B.C. Chakrabarti, J.
1. This is a revisional application at the instance of the de facto complainant and is directed against an order of acquittal passed by the learned, Additional Sessions Judge, Bankura in Sessions Case No. 7 of January, 1981. The opposite parties 1 to 5 faced trial on various charges under Sections 148, 302/149, 323/149 and 324/149, I.P.C. They were acquitted of all the charges.
2. Against the order of acquittal - the State did not prefer any appeal. The Rule was obtained by the petitioner who is the brother of the de facto complainant. The de facto complainant Bibhuti has since died.
3. Facts of the case leading to the present revisional application may be briefly stated thus.
The incident occurred on 6th Agrahayan 1385 B. S. on plot 259 of mouza Kargahir. The case for the prosecution was that on that day in the morning the petitioner along with his brother, sister, wife and other members of his family went upon the land and while they were tying the harvested paddy into bundles, the accused persons namely the opposite parties came there being variously armed -- opposite party No. 1 being armed with a gun. Opposite party No. 1 Subhas directed the paddy to be carried to his khamar. This was opposed by the petitioner and his brother Bibhuti since deceased on a claim that they had grown and harvested the paddy. Over this there was some altercation in course of which Subhas fired from his gun resulting in the death of Hadi Bauri, sister of the complainant, and injury to Bejoy Bauri, Bibhuti, Karali and Bhakti (wife of Karali) were also assaulted. Thereafter the accused persons left the place leaving the gun behind. The injured persons and Hadi Bauri were removed to Hospital while Bibhuti went to the police station. On the basis of the information lodged by him the case, being Bankura P. S. Case No. 37 dated 22-11-1978 was started and investigation was taken up. The I. O. visited the spot, seized a S.' B. B. L. gun, some harvested paddy stained with blood and other articles, examined witnesses, and sent the seized gun for examination by the Arms Expert. The autopsy surgeon opined that Hadi Bauri died as a result of gun shot injury. On completion of investigation charge-sheet was submitted against the accused persons (opposite parties herein).
4. The defence case as it transpired from the trend of cross-examination of the P. W.s, the suggestions put to them and their own statements made during examination under Section 313, Cr. P.C. is as follows:-
Subhas Das Masib has been in possession of the land in question and the paddy was actually grown and harvested by him. The harvested paddy lay on the field for drying. On the morning of the relevant day the complainant party came upon the land with a view to take away the harvested crop. Subhas was then away from home. His sons Dipak and pradip were sent there bare handed and they having protested against the unlawful act of the complainant party, were assaulted. Subhas having come to know of this came there with the gun. He too was assaulted with iron rod and lathi and Bibhuti and Karali tried to snatch away the gun from him. In course of the scuffle, the gun accidentally went off and hit Hadi and some pellets also hit Bejoy. Karali succeeded in snatching away the gun. After the incident the accused persons left the place and went to Govindanagar Hospital for treatment. They pleaded not guilty to the charge. Precisely their plea was that the land was in their possession, that the complainant party tried to loot away the harvested crop and that the death of Hadi Bauri was the result of an accidental firing from the gun. In other words the defence pleaded Section 80, I.P.C.
5. The learned Judge in the Court below found upon the evidence on record that there was no evidence of possession or cultivation of the crop by the complainant party, that the accused party were in possession, that some members of the accused party also sustained injuries under circumstances which the prosecution failed to explain, that they tried to snatch away the gun, in course of which a scuffle ensued and it was at that time that the gun went off and hit Hadi and Bejoy. In coming to these findings the learned Judge relied mainly on the evidence of the P. Ws. and some documents namely a proceeding under Section 145, Cr. P.C. (Ext. 5) and the judgment passed in Criminal Appeal No. 19/78, filed by the defence.
6. The learned Judge found that the prosecution failed to prove that the incident happened in the manner alleged and that the probability of the defence version could not be ruled out.
