Sudhamay Basu, J.
1. This is an appeal under Section 411-A of the Cri.P.C. filed by the State against an order of acquittal dated the 15th of January, 1973, passed by N.C. Mukherjee, J., in the Sessions trial of the Original Side of the High Court acquitting accused Prokash Chandra Dey and Rabindranath Dey of the charges under Sections 302 and 326 respectively of the I.P.C.
2. The prosecution case is that one Dipak Sarkar since deceased was an active Congressman and along with others was member of a club known as Taruner Ahavan' situated at 23, Bidhan Sarani near the crossing of Kailash Bose Street and Bidhan Sarani and near the Srimani Market, There was a saloon named 'Saloon De Style' adjacent to the club and within the said Premises No. 23, Bidhan Sarani. Dipak and others, members of the club were active supporters of the local Congress candidates in the General Election held on the 19th February, 1967, Accused Prokash and Rabi who are brothers. resided at 5, Kailash Bose Street and were supporters of Communist Party of India (Marxist) and worked for candidates set up by the left parties for the said election. There was political rivalry between Dipak and other congressites on the one hand and accused Prokash, Rabi and others on the other. In course of the General Election the Congress office at Kailash Bose Street was attacked and ransacked by rival political parties on 19-2-1967. When the election results were out on the 23rd of February, 1967, it was found that prominent congress candidates like Sri Prafulla Chandra Sen and Atul Chandra Ghose were defeated. The club 'Taruner Ahvan' was attacked with bombs and crackers and the same was closed. The keys of the club room were usually kept with Dipak. It is the prosecution case that the club was to be re-opened on the 26th of April, 1967.
3. On the 26th of February, 1967, Dipak came to the Saloon De Style and had his shave where Arun Bhattacharya (P.W. 3) and Samir Roy (P.W. 4), two other members of the club also happened to be present. As Dipak came out of the saloon at about 9 A.M. he was suddenly surrounded and assaulted in front of the club and the saloon by accused Prokash and Rabi along with Monotosh Gupta, Ajit Das alias Bhoda and Babu Srimani. In course of the incident Prokash stabbed Dipak with a dagger on his abdomen and Rabi stabbed on the back of his chest. On hearing a row Samir and Arun pushed the swing door of the saloon and saw the incident from a distance about 8 to 10 feet. The prosecution case is further that on being stabbed Dipak sat down on the footpath with his hands on the abdomen. Accused Prokash and Rabi along with others immediately ran along Kailash Bose Street. Samir and Arun gave them chase and then returned and took Dipak in a taxi to Medical College Hospital where he was admitted at about 9.15 A.M. Dipak was operated at the hospital but died at about 1.15 P.M. on the same day. Apart from Samir and Arun one Priya Ranjan Saha (P.W. 7), a local youth who was passing in a motor cycle also saw major part of the incidents. Mitualal Shaw, a local vendor of eggs and potato who sold his ware in the nearby footpath saw parts of the incident when he went to the sweet-meat shop of the Habu at the junction of Bidhan Sarani and Kailash Bose Street. He found accused Prokash thrusting a knife into the abdomen of Dipak and he also saw accused Rabi standing behind the accused prokash. After purchasing 'kochuri' and 'zilapi' he came away. One Kartick Chandra Barui, P.W.6 who was also a local vendor selling eggs near the crossing of Tarak Paramanick Road and Bidhan Sarani also saw parts of the incident. He also saw Prokash piercing a dagger into the abdomen of Dipak and Rabi striking with a dagger on the back of Dipak. On receipt of news about disturbance Kanai Dutt, S.I. of Jorasanko P.S. and some officers from Amherst P.S. arrived at the place of occurrence and went to the Medical College Hospital. The investigation was taken up by S.I., Kanai Dutt who recorded the statement of five eye-witnesses and some other persons. According to the prosecution the residence of the accused was searched on the same day but they were found absent. Accused Prokash was employed as a Class Four Staff in the Diocession Girls School and Rabi was an employee in a workshop, but both were found absent from their respective place of work. Later on Prokash was arrested on 21-10-1967 at about 10.30 P.M. near the Curzon Park and accused Rabi was arrested on 24-10-1967 at Siliguri.
4. It appears that after committal proceedings five persons namely, Prokash Chandra Dey, Rabindranath Dey, Monotosh Gupta, Ajit Das alias Bhoda and Babu Srimany were committed to Sessions of this Court and all of them were tried under charges under Section 302/34, I.P.C. for committing murder of Dipak Sarkar on the 26th February, 1967. After the trial, the jury, however, returned unanimous verdict of not guilty in respect of the accused on the charge under Section 302/34, I.P.C. and also for lesser offences read with Section 34. K.J. Sengupta, J., acquitted all the accused persons of the charges read with Section 34, I.P.C. The Jury, however, returned a divided verdict of 5 : 4 in respect of the accused Prokash under Section 302 and in respect of accused Rabi under Section 326, I.P.C. respectively. The learned Judge then ordered retrial of accused Prokash and Rabi under Sections 302 and 326 respectively and discharged the jury.
5. Thereafter, the said two accused persons Prokash and Rabi were put on trial again with the help of a special jury on the 15th of January, 1973. 44 witnesses were examined including five eye-witnesses. The jury found Prokash not guilty on a divided verdict of 8 : 1 under Section 302, I.P.C. and also unanimously found him not guilty under Section 304 Part I, Part II and Section 326, I.P.C. By a divided verdict of 8 : 1 the jury also found accused Rabi not guilty under Section 326, I.P.C. and unanimously found him not guilty under Section 324, I.P.C. Accepting the verdict of the jury Mukherjee, J., acquitted the accused and released them forthwith. The present appeal is directed against the said order.
6. Before entering into the merits it is necessary to dispose of some points of law which were raised on behalf of the respondents and which, according to the respondents, go to the root of the matter.
7. The first of such points relates to limitation. It is urged that the petitions of appeal and for leave to appeal were filed on the 14th of May, 1973. That was more than three months after the order was passed by N.C. Mukherji, J., on the 15th of January, 1973, acquitting the accused. On 17-1-1973 application was made for a certified copy and requisition was given on 3-1-1973 (sic). Stamps, however, were furnished on 16-2-1973 and the copy was ready for delivery on 5-3-73. It was actually taken delivery on 6-3-73. In the circumstances Mr. Mitra urged that the appeal was barred by limitation. He admitted that there was no specific article in the new Limitation Act of 1963 governing the case of an appeal from the judgment passed by the High Court Sessions in the Original Side. According to him, Article 117 which provides thirty days from the date of the decree and order for an appeal from a decree and order from any High Court to the same Court would govern this case. It may be noted that Article 157 of the old Limitation Act governed the cases of appeal from acquittal, including cases, like the present one, the period of limitation being 90 days. According to Mr. Mitra, no residuary article was necessary in view of the specific provisions made in Article 117. He submitted that this article which replaces the old Article 151 is applicable to the case. He thought that like Article 151 Article 117 was comprehensive and applied to all appeals to High Court, both civil and criminal. According to him Arts. 114 and 115 covered ell criminal matters from subordinate courts. Article 116 dealt with appeals in civil cases but Art, 117 applied to both civil and criminal matters as did Article 151 although the same is not an exact reproduction of Article 151. In his view insertion of a special Clause (c) to Art, 116 would be more appropriate if the provisions of Art, 117 were intended to apply only to civil matters. Mr. Mitra cited a case Rabindranath Chakraborty v. The Union of India, reported in (1976) 1 Cal LJ 667 where in an appeal under Claule 15 of the Letters Patent it was held that as rules were framed by the High Court under Claule 37 of the Letters Patent the same will apply to Article 117 of the Limitation Act but that decision flowed from Section 29(2) of the Limitation Act, 1963, according to which, where special law prescribes any period of limitation in an appeal the same shall apply to the exclusion of the period of limitation prescribed by the Limitation Act. Admittedly there are no rules framed by the High Court governing the present case. Mr. Mitra also pleaded that the word 'decree and order' should be interpretated to include 'judgment and orders' passed in criminal cases as well. He cautioned that it is not permissible in interpreting a statute to travel beyond the same and go to other acts for the purpose. He cited the case of Jai Narayan Ram Kisan v. Motiram Gangaram, reported in AIR 1949 Nag 34 in this connection. He also referred to Duraivelu v. Corporation of Madras reported in AIR 1935 Mad 600 which points out that it is fallacious to take a word bearing a peculiar meaning in a particular Act to clothe that word with the same meaning that was found in a different context in a different Act. By referring to the case of State of Bombay v. The United Motors Limited reported in : 4SCR1069 Mr. Mitra urged that when two interpretations are possible that which fits in with the description which the legislature has chosen to apply to it should be adopted. Mr. Mitra also submitted that the rule of harmonious construction should be adopted and the Court should adopt that interpretations which will ensure working of the statute and discard that which will stultify it. He referred to the case of Dorothy v. U.P. Mullick, reported in : AIR1958Pat240 in this connection. Anticipating an argument on behalf of the appellant Mr. Mitra further submitted that even if it is assumed that there is a gap in the Act, it is not the function of the court to fill up the same. The function of the Court is to interpret and not to legislate and the Court cannot fill up the gap under the guise of interpretation. He referred to the case of I.-T. Commr, v. Sanichar Saha reported in : 27ITR307(Patna) in this connection.
