1. This Rule is directed against the conviction of the petitioner under Section 326, I.P.C. and his sentence of rigorous imprisonment for one year as also a fine of Rs. 300/-, in default, rigorous imprisonment for three months more. The conviction was by a Magistrate of Barrack-pore and it was upheld in appeal by an Additional Sessions Judge of Alipore.
2. The prosecution case, in brief, was that one Harinarayan Shaw kept a shop at Kancharapara, dealing in tea and betel. The petitioner and his cousin Bidyananda were his customers and were in arrear in regard to their dues. On 23-7-1948, the petitioner and his cousin Bidyananda were passing by the road and they were near the shop of Harinarayan when the latter accosted them and demanded payment of his dues. It is said that the petitioner abused Harinarayan and thereupon an altercation ensued. As the trouble began to grow, people assembled and ultimately the parties were separated. Subsequently, so the prosecution story continued, at about 8 at night when Harinarayan was winding up for the night, he had his back towards the door and at that time the petitioner and his cousin Bidyananda entered the shop and the petitioner struck Harinarayan with a knife which he took from the hand of his cousin Bidyananda. There were two wounds, one on the neck and the other on the left shoulder as a result of which it was necessary for Harinarayan to remain in hospital for 23 days.
3. The prosecution examined 7 witnesses and the Court examined two witnesses on its own account.
4. The defence was that there was not merely an altercation in the evening but a scuffle too and it was in the course of that scuffle that Harinarayan fell down heavily on the earth and came into contact with broken pieces of glass which caused the wounds. That defence was disbelieved by the learned Magistrate and he convicted the petitioner as stated above.
5. Bidyananda, however, was discharged. In his explanation submitted to this Court the learned Magistrate says that he discharged Bidyananda not because he disbelieved the prosecution evidence but because the evidence was insufficient.
6. There was a first information report in the case lodged by the father of Harinarayan. The officer who recorded the first information was not examined, nor was it explained when and in what circumstances the petitioner was arrested or the knife with which the wounds were alleged to have been inflicted, seized. The learned Magistrate referred to this omission in the chain of prosecution evidence and described it as a serious lacuna. He, however, brushed it aside with the following rather extraordinary statement:
'There appears a serious lacuna in evidence which the prosecution ought to have cleared up; and for this lacuna, the accused would have been granted benefit of doubt and acquitted but for the defence itself which, in my opinion, has made prosecution story believable.'
If the conviction of the petitioner rested on this judgment or if the learned Additional Sessions Judge had followed the example of the trying Magistrate, there would not have been a moment's hesitation in setting aside the conviction of the petitioner. It is somewhat surprising that the learned trying Magistrate should have forgotten that in a criminal case the burden lying on the prosecution never shifts. He seems also to have forgotten that it was his duty to require the prosecution to prove every part of its case affirmatively by sufficient and legal evidence and that he could not possibly convict an accused person on the ground of any weakness in his defence.
7. As, however, there was an appeal and the learned Additional Sessions Judge considered the evidence on his own account and purported to base his finding on that evidence, we may overlook the defect in the judgment of the trying Magistrate. But, if the learned Additional Sessions Judge succeeded in steering clear of the error into which the learned trying Magistrate fell, he himself seems to have fallen into another, hardly less serious. A number of points were urged before him regarding the inconsistency and discrepancy in the prosecution case. Some points bearing upon the alleged illegalities of procedure committed by the learned Magistrate were also urged. It was said that there had been no proper examination of the accused under Section 342, Cr. P. C. regarding the evidence given against him by the Court witnesses. The omission to examine the police officer, who had recorded the first information, and the absence of any evidence regarding the place where and the circumstances in which the petitioner had been arrested and the knife seized was also dwelt upon. So was the discharge of Bidyananda which, it was alleged, had made the conviction of the petitioner impossible.
