N.C. Talukdar, J.
1. This appeal is against an order dated the 27th March, 1965, passed by Shri M. Bhattacharyya, Magistrate, 2nd Class, Tamluk, acquitting the accused respondents, who are four in number, under Sections 143 and 379 of the Penal Code
2. The prosecution case briefly is that in 1364 B S. P.W.1, Sudhir Chandra Jana took settlement of two plots, viz., plots Nos. 2780 and 2808 in mouza Dikshin Narkelda, which are the subject-matter of the present case, from one Rani Suhasini Roy by a bhag kabuliyat. The kabuliyat, which is a registered one, is exhibit 1 in this case and is dated 19th April, 1957. On the 9th Pous, 1369 B. S., corresponding to 25th December, 1962, at about 8 a. m. in the morning the accused, Pulin Behari Tripatby who has since died as also the other four accused respondents, Amulya, Haradhan, Jhareswar and Biharilal accompanied by 25 to 26 other persons armed with chowki, lathi, etc. came upon plots Nos. 2780 and 2808 which are the lands in occupation of Sudhir Jana (P. W. 1) in bhag chas in mouza Dakshin Narkelda. Accused Pulin and Amulya ordered and the other accused took away about 25 maunds of paddy and B kahans of hay to the house of aroused Beharilal Mala thereby causing a loss of Rs. 370/-.
3. Upon the aforesaid allegations the accused, respondents were placed on their trial before Shri M. Bhattacharyya, Magistrate, 2nd class, Tamluk to answer charges under Sections 148 and 379, Penal Code.
4. The defence case, inter alia, is that the accused persons are not guilty; that Pulin settled the lands with Ramani Mohan Pat. tanayek and one Mahadeb Jana by a registered Kabuliyat; that Ramani and Mahadeb grew the crop in question and cut the same away; and that the accused Pulin and Amulya were not even, present at the time of the occurrence.
5. The prosecution has examined 7 witnesses besides Pulin and proved several documents to establish the offence charged while the defence examined 5 witnesses as also proved some documents to establish the defence version of affairs. As a result of the trial the trying magistrate by his judgment dated 27th March, 1965 acquitted the four accused-respondents of the charges as mentioned above. Hence the present appeal.
6. Mr. Ajit Kumar Dutt, advocate (with Messrs. Bhupendra Kumar Panda and Dipendra Kumar Panda, advocates) appearing on behalf of the complainant appellant has made a broad submission that the judgment delivered by the trying magistrate is not a proper judgment in law -- particularly in case of this description, involving several material witnesses as also some important documents, requiring careful consideration. His contention is three-fold. Firstly, that the trying Magistrate has failed to consider the evidence on merits but has brushed aside the same on the overall ground of interestedness and relationship. Secondly that the trying Magistrate has practically not considered the documentary evidence, which is voluminous and material in this case. The third submission of Mr. Dutt is that the trying Magistrate has overlooked the evidence of 5 defence witnesses, and in view of the material admissions made by some of them in cross-examination, the said non-consideration has prejudiced the complainant. All these have, according to Mr. Datt resulted in a mistrial and it is expedient in the resulted of justice that the case in any event should be remanded to the Court below, for a proper determination on merits.
7. Mr. Arun Kumar Jana, Advocate, appearing on behalf of the accused-respondents Nos. 2 to 4, has submitted in the first instance that the objection taken by Mr. Dutt as regards the purported non consideration is more technical than real and a reference to the judgment itself would establish that the trying Magistrate did apply his mind to the relative documents as also the oral evidence on record. Mr. Jana has next contended that even if the judgment delivered by the trying Magistrate be taken to be not a copy-book one, he has done substantial justice by taking into consideration all the evidence and in appraising the same in order to arrive at his ultimate findings. Mr. Jana has finally contended that the ratio of the trying Maistrate really is that the case brings to light a deep-rooted and a longstanding civil dispute over the lands in question and that for a proper determination thereof, the complaint should go to the civil Court. Nobody appears for the accusedrespondent No. 1. Mr. Ramendra Nath Chakraborty, Advocate appearing on behalf of the State has submitted that the order of acquittal passed by the trying Magistrate is sustainable upon ultimate analysis because he has come to his findings on a consideration of the oral evidence as also the documents, which have been proved in the case.
