JUDGMENT
Anwar Ahmad, J.
1. This is an appeal under Sub-section (3) of Section 417 of the Code of Criminal Procedure.
2. The respondents were charged under Sections 144 and 379 of the Indian Penal Code for forming an unlawful assembly for committing the offence of rioting armed with deadly weapons and for having committed theft of wheat crop from plots Nos. 1452 and 1295 belonging to the complainant.
3. The case of the appellant was that he was in possession of plots Nos. 1452 and 1295 situate in village Sandalpur. The two plots formerly belonged to one Harilal Barik from whom they were taken in batai settlement about twenty years back by the appellant and, since then, he was in peaceful cultivating possession of the same. During the recent revisional survey settlement, plot No. 1452 was correctly recorded sikmi in the name of the appellant but the entry with regard to plot No. 1295 was wrongly made, as it was not recorded sikmi in his name. The respondents purchased the aforesaid plots recently from Harilal Bank and others. The appellant had grown wheat on the aforesaid plots and, apprehending trouble, he filed an application under Section 69 of the Bihar Tenancy Act for division of crops before the Deputy Collector, Land Reforms, Katihar, who ordered P.W. 5, the Mukhiya of Dighra Gram Panchayat, to get the crop harvested; but, before that could be done, on the 31st March 1967, the respondents came to the aforesaid plots, variously armed, and looted away the wheat crop. When an objection was raised by the appellant, the respondents became ready to assault him.
4. The case of the respondents was that they had committed no offence. The appellant was never in possession of the disputed plots as bataidar of Harilal Barik nor had he grown the wheat.
5. In order to prove the actual occurrence, the prosecution examined as many as seven witnesses including the complainant (P.W. 6), who is the appellant before this Court. The Court below did not accept the evidence of any one of the witnesses examined by the prosecution and held that the appellant miserably failed to bring home the charge against the respondents and acquitted them under Section 258 of the Code of Criminal Procedure. Hence, this appeal.
6. Mr. S.B. Sanyal, learned Counsel for the appellant, brought to my notice the decisions of the Supreme Court in Aher Raja Khima v. State of Saurashtra , Harbans Singh v. State of Punjab and , Sher Singh v. State of Uttar Pradesh. According to learned counsel, the powers of this Court in an appeal from a judgment of acquittal are almost the same as its powers in an appeal from judgment of conviction so far as the question of interference with the order under appeal is concerned and, at any rate, there is no wide difference between them. In the case of Aher Raja Khirna , their Lordships were pleased to lay down as follows:
It is, in our opinion, well settled that it is not enough for the High Court to take “a different view of the evidence. There ‘must also be substantial and compelling reasons for holding that the trial Court was wrong…and if the trial Court takes a reasonable view of the facts of the case, interference under Section 417 is not justifiable unless there are really strong reasons for reversing that view.
In the case of Harbans Singh , their Lordships explained the words “compelling reasons” in the following words:
It is clear that in emphasising in many Cases the necessity of “compelling reasons to justify an interference with an order of acquittal, the Court did not in any way try to curtail the power bestowed on appellate Courts under Section 423 of the Code of Criminal Procedure when hearing appeals against acquittal, but conscious of the intense dislike in our jurisprudence of the conviction of innocent persons and of the fact that in many systems of jurisprudence, the law does not provide at all for any appeal against an order of acquittal, the Court was anxious to impress on the appellate Courts the importance of bestowing special care in the sifting of evidence in appeal against acquittals. As has already been pointed out, less emphasis is being given in the more recent pronouncements of this Court on ‘compelling reasons’. But, on close analysis, it is clear that the principles laid down by the Court in this matter have remained the same. What may be called the golden thread running through all these decisions is the rule that in deciding appeals against acquittal the Court of Appeal must examine the evidence with particular care, must examine also the reasons on which the order of acquittal was based and should interfere with the order only when satisfied that the view taken by the acquitting Judge is clearly unreasonable. Once the Appellate Court comes to the conclusion that the view taken by the lower Court is clearly an unreasonable one that itself is a “compelling reason” for interference. For, it is a Court’s duty to convict a guilty person when the guilt is established beyond reasonable doubt, no less than it is its duty to acquit the accused when such guilt is not so established.
In Sher Singh’s case , their Lordships again laid down the extent of the powers of the High Court in an appeal from acquittal, The principles laid down in Sanwat Singh v. State of Rajasthan , have been reiterated and it has been laid down as follows:
…the powers of the High Court in an appeal from an acquittal are in no way different from those in an appeal from a conviction. The High Court can consider the evidence and weigh the probabilities. It can accept evidence rejected by the Sessions Judge and reject evidence accepted by him unless the Sessions Judge relied upon the observations of the demeanor of a particular witness. In departing from the conclusions of the Sessions Judge the High Court must pay due attention to the grounds on which the acquittal is based and repel those grounds satisfactorily, bearing in mind always that an accused starts with a presumption of innocence in his favour and this presumption cannot certainly be less strong after the acquittal. If these matters are properly kept in view and the acquittal is reversed, there can be no objection because our criminal jurisdiction empowers the High Court to reverse an acquittal.
