1. The two accused, opposite party Kala Chand Saha and Chinta Haran Saha, are brothers who were on 15th July 1937 convicted by a Magistrate under Section 323, Penal Code, for causing hurt to Harimati, the wife of the accused Kala Chand, and were sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 200 each. The convictions and sentences were set aside on appeal, and it is against the appellate order of acquittal that this rule is directed. Harimati a girl of about 18 years of age had been married to the accused Kala Chand for two years. There is evidence to show that the husband and his family were dissatisfied over the dowry and ornaments which the girl had received from her relatives on the occasion of her marriage, and the mother and a brother of the girl have stated that they used to ill-treat her. On 15th January 1937, at about noon the accused Chinta Haran informed the girl's family that the girl had hanged herself on the previous day and that she was lying unconscious. It is not disputed that though the girl had been lying in a state of unconsciousness for some time, no attempt had been made to summon medical assistance. The mother of the girl proceeded to the accused's house and found her daughter lying unconscious covered with a quilt. She summoned a doctor who found her condition to be so serious that he advised her removal to the hospital. The girl was admitted into the Dacca Mitford Hospital where she died on 19th January without recovering consciousness. The medical evidence was that death was due to pneumonia and meningitis. Her body revealed marks of various injuries which included a number of bruises on the back, buttocks, and back of the thigh, and a ligature mark with abrasions across the throat. The opinion of the doctor who conducted the post mortem examination was that the injuries might have had some effect in causing pneumonia or meningitis.
2. On 16th January the girl's brother Satish Chandra Das laid a first information, as a result of which a Sub-Inspector of Police conducted an investigation, which his own evidence shows to have been perfunctory. This investigation was closed with what is known as a 'final report,' the reason given being that the case was non-cognizable. In this connexion the police officer also said : 'We had no breathing time then on account of the election at the time.' A very significant feature of this investigation is the fact that though two witnesses, Subal and Anil, to whose evidence reference will next be made, were examined by the Sub-Inspector on 24th January, that officer stated in the final report that no one saw Harimati being beaten. In cross-examination he had to admit that this statement was incorrect. The prosecution was launched as a result of a complaint subsequently presented by Satish Chandra Das to a Magistrate. The witnesses Subal and Anil stated at the trial that on the night of 14th January they were out canvassing for votes in connexion with an election. At about 9 P. M. they heard a woman in the house of the accused crying 'babare, mare, marlore.' They went up to the house and pushing open a window saw the two accused 'raining fists and blows on Harimati,' while some women of the household were standing by encouraging them. They expostulated with the accused who told them to mind their own business. It was after Satish Das lodged the first information report that these witnesses met him and acquainted him with what they had seen. The defence was a denial of the story of assault. On behalf of the accused it was stated that Harimati had tried to commit suicide by hanging after shutting herself into a room and that the attempt had been frustrated with the assistance of some masons who happened to be working in the house and who had broken open the door. In support of this story the defence examined two masons and three neighbours. The masons stated that they were working at the rear of the house when they were called by Chinta Haran's wife. They went up and peeping through a broken window saw the girl hanging. They then broke open the door and the girl was brought down. The evidence of the three neighbours was that they had not heard that the girl had ever been molested and that they saw her lying in an unconscious or semi-conscious condition on 14th January and were told that she had tried to hang herself. The evidence of these neighbour witnesses is partly hearsay and is negative and inconclusive. As regards the masons their testimony is of a character difficult to believe. The evidence of the Resident Medical Officer of the Mitford Hospital was that a period of from 5 to 8 minutes is fatal in hanging. Yet the accused Kalachand had stated to him that the girl had been hanging for nearly 15 minutes. It is clear that Kalachand's estimate of the time which it took to bring the girl down, if indeed she hanged herself, is the outcome of the story advanced on behalf of the defence that the girl had shut herself into a room in such a way that it had to be broken open. After the girl hanged herself, something must have attracted the attention of Chinta Haran's wife. She discovered the girl hanging and then summon-ed the masons from the rear of the house. The masons first went to look through a broken window before they made their assault upon the door. In these circumstances it is impossible to understand how the girl did not die of strangulation before she was brought down. The evidence of the defence witnesses does not ring true.