8. To appreciate the scope of the argument and to view the matter in proper perspective it is necessary to note that when Article 151 of the Act of 1908 came into existence there was no provision for appeal from the High Court session.
Therefore, Article 151 of the Limitation Act, 1908 did not and could not cover such case. At that time there was no appeal from conviction of the High Court exercising original jurisdiction. In Cls. 25 and 26 of the Letters Patent there could only be a restricted review provided a certificate was granted by the Advocate-General on a point of law. Section 411-A was introduced in the Criminal Procedure Code by Act 26 of 1943. The existing Limitation Act was also amended correspondingly by incorporating the word 'order' by a High Court in the exercise of its original criminal jurisdiction by Section 8 of Act 26 of 1943. Article 157 which was the residuary article providing for three months from the date of the order appealed from an order of acquittal in the Code of Criminal Procedure 1898 was not amended as it covered all contingencies including one contemplated by Section 411-A except death sentences. Under the new Criminal Procedure Code the ordinary original criminal jurisdiction of the High Court has been abolished thus obviating the necessity for any provision in the Limitation Act regarding acquittal from the judgment passed by the Original Side of the High Court as in the present case. Section 374 combines some of the provisions of Sections 408, 411 and 411-A (c). It makes rovision for direct appeal to the Supreme Court from conviction on trial held by a High Court' within the extraordinary original criminal jurisdiction. It appears that the legislature apparently failed to take note of a very limited number of cases like the present one which arise for miscellaneous reasons as a hang over of previous trials by way of continuation.
9. Mr. Chowdhury appearing on behalf of the State argued that Article 117 in the second division of the present Limitation Act of 1963 cannot apply to Criminal Procedure Code, Articles 114 and 115, he points out, only deal with appeals, connected with criminal matters. Articles 116 and 117 then follow and they apparently relate to civil matters. There is no specific mention in Art, 117 to any section of the Criminal Procedure Code or the Code itself. Moreover even Article 151 which has been replaced by Article 117 did not apply to Criminal Procedure Code. Article 151 also refers to decree or order. Article 117 also does so. There is no apparent change in language in that respect and therefore when Article 151 never applied to criminal matters there is no reason to suppose that Article 117 could do so.
10. It may be noted that in the earlier Act the schedules on the Limitation Act were more or less on the basis of time such as, 20 days, 30 days and so on but the scheme of the new schedules seem to be based on suits, appeals and applications contained in the 1st, 2nd and 3rd Divisions respectively. So far as suits are concerned Article 113 is the residuary one which applies to any suit for which no period of limitation is provided elsewhere in the schedule. Similarly in the 3rd division there is Article 137 which is the residuary article applying to any application for which no period of limitation is provided elsewhere in that division. But there is no such residuary article to be found in the second division which relate to appeals. There is also nothing like the old Art, 157. In the absence of compelling reasons the Court, therefore, is not inclined to infer that Article 117 may be applied in a residuary sense.
11. Although the Statement of Objects and Reasons have to be excluded from consideration in construing an Act of the legislature, as unlike preamble pleadings they form no part of the Act itself (See Central Bank of India v. Workman, reported in : 1SCR200 . But the same could be referred to for the limited purpose of ascertaining the conditions prevailing at the time which actuated the sponsors of the bill to introduce the same (See State of West Bengal v. Subodh Go-pal reported in : 1SCR587 ; M.K. Ranganathan v. Government of Madras, reported in : 2SCR374 ; Commr. of I.-T. v. S. Debi, reported in : 32ITR615(SC) ). It would seem from the objects and leasons they need not be quoted with regard to Article 151, what weighed with the sponsors of the bill was to replace the same by Article 117 and similarly to replace Article 157 by Article 114 with some addition.
12. Again it appears the phrase 'decree or order' has never been used together in criminal cases. In the case of Mahabir Singh v. Emperor reported in 48 Cal WN 113 : AIR 1944 Cal 17 (FB) a Full Bench of the Calcutta High Court on considering the meaning of the word 'Order' (along with 'finding' and 'sentence') held that it is clearly a command or direction by a court that something shall be done, discontinued or suffered. Conviction and acquittal are sometimes treated as orders but strictly speaking conviction and acquittals are really findings. Therefore, even if order is read disjunctively from decree an order, as noted above is not the same thing as conviction or acquittal which are really findings. In the old Limitation Act the expressions 'decree or order' have been used together as in Arts. 116, 152 and 156. The scheme of replacement seems to suggest that Article 117 is to cover appeals under Letters Patent Appeals from Original Side to Appellate Side in civil matters. Therefore, Arts. 116 and 117 of the new Code seem to replace Arts. 151, 152 and 156. In these circumstances there is no reason why Article 117 should be read to cover other cases including orders of acquittal. Moreover when acquittal is thought of it is usually spoken of as 'orders of acquittal'. Even Article 114 uses the said expression. Article 117 which is in close proximity of 114 and 115. therefore, does not ordinarily lend itself to interpretation that the order used therein should mean order of ac-quittal.
13. Further, the expression 'decree or order' also reminds the Court of the well-known principles laying stress on context, namely, the rule of Noscitur a Socits. Where two or more words which are susceptible of analogous meanings are coupled together they are to be used in their cognate sense. (See M.K. Ranganathan v. Government of Madras, reported in : 2SCR374 . The other well known rule of Ejusdem Generis, which similarly follows from the former, enjoins 'that the general word which follows particular and specific words of the same nature itself takes its meaning from them and is presumed to be restricted to the same genus as these words' (See Maxwell 12th Edition p. 297). The phrase is quoted from R. v. Cleworth reported in (1864) 4 B and Section 937. In other words, the general expression is to be read as comprehending only things of the same kind as that designated by the preceding expression, that is, the word 'order' should be of the same kind as designated by the expression 'decree'. It is not necessary to refer to numerous cases to some of which our attention was drawn by Mr. Chowdhury, learned Counsel on behalf of the State. Even to go by the definition given in the Civil Procedure Code 'order' is a formal expression of a decision of a Civil Court which is not a decree. Individually decree itself is a formal expression of adjudication in Civil Suit that conclusively determines the right of the parties with regard to all or any of the matters in controversy in the suit. Decree therefore. may be looked upon as a special form of order which seems to be of more general import. As has been noted by a Full Bench decision of the Madhya Pradesh Hajari v. State, reported in : AIR1976MP76 . Ordinarily the meaning of a word is not to be taken in abstract' but regard must be had to the setting in which the word occurs as also to the subject-matter and object of the enactment, Wharton, 14th Edition states at page 697 'when there is a string of words in the Act of Parliament and the meaning of one of them is doubtful that meaning is given to it which it shares with the other'.