7. In view of the principles laid down in the aforesaid decisions, Mr. Sanyal contended that the judgment under appeal was unreasonable. Out of the seven witnesses examined by the prosecution, P.W, 4 was tendered and P.Ws. 5 and 7 could not evidently be a witness to the occurrence, although he supported the prosecution case so far as the application filed under Section 69 of the Bihar Tenancy Act is concerned. Mr. Sanyal, therefore, very rightly took me through the evidence of P.Ws. 1, 2, 3 and 6, who proved the case of the prosecution as eye-witnesses to the occurrence. His main submission was that the learned Munsif-Magistrate disbelieved these witnesses on grounds which were entirely unreasonable.
8. P.W. 1 was not relied upon by the Court below, on the ground, firstly, that, in cross-examination, he admitted that his father Balkishan Nonia was the bataidar of the respondents but denied that his father had filed a case under Section 69 against some of the respondents. Exhibits A and A-l as also the order-sheet in Revenue Appeal No. 100 of 1962-63 of the Court of the Collector, Purnea, go to show that his father had brought a case against Karu Nonia and another under Section 69. The second ground for rejecting the evidence of this witness was that he did not own any land by the side of the place of occurrence except a piece of batai land but he could not give the description of this batai land. It was further admitted by this witness that the respondents were not cutting the crop and he had no talk with them. The above admissions made by this witness go to show that he could not be a witness to the actual occurrence of theft of the crop, as alleged by the prosecution. I cannot agree with Mr. Sanyal that the Court was unreasonable in refusing to act on the evidence of P.W.I.
9. The evidence of P.W. 2 was discarded by the Court below on the ground that a proceeding under Section 107 of the Code of Criminal Procedure was going on between his brother Muni Lal and the respondents. The learned Munsif-Magistrate did not at all discuss the evidence of this witness but only observed that he stated and corroborated the statements of P.W. 1 and that he made the above admission that a proceeding under Section 107 of the Code of Criminal Procedure was going on between his brother and the respondents. The contention of Mr. Sanyal was that the rejection of his evidence on the only ground of enmity was not justified. The Court below should have carefully read his evidence and then come to the conclusion whether or not his evidence was acceptable. I think the contention of! Mr. Sanyal is correct and is covered by the decision of the Supreme Court in Masalti v. State of Uttar Pradesh , relied upon by him. It will be useful to quote the relevant passage from that decision, which runs as follows:
But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. Often enough, where factions prevail in villages and murders are committed as a result of enmity between such factions, Criminal Courts have to deal with evidence of a partisan type. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice.
It is, therefore, to be accepted that the| evidence of P.W. 2 was discarded by the Court below on an unreasonable ground.
10. The evidence of P.W. 3 was not acted upon by the learned Munsif-Magistrate on the ground that, in his cross-examination, he stated that the respondents silently cut and removed wheat crop and there was no quarrel over the same. A, reference to paragraph 7 of the petition of complaint goes to show that, when the complainant (P.W. 6) raised alarm and objected, the respondents became ready to assault him. In his examination-in-chief,, the complainant (P.W. 6) stated that, when he forbade the respondents from harvesting the wheat, respondent Rajendra threatened him and asked mm to run away or he would” be killed. The evidence of P.W. 3 is in direct conflict with the prosecution case as, given in the petition of complaint as well as: in the evidence of the complainant in Court. Mr. Sanyal tried to explain this conflict by urging that P.W. 3 could not actually see the cutting of crop and could1 not hear the noise as he was ploughing his own land which was at a distance of two bighas. This submission is, however, not borne out by the statement of P.W. 3 made in his examination-in-chief, which is to that effect that he saw fifty persons coming to the place of occurrence variously armed and harvesting the wheat crop in the land of the appellant. His evidence has, therefore, been rightly rejected by the Court below.
11. The only other eye-witness to the-actual occurrence was P.W. 6. He admitted in his cross-examination that the place-of occurrence was near Chamartoli which-consisted of about twenty-three houses. On his evidence, he raised halla but no one belonging to Chamartoli came to the place of occurrence in response to his halla as all the residents of Chamartoli were members of the unlawful assembly in the instant case. This was his explanation as to why no witness belonging to Chamartoli was examined by the prosecution although P.W. 6 had raised a halla when the respondents began to harvest the crop but this witness also admitted that no one of Chamartoli was made an accused in this case. This admission is also borne out by the petition of complaint itself. It is difficult to believe that, in spite of the knowledge of the appellant that all the residents of Chamartoli were members of the mob, he would omit to make any of them as an accused in his petition of complaint. On account of this admission of the appellant, t the Court below came to the conclusion that no occurrence, as alleged by him, took place. I see no reason to differ from this inference of the Court below.
12. Having heard the parties at great length and having gone through the evidence of the witnesses examined on behalf of the prosecution, I cannot agree with learned Counsel for the appellant that the judgment under appeal can be characterised as unreasonable. Even if the evidence of P.W. 2 was wrongly rejected, that by itself would not be a sufficient ground for interference with the order of acquittal passed by the Court below.
13. For the reasons stated above, the appeal fails and is dismissed.