PETITIONER: CHAGANTI KOTAIAH & ORS. Vs. RESPONDENT: GOGINENI VENKATESHWARA RAO & ANR. DATE OF JUDGMENT03/04/1973 BENCH: VAIDYIALINGAM, C.A. BENCH: VAIDYIALINGAM, C.A. ALAGIRISWAMI, A. DUA, I.D. CITATION: 1973 AIR 1274 1973 SCR (3) 867 1973 SCC (2) 249 CITATOR INFO : R 1975 SC1854 (3) ACT: Code of Criminal procedure (Act 5 of 1898) s. 439--Revision against, acquittal by private party-Powers of Highi Court. HEADNOTE: In connection with the murder of two persons and injuries sustained by some prosecution witnesses, 30 persons were tried by the Sessions Court for offences under ss. 148, 302 read with s. 149 or alternatively, under s. 302 read with s. 34 and ss. 323, 324 and 326 I.P.C. The trial Court convinced 8 of them of some of the offences but acquitted them of the other offences, and also acquitted the remaining 22 accused of all the charges. The convicted 8 accused filed appeals before the High, Court. The State had not filed any appeal but, one of the prosecution witnesses, As a private party. filed a criminal revision challenging the complete acquittal of the 22 accused as well as the acquittal of the 8 convicted persons of the other charge--. The High Court set aside the judgment of the trial court and remanded the entire case for retrial. Allowing the appeals to this Court, HELD: The order of the High Court in the revision case should be set aside and the appeals filed by the 8 accused should be remanded to the High Court for disposal according to law. [877G-H] The entire approach of the High Court in dealing with the criminal revision was contrary to the principles laid down by this Court and the interference in revision by the High Court was unjustified. [876C-D] (a) On the evidence on record, it could not be said that the acquittal of the 22 accused or of the 8 accused on some of the charges was not justified. [877D-E] (b) Notwithstanding the fact that s.439(4), Cr. P.C., does not authorise the High Court to convert a finding of acquittal into one of conviction, it has in the present case, in fact contravened this provision by recording a finding of guilt against the accused and directing the trial court to convict them after retrial. The High Court missed the important limitations on its power and set aside the finding of acquittal, in revision, which could be done only in very exceptional circumstances. [876C-D, H] (c) The detailed consideration of the evidence by the High Court and expression of opinion about the guilt of the accused has really loaded the dice against the accused when the case would go back for retrial. [877A-B] (d) The High Court had admittedly not considered the grievance of the 8 convicted accused in their criminal appeals. [875G] (e)There is no question of lack of jurisdiction in the trial court to try the case. Nor was any attack made that any evidence had been shut out at the trial. [876D-E, F-G] (f)There was no shutting out at the trial of any evidence which the prosecution wanted to adduce or the defence wanted to lead. All available evidence had been let in by both. The mere fact that the 868 trial court held that a dying declaration was not relevant while considering the attack on another person did not amount to shutting out evidence at the trial. [876E-F] (g) It could not be said that there has been any glaring defect in the procedure or a manifest error on a point of law leading to a flagrant miscarriage of justice. [876G] (h) It could pot also be said that the trial court did not consider the alternative charges under s. 34 and s. 149. The trial court had held that in view of the definite case of the prosecution and the nature of the evidence, none of the accused could be held constructively liable. [877B-C] K.Chinnaswamy Reddy v. State of Andhra Pradesh, [1963] 3 S.C.R. 412, Mahendra Pratap Singh v. Sarju Singh & Anr. [1968] 2 S.C.R. 287, Khetrabasi Samal etc. v. State of Orissa etc., [1970] 1 S.C.R. 880 and Amar Chand Agarwalla v. Shanti Bose and Another etc. Criminal Appeals Nos. 101-103 decided on 22-12-1972, followed. JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : criminal appeals Nos. 173
& 174 of 1970.
Appeals by special leave from the judgment and order dated
August 25, 1970 of the Andhra Pradesh High Court at
Hyderabad in Criminal Revn. No. 727 of 1969 and Cr. A.
Nos. 201 and 202 ,of 1969.
