A. Misra, J.
1. The petitioner has been convicted under Section 436, I.P.C. and sentenced to undergo rigorous imprisonment for three years.
2. The prosecution case, in short, is that a few days before the date of occurrence during the course of a quarrel between the petitioner on the one hand and P. Ws. 1 and 4 on the other, the former had threatened to burn the latter's house. It is alleged that on the morning of 20.4.68 when P. W. 1 was absent from home, petitioner pet fire to the roof of the outer bari room of P. W. l's house. hearing the hulla raised by P. W. 2, who claims to have witnessed the action of petitioner, people gathered and extinguished the fire, the only damage having occurred being the burning of the roof to the extent of 3 X 2 cubits. On return home, P. W. 1 being informed about the occurrence proceeded to the P. S. and lodged the F.I.R. After investigation, police submitted a final report, but on a protest petition, the learned Magistrate called upon the police to submit a Chargesheet, and on filing of the game, took cognizance. Petitioner in defence denied the occurrence and his having had taken part in causing any such fire. An alternative defence of unsoundness of mind of the petitioner was also taken.
8. The learned Assistant Sessions Judge, who tried the case, on a consideration of the evidence, found that petitioner on the date and at the time of occurrence committed mischief by fire to the residential house of P. W. 1. He farther found that defence failed to establish that the unsoundnees of mind of petitioner was of such a degree and nature that he was incapable of knowing that the act which he committed was either wrong or contrary to law. On these findings, he convicted and sentenced the petitioner, as stated above. On appeal, the learned Sessions Judge rejected the plea of unsoundness of mind in toto and confirmed the conviction and sentence of the petitioner.
4. learned Counsel for petitioner has not pressed the plea of unsoundness of mind which was one of the defences taken in the courts below. He has confined his challenge to the conviction and sentence mainly on two grounds. Firstly, it is contended by him that once a final report after completion of investigation was submitted by the investigating officer, the learned Magistrate bad no jurisdiction to call for a chargesheet. Therefore, the whole trial is vitiated and on this ground alone, petitioner is entitled to an acquittal. Secondly, it is argued by him that P. W. 2, the only witness on whose evidence prosecution depends to connect the petitioner with the alleged' occurrence, is unworthy of credit judged by any standards and the Courts below have committed errors of record, while dealing with his evidence. If his evidence is rejected, it is argued there is nothing else to connect the petitioner with the occurrence. learned Counsel appearing for the State, on the other hand, contends that whatever illegality might have occurred in calling for a chargesheet, it is not open to petitioner now to rely on it and challenge the findings of the Courts below based on evidence adduced during trial. Secondly, it is argued that in a revision, it is not open to re-assess or make a reappraisal of the evidence or consider the credibility or otherwise of any particular witness.
5. learned Counsel for petitioner in support of his first ground places reliance on the decision of the Supreme Court reported is : 1968CriLJ97 , Abhinandan Jha v. Dinesh Mishra. The question which arose for decision there was whether the Magistrate was competent to call upon the police to submit a. chargesheet after they had seat a report under Section 169, Criminal P.C. Their Lordships expressed the principle of law as follows:
There is no power, expressly or impliedly conferred, under the Code, on a Magistrate to call upon the police to submit a charge-sheet, when they have sent a report under Section 169 of the Code, that there is no case made out for sending up an accused for trial.
learned Counsel for the State, while not; disputing the above principle of law, contends that the order of the learned Magistrate calling for a chargesheet after submission of the report under Section 169, Criminal P.C. was no doubt, open to challenge. In the present case, however, he contends that the trial of petitioner and his conviction resulting on such trial on the basis of evidence adduced before the Court cannot be vitiated simply on the ground that some illegality or irregularity had occurred at a stage before cognizance was taken. In support of this argument, he places reliance on the following observations of the Supreme Court in the decision reported in AIR 1968 SC 1292, Sailendranath v. State of Bihar.
An illegality committed in the course of an investigation does not affect the competence-and jurisdiction of the Court for trial and where cognizance of the case has in fact been taken and the cage has proceeded to termination, the invalidity of the preceding investigation does not vitiate the result unless the miscarriage of justice has been caused thereby.
In the present case, it has not been pointed out by learned Counsel for petitioner that miscarriage of justice has occurred in the course of trial as a result of learned Magistrate's order in calling for a chargesheet. Therefore, even though an illegality was committed by the learned Magistrate in calling for a chargesheet after the police submitted a final report, in the absence of proof of miscarriage of justice thereby, in my opinion, neither the trial nor the result of the trial is vitiated when the case was tried by a Court competent to try and proceeded to termination.
