M.H. Beg, C.J.
1. There are two revision applications before me. One is directed against the order of acquittal passed by the learned Sessions Judge of Mahasu In a case in which the opposite party was convicted by a Magistrate under Section 337 I. P. C. and sentenced to pay a fine of Rs. 200/-. The other revision application is directed against an order of the District Magistrate dismissing the complaint of Lumbru, the applicant, against Shankar Dass and his wife Ludri for alleged offences punishable under Sections 307 and 307/114 I. P. C. and also for action under Section 403(4) of Cr. P. C. Both the revision applications arise out of a common set of facts relating to the same incident described below together with the findings of fact arrived at about it.
2. It appears that on 24-7-1968, at about 11 A. M., when Paerey Lal. the son of the applicant Lumbru, was ploughing in his father's field, together with his cousin Maulu, a few feet ahead a gun shot was heard from the direction of the house of the opposite party Shankar Dass shown in the site plan at a distance of 110 ft. presumably to the north-west of the field of Lumbru. Between the field and the house of Shankar Dass is shown, in the site plan (Ex. P-11/A), an orchard with a large number of trees in it. There are actually three rows of these trees shown between Point A, in the verandah of Shankar Dass, and Point B, where Paerey Lal was ploughing. In the second row, the point shown as D is the place where some feathers of a bird were picked up by the Police, and marks of gun shots were also found there on trees in the orchard. It appears that Paerey Lal was injured by gun shots and fell a few feet away. He deposed, as the main prosecution witness, that he lay there from 11 to 3.00 P.M., but no attempt was made in this period to find out who had fired the gun. This statement of Paerey Lal certainly indicated that the identity of the person who had fired the gun was not known, presumably because he could not be seen due to the trees in the fruit orchard. The learned Sessions Judge, in his order of acquittal, found:
The orchard grove was dense and the trees were sufficiently high. The appellant could not view any human being nearby who was beyond the orchard. The trees intercepted his view. We cannot say that he acted rashly or negligently....
3. It is true that prosecution witnesses stated that the place where Paerey Lal was ploughing was clearly visible from the house of the accused Shanker Dass. which was higher up, but the learned Sessions Judge had believed the defence evidence, based on the site plan prepared by Devi Singh, P. W. 11. the Investigating Officer. The correctness of the site plan was not questioned by any one. The site plan, together with the statement of the accused and the defence witnesses, had justified the finding of the learned Sessions Judge that the place from where the gun was fired was not visible.
4. In any case, the statement of Pearey Lal himself, together with the great delay with which the F. I. R- was lodged on the next day at about 10 A. M. at Police Station Rampur, at a distance of only about 12 miles, indicate that the identity of the person who fired the gun was not known or found out immediately although the prosecution witnesses may have stated otherwise. It is difficult to believe the prosecution witnesses when they say that the identity of Shankar Dass as the person who fired the gun was immediately known. The villagers assembled there would have gone to his house and sought some explanation from him if this was correct. I see no reason whatsoever, in this case, to depart from the general practice that a High Court does not, as a Court of revision, ordinarily interefere with findings of fact-Moreover, the more the evidence was examined, the greater were the number of infirmities revealed in the prosecution case.
5. The learned Sessions Judge had rightly remarked that the medical evidence in the case was of an abnormal type. Dr. J. K. Jain. P. W. 9, is shown to have examined Pearey Lal on 25-7-1968 at 10.45 A. M. at the Civil Hospital, Rampur. He deposed that he found the following injuries:
1. Punctured wound on left side of temporal region 4 cm. above left ear, size 1/2 cm x 1 cm pointing toward upward scalp deep-