The learned Additional Sessions Judge dealt with these points and repelled them and if one reads the first part of his judgment, one is led to believe that he had reached a state of mind in which he was prepared to make a firm finding that Harinarayan was in fact struck on 23-7-1948 by the petitioner. That impression of the judgment, however, is completely destroyed by a passage occurring towards the close of the learned Judge's pronouncement. He was dealing with the argument advanced by the petitioner as regards the discharge of Bidyananda. He rejected that argument as of no substance. He then proceeded to record what seems to be something like a final summing-up of his findings. In doing so, he made the following observation:
'In my opinion there can be no reasonable doubt of the fact that P. W. 2 was the victim of a knife attack shortly after an altercation with the appellant and Bidyananda; it is highly probable that one of those two men was the assailant of P. W. 2. If Bidyananda, the discharged man, was the principal offender and the appellant only an accomplice or an abettor, there would hardly be any point in proceeding against the latter as the principal offender. I see no reason why the prosecution would spare Bidyananda and proceed against the appellant as the principal offender.'
If the concern of this passage had been solely to apportion the criminality of the attack on Harinarayan as between the petitioner and Bidyananda, it might be unexceptionable. But the passage is not limited to that Question. It begins by recording the learned Judge's finding that Harinarayan was the victim of a knife attack after the quarrel with the petitioner and Bidyananda. That finds the quarrel, finds the party with whom the quarrel took place and finds also a knife attack occurring shortly after that quarrel. Proceeding next to the question as to who made the knife attack, the learned Judge is only able to say that it was 'highly probable' that one of the two, i.e., the petitioner and Bidyananda, was the assailant of Harinarayan. Just as the learned trying Magistrate seems to have forgotten that an accused person could not be convicted in a criminal case, because the defence put forward by him was weak or improbable, so seems the learned Judge also to have forgotten that in a criminal case he could not possibly convict an accused person because it was 'highly probable' that he had committed the offence. The learned Judge, if his impression of the prosecution evidence did not reach beyond making the allegation against the petitioner probable, that is to say, if the evidence fell short of proving it with reasonable certainty, his duty was to acquit the petitioner straightaway. He could not convict on a finding of mere probability. But worse follows. Dealing with the question as to whether the petitioner was the principal offender or Bidyananda, the learned Sessions Judge decides against the petitioner on the ground that 'If Bidyananda ...... was the principal offender and the appellant only an accomplice or abettor, there would hardly be any point in proceeding against the latter as the principal offender',
and that he saw no reason why the prosecution would spare Bidyananda and proceed against the petitioner as the principal offender. In other words, the learned Judge seems to have held that since the prosecution had charged the petitioner as the principal offender, he must be so. It is hardly necessary to point out the utter impropriety of making use of any reason of that kind.
8. From what I have said above, it is perfectly clear that the judgment of the learned Judge cannot be sustained. Indeed, the conviction of the petitioner suffers from two fatal taints one occurring in each judgment against him. If we are still not directing an acquittal, we are refraining from that course for the reason that there seems to be a considerable body of first hand evidence which, if true, would establish the guilt of the petitioner. On the other hand, there are points urged by the petitioner against the prosecution case which required to be considered more carefully than they appear to have been. It was stated to us in particular that the point which the defence sought to make out of the discrepancy between the first information report and the prosecution story as laid in Court was that in the first information report itself, there was admission of a scuffle which was in consonance with the defence story and which probabilised the case of the accused that in the course of such a scuffle there had been a fall on broken pieces of glass.
9. It was complained that this aspect of the case had not received proper attention. As these and other matters do require proper judicial consideration, we think that the appeal ought to go back to be reheard in accordance with law.
10. In the result, the Rule is made absolute to the extent that the judgment of the learned Sessions Judge in appeal is set aside and the appeal is sent back to be reheard by either the learned Sessions Judge himself or some Additional Sessions Judge to be nominated by him other than the learned Judge who heard it in the first instance.
11. Pending the hearing of the appeal let the petitioner continue on the same bail.
12. We desire to make it clear that we must not be understood to have expressed any opinion either as to the probability of the defence story or as to whether the gaps in the prosecution evidence, remarked on by both the Courts, were at all material or as to the effectof the alleged discrepancies. On these andall other matters, the learned Judge, re-hearingthe appeal, will come to his own conclusion.