P. Basi Reddy, K. R. Chaudhuri, Gopalakrishna Murthy and
K. Rajendra Chaudhuri, for the appellant (in both the
appeals).
T. V. S. Narasimhachari and K. Jayaram, for respondent No.
1 (in Cr. A. No. 173).
P. Ram Reddy, P. Parameshwara Rao, for respondent No. 2
(in Cr. A. No. 173) & for respondent (in Cr. A. No. 174).
The Judgment of the Court was delivered by
VAIDIALINGAM, J. These two appeals, by special leave, are
directed against the judgment and order dated August 25,
1970, of the High Court of Andhra Pradesh in Criminal
Revision Case No. 727 of 1969 and Criminal Appeals Nos. 201
and 202 of 1969 setting aside the judgment of the Second
Additional Sessions Judge, Guntur, in Sessions Case No. 121
of 1968 and remanding the entire case for retrial.
In connection with the murder of two persons, Gogineni
Koteswara Rao and Venigandla Ratnababu, and the injuries
sustained by the prosecution witnesses, PWs 5 to 7 and 13,
on August 16, 1968, thirty persons were tried by the learned
Sessions Judge of Guntur for offences under section 148 and
section 302 read with S. 149 or alternatively under section
302 read with section 34 and sections 323, 324 and 326 of
the Indian Penal Code. The learned Sessions Judge found
that accused Nos. 5 to 7, 14, 18, 19, 24 and 25 had
participated in part of the occur-
869
rence that took place on that day and convicted the under
section 148. The 5th accused was convicted under section
302 for causing the death of Ratnababu and was sentenced to
undergo imprisonment for life. Accused Nos. 6 and 7, who
were found guilty of causing simple injuries to Ratnababu,
were convicted under section 324. Accused Nos. 14, 19, 24
and 25 were found guilty of causing injuries to PW 7.
Accused No. 25 was convicted under section 323 while the
three others were convicted under section 324. Accused No.
18 was found guilty of causing injuries to PW 13 and
convicted under section 324. Sentences of imprisonment of
varying terms were imposed on the accused found guilty under
sections 323 and 324. A sentence of rigorous imprisonment
was also imposed on all these eight accused for the offence
under section 148. The sentences of imprisonment were
directed to run concurrently. The learned Sessions Judge
found that none of the accused can be held guilty of the
offence of causing the death of Koteswara Rao nor for the
injuries sustained by PWs 5 and 6. Accordingly he acquitted
the eight convicted accused of all the other charges.
Similarly he also found that the other twenty-two accused
were not guilty of any of the offences with which they were
charged and accordingly acquitted them.
Accused No. 5 challenged his conviction before the High
Court in Criminal Appeal No. 201 of 1969. The other seven
convicted accused, namely, accused Nos. 6, 7, 14, 18, 19, 24
and, 25, filed Criminal Appeal No. 202 of 1969. One Gogineni
Venkateswara Rao, who gave evidence as PW 7 and who was a
brother of the deceased, Koteswara Rao, filed Criminal
Revision Case No. 727 of 1969 under sections 435 and 439 of
the Code of Criminal Procedure before the High Court
against all the thirty accused challenging the several
acquittals recorded against them by the learned Sessions
Judge. The High Court allowed the two Criminal Appeals as
well as the Criminal Revision and after setting aside the’
judgment of the Sessions Court, remanded the entire case for
retrial. Criminal Appeal No. 173 of 1970 is by all the
thirty accused against the order in Criminal Revision Case
No. 727 of 1969; while Criminal Appeal No. 174 of 1970 is by
the eight accused, who had been convicted for different
offences under sections 302, 148, 323 and 324.
Mr. Basi Reddy, learned counsel for the appellants in both
the appeals, has attacked the judgment of the High Court on
the ground that the High Court has exceeded its
jurisdiction in ordering a retrial at the instance of a
private party, namely, PW 7. According to the learned
counsel, the judgment of the Trial Court does not suffer
from any of the infirmities the existence of which alone
gives jurisdiction to a High Court under exceptional cir-
870
cumstances to interfere under its revisional jurisdiction at
the ,instance of a private party. It was further urged that
there has been no consideration of the appeals filed by the
eight accused, who had been convicted of certain offences.