6. The second ground urged on behalf of petitioner is that P. W. 2, the only witness on whom prosecution relies to connect petitioner with the occurrence, is unvorthy of credit judged by any standards, and if his evidence is rejected, there is no other material to prove that petitioner was the author of the tire or in any other way responsible for it. learned Counsel for the State contends that in a revision, the High Court should not interfere on a question of fact, and as such, ought not to re-embark on a re-appraisal of the evidence or consider the credibility of any witness or witnesses. It is no doubt true that ordinarily the revisional Court does not interfere with the findings of fact on grounds of improper appreciation of evidence or credibility of witnesses. It cannot, however, be said that the power of the High Court in revision is limited to questions of law alone. In special and exceptional circumstances, the Court, in exercise of its revisional powers, is entitled to go into questions of fact where acceptance of the opinion of the Courts below is likely to lead to miscarriage of justice or where the conscience of the Court is satisfied in the broad interest of justice that the conviction is not sustainable. So also, where the lower appellate Court simply endorses a finding of fact of the trial Court without applying its mind and testing it by fundamental principles relating to appreciation of evidence, it justifies interference in revision by going into the evidence.
7. It is not disputed that in the present case, the only eye-witness, who claims to have seen the petitioner setting fire to the house, is P. W. 2. The credibility of this witness has been challenged firstly on the ground that he is interested in P. W. 1 and adversely disposed towards petitioner, and secondly, his inconsistent statements in the witness box show that he could not have been an eye-witness to the occurrence. P. W. 2 admittedly is an agitation relation of P. W. 1. though he has also relationship with the father-in-law of petitioner. P. W. 2 also admits that he hag 4 or 5 coconut trees on the boundary between his site and the site of petitioner who claimed one of those trees to be his, The suggestion of petitioner is that there had been some ill-will and dispute between them regarding these cocoanut trees. It is also in evidence that petitioner gave a stroke with shoe to Udayanath Hota, uncle of P. W 2 when they entered the house of petitioner on the date of occurrence. Thus, the evidence of P. W. 2 cannot be considered unbiased or disinterested, a fact not specifically taken note of by the courts below.
8. Coming to the actual date of occurrence, P. W. 2 claims to have witnessed the act of petitioner in setting fire to the roof of P. W. 1. At the time of occurrence, there was no difficulty about visibility and P. W. 2 claims to have seen it from a very short distance. This being so, it is not reasonable to expect that P. W. 2 would falter or get confused in describing what he actually saw about the manner in which the roof is said to have been set on fire. A perusal of his evidence shows that at different stages he has given different statements about the manner in which petitioner is said to have set fire to the roof. In his chief, he described the manner of setting fire as follows:
The accused came to the back house of P. W. 1 from the accused's house and with the help of a match stick caused fire to the back house of the accused to the south-east corner of the roof.
If this is correct, petitioner set fire to the roof of his own house which might have spread to P. W. l's house. This is not the prosecution case nor have the courts below taken note of this aspect. In cross-examination, he changed the manner in which petitioner is said to have set fire by eying that accused eat fire to a bundle of straw with a burnt stick and pushed that burnt stick to the roof of the house of P, W. 1. Further down in cross-examination, he again changed this version and stated that petitioner first pushed a bundle of straw to the roof of the house and then caused fire to this bundle with a burnt stick. No attempt was made by the prosecution to get these apparent contradictions reconciled by way of re-examination. The courts below, while being conscious of these inconsistencies in the evidence about the manner of setting fire, have ignored the same by saying that the manner of putting questions to the witness appears to have confused him and these inconsistencies are due to such confusion. P. W. 2 is not describing many incidents or numerous acts of petitioner which be claims to have seen, to give scope for confusion. The only fact which he is deposing to, relates to the manner in which petitioner is said to have set fire to the house. The appellate court without applying its mind to judge the evidence independently has simply endorsed the finding of the trial court. The courts below, apart from this evidence, have sought to rely upon certain corroboration in support of it offered in evidence. One circumstance which is said to corroborate P. W. 2's evidence is that two days prior to the date of occurrence petitioner had threatened P. W. 1 and his mother(P. W. 4) during the course of a quarrel to set fire to their house, in the presence of P. Ws. 2 and 5. P. Ws. 2 and 5 do not support this version. The second item of corroboration is the evidence of P. W. 8, who says that be saw petitioner running away towards his house after the hulla about the fire was made. P. W. 3 has stated that while he was going to the house of P. 'W. 1, he saw petitioner running at a distance of about 10 cubits from the direction of the burnt house towards his house. In his cross-examination, he says that he saw petitioner for the first time in the bari of P. W. 2. So, his statement that he saw petitioner running away from the burnt house which belonged to P. W. 1 is only a surmise. It will not be safe to rely on the surmise of P. W. 8 as a corroborating factor against the petitioner. Thus, the evidence of P. W. 2, judged from any point of view, is unworthy of credit and the so-called corroboration relied upon hardly lends support to the prosecution case that petitioner set fire to the house of P. W. 1. In this state of evidence, the conviction of petitioner on the finding that he set fire to the house of P. W. 1 appears to be based more on surmises and suspicion than on proof. Hence, such a conviction cannot be sustained.
9. In the result, the revision is allowed, the conviction and sentence of the petitioner are set aside and he is acquitted of the charge.