14. In the case of Saukatara v. Md. Ibrahim, (1944) 48 Cal WN 492 it was held by a Division Bench of this Court that Article 173 of the Limitation Act does not apply to the case of any application for review of an order made by an Appellate Officer appointed under the Bengal Agricultural Debtors Act. It was further held that there being no period of limitation prescribed it is left to the discretion of the Appellate Officer himself to decide whether he would hear the application at the time it is presented, It' was specifically held that the term 'decree or order' refers to decrees or orders made under the provision of Civil Procedure Code. It also notes that under certain circumstances absence of a period of limitation may be contemplated. The Court contemplated that the Advocate-General in granting certificate for review may consider the inordinate delay when he is called upon to grant the certificate. In the Special Bench decision of padara Prosad Upadhyay v. King Emperor, (1029-30 Cri hi 993) (Cal) the contention that Article 162 of the first schedule to the Limitation Act 1908 applied to proceedings under Claule 26 of the Letters Patent was negatived. This was also another case in which this High Court contemplated absence of provisions as to limitation. In the case of Wazir Chand v. Union of India, reported in : 1SCR303 it was noticed that Article 181 of the old Act of Limitation was in general terms but that Article was included in the group of articles which fall under the head 'third division applications'. As originally enacted all applications contemplated to be made under Arts. 158 to 180 were applications made under the Code of Civil Procedure and there was catena of authorities holding that under Art.181 the expression 'under the Code of Civil Procedure must be deemed to be necessarily implicit' We recognise the force of Mr. Chowdhury's contention that in spite of. the expressions in Art, 181 being in general terms they were given a restricted meaning by reading them in the context. In the case of Athani Municipality v. Labour Court, Hooghly, (AIR 1969 SC 1335), the Supreme Court held that Article 137 of the Schedule to the Limitation Act. 1963 does not apply to applications under Section 33-C(2) of the Industrial Disputes Act so that no limitation is prescribed for such applications. The Supreme Court noted that the preamble which exist in the old Limitation Act of 1908 was omitted in the new Act of 1963 but the omission does not indicate that there was any intention of the legislature to change the purpose for which the Limitation Act has been imposed.
15. The consideration noted above makes it plain that there is no escape from the conclusion that Article 117 does not apply to the present case. No other article in the new Limitation Act applies to the same. As we have noted earlier after the abolition of the sessions trial the necessity for making any specific provision for acquittal in sessions cases of the original side of the High Court disappeared and consequently the legislature might have overlooked the contingency of a limited number of cases emerging on account of continuation of some trials for various reasons. We are, therefore, unable to hold that the present appeal is barred by limitation.
16. Mr. Chowdhury of course suggested that if there was no specific article applicable to the present case the court might think of fixing a reasonable period of limitation. The old period of three months was also suggested. We however, consider the same to be not only unnecessary but also encroaching on the domain of the legislature. The rules of limitation have been regarded by high authorities as foreign to the administration of criminal justice. It is only by specific legislation that period of limitation can be rendered applicable to criminal proceedings. In this connection we may note similar observation by Mahmood, J., in the case of Queen Empress v. Ajudhin Singh reported in (1888) ILR 10 All 350; Queen v. Amiruddin (1871) 15 Suth WR (Cri) 25. Similarly in the case of Kittyu reported in (1888) ILR 11 Mad 332, it was observed that a plea of limitation is available only in civil-suits and cannot be taken to bar punishment for an offence. 'The case before us is perhaps one not foreseen and provided for by the legislature but we may construe a penal enactment as it stands'. It must of course be noted that the said decisions were before the Limitation Act of 1908 came into being. In a recent case, reported in (Municipal Council v. Rawatram), it was noted that grant of special leave was a condition precedent to the presentation of appeal under Section 417(3). The application for leave to appeal could be presented within sixty days of the date of order of acquittal. It could not be presumed that such application would be disposed of within a period of three months from the date of the order of acquittal or within a period of one month from the last date for presenting application. It was held that the legislature did not think it proper to prescribe any separate period of limitation for appeals to be presented in pursuance of the orders of grant of leave to appeal. Legislature might have contemplated that an appeal would be presented within a reasonable period from the date of the order. We hold, therefore, that there is no specific period of limitation in the Limitation Act, 1963 governing the present case and we reject the objection raised by Mr. Mitra that the present appeal is barred by limitation.
17. In view of the aforesaid finding it is not necessary to separately deal with the petition for condonation of delay which was filed on behalf of the State towards the end of hearing of the appeal.
18. Other preliminary objections raided by Mr. Mitra are (i) under Section 273, Cr.P.C. (ii) Section 403, Cr.P.C. and (iii) on the principle of issue estoppel.
19. So far as Section 273, Cr.P.C. is concerned the same enables the High Court when it appears to it at any time before the commencement of the trial that any charge or any portion thereof is clearly unsustainable to make an entry to that effect. That entry will have the effect of staying proceedings upon the charge or the portion of the charge as the case may be. Mr. Mitra's argument in substance was that since a charge under Section 302/34 ended in acquittal a charge under Section 302 simpliciter later on was clearly unsustainable, Mr. Mitra had raised such an objection before the trial Judge who rejected the same. Mr. Mitra's contention in substance is that inasmuch as Section 34, unlike Section 149, I.P.C. does not constitute any substantive offence, acquittal from a charge of Section 302/34 necessarily exonerates a person from a charge under Section 302. In our view, the plea in that form is not sustainable. Under Section 34 the incriminating act must be in furtherance of the common intention. But sharing the common intention is quite different from simultaneous existence of the same and identical intention in several persons. Several persons, as the Supreme Court held in the case of Pandurang Thukia v. State of Hyderabad, reported in : 1955CriLJ572 can simultaneously attack a man and each can individually inflict a separate fatal blow but each would only be individually liable for the injury he caused. None would be vicariously convicted in the act of any others. Mr. Mitra's contention can be negatived shortly by stating that not sharing the common intention to kill does not necessarily imply not having an intention to kill. The decision such as W. Slaney v. State of M.P., reported in : 1956CriLJ291 establishes that a conviction under Section 302 read with Section 34 could be altered to one under Section 302. Therefore, it will not be correct to contend that if a charge under Section 302 read with Section 34 fails a person cannot be convicted of Section 302, I.P.C. But, of course, it must be conceded in fairness to Mr. Mitra's contention that in the trial before K.J. Sengupta, J., there was an acquittal under Section 302/34 when Sengupta, J., discharged the jury and ordered a trial under Section 302. As will appear, later, the second trial has been held by us not to be a new trial but a continuation of the old one. The said order was not appealed against and we are not called upon to decide the propriety of the same in this case. We are, therefore, unable to uphold Mr. Mitra's contention.