The reasons given by the Trial Court for acquitting
completely the twenty-two accused and for acquitting the
eight convicted accused of certain other, offences were
fully, supported before us. It was finally urged that no
case had been made out for interference by the High Court in
its revisional jurisdiction and the proper approach should
have been to dispose of on merits the two Criminal Appeals
filed by the eight convicted accused.
On the other hand, Mr. Narasimhachari, learned counsel
appearing for PW 7, who filed the Criminal Revision, no
doubt attempted to support in full the order of retrial
passed by the High Court. We should frankly say that he
found considerable difficulty in supporting the wholesale
retrial ordered by the High Court. But the learned counsel
pressed before us for acceptance the infirmities pointed out
by the High Court in the reasoning of the learned Sessions
Judge which, according to him, Justified at least a
reconsideration of the whole matter by the Trial Court In
particular it was stressed that there has been no
consideration by the Trial Court of the constructive
liability of the accused of the various offences with which
they were charged read with section 34 or in the
alternative, section 149. The reasons even by the Trial
Court for holding that the dying declaration, Ext. P 15,
made by Ratnababu cannot be treated as evidence regarding
the attack on Koteswara Rao, are erroneous in law. By this
reasoning the Trial Court has really shut out that piece of
vital evidence from consideration. These are some of the
aspects that have been stressed for sustaining the order of
the High Court. As the State is a party in the appeals
before us, we have heard its counsel Mr. Ram Reddy, merely
to. assist us. Mr. Ram Reddy has also supported the above
reasons and has urged that these circumstances clearly show
that there has been no proper trial before the learned Trial
Judge. In view of the very serious infirmities in the
reasoning of the Trial Court, the only proper course to be
adopted-and which, according to him, has been rightly
adopted by the High Court-is to have a retrial.
In the view we take that the order of the High Court
ordering a retrial cannot be sustained and the two Criminal
Appeals filed by the eight convicted accused will have to be
sent back to the High Court for being heard and disposed of
on merits. We do not think it necessary to very elaborately
deal with the various items of evidence, on record as also
the reasons given by the learned ‘Sessions Judge. In order
not to prejudice the hearing of the appeals by the High
Court we retrain also from making any com-
871
ments or remarks about the nature of the evidence adduced by
the prosecution as well as the criticism of the same by the
accused.
It is now necessary to broadly state the case of the
prosecution as well as the findings recorded by the learned
Sessions Judge. In the village of Visadala there were two
factions, one led by the 3rd accused and the other by PW 23,
a ‘brother of Koteswara Rao, one of the deceased. All the
thirty accused belong ,to the party of the 3rd accused. The
2nd accused was the Sarpanch of the village and the 1st
accused was the acting Village Munsif at the time of the
occurrence i.e. August 16, 1968. PW 23 was the President
of- the village Panchayat from 1956 to 1964 after which
period the 2nd accused came to power. There was a multi-
purpose Cooperative Society established in 1963 in the
village and the members of both the factions claimed to be
the President or Secretary of this society. This rival
claim was the subject of Writ Petitions in the High Court.
The 1st accused the acting Village Munsif at the time of the
occurrence and his appointment was bitterly resented by the
opposite group. All this clearly show that was acute
bitterness and rivalry between the members of the two
groups.
The prosecution case is as follows
On the morning of August 16, 1968, PWs 5 and 6 who ate
brothers and who had taken a land on lease for cultivation,
raised a cross-bund in the canal for the purpose of
diverting water to their field. Some time later, accused
Nos. 2, 6 and 21 came and asked PWs 5 and 6 to. remove the
cross-bund but they refused. The third accused left the
place abusing the two witnesses. About 12 Noon on the same
day, PWs 5 and 6 noticed that there was diminution of water
in the canal. At that time Ratna babu, who was coming
along-side the canal, was asked by these witnesses to plug
any leakage near the cross-bund. Ratnababu accordingly was
trying to close the leakage when all the thirty accused, who
belonged to one faction, came to that place armed with
different weapons. The 1 st accused stabbed PW 5 with a
spear both on his chest and on his temple. The 6th accused
stabbed PW 5 on the right palm and the right wrist. The 3rd
accused beat PW5 with a spear on his hand. When PW 6
interfered, he was stabbed with a spear on the left chest by
A-27 and was also beaten on the head back and leg by A-21.
