N.K. Sen, J.
1. This is a Rule which was issued at the instance of the complainant J. B. Roy andis directed against an order of acquittal of the opposite parties of the charge under Section 147 of the Indian Penal Code by the Assistant Sessions Judge, Darjeeling. The opposite parties were originally convicted by Sri S. N. Choudhury, Magistrate. 2nd Class, Darjeeling, who sentenced each of them to suffer rigorous imprisonment for two months.
2. Five respondents along with another were on their trial before the Magistrate on the following allegations:
J. B. Boy, the petitioner was the Manager of Gopaldhara Tea Estate. It is stated that he along with his Garden Babu B. B. Roy was returning on the morning of 6-9-1956 after completion of Roll Call. The opposite parties met them on the way and laid before them their charter of demands for redress of their grievances. The petitioner J. B. Roy could not at the moment accede to their demands, whereupon the opposite parties attacked him with lathis and assaulted him chasing him up to his bungalow. Both the petitioner and his Garden Babu B. B. Roy received injuries and were treated at the Victoria Hospital, Darjeeling. The Manager having informed the Police over the telephone they arrived when a letter of complaint Ex. 1 was made over to the police. Several Persons were arrested but ultimately the opposite parties and another Kanchi Kumar Gurungni were sent up for trial. After the trial Kanchi Kumar Gurungni was acquitted.
3. The common object of the unlawful assembly was said to be to compel the Manager J. B. Roy to do what he was not legally bound to do.'
4. In view of the order that I am making in this case I will not discuss the evidence nor Will I express my opinion fn any way so that the court below may not feel influenced in any way by my remarks.
5. The court of appeal below has referred to the complaint Ex. 1 that was made to the police. The learned Judge has stated that it being the earliest record of what had happened its importance could not be too much exaggerated The learned Judge was quite correct in stating the same as an abstract principle. It should be remembered that the question at the exact time that was agitating in the mind of the maker of the document was the fact that he was assaulted with lathis. Apart from this on a perusal of the document Ex. 1, I find that the alleged grievance of the opposite parties and the demands for their redress were in substance mentioned in the document. It may be that all the details were not there. But, certainly I do find reference to them. On an interpretation of this document the court of appeal below has come to the conclusion that because the petitioner named twenty-two persons therein he should have mentioned all the twenty-two, in court and inasmuch as he only mentioned six in court, the where story should be disbelieved. I cannot see eve to eye with the learned Judge that this without something more would be proper ground for discarding the case of the prosecution.
6. The learned Judge discarded the evidence of the petitioner on account of the fact that the Chowkider. P. W. 3 mentioned 'shouting' while the petitioner himself stated there was no exchange of hot words. Another witness has been disbelieved as, according to the learned Judge, he could not have witnessed anything because he was present for six weeks only. Theabove are some of the incidents from which I have come to the conclusion that the learned Judge did not hear the appeal as carefully as he should have done, bearing in mind the real facts in issue. The trial court is normally the court that sees the demeanour of the witnesses. The Appellate Court as the final Court of fact is expected to bear in mind the real fact in dispute and it should not be carried away by imaginary discrepancies which have no bearing on the truth or falsity of the prosecution. I am clearly of the opinion that in this case the hearing of the appeal by the court of appeal below was done in a perfunctory manner.
7. Although this Rule is against an order of acquittal and ordinarily I would be willing to maintain this order of acquittal unless I felt that justice has been denied to one party. I feel that this is a fit case in which I would be justified in ordering a re-hearing of the appeal.
8. The order of the court of appeal below is set aside and the Rule is made absolute.
9. The appeal will now be re-heard by theSessions Judge, Darjeeling.