20. (ii) It is well known that Section 403, Cr.P.C. embodies in statutory form the English rule of Autre Pois Acquit. The principle of issue estoppel, of course, is different from the principle of double jeopardy or Autre Fois Acquit which will be considered later on. According to Section 403, Cr.P.C. a person once tried of an offence after trial by a competent court is not liable to be tried again (i) for the same offence, or (ii) on same facts for any other offence. Mr. Mitra in this connection rightly submitted that the 'other offence' would include minor offences and findings for which a different charge from the one made against the accused actually might have been made under Section 236 or for which he might have been convicted under Section 237. In the case of Government of Bombay v. Abdul Wahab, reported in AIR 1946 Bom 38 : 47 Cri LJ 378 (FB) it was held by a Full Bench of the Bombay High Court that Section 238, Cri.P.C. enabled the court to convict the accused of minor offences if he was charged with the major offences although no specific charge in regard to the former was framed against him.
21. But Mr. Mitra's contention cannot succeed inasmuch as the basis of his arguments is that a retrial under Section 308, Cr.P.C. as has happened in the present case, is to be deemed to be a separate trial. According to him, an order under Section 308, Cr.P.C. for a retrial on the charge of Section 302 I.P.C. by K.J. Sengupta, J., was illegal because acquittal under a charge under Section 302/34 involved acquittal under Section 302. We have already negatived that contention. We do not further agree with Mr. Mitra when he contends, that a retrial resulting from the disagreement by the Judge with the jury under Section 305, and as provided by Section 308, was a new trial as contemplated by Section 403. In our view, an order of acquittal on a charge of Section 302/34 I.P.C. did not give the accused any protection under Section 403 namely of not being liable to be retried for the offences under Section 302 or 326, I.P.C. In the Bombay case also the jury unanimously gave a verdict of not guilty on the charge of murder and culpable homicide not amounting to murder but in a verdict of 6 : 3 they found the accused not guilty of grievous hurt. Although the accused was acquitted of the first two charges the Judge disagreed with the jury as to grievous hurt. The Judge however, instead of discharging the jury under Section 305 acquitted the accused under the impression that a retrial of the accused under Section 308 would be barred by Section 403, It was contended, inter alia, as in this case, that an acquittal on the charge of murder operated as a bar under Section 403 against retrial of minor offences which were included in the major offences of murder. It was held that the Judge having disagreed with the jury under Section 308 there must be a retrial of the accused of the offences of grievous hurt. It may be noted that the said Full Bench decision relied on a case of our court Emperor v. Nirmal Kanti Roy, reported in (1914) ILR 41 Cal 1072 : 15 Cri LJ 460. It also disagreed with a Madras case reported in AIR 1943 Mad 737 in which King, J., upheld the objection under Section 403 similar to objection raised by Mr. Mitra in this case. Having regard to the provisions of Sections 305 and 308, Cr.P.C. when there has been a discharge of the jury by dint of the Judge disagreeing with the majority verdict and the accused are retried by another jury in terms of Section 308 we hold that the second trial in this case is a continuation of the first trial and there is no retrial within the meaning of Section 403 of the Cr.P.C.
22. (iii) The principle of issue estoppel, however, arises, as Ramaswami, J.. put in the case of Piara Singh v. State of Punjab, reported in : 1969CriLJ1435 , where an issue of fact has been tried by a competent court and rinding has been reached in favour of the accused, such a finding would constitute an estoppel or res-judicata against the prosecution not as a bar to the trial and conviction of the accused for a different or distinct offence but as precluding the reception of evidence to disturb the finding of fact when the accused is tried subsequently even for a different offence which might be permitted by the terms of Section 403(2), Cr.P.C.
23. In India the principle of issue estoppel was recognised by the Supreme Court for the first time, as far as we are aware, in Pritam Singh v. State of Punjab, reported in : 1956CriLJ805 following the decision of the Privy Council in Sambasivam v. Public Prosecutor, (1950 AC 458), It quoted the observation of Lord Macdermott viz..
the effect of a verdict of acquittal pronounced by a competent court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offences. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication.
The principle was reiterated thereafter in numerous other decisions which may be noted in this connection. Manipur Administration v. T. Bira Singh, reported in 0065/1964 : 7SCR123 ; Piara Singh v. State of Punjab, reported in : 1969CriLJ1435 ; Lalta v. State of U.P., reported in : 1970CriLJ1270 ; Masud Khan v. State of U.P., reported in : 1SCR793 ; Bhoor Singh v. State of Punjab, reported in : 1974CriLJ929 ; Ravinder Singh v. State of Haryana. reported in : 3SCR453 . It is to be noted that issue estoppel does not prevent the trial of any offence as does Autre Fois Acquit but only precludes evidence being led to prove the fact in issue as regards which evidence has already been led and a specific finding given at an earlier criminal trial before a court of competent jurisdiction. Lord Macdermott's observation in Sambasivam case was, however, not the first occasion when this rule as to issue of estoppel was formulated or given effect. The observation of Wright, J., in Queen v. Ollis, reported in 1900 (2) QB 758 (768-769) and the observation of Dixon, J., in King v. Wilkes. reported in 77 Cal LR 51 also may be noted in this connection. In the case Marz v. The Queen, reported in 96 CLR 62 (68-69) the High Court of Australia endorsed the principle. The principle concerned the validity of a conviction in rape after the accused had been acquitted on the charge of murdering the woman during the commission of the act. It was held 'the Crown is as much precluded by estoppel by a judgment in criminal proceedings as is a subject in civil proceedings'. Ayyangar, J., in the case of Manipur Administration noted that even before the decisions of the Supreme Court, the rule was applied by some of the High Courts and reference was made to a decision of this Court in Manink Chand Agarwalla v. State reported in : AIR1952Cal730 .
24. It is not necessary for the purpose of this case to enter more deeply into the diverse aspects of this principle. We may note briefly that in the case of Ravinder Singh v. State of Haryana 1975 Cri LJ 765 (SC) the Supreme' Court held that in order to invoke the rule of issue estoppel the parties in the two trials must be the same, The fact in issue proved or not in the earlier one also must be identical with what is sought to be reagitated in the subsequent trial. We have to note that the accused in the first trial with regard to Section 302/34 were five in number but there are only two accused in the subsequent trial with the new jury which has been appealed against. Moreover, as we have held that by virtue of the provisions of Section 308 'the retrial' is to be regarded as a continuation of the old one, the question of issue estoppel does not arise at all. We, are. therefore, constrained to negative this part of the submission of Mr. Mitra as well.
25. So far as the merit is concerned the prosecution story, in brief, has already been noted at the outset. There is no doubt in this case that Dipak died as the result of injuries inflicted by one or more persons. It is also nut disputed that he was taken into the Medical College Hospital, The dispute is mainly as to who caused death and how. Five eyewitnesses have been examined in the case. Two of the eye-witnesses, Samir Roy and Arun Bhattacharyya who were members of the club 'Taruner Ahavan' more or less corroborate each other. According to their evidence, on the day of occurrence, Arun came from his residence at Park square and he met Samir alias Manju Roy near the club which was still then not opened. They then went to the Saloon De Style to have shave where they chanced to meet Dipak who was having his shave. Soon after, Dipak finished his shave. As he was going out he saw Samir and Arun and greeted them. As soon as Dipak went out Samir and Arun heard a sound of disturbance. They came near the swing door and pushing the same open, they saw the incident. The club was to be opened that morning and usually Dipak had the key with him. It was he who was to open the club.