3. The trying Magistrate who heard the witnesses depose was obviously impressed by the evidence of the witnesses Subal and Anil. He stated in his judgment that he had considered their evidence very carefully. He adverted to the fact that there was nothing in their cross-examination to indicate that they were hostile to the accused or friendly with the complainant. He was satisfied that they were not biased against the accused or interested in the case made by the complainant. There are considerations which the Appellate Court quite ignored; the injuries on the girl's body even excluding the mark on the throat are unquestionably indicative of assault, and just such an assault as Subal and Anil say they witnessed. The oral evidence is consistent with the girl's condition, and is not unsupported by probability. In circumstances such as were established in this case, the reasons which actuated the learned Additional Sessions Judge in setting aside the judgment of the trial Court are vague and insufficient. The learned Additional Sessions Judge apparently appreciated this position, for in the concluding portion of his judgment he has made the following observation:
It appears to me to be one of those unfortunate eases in which a young married girl has to suffer indignities for no fault of hers. Assuming that the girl attempted to commit suicide as defence suggests there must have been some reason for her doing so. Prom reading the case as a whole, one cannot but come to the plausible conclusion that she was the victim of mal-treatment. Morally, probably all the household was indirectly guilty of killing the girl but from the legal evidence the appellants are entitled to the benefit of the doubt for the offences with which they have been charged.
4. Incidentally this observation would seem to indicate some confusion of issues. The accused were not on their trial for having compassed the death of the girl but for causing hurt, and the evidence which bore directly on that question was the evidence of the witnesses Subal and Anil supported as it was by the injuries on the girl's body. How any real doubt arose about the evidence is not made clear. Two circumstances to which the learned Judge referred, the fact that the informant was not aware when he went to thana that Subal and Anil had seen the assault of his sister and the fact that they were what is loosely and inaccurately described as chance witness, are not in themselves sufficient reasons for discrediting their testimony. We do not wish to be understood as expressing an opinion upon the merits. It may be that upon a full and proper examination of all materials upon the record, facts will emerge which will throw a real doubt upon the prosecution case, or it may be otherwise. All we desire to say is that upon a careful consideration of the judgment of the learned Additional Sessions Judge, we are satisfied that he has not directed his mind to the evidence and the circumstances on the record in a manner consonant with a proper exercise of appellate discretion.
5. On behalf of the opposite party it is urged that this Court should not interfere in revision with an order of acquittal upon questions of fact, and a number of decisions have been cited as supporting this view. Those cases are undoubtedly correct determinations upon the special facts to which each relates, but we are unable to deduce from them a general rule that this Court must never interfere in revision with an appellate order of acquittal which has been occasioned by a failure to judicially examine and appreciate evidence.
6. In Faujdar Thakur v. Kasi Choudhury (1915) 2 AIR Cal 388, it was stated that according to settled practice, the Court would not ordinarily interfere to set aside orders of acquittal in revision. But in that case, as appears clearly from the judgment of Fletcher J. at p. 624, there was no reason to think that the Magistrate whose judgment rested upon an appreciation of the evidence that had been given before him, came to a wrong conclusion.
7. In Basu v. Raika Singh (1915) 2 AIR Cal 235 this Court on an application of the complainant set aside an order of acquittal on the merits in a case in which the trying Magistrate in his judgment while laying great stress on all considerations that might affect the credibility of witnesses for the prosecution, omitted to consider what might be advanced in their favour, and also failed to appreciate the corroborative value of an important witness for the prosecution.
8. In Basirulla v. Asadulla : AIR1929Cal639 it was stated that in private prosecutions where the Crown does not think it proper to move against an order of acquittal, the High Court should not ordinarily interfere, but it does so when it is satisfied that there has been an error of law committed by the acquitting Court or where there has been a gross miscarriage of justice or in public interest.
9. Nabin Chandra v. Rajendra Nath (1918) 5 AIR Cal 392 was a case in which this Court in revision set aside an appellate order of acquittal where the judgment did not contain a proper discussion of the evidence and of the questions involved. The cases referred to suffice to show that this Court has power to interfere in revision with an appellate judgment of acquittal, and that though that power should be sparingly exercised, it would be wrong to refuse to exercise it in cases where there has been a failure of justice by reason of the Appellate Court not having brought a judicial mind to bear upon the evidence. This rule must be made absolute. The order of the learned Additional Sessions Judge is set aside and it is directed that the appeal be reheard by some other Judge in accordance with law.
10. I agree.