Horance Owen Compton Beasealy, C.J.
1. On the 9th February last the deceased a young boy had climbed a fruit tree to get some berries or some other fruits which had grown on that tree. Beneath the tree was a little girl, the daughter of the accused, the respondent here. The little boy threw the fruits down on the ground from the tree above and the little girl picked up those fruits, whereupon the little boy climbed down from the tree and beat the little girl with a cholam stick. She went off to her home and complained to her mother (the respondent) about the beating. The mother then came up and pursued the little boy. Up to this point both the prosecution case and the defence case agree. The little boy sustained very serious injuries. He had three ribs broken on the one side and four on the other penetrating the pleural cavity and causing his death some two days later. The respondent was charged at the Sessions Court with murder under Section 302, Indian Penal Code.
2. The defence put forward by the respondent was that it was true that she pursued the little boy and that he was running away but in the course of his flight he tripped up and fell upon a stone or a boulder well imbedded in the ground and that was how he came by his injuries. The learned Sessions Judge after hearing the evidence agreed with the opinion of the four assessors in finding that the respondent was not guilty of the offence; and she was accordingly acquitted.
3. This is an appeal by Government against the acquittal. The case for the prosecution was that the respondent fisted, struck and kneed the little boy and was the cause of his broken ribs. The evidence for the prosecution was that after he sustained his injuries, however they were caused, the respondent led the little boy to his home. He was quite conscious then and afterwards for a little time and his mother, P.W. 2, does not appear to have thought that his injuries were of a serious nature. It was not until his death and the post mortem examination that the real nature of his injuries became apparent. But she questioned the little boy and, according to her evidence, he told her that he had been fisted, struck and kneed by the respondent. There are two witnesses in addition to herself who are supposed to have heard the statement of the little boy and they are P.Ws. 3 and 4. The learned Sessions Judge does not believe their evidence and we certainly think that it is open to suspicion. It seems to us very unlikely that they would have overheard this little boy's statement and the evidence is particularly suspicious when it is taken in conjunction with the evidence of P.W. 2 who says that they were not present and did not overhear the little boy's statement. We, therefore, think that the evidence of these two witnesses can quite properly be rejected. Then there is an eye-witness to this occurrence, P.W. 7, who says that he was picking groundnuts in a field and saw the flight of the little boy and his being beaten by the respondent. A good deal of criticism was levelled against this evidence because it was said that his evidence was obviously untrue as there were no groundnuts to be picked at that time. But P.W. 9 says that there was a groundnut crop upon the land. The remainder of the evidence is that of witnesses who give evidence on the part of the case in which there is an agreement between the defence and the prosecution, namely, about the little boy being up the tree and the respondent coming up and chasing him. The medical evidence is certainly far more consistent with these injuries having been caused to the boy in the manner described by the prosecution witnesses and by the little boy himself though it is quite true that the medical witness stated that these injuries might possibly have been caused by the little boy falling down and his chest coming into contact with a stone. But reading the evidence, the plain understanding of it, we think, is that it is unlikely that in the opinion of the medical witness, the injuries were caused by falling on a stone. The reason the witness gives for saying that it is far more consistent with these injuries being caused by blows is that no marks or bruises in the hands or the body were found by him and from this he deduces that' the little boy did not fall. But as against this, there is the criticism to be made that the body was in a decomposed state when the medical witness saw it and there is the statement of P.W. 2 in Ex. B that there was an abrasion on the leg of the little boy. The conclusion we have come to in this case is that upon the evidence the prosecution case was sufficiently strong to justify a conviction for an offence and that it establishes the fact that the injuries were caused to the little boy by this woman.
4. But we have got to consider what test should be applied by the High Court on an appeal by Government against an acquittal. Is the test to be that in the opinion of the appellate Bench there should have been a conviction sufficient to justify allowing the appeal or should it be something much more strong on the facts before the High Court is entitled to allow that appeal? We have not had any cases cited to us but we have discovered two cases which lay down a test which we think is the correct one to be applied in such cases as this. The first of them is Queen-Empress v. Robinson. I.L.R.(1894) A. 212 In that case it was held that an appeal on behalf of Government in the exercise of the powers conferred by Section 417 of the Code of Criminal Procedure should not be entertained when the judgment appealed from is based upon facts and the conclusions of the Court are such as may reasonably be arrived at upon the facts found. The other case is a decision of a single Judge, Kumaraswami Sastri, J., in The Public Prosecutor v. Narayana Naidu.(1915) Cri. L.J. 529 : 29 I.C. 657 There it was held that in appeals against acquittals the High Court ought not to interfere unless the trying Judge was clearly wrong and the judgment is either perverse or based on obvious error of procedure. That is saying the same thing which was said in the Allahabad case in different words. We think that those tests are the proper ones. At a trial in a Sessions Court or in any other Court in which evidence is taken, the trial Judge or Magistrate, as the case may be, has the witnesses before him and he is really in a better position to decide whether those witnesses give correct evidence and in this case the Sessions Judge has disbelieved most of the prosecution witnesses. We cannot say that there were not some grounds which might justify the acquittal of the respondent in this case. We are unable to say that the judgment of the learned Sessions Judge is perverse or one which no reasonable man could have come to on the facts. There was just a reasonable doubt and, that being so we are unable to interfere with that judgment and this appeal by Government must be dismissed.