26. The defence assailed this part of the story of the prosecution. According to them, Dipak never had the key with him. They pointed out that the packet containing the wearing apparels of Dipak which was sent to the post mortem doctor long after, that is, on the '22nd of April, 1967, contained no reference to the key. Articles mentioned on the cover of the packet mentioned a jangia but when the packet was opened no jangia was found, on the other hand some currency notes, one handkerchief and one key were found by the post-mortem doctor, Mr. Mitra on behalf of the defence argued that the story of the key being with Dipak was a myth which was introduced merely for creating an impression that the club was to be opened that day for which purpose Samir and Arun chanced to meet each other. It was further pointed out that if the club really was to be opened how could it happen that other members were not present at all either nearabout the place of occurrence at the time when the club was to be opened or later at the Medical College Hospital. The defence seriously challenged that Samir and Arun came in the morning near the club for the purpose of attending the same. According to Samir and Arun, they saw Dipak being dragged by four or five persons, Dipak got himself released by a jerk but he was stabbed at the abdomen by Prokash when he stopped pressing the abdomen with both his hands, He was raised up when Rabi stabbed him at the back. It tranpires during cross-examination that they stood still near the swing door and saw the entire incident passively from the beginning to the end. Mr. Mitra on behalf of the defence, strongly urged that the timing was deliberately shifted by the prosecution to include the presence of the two eye-witnesses Samir and Arun. He argued with some force that it would be unnatural for Arun and Samir to remain passive spectators all the time. According to him, the account given by Samir and Arun was inherently improbable. Dipak by all accounts was a strong and robust young man. The evidence given showed him to be a dumb spectator of the assault allowing himself to be killed. If Samir and Arun did not dare intervene at least they could raise alarm. Their evidence is that after everything was over and Rabi had struck Dipak they cried 'Dhar Dhar' (Catch Catch them) and chased the assailants up to the mouth of the junction of Kailash Bose Street and Bidhan Sarani, a small distance. Soon after they, returned stopped a passing taxi and took Dipak to the Medical College.
27. The third eye-witness Priya Ranjan Sana substantially corroborated Samir and Arun who was also a resident of the locality. He was passing along with Bidhan Sarani on a scooter and saw six or seven persons kicking Dipak Sarkar near the club 'Taruner Ahaban', then one person lifted up Dipak from behind. He saw one of the persons Bhoda dragging Dipak towards east by holding his left side but Dipak with a sudden jerk freed himself. But another person took the place of Bhoda. He was Prokash and had a bloodstained dagger in his hand, He was facing Dipak, He saw Dipak pressing his hand at the abdomen and stooping down but Dipak was pulled up. Another person, that is, Rabi struck him on his right back with a knife. This witness claimed to see the entire incident at two stages as he had stopped the scooter once but he did not depose that he either saw Samir or Arun who were near the incident. He also did not intervene or raise any alarm or come to the assistance of Dipak after the assailants left. This witness who professed to have no knowledge about the accused persons or Rabi and Samir or the club transpired in cross-examination to have not only attended the funeral procession of Dipak, but also carried the bier. Although a resident of the locality this witness feigned that he did not know names of the assailants or who were their associates at the time of occurrence. In cross-examination a group photo was shown in which the witness was alleged to be present with Rabi but he denied. This witness further, it transphes, along with another friend of his. apprehended, without the aid of the Police, one of the five accused persons namely Monotosh on the 14th of August, 1967, at the Burra-bazar area. It was suggested by the defence that the witness and Tapan were two local bullies belonging to the Congress party. The facts that after seeing the incident this person who was later so bold as to apprehend Monotosh did not intervene or even after any assistance to Dipak were commented upon. Even after seeing the incident this witness did riot disclose anything to the members of his family nor inform the police. The witness said that he made statement before Police 'sitting on the ledge of Phillips Roy'. As police was making enquiries he went there and made the statement. I.O. (Q. 830-32) Kanai Dutt said that he examined the witness in front of the Habul Modak's Sweetmeat's shop. In this connection the defence pointed out that S.I., Ajit Chatterjee was contradicted (Q. 254) with his previous statement where he had stated at the first trial before the High Court that the witness was examined at 33, Bidhan Sarani which is the residence of the witness. That this witness was not unknown to the other Congress volunteers was suggested by defence. When it was specifically put to the witness that he knew Dipak Sarkar as well accused Rabi and Prokash before the incident the witness merely said that he knew them by face. Even on behalf of the prosecution it was conceded that this witness could not be said to be a stranger which he feigned to be.
28. The two other eye-witnesses were Mitualal Shaw and Kartick, the two pavement hawkers. The former went to purchase 'Zillapi and Kochuri' from the sweetmeat shop of Habul at the junction of Bidhan Sarani and Kailash Bose Street. He found five or six persons surrounding Dipak. Accused Prokash thrusted a knife into the left abdomen of Dipak. Dipak pressed his hand at the abdomen and cried 'Oh' when accused Rabi was standing behind the accused Prokash but the witness without seeing anything further came back with his 'Zillapi and Kochuri'. This witness obviously is a person of the underworld who was on bail at the time he was deposing before the Court. There was a charge of theft against him. He also paid fine after conviction in another case. He admitted in course of the cross-examination that he used to be taken to the Police Station by the police and were implicated in petty cases. Comment was made also about the casual manner in which this witness is supposed to have seen the occurrence. He saw Prokash stab Dipak when Rabi was standing behind Prokash but instead of seeing what followed he just went back to his place of occurrence nor did this witness tell anybody about what he saw.
29. Kartick Barui was also an egg-seller in the pavement. At about 9.00 a.m. he heard an alarm 'Dhar Dhar' at the beginning of the incident which of course was not spoken of by anybody else. He collected his money, stood up and saw Dipak being surrounded by a few persons of whom Prokash pierced a dagger in the abdomen of Dipak. Dipak then fell down. Babu Srimani lifted up Dipak and Rabi struck with a dagger on the back of Dipak. Thereafter the boys came out of the saloon and started chasing the assailants who fled away. Both he and Mitua said that the Police came to them nearabout half past eleven and twelve in the noon. This witness was contradicted on some points with what he had said in the earlier trial. This witness saw Mitualal coming out of the said sweetmeat shop at the time of incident but he never had any talk with him about the incident although both of them alleged to have seen the occurrence. It was suggested in course of examination that he must have X-ray eyes to have been able to see Dipak being stabbed from behind by Rabi. The incident, according to this witness took place between 8.30 and 9.00 a.m. He noticed the time as he looked at a clock of sweetmeat shop. This witness also admitted that he was convicted in many petty cases and was taken to police custody on many occasions. The defence naturally commented that Kartick and Mithua were men of the under world and had to humour the police. Mithua was a convict who could be at the beck and call of the police and Kartick was no better.
