1. These are two connected, applications by Jairam for special leave to appeal from the order of acquittal under Section 417 (3), Criminal P. C.
2. The facts, which have led to these applications, are briefly these : Jairam filed a complaint against eleven accused persons, nine of whom are opposite parties in these two applications. Ths Magistrate convicted five out of the eleven persons, namely Bhera, Ramnath, Prabhu, Umeda and Rawat. Four were acquitted namely Mangla, Hardin, Jumar and Chainsingh.
There was an appeal to the, Sessions Judge by the five accused who were convicted, and the Sessions Judge acquitted these five also. Thus nine out of the eleven persons were acquitted. We are not concerned in these applications with the remaining two, as one of them died during the pendency of the trial, and the other was prosecuted by the police, and Section 417(3) does not apply to his case.
3. As these applications are the first of their kind to come up before this Court, we think it right that we should lay down certain principles on which such applications should be dealt with. The attack on an acquittal may be either on grounds of law or on facts.
Where the attack is on grounds of law, two contingencies may arise, namely (1) the point of law involved may be a new one not previously settled by authority, in which case this Court would generally grant special leave, if it appears to it that the point has been wrongly decided, and has affected the result of the case : (2) the point may not be a new one, and may be settled by authority; but the lower court has decided it wrongly, and the wrong decision has affected the result of the case. In these circumstances also this Court will be prepared to grant leave to appeal.
4. But where the point of law has been wrongly decided, whether it is new or settled by authority, that alone would not be a ground for granting leave to appeal, if the result of the case has not been affected thereby.
5. Where the attack is on facts, and this Court is asked to grant special leave on the ground that the lower court has wrongly acquitted the accused by taking a wrong view of the facts, the question for consideration is under what circumstances this Court should grant leave.
We are of opinion that in such a case, the proper criterion' is that this Court should be prima facie satisfied that if leave is granted, the judgment of acquittal is likely to be reversed. It may come to this conclusion on perusal of the judgments of the courts below, or it may before granting special leave send for the record and satisfy itself whether the case is such that this Court will interfere with the order of acquittal. If it comes to the conclusion that the case is not one in which this Court will interfere, with the order of acquittal, it will not grant leave even if the judgment may be unsatisfactory as a judgment.
6. Let us now turn to the facts of these cases on the basis of the principles laid down above. The attack in this case is not based on any ground of law. The orders of acquittal are being attacked on the ground that the courts below have come to wrong conclusions on the facts. It is therefore necessary to set out briefly the case put forward by the applicant as well as by the accused in the courts below.
7. The case of the applicant was that he was. sitting at his Pol along with his brother Copa, his nephew Pusa, and his daughters Sarju and Dhapu, when the accused persons came there armed with lathis, and one of them had a muzzle loading gun. They all entered his Pol, and attacked him and his relations inflicting simple and grievous hurts.
Rawat was alleged to have fired his gun at Jairam, but the shot missed. A number of people then turned up, and rescued Jairam and his relations. The reasons for the attack is said to be the enmity that was existing from before between the parties.
8. The accused gave a counter version of their own. Their case was that six buffaloes and a cow belonging to Jairam had damaged the lata of Bhera. Bhera, thereupon, brought these cattle to the Gwad in front of Jairam's house, and had called Chuna. and Prabhu, and asked them whose cattle they were. They told him that the cattle belonged to Jairam. He then called Poona, Buax, Mangla and-Chainsingh to see the damage done to his lata.
When these persons arrived, the daughters of Jairam started throwing stones at Prabhu and Chuna who were holding the cattle. Shortly afterwards Jairam's relations and friends arrived, armed with-lathis, and started beating these people and rescued the cattle. Though the accused did not actually say so, their case appears to be that in that connection Jairam's relations were injured. They did not, of course, say that their side was also armed with lathis and caused injuries to Jairam's relations. But it appears to us that these people must have been armed with lathis and had used them when Jairam's relations started rescuing the cattle.
9. Evidence was produced by both the parties in support of their respective stories. The Magistrate did not believe that evidence with respect to four of the accused. The Sessions Judge thought that the witnesses were not independent, and held the case not proved against those five also whom the Magistrate had convicted as there was very little to distinguish the case of those five from that of the other four.
10. The question therefore that we have to see is whether we would be prepared to convict the accused if we grant leave to the applicant to appeal, In that connection, two broad circumstances have to be borne in mind. Firstly though there was undoubted enmity between the parties, nothing was shown for the prosecution evidence as to why the attack should have been made in that manner on that morning.
Learned counsel for the applicant urged that the attack might have been made that morning because the cattle of Jairam did damage to the Jata of Bhera. That, however, is not the prosecution case, and the prosecution cannot take advantage of a part of the defence story in this manner. The second circumstance is that the story for the defence appears to us to be a very probable story, and explains why the light took place that morning.
It was urged in this connection that there was no reason why the cattle should have been brought to the Gwad in front of Jairam's house, and why they were not taken straight to the cattle pound even though they had damaged the lata of Bhera. There is no doubt that Bhera might have taken the cattle direct to the cattle pound; but if he brought them to the Gwad to find put whose cattle they were, his conduct cannot be said to be so unnatural as to make his story incredible.
What happened thereafter, namely rescuing of cattle by Jairam and his relations and friends, and a 'Marpeet' in that connection in which Jairam's party got the worst of it also appears to us to be a natural story.
In these circumstances, a doubt win always remain in our mind as to the truth of the story put forward on behalf of Jairam, and the result of that doubt must go in favour of the accused. In this view of the matter, we are of opinion that this is a case in which prima facie there is no likelihood of our reversing the orders of acquittal.
11. We, therefore, see no reason to grant special leave to appeal, and reject the applications.