. and in committing court that she and the P. W. 8 snatched away the tangia is contradicted by him P. W. 10 who is the Gram Rakshi has stated in 164 statement that the deceased first of all came and went from the spot and again came with a tangia to the spot which he denies here and which is in the line suggested by the defence. He too suppresses injury on the accused, when he says that he has not seen the injury but he admits that there was injury on the body of the accused as well as on the head when police brought him in Khatia.The view taken by the learned Sessions Judge seems to be wholly unwarranted. It has not been established that the injury on the head of the accused was caused during the incident, nor is it established that the injury was in existence when the incident took place. In the absence of positive evidence to establish that fact and in absence of a clear finding that the fact was so. the evidence of these two witnesses could not be brushed away by saying that they had suppressed the truth namely, the existence of the injury on the head of the accused. By the mere suggestion to P. W. 9 that he belonged to the party of the deceased which fact the witness denied. P. W. 9 cannot be branded as a partisan witness. It would thus follow that there are two independent witnesses who had come clearly to support the prosecution case and there was no justification for the learned Sessions Judge to come to the conclusion that there were no independent witnesses who appeared to support the prosecution case.
(d) The learned Sessions Judge assumed the existence of right of private defence for the accused. The accused in his examination under section 342 Cr. P. C. before the trial court clearly denied any knowledge of the incident. The suggestion made in cross-examination to some of the prosecution witnesses to show that Harischandra the deceased was not armed. P. W. 7 had a spade and he assaulted the accused with that spade at the instance of the deceased. Topi who is a brother of P. W. 7 is said to have assaulted the accused with a stick.
The learned Sessions Judge has found the right of private defence of person in this case. That right is available against the person or persons from whom imminent danger to life is apprehended. Even if the defence as understood by the learned Sessions Judge is true, the right would be available only against the assailant, that is, either P. W. 7 or his brother Topi and not against Harischandra the deceased who admittedly was unarmed. This aspect of the matter has been completely lost Bight of by the learned Sessions Judge.
Ordinarily the burden to establish the right of private defence is on the defence. It is true and the law is settled that the benefit of the right of private defence can be extended to the accused if the materials on record justify it even though the defence as stated by accused is one of denial. The materials on record in this case, however have not laid the foundation for such a right and in the circumstances the learned Sessions Judge had no basis for his conclusion.
(e) The learned Sessions Judge has accepted the statement under section 164 Cr. P. C. as also statements of witnesses during investigation as substantive evidence. He has stated.
This previous statement of this witness (P. W. 10) to the I. O. shows that there is truth in defence suggestion that when accused was attacked by the son and father (the deceased is the uncle and the witness is the nephew) was ready with a tangia. accused out of fear of loss of life, as he received a head injury with spade, snatched away the tangia from the deceased who was goading the son (nephew) to finish the accused and dealt him the fatal blow.There is absolutely no evidence on record admissible in law to support this part of the judgment. The learned Sessions Judge obviously accepted the previous statement of the witness during investigation as substantive evidence. This statement was inadmissible in law. It 's well settled that the statements during the investigation are only meant for contradiction.
(f) The ultimate reasoning of the learned Sessions Judge is the following:It is seen that accused had been attacked by the prosecution party and had received head injury with a spade and it is in the evidence of the P. Ws, that the head of the accused was bleeding and he was not able to talk when police came and brought him in a Khatia. (fallacy already indicated). It is also borne out by the Exts. A and B that he was treated in the hospital and I may observe that prosecution ought to have examined the doctor who examined the accused to find out the extent of injury to the head of the accused for a proper appreciation of this aspect of the right of private defence (for which no foundation is laid) and whether accused had committed excess but as it appears from the record, there was severe head injury to the accused and there was also apprehension to his life and it is also in evidence that accused did not come armed with the tangia and he simply picked it up and the defence suggestion that he took away the tangia of the deceased is to some extent borne by the evidence of P. W. 10 who deposed as such and in that light before the I, O. (not admissible), There being apprehension to his life after receiving the severe head injury (conclusion not based upon evidence) it cannot be denied that accused had the right of private defence to prevent his death by causing another death and it is also in evidence that the prosecution party was the aggressor (absolutely no evidence) and have caused severe injury to the accused. Moreover, accused is a stranger to this village and is a poor washerman with whom the prosecution party had litigation and there was hostility and in such circumstance when both met in the village of the prosecution party and accused was attacked and that too severely, (no evidence) it cannot be said that he exceeded the right of private defence of person when he snatched away the tangia from one of them and caused the fatal blow. In this view of the matter and some amount of suppression by prosecution not examining the doctor, (was not the duty of the prosecution) I would hold that accused cannot be held guilty of the charges levelled against him for murdering the deceased. in the circumstances of the case.