30. On behalf of the prosecution Mr. Chowdhury analysed the evidence of the; witnesses in great detail and with meticulous care. As to the place of occurrence he relied on the answers of the main witnesses viz., Arun (Q. 81), Samir (Q. 375 to 735). Mithua (Q. ), Kartick (Q. ), Priya Ranjan Para-manick (Q. 29-30), Cross-examination (129, 97 and 900). Kanai Dutta (Q. 129, 30, Q. 212 to 2,16). This shows that the place of occurrence was in front of the saloon and the club 'Taruncr Ahaban'. He pointed out the questions viz., Arun (Q. 102) Samir (Q. 15, 16 and 26), Mithua (Q. 18), Kartick (Q. 12) Paramanick (Q. 53), Ext. 12 and Ex. Y, the history sheet of Dipak at the Medical College Hospital, and argued that the occurrence was about 9.00 a.m. and the patient was taken to the Hospital near about 9.15 a.m. Mr. Chowdhury argued that there was nothing serious in cross-examination to contradict the eye-witnesses. The statements made by them were not just bald statement but made in great detail. Priya Ranjan sees a part of the incident. So does Mithua, Arun was taken by the I.O. to show the spot from the Hospital. Arun (Q, 61, 63, 74 and 102). Samir (Q. 34 and 35). Mithua (Q. 20, 23, 31 and 32). Kartick (Q. 12 to 21). Priya Ranjan (Q. 12 to 48), Pasupati Paramanick (Q. 24 to 30 and 129), Not only the five witnesses identified both the accused as being present at the time of occurrence, four witnesses mentioned them by name. The accused Prokash was arrested on 22-10-1967 and Rabi on 24-10-1967, T.I. Parade was held on 14-11-1967, There is no question of any honest mistake in identity. Mr. Chowdhury stated that it was either a case of deliberate falsehood or not. Apart from the I.O. Witnesses Pasupati Pramanick P.W. 30 broadly corroborates the time and place of incident. The general background of rivalry and hostility between the Congress and the C.P.I. (M) was also there. There is no evidence that there was ill feeling between Dipak on the one hand and Rabi and Prokash on the other. Moreover Dipak's father, Pannalal examined by the police on the same day named the two accused. Ext. 12 the attendance report, Ext. 17 the emergency slip and/or the short history before admission Ext. Y the history sheet also were to be taken note of. The keys of the club being found in sealed packet by Dr. J. B, Mukherjee and the club being found closed at the time of the incident lent support to the prosecution case that Dipak came to open the club. Absconding by both Rabi and Prokash were also to be taken note of. In this connection the evidence of P.W. 10, the Headmistress of Diocesion School (Q. 38 to 41) and 62 to 64 and 950 were relied on. Mr. Chowdhury, however, stressed the gravity of the abdominal injury which was a fatal one and the back injury (Dr. Arora Q. 324, and Dr. J.B. Mukherjee Q. 326). Reliance was placed on the general diary Ext. 10 which was made at about 3.00 P.M. on the date of the occurrence. It showed that Arun was examined at the hospital and statement was recorded. By 3.00 p.m. the case had been started against the two accused. Mr. Chowdhury pointed out that there was no reason why two innocent persons would be falsely implicated by the father of the deceased or the friends of Dipak, specially when accused Rabi claims that Priya Ranjan was a friend of Prokash. Mr. Chowdhury also referred to Ext. 17 and the evidence of Dr. Dhiraj Chowdhury, P.W. 25 on the nature of the document. He also addressed the court on Ext. 12 and Y. He pointed out fairly some of the circumstances that favoured the accused.
31. As already noted the defence has not disputed the foul murder of Dipak in broad day-light on that Sunday but has seriously challenged the time of occurrence and the presence of the eye-witnesses. It was argued that the occurrence took place much earlier than 9.00 a.m. To contrive a plausible meeting between Arun and Samir on the occasion of the opening of the Club 'Taruner Ahavan' at 9.00 a. m, the time was purposely shifted. It was argued that the police itself at least S.I., Arun Dey and I.O. Kanai Dutta visited this spot around 9.00 a.m. Pasupati Pramanick, P.W. 30 the barber of the Saloon de Style in course of his deposition said that the police came to the saloon at 9.00 a.m. According to him there were two police officers - The police again came at about 12.00 noon and for the third time a hour late. If the occurrence took place at 9.00 a. m, it was not possible for the police to visit this spot around that time. Pasupati's evidence in this respect was sought to be corroborated by a G.D. Entry at the Jora-sanko Police station which was recorded by S. I, Arun Dey, Ext. 'X9' entry No. 2950 dated 26-2-1967 at 9.00 a.m. It states 'left for enquiry into cases'. There is no reference to any particular case but entry made by this officer on return to the police station which is again 'Ext. X8' being No. 2972 at 1.40 p.m. lends some support to this argument. Although he records that he returned from enquiry into cases, no detail with regard to any case is given but he said that he went to the 'Medical College and waited to record the statement of Dipak Sarkar who was still in the operation theatre and under influence of anaesthesia. He could not hence record the statement. O.C. (N) was at the Medical College with force. The entry, therefore, relates more or less to the present case. It was strongly argued on behalf of the defence that his evidence that he casually met the other police Officer who took him to the Medical College could not be relied on at all. If he really was out to enquire into other cases that would have found place in the G.D. Entry.
32. Again, according to prosecution. the earliest information received at the police station was at 9.45 a.m. G.D. Entry 'X/I' which is relied on for this purpose reads that a telephone call was received from S.I. Sahapoddar that a disturbance was going on at Bidhan Sarani 'in front of 'Taruner Ahavan''. Accordingly, S.I. Kanai Dutta left' with force for this spot but S.I. Sahapoddar's evidence reveals that at 9.40 a. m, he had information from D.C. North at Amherst Street' Police Station (which he recorded in the G.D. 'X9') that a disturbance was going on at the crossing of Kailash Bose Street and Bidhan Sarani. He left for the spot. Therefore, at that time he could not be aware, and he admitted in his evidence that he was not, that the disturbance took place in front of club 'Taruner Ahavan'. Mr. Mitra argued with force that G.D. Entry Ext. 10 must have been written later on. That the entries in the G.D. are not free from suspicion would be apparent when it is noted that as many as three entries are made simultaneously at 9.45 a.m. Two of the entries even bear the same number viz., 2956 and Ext. 10 on the basis of which S.I.S.K. Saha is supposed to have left is written at the bottom of the page. There is little doubt that all the entries arc not made duly or in regular course as they should have been. The Entry No, 2956 Ext. 10 to say the least, is very suspicious. Mr. Mitra suggests that it was at 9.00 a.m. that the police got information when S.I., K. Dutta with Arum Dey had left the police station on the basis of the information recorded in Ext. 'X9' by Arun Dey already referred to above. Again it is the evidence of I.O. Kanai Dutt that he rang up from Medical College to Inspector Ajit Chatterjee at the Police Station. Ajit Chatterjee in his deposition before the court this time, of course, said that he received 'the ring at 10.45 a.m.' but sufficiently he was contradicted with his statement in the previous trial when he had said that he received a telephone call near about 9.45 a.m. The earlier deposition of Mr. Chatterjee fits in with the defence case. If I.O., Dutta and Arun Dey had left at 9.00 a.m. and went to the spot which could not take more than three to four minutes, they could be near the saloon as indicated by Pasupati and then it would be possible for Dutta to ring from the Medical College at 9.45 a.m. That also explains why at 9.45 a. m, while recording the entry the police betrayed their knowledge that the occurrence had taken place near 'Taruner Ahavan'. The indication of the place of occurrence 'near Taruner Ahavan' at the alleged first entry must have been an inadvertence which could be possible because the author had prior knowledge by 9.45 a.m. about the incident. In cross-examination Sahapoddar has stated that he rang up and conveyed the information that a disturbance was taking place on the crossing of Kailash Bose Street and Bidhan Sarani. However, upon further enquiry being made to identify the spot he mentioned 'Near Taruner Ahavan'. This is obviously an eye wash and inspires no confidence. Nobody would normally require-much less the police officer-details about the crossing of two such important streets as Kailash Bose Street and Bidhan Sarani and even if he did, that crossing would hardly be identified with reference to a club whose name few people were aware of except locally.
33. Mr. Mitra on behalf of the defence strongly argued that Arun and Samir were not there at the time of the incident which took place much earlier than at 0.00 a.m. Even the prosecution case that Samir and Arun's statements were recorded at the Medical College receive no cor-roboration from the G.D. Entries. Ext. 'X8' which is recorded by Arun Dey at 1.40 p.m. after a vigil of about two and half hours makes no mention of any statement by Arun or Samir. The said Police Officer stayed at the Medical College for two and half hours in course of which many people including prominent leaders visited the Medical College. But he heard no names of the assailants. Even the. G.D. Entry recorded by I.O. Ext. 10 Saha on his return to the thana at 3.00 p.m. does not mention any statement by Samir.
