1. This is an appeal brought by the State against an order of acquittal passed by Sessions Judge, Sardari Lal Madhok dated 13-5-1952.
2. The facts of the case arc that there was an allegation of enmity between the family of Behari Lal and Chaggar Singh deceased. About fifteen years ago there was rape case against Pohu Lal, the father of Behari Lal, and Chaggar Singh deceased is alleged to have appeared as a witness for the prosecution. It is also alleged by the prosecution that in 1950 Tulsa Singh, a brother of the accused & another were arrested under Sections 109 and -151, -Criminal P. C., because there was an allegation against them that they wanted to commit an offence, to wit, the murder of Chaggar Singh. A third matter has also been brought in, although it was not in the first information report, that Behari Lal and his father are smugglers and they suspected that Chaggar Singh was complaining to the police against them.
3. At 5p.m. on 23-8-1951, in village Dhull Kohna where the complainant's party and the accused reside, Chaggar Singh deceased was coming back from the Gurdwara after having had a bath-there. ' Behari Lal accused came from the opposite side, passed Chaggar Singh and then turned back and suddenly attacked Chaggar Singh with a spear causing him two injuries, one in the abdomen and the other on the left thigh as a result of which Chaggar Singh fell down and Behari Lal, the assailant, ran away throwing the spear at the place. It is also stated that he then took out a bomb from his pocket and threw it at the spot, but the bomb did not burst.
4. The first Information report was lodged at. 7 p. m. by Balba- Singh, a son of the deceased, at the police station at a distance of five miles. In this first information report the name of the assailant is given, the fact that the assault was with a spear is also given and also the throwing of the bomb is mentioned. There is one significant fact that is mentioned and that is that Chaggar Singh fell down in the street with his back downwards.
5. The witnesses of the occurrence are three, (1) Balbir Singh P. W. 3, the son who was coming behind his father, (2) Dial Singh P. W. 4, a collateral in the fourth degree and (3) Trilok Singh P. W. 5, who is also a collateral in the fourth degree. They no doubt support the prosecution version. Besides the evidence of these persons there is the evidence of Jethu Chowkidar P. W. 6 who states that he heard the alarm and then came to the spot. There- he found Chaggar Singh lying on a cot near the 'haveli' of Dial singh. Although he has stated that all the three witnesses, Balbir Singh, Dial Singh and Trilok Singh told him that the accused Behari Lal had committed the murder, he did not make this statement in the Court of the Committing Magistrate, and his explanation is that he was never asked about it. There is a fifth witness also, Khushal Singh, who states that after he had learnt that Chaggar Singh had been killed, - in Court he says after he learnt that Chaggar Singh had been murdered by Behari Lal accused, - he went to the spot and found that the body of Chaggar singh was being taken to the house of Chaggar Singh by Balbir Singh, Trilok Singh and Dial Singh and there they told him that Behari Lal had murdered Chaggar Singh and had run away. I may state here that the statements that he learnt that Chaggar singh had been murdered by Behari Lal or that he was, told by the various witnesses that Behari Lal accused had mur-dered Chaggar Singh and had run away are inad-missible in evidence because they do not form part of 'res gestae'.
6. The learned Judge who tried the case and who had occasion to see the witnesses and their demeanour and heard, the evidence was not satisfied with the evidence because (1> that although the murder took place in a street of the village, nobody but Dial Singh, Trilok Singh and Balbir Singh saw the occurrence, (2) that there is no explanation as to why there was no blood at the spot and (3) that nobody else excepting Jethu Chowkidar saw Chaggar Singh lying at the spot and even Jethu did not say this in the Committing Magistrate's Court. The learned Judge was not satisfied, that the occurrence' actually took place near the 'haveli' of Dial Singh and he also remarked that although Assistant Sub-Inspector Hassan Lal interrogated Teja Singh, Ujagar Singh and Bhagat Singh, he did not think it necessary to record their statements in the police zimins & he did not interrogate the other neighbours Mohin-der Singh and Mangtu Sansl. For these reasons the learned Judge held the case to be not proved and acquitted Behari Lal. The State has come up in appeal to this Court.
7. We have heard Mr. Har Parshad who has taken us through the evidence and has submitted that the learned Judge was in error in rejecting the testimony of the eye-witnesses on almost conjectural grounds. The evidence shows that although two injuries were caused 'and one of the questions which had been raised by the defence was that there was no blood at the spot, no attempt was made by the prosecution to show the reason who there was no blood at the spot. It is significant to notice that blood was not found at the spot. There was no blood on the cot on which the dead body of Chaggar Singh was carried, nor was there any blood in the compound where the dead body was lying nor a trail of blood to the house. The other reasons given by the learned Judge seem to be equally cogent and if after considering the evidence of witnesses who appeared before him and the circumstances which were proved .in his Court the learned Judge was not satisfied that the case against the accused had been proved, we are not prepared on this evidence to hold that there are any such 'compelling reasons' which would be sufficient to reverse' the judgment of the learned Judge.
8. A very recent judgment of the Supreme Court has been placed before us which is -'Puran v. The State of Punjab', Cri Appeal No. 25 of 1952 (SC) (A). Mahajan J. at p. 5 of this judgment has made the following observations:
'It seems to us that the attention of the High Court was not drawn to this Court's decision in - 'Surajpal Singh v. State', AIR 1952 SC 53 (B), wherein it was pointed out that though the High Court has full power to review the evidence upon which an order of acquittal is founded, yet the presumption of innocence of the accused being further reinforced by his acquittal by the trial Court, the findings of that Court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons. In - 'Sheo Swarup v. Emperor', AIR 1934 PC 227 (2) (C) their Lordships of the Privy Council observed that no limitation should be placed upon the power of the High court to review at large the evidence upon which the order of acquittal is founded but that in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should, and will, always give proper weight and consideration to such matters as (11 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 has ' been acquitted at his trial; (3) the right of the accused to the benefit of any doubts and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. We have not been able to see that any compelling or substantial reasons existed for reversing the acquittal order in this case and none has been pointed out by the High Court in its decision. No attempt has been made in the judgment to discuss the evidence of the prosecution witnesses or to explain satisfactorily the discrepancies that were of a material nature and which had been pointed out in those statements by the Sessions Judge in his careful and detailed judgment, We are satisfied that this was not a case for interference with the acquittal order in an appeal under Section 417, Cr. P. C.'
I think that the facts established in this case bring it within the rule laid down in this judgment of the Supreme Court and I am not therefore prepared to differ from the verdict given by the learned Judge and I would therefore dismiss this appeal and order that Behari Lal be released forthwith.
9. I agree.