(The comments within brackets are mine).
6. The question that remains to be examined now is whether on these grounds interference against the judgment of acquittal in revision at the instance of the informant should be made. The scope of such revision and the jurisdiction of this Court under Section 439 Criminal P. C. in regard to such a matter were indicated at length by their Lordships of the Supreme Court in : 3SCR412 . Chinnaswamy Reddy v. State of Andhra Pradesh. The facts of that case would show that there was an acquittal by the Sessions Judge and upon revision to the High Court of Andhra Pradesh the acquittal was set aside and a retrial was ordered. The accused had been ordered to be retried had gone up in appeal before the Supreme Court. Their Lordships laid down,
It is true that it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties, though the State may not have thought fit to appeal; but this jurisdiction should in our opinion be exercised by the High Court only in exceptional cases, when there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice. Sub-section (4) of Section 439 forbids a High Court from converting a finding of acquittal into one of conviction and that makes it all the more incumbent on the High Court to see that it does not convert the finding of acquittal into one of conviction by the indirect method of ordering retrial when it cannot itself directly convert a finding of acquittal into a finding of conviction. This places limitations on the power of the High Court to set aside a finding of acquittal in revision and it is only in exceptional cases that this power should be exercised. It is not possible to lay down the criteria for determining such exceptional cases which would cover all contingencies. We may however indicate some cases of this kind, which would in our opinion justify the High Court in interfering with a finding of acquittal in revision. These cases may be : where the trial court has no jurisdiction to try the case but has still acquitted the accused or where the trial court has wrongly shut cut evidence which the prosecution wished to produce, or where the appeal court has wrongly held evidence which was admitted by the trial court to be inadmissible, or where material evidence has been overlooked either by the trial court or by the appeal court, or where the acquittal is based on a compounding of the offence, which is invalid under the law. These and other cases of similar nature can properly be held to be cases of exceptional nature, where the High Court can justifiably interfere with an order of acquittal and in such a case it is obvious that it cannot be said that the High Court was doing indirectly what it could not do directly in view of the provisions of section 439 (4).
This view of their Lordships of the Supreme Court has received clear approval in a later case in : 1SCR880 Khetra Basi Samal v. Orissa State a matter which went from this Court in appeal.
7. In the facts of the present case I am satisfied that the learned Sessions Judge committed serious illegalities and omitted to consider the evidence which was before the Court and came to con elusions based upon inadmissible evidence. The Judgment is contrary to the facts on record as also the law to be applied. It is surprising that a senior Sessions Judge conducted himself in such a curious way which led to grave miscarriage of justice.
8. There is no doubt that only in exceptional cases interference against acquittal in a revision is permitted. The emphasis laid on this aspect of the matter by their Lordships of the Supreme Court in the decision referred to above cannot be overlooked but as their Lordships have themselves stated there may be exceptional cases where in spite of the bar under Section 439 (4) Cr. P. C. need may arise for interference against acquittal. For the reasons already indicated by me I am led to hold that this is one of such exceptional cases where the acquittal has to be set aside in the interests of justice.
9. As indicated in the decision in 1962 by their Lordships of the Supreme Court two contingencies arise in such cases (when the acquittal is set aside) as to the nature of the order to be passed. In the first place there may be acquittal by the trial Court. In such a case if the High Court is justified on principles enunciated above, to interfere with the order of acquittal in revision the only course open is to set aside the acquittal and send the case back to the trial court for retrial. But there may be another type of case, namely, where the trial court has convicted the accused while the appellate court has acquitted him. In such a case, if the conclusion of the High Court is that the order of the appeal court must be set aside the question arises whether the appeal court should be ordered to rehear the appeal after admitting the statement it had ruled out or whether there should necessarily be retrial. To the facts of the present case the first aspect applies. As the law stands a retrial becomes necessary.
10. I would accordingly allow the revision set aside the judgment of acquittal and direct that Sessions Case No. 10 K of 1969 shall be retried by the learned Sessions Judge. I would call upon the learned Trial Judge to post this case for trial with utmost expedition because delay in holding the trial might bring in many complications, such as loss of evidence, interference with witnesses, etc.