34. Some of the facts and circumstances which emerge in support of the defence case that Arun and Samir were not there at the time of the incident seem to be as follows (i) there was no mention about them at Arun Dey's diary recorded at 1.40 p.m. (ii) There is no mention of Samir Roy's name in the I.O.'s diary at 3.40 p.m. (iii) it is the evidence of the prosecution that I.O., Kanai Dutt looked for the accused at their residence at noon but no seizure list witness was produced in Court, Why was not Arun made to sign the seizure list if he was there? (iv) Even Pasupati of the saloon-de-style was not shown, at the time of his deposition either Arun or Samir to be identified. This would have proved the fact that they were present at the saloon nearabout the time of occurrence, (v) The taxi by which Samir and Arun alleged to have brought Dipak to the Medical College was not produced by the Police. At the first trial the evidence was that somebody paid the fare but in the second trial it seems that nobody took pains to pay the fare at all. There must have been blood in the taxi if Dipak was carried in it. No serious attempt was made to trace the same (vi) None of the stretcher bearers who helped to take Dipak from the taxi has been examined, (vii) Ext. 17, the earliest document of the hospital regarding Dipak's admission was not produced by prosecution. At a later stage on the 2nd trial the prosecution brought it before the Court, (viii) Dr. Mahapatra, Dr. Chowdhury or the nurses or anybody else from the Medical College has not identified either Samir or Arun being present at the Emergency; (ix) While it is admitted that neither Arun nor Samir went upstairs yet evidence of Dr. Mira Sen shows that she had talks with a gentleman whose identity has not been established; (x) Arun and Samir, if they really carried the deceased in the manner they said they did should have blood on their clothes, Arun admitted the same in the first trial but denied it in the second. Their garments were not seized at all.
35. Another very important aspect of the defence case is that although all the five eye-witnesses spoke of stab injuries at the abdomen and back of the deceased, post mortem examination revealed a big and serious injury at the buttock. Dr. J.B. Mukherjee, head of the department of Forensic Science who performed the post mortem examination on Dipak at 11.00 a.m. on 27-2-1967 found, besides the incised stab injuries at the abdomen and the back of the chest, a third injury which was ( a incised stab injury) l1/4' X 1/2' X 3' placed more or less obliquely over the upper part of the left side of the buttock at it's mid part. On dissection the track and the wound was found to have passed through the underlying skin and muscles to terminate over the gluteal service of the ilium 11/4' below iliac crest producing a cut correspondingly for at the outer surface of ilium, Later on the doctor said that the buttock injury was about 1' below the waist line. He was unable to give any explanation as to how the doctors of the Medical College failed to detect the injury at the buttock, The injury on the buttock, according to the doctor, would endanger life.
36. Mr. Mitra argued that if the eyewitnesses really saw the incident - Samir and Arun are supposed to have watched it from a distance of about 9-10 cubits - they could not have missed the same. The left side of Dipak was exposed to them. The first two reports emanating from the Medical College, Ext. 12 and Ext. 17 did not mention this injury at the buttock nor did the doctors at the Medical College who presumably were busy with the serious wound at the abdomen notice the same, Dr. Mohapatra who was on the emergency duty at 9.10 a.m. on 26-2-1967 and who was the author of the report, Ext. 12, in course of his examination said that he was compelled 'to write under pressure subsequent entries' and the names of the two assailants later. He was declared hostile. Ext. 12 when examined clearly shows that some of the names there were interpolated. Mr. Mitra on behalf of defence urged, and not without force, that if the eye-witnesses had really seen they could not have missed the injury on the buttock. With the background of political rivalry between the victim and the alleged assailants when evidently interpolations were made in the documents in the custody of officer and when even a Doctor was pressurised, the Court should be very cautious, he submitted, in dealing with the evidence of this case. Again, the police took the sealed packet from the hospital under 'production list' but without any formal seizure. When the seal was broken at the Forensic Laboratory the contents as written outside, did not tally with what was found inside. The packet which was labelled with the seal of the Medical College was collected by I.O., Kanai Dutt from the Medical College on 18-3-1967 (Q. 363-66), The discrepancy between the contents of the packet and what were written outside naturally evoked adverse comments. No satisfactory explanation was forthcoming from the prosecution. The defence suggested that the seals must have been broken and the key inserted later on to fit in with the story of the prosecution. It would appear that the shirt contained in the packet did not contain any cut mark corresponding to the abdomen injury. Dr. Mukherjee's (Q 88 and 1303) suggestion was that the shirt which was opened might have flown up. The trouser also did not show any cut mark. It was suggested by the prosecution that as the trouser was used below the waste line the stab injury on the abdomen might not have cut the trousers (Mukherjee Q. 16, 55, 96, 97 and Dr. Aurora Q. 93, 302 to 305).
37. Some of the important documents besides the general diary also came in for criticism. Ext. 12 is the attendance report written by Dr. Mahapatra when Dipak was admitted to the hospital. In the column 'brought by' names of Arun and Samir are there. It is also stated that at about 9.00 a. m, Dipak Sarkar when coming out from the saloon after shaving was stabbed by two persons then names follow which are five (i) Habi, (ii) Prokash (iii) Monotosh (iv) Babu Srimani and (v) Bhoda. There is no doubt that some names were interpolated later on. As already noted Dr. Mahapatra said in his evidence that he was pressurised to alter the document. Mr. Mitra submitted that the document was not in existence at all at least before 3.00 a.m. on the date of occurrence. As already noted Ext, X/l in the general diary which the I.O. recorded on his return to the police station does not mention this important document. S.I. Arun Dey who heard talks between I.O. and another police officer and who returned to the thana at 1.40 a.m. and made an entry therein also does not refer to this document. Again, if the document was really in existence there is no reason why the I.O. would not seize it' at once. From the evidence it transpired that the document by its nature was more for the police. If it was written simultaneously with the admission of the patient there was no reason why it should not have been treated as F.I.R.
38. Comments were also made about Ext. 17 which is an emergency slip and is also written at the time of the admission of the patient to the hospital. The documents Exts. 12 and 17 are stated to be written more or less at the same time Ext. 17 being the earliest. This exhibit, however, states that one Dipak Sarkar was brought from Sarkar Lane being stabbed by Prokash, Rabi and Monotosh. The discrepancy in the two documents. Ext. 12 and Ext. 17 has not been explained. What is extra-ordinary is that this Ext. 17 was never brought to light before the second trial. The book containing the emergency slips would also show that they were not always kept regularly or with reference to dates. Mr. Mitra at one stage commented that this document was withheld as it initially contained no names of the assailants but Mr. Chowdhury stated that if it was really interpolated, the name of Monotosh would not be inserted therein. Ext. Y is the history sheet of the indoor patients. The first portion of this Ext. Y was a copy of the Ext, 17. Mr. Mitra commented that withholding of Ext. 17 seriously prejudiced the defence, Mr. Chowdhury said that the form of Ext. 17 was different from Ext. 12. The columns to be filled up were not the same and therefore some discrepancy might have arisen between the two. Mr. Mitra pointed out that names of the assailants were not recorded in Ext. 12 and Ext. 17 originally or they would be mentioned in the General Diary of the I.O.
39. The next thing to be noticed is that there was no blood detected near-about the place of occurrence. It is true that the photographer in course of his examination stated that he took photos of blood at the direction of I.O. but that is not the case of the prosecution. The I.O. also denies it. The said evidence of the photographer can hardly be accepted. According to the prosecution the garments used by the deceased, such as, the Ganjee, Shirt might have been soaked in blood. The fact that Dipak was removed quickly from the spot and what Dr. Mukherjee stated viz., spurting of blood from the injuries was not expected were also mentioned in this connection.