8. After hearing the parties and upon going through the judgment as also the evidence on record, I find that there is considerable force behind the submission of Mr. Ajit Kumar Dutta. One thing that sticks our for miles is that the trying Magistrate has not considered the prosecution evidence on merits but has merely proceeded upon the footing that the prosecution witnesses are mostly related and their evidence is interested and as such the same cannot be relied on to establish the offence charged. One looks in vain throughout the length of the said judgment for a discussion of the evidence on the said witnesses on merits before the first Court of fact could come to its ultimate decision that the same is not reliable or sufficient. In the case of Masalti v. State of Uttar Pradesh : 8SCR133 , Chief Justice Gajendragadkar delivering the judgment of the Court has held that
There is no doubt that when a criminal Court has to appreciate evidence given by witnesses who are partisan or interested, it has to be very careful in weighing such evidence. Whether or not there are discrepancies in the evidence; whether or not evidence strikes the Court as genuine; whether or not the story disclosed by the evidence is probable, are all matters which must be taken into account. But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses.
I respectfully agree with the Said observations and hold that the failure in this case to consider the evidence of the different witnesses examined on behalf of the prosecution on merits, has resulted in a failure of justice. As one traverses the gamut of theprosecution evidence on record, one finds that the same has been jettisoned either on the ground of relationship or on the ground of interestedness.
9. In the next place the judgment again is defective because the trying Magistrate appears to have overlooked the material documentary evidence that has been adduced in this case to establish the offences charged. If the Court of fact had considered the same in order to form his own view and then pass the ultimate order of acquittal, it would not have been proper to reverse the same merely because another view of the documents was possible. But one looks in vain again for such a consideration in the said judgment and in view of the large body of such documentary evidence having been led by the prosecution in the present case, it cannot bat be hell this a non-consideration thereof has vitiated the ultimate order or acquittal. In this connection Mr. Dutta has catalogued a long liet of such nonconsiderations but for the purpose of the ultimate order that I am going to pass, I need not mention all and determine the merits of the said documents. Mr. Dutta has submitted in this context that the trying Magistrate should have considered, in any event, exhibits 1, 6, 7, 7 (1), 9 and 12 which is equivalent to exhibit K. Exhibit 1 is the registered bhag kabuliyat dated the 19th April 1957 executed by the complainant-appellant, Sudhir Chandra Jaua in favour of Rani Suhasini Roy and exhibit 3 is the sale-certificate in Title Execution Case No. 159 of 1956 proving that the disputed lands were purchased by Rani Suhaaini Roy on 8-11-1956. Exhibit 7 is the writ of possession on the basis whereof the delivery was given to Rani Suhasini Roy on the 15th December 1956. Exhibit 7 (1) dated the 16th September 1957 is a material document. Some of the accused persons either directly or indirectly claimed the disputed lands in the relative application under Order 21, Rule 100 of the Civil P.C., on the ground that they were dispossessed therefrom on the basis of the writ of possession (exhibit 7). The finding arrived at by the Court is relevant viz., that the applicants are set up by the judgment-debtors and that they ware never in possession. In any event, the averment that has significantly been made therein is that they were already dispossessed. There should have been a consideration of this material fact by the Court of fact. Then again the decision dated 28th January 1960 (Ext. 9) in the suit under Order 21, Rule 103 of the Civil P.C., that was filed by some of these abused excepting Amulya and the finding made therein that Pulin who has since died was really a benamdar of Amulya and the decree by Rani Suhasini Roy against Amulya is binding against him, are important and should have been considered. I pass, however, no opinion as to the merits of the same. Mr. Dutta in this connection has also referred to another material piece of evidence viz., exhibit K which is also marked as exhibit 12 in the present case. That is a finding by Mr. Justice S. K. Son in an appeal under Section 417(3) of the Criminal P.C., against the acquittal of the several respondents is the said case including Rajani Maity and six others in respect of charges under Sections 147 and 879, Indian Penal Code. It was ultimately held by the High Court in the said judgment that:
But the non-entry of the name of Suhasini Roy as the purchaser in recent Ravisional Survey Khatian can easily be explained, because she took delivery of possession after auction-purchase only on 25th December 1956 and by that time the preliminary draft of the revisional settlement khatian was ready. The numerous items of documentary evidence proved is the case clearly shot? that Suhasini Roy obtained possession and she grew the paddy through her bargadara.