2. Punctured wound on posterior side of left eyebrow with a palpably pellet 1/3 cm x 1/4 cm x 1 cm - direction downward.
3. Charred area, 3 mm in size on Rt. forearm, 5 cm. below medial epieurdeyl-
4. Charred 3 mm. area in between 1st and 2nd lumber region.
5. Charred area 3 mm on the upper sacral region.
6. Abrasion on right posterior side of thigh 1/2 cm. long.
7. Charred 3 mm area on the posterior side of right thigh 16 cm. below the injury No. 6.
8. Charred area 4 mm. on the posterior side of left thigh with a pellet palpable 10 cm. above the joint.
9. Charred area 3 mm. on the posterior side of left thigh 9 cm. lateral to injury No. 8.
6. Now, the charring shown in this report could not possibly have taken place as a result of any shooting by the accused who was undoubtedly more than 100 ft. away. The only inference that could emerge, from a close examination of these alleged injuries, was that, either the complainant had fabricated some injuries on his body or that the doctor had deliberately shown charring without any justification. There is no suggestion that the doctor was deliberately trying to falsify the prosecution case. There is also a medical report of 31st July, 1968, given at the Snowdown Hospital of the following injuries found six days later on the body of Pearey Lal who was advised X-ray examination:
1. Healed small scar over the left temporal region covered with thick scab - 1/4'
2. Infected small wound over the left elbow - stitched at Rampur Hospital.
3. Healed scar left popliteal fossa -of both the knees. No wound of exit.
4. Nature of the injury to be given after X-ray report of the skull and Rt. elbow, and both the knees.
7. It is difficult to understand how, if the accused had actually fired from a distance of 110 ft, from his verandah towards Pearey Lal deliberately, the above mentioned injuries could have resulted from a single gun fire from such a distance. It is not the prosecution case that any injury was caused in any other manner. The medical evidence in the case makes a complete hash of the whole prosecution case. If the nature of injuries, proved by medical evidence, does not fit in with the prosecution version, it could not be said that the prosecution case was free from very serious infirmity.
8. Learned Counsel for the complainant, Mr. Bakshi Sita Ram, has vehemently urged that this was a case of gross miscarriage of justice due to the complicity of the police. The police had sent up the case under Section 337 I. P. C. but, after the close of evidence in the case the Public Prosecutor had applied under Section 347/227 Cr. P. C. for amending the charge and for commitment of the case for trial to the Court of Session after framing a charge under Section 307 I. P. C. The Magistrate rejected this application on 5-6-1969. It appears that the complainant went up in revision to the High Court against the Magistrate's refusal to amend the charges. His revision application was rejected on 27-8-69. The accused was tried for an offence punishable under Section 337 I. P. C. only and convicted. He was only acquitted by the learned Sessions Judge. Thereafter. Lumbru, the father of Pearey Lal, had filed a complaint for proceedings under Section 207 I. P. C. against Shankar Dass and his wife with certain fresh allegations. The learned Magistrate had rejected the complaint on the ground that the incident had already formed the subject matter of a previous trial in which Shankar Dass was acquitted. The second revision application had arisen out of that order of the Magistrate.
9. The mere use of a gun or the presence of gun-shot injuries on a person's body is not enough, by itself, to prove an offence punishable under Section 307 I. P. C. This question was considered by a Division Bench of the Allahabad High Court in Bhagwan Din v. State : AIR1967All580 where the view taken by that Court in Badshah Singh v. State : AIR1958All677 was explained away. It was held:
It is, therefore, clear that the mere fact that a gun has been used by accused person for causing injury to the complainant will not necessarily bring the case under Section 307 I. P. C. There can be no presumption that the accused intended to cause the death merely because he used a firearm to cause hurt.
10. In this case, reliance was placed upon the Supreme Court decision in Sarju Prasad v. State of Bihar : 1965CriLJ766 where it was held that mere use of a knife would not establish an offence under Section 307 I. P. C. unless the required intention in using it was shown to exist. In the instant case, the circumstances in which the gun was fired showed that the accused could not have had the intention to commit an offence punishable under Section 307 I. P. C. The case was, therefore, rightly sent up by the police under Section 337 I. P. C.