7. Mr. Ghosh while conceding that the powers of the Court of Revision in a case where the State has not preferred any appeal against the order of acquittal is to some extent circumscribed and limited, pressed only two points in support of the revisional application. He contended that the finding of the learned Judge has been faulty because he considered the evidence as to possession from an entirely wrong point of view. In elaborating this point it was argued that the learned Judge fell into an error because in coming to his conclusions he laid greater emphasis on the question of title than on the question of actual physical possession. On the second point it was argued that the onus of proving that the case fell under one of the general exceptions, namely Section 80, I.P.C., lay on the opposite parties, that the onus has not been discharged and that there is no specific finding even that, the case is covered by the exception. At any rate it was contended that the learned Judge should have considered whether any offence of lesser magnitude was established.
8. Since the acquittal could not be converted into an order of conviction, Mr. Ghosh submitted that the case should go back on remand for retrial.
9. Before coming to consider the points urged it is necessary to bear in mind the salient principles governing the scope and extent of powers of a Court of Revision. The question came up for consideration once and again and the principle is now almost well settled. In the case of D. Stephens v. Nosibolla : 1951CriLJ510 it was observed that the revisional jurisdiction is not to be lightly exercised, when it is invoked by a private complainant against an order of acquittal, against which the Government has a right of appeal. It could be exercised only in exceptional circumstances and should not ordinarily be invoked - only because the lower Court has taken a wrong view or misappreciated the evidence, unless the interest of public justice requires interference for the correction of a manifest illegality or the prevention of a gross miscarriage of justice.
10. A similar view was expressed in the case of Chinnaswamy v. State of Andhra Pradesh : 3SCR412 This also was a revision at the instance of private party to set aside an order of acquittal though the State had not thought fit to appeal. The decision further observed that Section 439 forbids a High Court from converting a finding of acquittal into one of conviction and that makes it all the more incumbent on the High Court to see that it does not convert the finding of acquittal into one of conviction by the indirect method of ordering retrial. It is only in exceptional cases that the power could be exercised and some instances by way of illustration were cited. (See also Amarchand v. Shanti : 1973CriLJ577 , Akalu v. Ramdeo : 1973CriLJ1404
11. Mr, Ghosh however referred to a still later decision in the case of Ayodhya v. Ram Kumar : 1981CriLJ1016 to show that the supposed rigidity laid down in the earlier case can in appropriate circumstances be suitably relaxed to meet the ends of justice. The instances referred to in the case of Chinnaswamy were merely illustrative in character and not exhaustive or limiting-the powers of the High Court to interfere in those circumstances alone. In this case the Supreme Court upheld the order of retrial passed by the High Court. The reasons behind the order were many. The Sessions Judge acquitted the accused by ignoring the probative value of the F.I.R. and reliable testimony of eye-witnesses and without considering material evidence on record. The judgment was found to be full of inconsistencies and based on faulty reasoning. All these taken together afforded sufficient basis for interference in revision.
12. Keeping these principles in view let us now consider the case of the petitioner. The first point urged is that the learned Judge has not come to a proper finding as to possession but has approached the question from the point of view of title to the land. The grievance is not justified in view of the evidence on record and the actual finding thereon. It is true that the learned Judge had referred to a decision in a proceeding under Section 145, Cr. P.C. and the result of an appeal arising out of an allegation of theft of paddy from the disputed plot. But his finding is not based solely or principally on such consideration. He has elaborately discussed the evidence of actual possession and has found that there is no satisfactory substantive evidence as to possession and cultivation of the land by the complainant party. He has also considered the failure of the prosecution to examine any neighbouring witness to prove possession of the land by them, though there was no dearth of such witnesses, it could not be shown that the learned Judge has overlooked any material evidence on the point. Therefore we do not see any substance in the first point urged on behalf of the petitioner.
13. In regard to the other point Mr. Ghosh contended that the question whether the accused persons could invoke Section 80, I.P.C. has not been considered from the proper perspective and at any rate he fell into an error in not placing the onus of proving the exception on the accused persons.
14. We have already indicated that the defence is one of accidental firing, from the gun when the complainant party assaulted the accused persons and tried to snatch away the gun. Section 80, I. P. Code reads as follows :--
Nothing is an offence which is done by accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful act by lawful man-nar by lawful means and with proper care and caution.