This finding apparently has been overlooked by the trying Magistrate when he found that:
It is admitted that the disputed lands have been recorded in the name of the accused Pulin. The R. O. R. still stands in favour of the accused Pulin. This no doubt raises a presumptive evidence of possession in favour of accused Pulin unless rebutted by cogent evidence to the contrary.
The Court of fact of the first instance should have taken the finding as contained in exhibit K or exhibit 12 into consideration before finally determining whether the entry in the record-of-rights in fact raised a presumption which stood unrebutted. A failure on she pare of the trying Magistrate to have done so has resulted in a failure of justice. Such nonconsideration, as Mr. Dutta has very rightly urged, has vitiated his finding and the resultant order of acquittal.
10. I do not again find any consideration in the judgment of the five defence witnesses examined, including the admissions made by some of them in their cross-examination. Such a consideration was the sine qua non of a proper judgment, delivered by a court of law which is also a court of justice. If upon such a consideration, the trying magistrate ultimately acquitted the accused, nobody reasonably could have impugned the said order.
11. Mr. Dutta has further contended that the evidence on record establishes beyond reasonable doubt that the complainant was in possession of the disputed lands and that he has grown the crops in the relevant season. In view of the ultimate order I am going to pass I do not enter into any discussion of the same. In any event it appears that the trying magistrate has overlooked a considerable body of evidence, oral and documentary, before he arrived ultimately at his finding that it is unsafe and unwise for him to hold that the accused are guilty. The dominant consideration of the trying magistrate in rejecting the body of prosecution witnesses appears to be a purported intereatedness and that is not; the only consideration to reject such a body of evidence. The judgment of acquittal delivered by the trying magistrate again is very much laconic so much so that it is difficult for the court of appeal to understand as to whether the court of fact in the first instance had applied its mind to all the facts and circumstances, germane to the point at issue. This again has not been proper and has resulted in a failure of justice. In this connection I refer to the recent decision of the Supreme Court in the case of Sher Singh v. State of Uttar Pradesh : 1967CriLJ1213 . Mr. Justice Hidayatullah (as His Lordship then was), who delivered the judgment of the court, observed that
The powers of the High Court in an appeal from acquittal are in no way different from those in an appeal from a conviction. The High Court can consider the evidence and weigh the probabilities. It can accept the evidence rejected by the lower court and reject the evidence accepted by it, unless the lower court relied upon its observation of the demeanour of a particular witness. In departing from the conclusions of the lower court the High Court must pay due attention to the grounds on which the acquittal is based and repel those grounds satisfactorily, bearing in mind always that an accused starts with a presumption of innocence in his favour and this presumption cannot certainly be less strong after the acquittal.
I respectfully agree with the said observations. It would appear however from the findings I have already made above that the judgment which has been delivered by the trying magistrate and the manner in which he has approached the case, coupled with the non-consideration of material documents, filed and proved in the case, and the brushing aside of material oral evidence merely on the ground that the said witnesses appeared to be interested, are really grounds on which the ultimate order of acquittal should not be allowed to stand. The same has in fact vitiated the judgment and it is expedient in the interests of justice that for a proper determination in accordance with law, the case should be remanded to the court below. I am conscious that the matter has proceeded for some time and that it is after all a matter of acquittal but nonetheless justice is not an one-way traffic and the prosecution is as much a limb of the court as the defence is. Justice is, as is in accordance with law. I do not propose however to make any observations as to the respective merits of the prosecution or the defence case in view of the ultimate order that is being passed, It is just and fair however that the trying magistrate would take into consideration the evidence of the material defence witnesses as also the defence exhibits and their effect upon the case.
12. In the result, I allow the appeal; set aside the order dated the 27th March, 1965 passed by Shri M. Bhattacharyya, Magistrate, 2nd class, Tamluk acquitting the accused, respondents under Sections 879 and 143 I.P.C.; and I direct that the case be remanded to the court below for being tried in accordance with law on the evidence on record and expeditiously by another Magistrate to be nominated by the District Magistrate, Midnapore.
13. Let the records go down immediately.