11. The learned Sessions Judge had, however, after examining the evidence, come to the conclusion that the accused, who had admitted having fired the gun, had meant to shoot a dove in the orchard. It was held that the dove was actually killed and its feathers were found there. The learned Judge also observed that shooting birds in a grove was not uncommon. The wife of the accused Shanker Dass had appeared and deposed that the dove shot had actually been cooked by her for a meal.
12. As already observed, this Court does not, as a rule, sitting in revision, disturb findings of fact. The position which clearly emerges from findings of fact given by the Sessions Judge, is that the accused could not be guilty of an offence punishable under either Section 307 I. P. C. or Section 337 I. P. C.
13. It is not possible for this Court to enter into the question whether the police or the doctor had deliberately spoilt the prosecution case. If there is any substance in those grievances, the remedy lies elsewhere. This submission of the learned Counsel for the complainant-applicant itself indicates that the prosecution case, as it stands, is admitted to be defective.
14. Learned Counsel for the applicant then urged that the subsequent complaint of Lumbru, for proceedings against Shankar Dass and his wife, for a graver offence punishable under Section 307 I- P. C. should not have been dismissed merely because of the acquittal of Shankar Dass for a minor offence punishable under Section 337 I. P. C. He relied upon Section 403(4) and the decision of their Lordships of the Supreme Court in Ramekbal Tiwarv v. Madan Mohan Tiwary : 1967CriLJ1076 .
15. Section 403 (4) has to be read together with Section 403 (1) so that the two provisions are harmonised. Section 403 (1) reads as follows:
A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under Section 236, or for which he might have been convicted under Section 237.
Section 403 (4) lays down:
A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged.
16. It is obvious that, where a person has been tried by a court of competent jurisdiction provisions of Section 403 (1) prohibit not merely the trial of the accused again for the same offence, but also for any other offence for which different charges could have been framed on the same facts. Apparently, in order to obviate this difficulty, the complainant had introduced some new allegations bringing in the wife of the accused Shankar Dass and alleging that she had gone and removed Smt. Rukmani, the sister of Lumbru from the range of gun shots, thereby suggesting that there was a conspiracy between Shankar Dass and his wife to shoot at Lumbru and that Pearey Lal was hit only accidentally, Nevertheless, the case for which the accused was tried was in respect of the same gun fire. The question, therefore arises whether these variations in the case by Lumbru, who had appeared in the previous prosecution of Shankar Dass for the same incident as a prosecution witness, would entitle Lumbru, the father of the injured, to come forward with a new complaint for a graver offence in respect of the same set of facts.
17. It is evident that the principle laid down in Section 403 (1) does not depend for its application upon the identity of the prosecutor. The bar against retrial is imposed against prosecution on the same set of facts, that is to say, for the same transaction once again- It will be noticed that Section 403 (1) is more comprehensive in its scope than Article 20, sub-Article (2) : 'No person shall be prosecuted and punished for the same offence more than once'. Section 403 (1) specifically incorporates the principle which gives effect to the pleas autrefois acquit as well as of autrefois convict. It embodies the broad ancient maxim 'nemo debet bis vexari pro eadem causa' (no person shall be vexed twice over for the same cause). It is roughly the equivalent of what operates as res judicata in a civil case. But, its scope appears to be somewhat wider inasmuch as the identity of the prosecutor on the former occasion is not required to be the same as that in the subsequent prosecution in order to make the principle applicable.