Section 105 of the Evidence Act lays down that the burden of proving the existence of circumstances bringing the case within any of the General Exception is upon the persons taking the plea and the Court shall presume the absence of such circumstances. The meaning of this section is that it is not for the prosecution to examine all possible defences which might be put forward on behalf of the accused and to prove that none of them applies, The onus that lies on the accused is however not that rigid as on the prosecution to prove their case. The test is not whether the accused has proved beyond all reasonable doubt that he comes within any exception, but whether in setting up the defence he has established a reasonable doubt in the case for the prosecution and thereby earned his right of acquittal. But this does not mean that he must lead evidence. If it is apparent from the evidence on record furnished by the prosecution that a general exception would apply then the presumption is removed and it is open to the court to consider whether the evidence proves to the satisfaction of the Court that the accused comes within the exception.
15. In this case it has been established that the prosecution party were not proved to be in possession of the land or to have grown paddy thereon. It was found that the possession was with the accused party. It is the prosecution case that the petitioner, his brother and other relations came upon the land to remove the harvested crop to which apparently they had no right. On hearing of this, accused persons came there to protest. It is not deputed that Subhas came there with a S. B. B. L. gun which was apparently loaded. He was entitled to protest and use force to the extent necessary in exercise of the right of private defence of property. Now it is in evidence that the prosecution party attacked the accused and assaulted some of them. It was proved that accused Pradip sustained a linear fracture on the parietal region. The defence plea that the gun was snatched away by Karali seems quite probable because the gun was seized by the I. O. either from the spot or as produced by Karali. The fact remains that the accused persons did not leave the place with the gun. If the intention of the accused was to intentionally use the gun either to scare away the prosecution party or to cause injuries by firing therefrom, they could not have left the gun behind. As to how the gun was fired the learned Judge has referred to the evidence of P. W. 1, wife of Karali. According to her while Karali and Bibhuti were quarreling, deceased Hadi rushed to the spot with folded hands towards them to stop the quarrel. At that time Bibhuti and Karali were trying to snatch away the gun and at that time there was a sound of firing and Hadi was hit by the shot. It is also her evidence that after that the accused persons fled away. The summing Up of the evidence of P. W. 1 as quoted in the judgment could not be shown to be wrong. The learned Judge has found that the gun went off during the scuffle. That this was so appears from the evidence of P. W. 1 herself. There is yet another aspect of the matter. If Musib had intended to use the gun in all pro-; bability he would have used it against either Bibhuti or Karali and not at Hadi who merely approached them with folded hands to stop the quarrel. Then again the evidence discredits the prosecution case that the gun was fired twice for according to P. W. 1 the accused party left as soon as the gun went off and hit Hadi. That excludes the possibility of a second shot being fired. Therefore, it is reasonable to hold on the evidence on record that the gun was not intentionally used. But that alone will not bring the case within the exception. It has to be established that it happened in the course of doing a lawful act in a lawful manner by lawful means and with proper care and caution. Coming upon the land with a gun when the harvested paddy was attempted to be removed was not unlawful and could very well be in exercise of the right of private defence of property. This is more so when some of the accused party were attacked and one of them received a fracture on the parietal region. A question was raised whether the safety latch of the gun was on or not and it was contended that if it was not on it amounted to absence of due care and caution. There is no evidence if the gun had any system of safety latch or not. Even if it was there the latch might have given away during the scuffle. That is a reasonable conclusion that can be inferred from the circumstances.
16. The learned Judge has not in so many words. found so but the tenor of his reasoning and the ultimate finding is to that effect. He has held on the facts found that the probability of the defence could not be ruled out. The test of Section 105, Evidence Act, is as has already been stated, whether in setting up the defence, the accused has established a reasonable doubt in the prosecution case and that the preponderance of probability lies in favour of the accused. Such a case has been made out.
17. In that view of the matter the question whether the accused could be found guilty of a lesser offence or not does not seem to arise.
18. Such being our view of the matter, we do not think that it is a fit case justifying interference with the order of acquittal. The revisibnal application accordingly fails. Rule is discharged.
J.N. Chaudhuri, J.