1. This petition is by the complainant before the police and is directed against the judgment of acquittal made by the Judicial Magistrate Ist Class II Court. Hubli in C. C. No. 998 of 197-1.
2. The petitioner complained be-fore the Police in regard to a certain incident which took place in broad daylight on 24-5-1971. It was his case that the accused trespassed into his house at about 3 p.m. on that day and assaulted him besides damaging some of the properties such as radio, trunk etc. The police after investigation, placed a charge-sheet against the accused under Sections 452, 453. 323, 427 read with Section 34. I.P.C. The learned Magistrate, after a perusal of the police papers and after hearing the accused, framed charges in respect of those offences. In support of the prosecution two eve-witnesses have been examined among others. They are P.Ws. 1 and 2. P.W. 3 is a person who arrived immediately after the incident and speaks to the several circumstances of mischief. The defence of the accused was essentially one of not guilty and alibi. But, in the course of the trial a theory was sought to be developed that the complainant was liable to repay certain sums paid by one of the accused in the expectation of the complainant securing a job for such accused. It is also in evidence that the accused were apprehended by police on various dates at different places. The relationship of wit-nesses P.Ws. 1 to 3 has been shown to be as follows. P.W. 1 was proposing to marry P.W. 3 a nurse in a hospital. P.W. 2 is the brother of P.W. 3. It is brought out in evidence that P.W. 2 was accustomed to go and assist P.W. 1 in preparing food. On the date of the incident P.W. 2 was rendering such assistance to P.W. 1. This is all the relationship that has been brought out between these three witnesses.
3. The learned Magistrate rejects the evidence of P.Ws. 1 and 2 merely on the basis of this relationship and observes thus:
Even though there is a corroboration between the testimonies of P.Ws. 1 and 2 to a major extent. I decline to accept their testimonies to be independent and uninfluenced in the absence of corroboration of their testimonies by the independent witnesses. Out of the ten witnesses examined on behalf of the prosecution excepting the first three none is examined as eye-witness before the Court. Since P.Ws. 1 to 3 are interested and related to each other, I answer the first and second points in negative and giving the benefit of doubt to all the accused pass the following order.
4. This is all the relevant discussion bearing on the question and on the basis of such discussion the accused have been acquitted.
5. It is in evidence that although the complainant shouted for help none of the neighbours came to his rescue In other words, none of the neighbours had witnessed the incident. In such a situation corroboration from independent witnesses ought not to be expected. The Court, therefore, had to fall back upon the evidence of the witnesses as have been examined in support of the prosecution case. In the circumstances of the case it is not also reasonable to rule out the evidence of such witnesses on the ground of interestedness The trial Court. therefore, ought to have examined the evidence of P.Ws. 1 to 3 on its merits, before rejecting their testimony. The manner of disposal of the case by the trial Court, therefore, leaves much to be desired
6. But on behalf of the State Shri M. Nagappa. the learned High Court Government Pleader, invited attention to certain enunciation of the Supreme Court in the case of Khetra Basi Samal v. State of Orissa : 1SCR880 . In that case, the scope of the jurisdiction exercisable by the High Court under Section 439, Cr. P. C. in the context of an order of acquittal, has been succinctly, if I may say so with respect, set out. The relevant enunciation runs thus:
So, where it is not evidence that the trial Court shut out, any evidence which the prosecution wanted to produce or admitted any inadmissible evidence or overlooked any material evidence but the Magistrate after examining the evidence produced by the prosecution acquitted the accused as according to him there was no proof beyond reasonable doubt that it was the accused who committed the crime then it is not permissible under Section 439 for the High Court to proceed to reappraise the evidence of the witnesses and set aside the order of acquittal on the ground that the Magistrate had not taken the trouble of sifting the grain from the chaff nor in such cases retrial can be ordered by High Court.
7. In the instant case, the learned Magistrate has not troubled himself to appraise the material evidence for the prosecution and the reason given by him for such non-appraisal is, in my view, highly frivolous and untenable, Hence, the case clearly falls outside the purview of the above enunciation, by the Supreme Court. All things considered. I am clearly of the view that the judgment of acquittal cannot be sustained.
8. In the result this petition is allowed. The judgment of the J. M. F. C,. Second Court. Hubli, In C. C. No. 998 of 1971 is hereby set aside. The case, therefore, has to go back for further trial. Since I am informed by the office that the Presiding Officer of that Court is the very same person who had delivered this judgment of acquittal, the case has to go for further enquiry and trial before some other Court. The record of this Court will therefore be transmitted to the Sessions Judge, Dharwar. with a direction that he should transfer the case to a Court other than the Court of the J. M. F. C.. Second Court, Hubli which has jurisdiction to try this offence, for further enquiry and disposal. It is made clear that the transferee Court will proceed with the case afresh from the stage of the framing of the charges. It is ordered accordingly.