18. It is true that Sub-section (4). Section 403, Cr. P. C. authories retrial of the same person for another offence upon the same set of facts provided the first trial was by a court not competent to try the offence. No doubt, the competence of a court depends also upon the charge which is being tried. A First Class Magistrate is not competent to try an offence punishable under Section 307 I. P. C. Nevertheless, so long as the first trial correctly took place on the assumption that the graver offence was not! constituted by the allegations made, so that the trial court was not 'clutching at' or usurping the jurisdiction it did not possess, the principle contained in Section 403 (4) would not apply. On the other hand, where the trial for the minor offence on the the same set of facts was quite proper and unassailable, the principle contained in Section 403 (1) Cr. P. C. would apply. In the instant case, the complainant had agitated the matter right up to the High Court, at the initial stage, and it had been decided that the trial of the accused Shankar Dass was proceeding properly for an offence punishable under Section 337 I. P. C. In other words, the contention that the Magistrate was usurping jurisdiction which he did not possess had been already repelled.
19. In Tiwary's case : 1967CriLJ1076 (supra), their Lordships of the Supreme Court had pointed out that, quite apart from Section 403 (1), Cr. P. C., the case could be removed from the purview of the principle of res judicata laid down in Pritam Singh v. State of Punjab : 1956CriLJ805 because the acquittal of Ramekbal Tiwary had been affirmed by the High Court in revision. It was held that the High Court had the jurisdiction to set aside the acquittal. It is for this reason that the case was held to be outside the scope of the principle formulated in the following words by Lord McDermott in Sambasivam v. Public Prosecutor. Federation of Malaya 1950 AC 458 at p. 479:
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 offence, To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication. The maxim 'Res judicata proveritate accipitur' is no less applicable to criminal than to civil proceedings.
20. Does the fact that the parties here are different inasmuch as the State was the prosecutor in the previous prosecution and Lumbru, the father of the injured Pearey Lal, is the prosecutor in the instant case, make any difference? It would leave the door wide open for abuse of the processes of law if a complainant, claiming a separate and independent right from that of the State, which had chosen to prosecute an alleged offender on lines which appeared to it to be just and proper but had failed, could prosecute afresh with new allegations of a graver kind of offence and implicating an additional alleged offender, unless it could be clearly established that the prosecuting agencies of the State had either glaringly failed to discharge or had acted palpably dishonestly or partially in the discharge of their duties to prosecute. When this is not shown, the prosecution by the State must be deemed to be on behalf of all the citizens of the State, including the aggrieved person, so that a private complainant could not claim a separate and independent locus standi. It is only in very rare cases, on proof of exceptional facts and circumstances, that the locus standi of a private complainant could be recognised after the State's prosecuting agencies have chosen to launch a prosecution for the same occurrence. It has to be borne in mind that private complainants and prosecutors are prone to exaggerate and magnify private injuries, for which civil remedies are always open to them into public wrongs. They can more readily act, as the police or the State's prosecuting officers are not likely to act. for purposes of satisfying individual desires for wreaking vengeance upon adversaries. Courts have, therefore, to be circumspect and careful against being misled by private complainants claiming to be better investigators and more honest prosecutors than the State officers entrusted with the duties of investigation of crimes and prosecution for offences committed.
21. In the instant case, the question before the Magistrate who threw out the applicant's complaint on the ground that the accused Shankar Dass had already been tried and acquitted for the same occurrence, was whether he could frame a fresh charge for a graver offence when the same incident is dressed up in a new garb with some additional fallings, notwithstanding the acquittal of the accused in the previous prosecution by the State? I think the Magistrate was quite justified in taking into account the fact that the accused had been properly tried for the same occurrence of a minor offence so that Section 403 (1) and not Section 403(4) Cr. P. C. applied to the case. When the accused Shankar Dass had been acquitted for the alleged offence punishable under Section 307 I. P. C., it was obvious that his wife could not be charged for an offence for abetment under Sections 307/114 I. P. C. .which applies only where the offence abetted is actually committed. A Magistrate, who is approached with a complaint cannot shut his eyes to the proved facts which indicate that the subsequent prosecution cannot possibly succeed in such a case. He would be justified in throwing out the complaint in limine, as he had done in this case, after ascertaining sufficient number of facts to convince the Magistrate that framing of a charge and commitment of the case to the Court of Session would be utterly futile. I therefore, dismiss both these revision applications.