40. Mr. Mitra also contended that some witnesses were withheld by the prosecution and adverse inference should be drawn for their absence. We however, do not find substance in this argument. Absence of one Ganesh Singha Thakurda was referred to by one P.W. 9 was commented upon. Police however could not trace him. Habul Modak, owner of the sweetmeat shop was stated by the prosecution to be dead and death certificate also was produced (Ext. 28). Three other persons, Sital Prosad, indranath Roy and Mrityunjoy Das who attended the T.I. Parade and could not identify any of the accused were also not called, Mr. Mitra also pointed out that some eminent people like Dr. Narayan Roy and Sudhir Roychowdhury were examined by the Police, but not called. Dr. Narayan Roy to whom the police went on the day of the occurrence, according to Mr. Mitra, should in any event have been examined but the prosecution pointed out that Dr. Ray had nothing to do with the unfolding of the prosecution case. Moreover, accused Rabi in his examination in 342 (page 1597 Q. 23) said that Dr. Roy asked the police to make thorough investigation. Nothing else with regard to the case could be elicited from that witness.
41. As to the assessment of evidence Mr. Chowdhury on behalf of the prosecution relied strongly on the case of Thiagaraja v. King Emperor, reported in (1947) 74 Ind App 132 : 48 Cri LJ 765 (PC) for the proposition that leave once having been granted in an appeal against acquittal under Section 411-A the matter is at large and the Court' of Appeal must dispose of the appeal on the merits paying due regard to the principle on which the Court of Appeal always acts in such a case. In this regard the principles in the case of Sheo Swarup v. King Emperor reported in (1935) 61 Ind App 398 : 36 Cri LJ 786 was endorsed namely, in exercising the power conferred by the Code and before reaching its conclusions upon fact the High Court should, and will, always give proper weight and consideration to such matters as (i) the views of the trial Judge as to the credibility of the witnesses (ii) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial (iii) right of the accused to the benefit of any doubt and (iv) the slowness of an Appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. In Thiagaraja case their Lordships only added that in an appeal against the verdict of a jury the court of Appeal does not know what view the jury took of the evidence of any particular witness but it knows the view which the jury took of the evidence as a whole. If attaching due weight to those matters the Court hearing an appeal on facts under Section 411-A comes to the conclusion that the verdict of the jury was wrong it is bound to allow the appeal and reverse the verdict. It has no right to uphold the verdict merely on the ground that it is not perverse or unreasonable. So to do would be to deprive the appellant of the right of appeal which the statute gives to him, Mr. Chowdhury in this respect said that none of the Supreme Court decisions enunciating the principles in case of appeal against acquittal involved an appeal under Section 411-A. He urged that the observation of the Privy Council in Thiagaraja case must be taken note of to make a departure in the case of appeals under Section 411-A. Merely to hold that the verdict was not reasonable will not be enough.
42. It would, however, appear that Thiagaraja's case (1947-48 Cri LJ 765) (PC) itself was an appeal against conviction. The High Court, of course, allowed leave to appeal on matters of equity as well as of law under Section 411-A Sub-clease (1)(b) of Cr.P.C. It may however be pointed out at once that the decision in AIR 1946 Bom 38 : 47 Cri LJ 378 (FB) which was a Full Bench decision and which was delivered by such an eminent Judge as Chagla, J. and which also involved an appeal under Section 411-A also held that
the Court must always be reluctant to interfere with a verdict of the jury specially when it is an unanimous verdict. The Court must be satisfied that it is a perverse verdict, and the line of demarcation between the perverse verdict and erroneous appreciation of evidence must be clearly and sharply drawn. The Court must be satisfied that no reasonable body of men would have arrived at the verdict which the jury arrived. It is not sufficient that we reading the evidence might have come to a conclusion different from the one that the jury arrived at. We must be satisfied that the only possible view on the evidence was the view that the accused was guilty and that the jury were manifestly perverse in the decision at which they arrived.
The principles laid down in the said case do not seem to support Mr. Chowdhury but it is to be conceded that the said Full Bench decision was decided earlier than the Privy Council case but the latter also does not take notice of the Bombay case.
43. Mr. Chowdhury also drew the attention of the Court to the case of Sivaji v. State of Maharashtra, reported in : 1973CriLJ159 for some of the observations made by K. Iyer, J., therein viz., that while it is noted that in law there are no fetters on the plenary power of the appellate court to review the whole evidence on which the order of acquittal is founded and, indeed it is its duty to scrutinise probative materials de novo and that an acquittal constrains the higher court not to upset the holding without very convincing reason and comprehensive consideration. K. Iyer, J., quoting Viscount Simon that 'the miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent' warned that our ju-risprudential enthusiasm must be moderated by the pragmatic need to make criminal justice potent and realistic. The Supreme Court reiterated the principles in Sheo Swamp's case 1935-36 Cri LJ 786 (PC) already referred to which was approved by several other decisions of the Supreme Court such as, Sanwath Singh v. The State of Rajasthan reported in : 1961CriLJ766 ; Har-bans Singh v. The State of Punjab, reported in AIR 1902 SC 439 : 1962-1 Cri LJ 479. In the last case Dasgupta, J., commented on the phrase that the High Court should not interfere except on 'compelling and substantial reasons' which embarrassed some High Courts in exercising their jurisdiction in appeal against acquittal. In later years though the Supreme Court sometimes commented upon the phrase 'compelling reasons' nevertheless adhered to the view that before interfering in appeal against acquittal the Court should examine all questions of law and fact and should interfere only if satisfied after such examination that the linding of the lower court is unreasonable.
44. Mr. Chowdhury particularly drew our attention to the evidence of the father of the deceased. In Angnoo v. The State of Uttar Pradesh, reported in : 1971CriLJ285 referring to the brother of the deceased who was a witness, the Supreme Court stated that circumstances added to the value of his evidence because he would be interested in ensuring that real culprits responsible for the murder are punished and not innocent person. Mr. Chowdhury, also submitted that this Court should not discard the evidence of eye-witnesses because they were found unrealiable in part in the first trial or if some parts of their evidence in the second trial were also not produced before the Court : The maxim Falsus in Uno Falsus in omnibus is not of general application in India. The fact that evidence of eye-witnesses has not been believed by the lower courts as regards some accused does not mean that their evidence as regards other accused must be rejected (See Jagdip Singh v. State of Haryana, reported in : 1974CriLJ1378 . In the case of Amir Huasain v. State of Uttar Pradesh, reported in : 1975CriLJ1874 ten of the accused persons were acquitted by the Sessions Court and two more were acquitted on appeal by High Court by being given benefit of doubt. Only one accused was convicted and sentenced to death. The Supreme Court held that the conviction was not bad in law.
45. Adhering to the principles referred to above this Court holds that the verdict of the jury cannot be said to be unreasonable and this Court finds no compelling reason to interfere with the same. We have looked into the facts and circumstances of the case. We have closely noted the evidence of the different eyewitnesses and others. Even on the principle urged by Mr. Chowdhury we cannot be sure that the prosecution has been able to prove the guilt of the accused beyond reasonable doubt. We have' indicated the infirmities of the prosecution case in detail. The unsatisfactory state of some of the entries in the general diary of the Police Station and the earliest records at the Medical College along' with other relevant circumstances make the defence case plausible viz., that the time of occurrence might have been much earlier than 9.00 A.M. when it would not be possible for the two main eye-witnesses to be present at the scene of occurrence. The nature of the other three witnesses have also been analysed earlier. They do not inspire confidence. We have also noted how one of the three major injuries viz., the injury on the buttock was not noticed either by the Doctors at the Medical College nor by the eye-witnesses. It may be that the prosecution case is true but as was stated in the case of Sara-wan Singh v. The State, reported in : 1957CriLJ1014 .
'Between may be true and must be true there is inevitably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before the accused can be convicted.
We are unable to hold that the same has been done in this case. In our view the defence must be given the benefit of doubt. The appeal, therefore, is dismissed. The judgment and order of the lower court acquitting the respondents is upheld. Let the accused persons be released of their bail bond.
P.K. Chanda, J.:
46. I agree.