All the accused then ran towards Ratnababu, who was
plugging- the hole in the siphon. Ratnababu, on seeing the
accused coming towards his direction, ran to the field of PW
23 where Koteswara Rao with his brother, PW 7, was working.
Accused Nos. 1 to 4 stabbed Koteswara Rao on the various
parts of his body with spears and after he fell down, they
along with A 12, A 13, A 22 and A 23 inflicted further
injuries. When PW7 attempted to interfere to save his
brother, he was attacked by A 14, A 19, A 24 and A 25. He
was also kicked by A 20. Some
8 72
of the accused turned their attention on Ratnababu. A 5, A
6, A 7, A 8 and A 10 inflicted spear injuries on Ratnababu.
When PW 13 came to help Ratnababu, he was speared by A 18.
All the accused then ran away from the place.
PWs 1 to 4 had witnessed the entire occurrence. Koteswara
Rao was removed to his house in the village and he died
within a very short time. Ratnababu was taken to the
Government General Hospital, Guntur and, as his condition
was very serious, a dying declaration, Ext. P15, recorded
by the Magistrate, PW 1 6, at about 8.40 P. M., the same
day. Ratnababu died at 1. 29 A.M. on August 17, 1968. The
Magistrate had also recorded a statement, Ext. P 1, from PW
5 and a statement, Ext. P 16, from A 30. At this stage it
may be mentioned that the witnesses, who received injuries,
namely, PWs 5, 6, 7 and 13 as well as some of the accused,
who had received injuries, namely, A 5, A 14, A 29 and A 30,
had all arrived at the Government General Hospital, Guntur,
at about the same time and were treated by the same doctor.
There is on record the wound certificates issued in respect
of these persons. Apart from the wound certificate issued
to Ratnababu, at the time of his admission to the Hospital
there is also the description of the injuries sustained by
him, as mentioned in the postmortem certificate. There is
also on record the postmortem certificate issued to the
other deceased, Koteswara Rao, which also shows that he had
sustained a number of injuries.
Most of the accused, when they were examined under section
312, pleaded complete ignorance about the occurrence. The
5th accused, however pleaded that on the date of the
occurrence he, along with A14 and A30, had gone to water the
field of A30. Near the cross-bund they found PWs 5 to 7, 13
and 23, the deceased Ratnababu and certain others. A 30
requested PW 23 to remove the cross-bund to enable him to
take water to his field. On their refusal A30 attempted to
remove the cross-bund when at the instigation of PW 23 he
was stabbed by one Appa Rao and also attacked by PW 23. PW
23 also beat him and ran away. A 14 stated that he was
beaten at the cross-bund by PW 23. A, 29 also pleaded that
he sustained injuries at the cross-bund when he was with A5,
A14 and A30. A30 also gave a somewhat similar statement.
Thus it will be seen that while according to the
prosecution the occurrence took place in two stages, one at
the place where the cross-bund was erected and the other in
the field of PW23, on the other hand, according to the
defence, the occurrence had taken place at the place where
the cross-bund was raised by PWs 5 and 6 and that there was
no incident whatsoever near the field of PW 23. The learned
Sessions Judge made a local inspection of the scene of
occurrence and has also noted his observations. It
873
will be seen that according to the learned Sessions Judge
the field crow flies. from of PW 23 was at a distance of 290
yards, as the the place of the cross-bunding. He has
further noted that there was a donka which was about five
feet lower in level compared to the neighbouring fields and
that it would not have been possible for the accused, who
were at the cross-bund, to see and identify anybody who may
have been near the donka.
The learned Sessions Judge, after a consideration of the
dying declaration of Ratnababu, Ext, P 15, and other
evidence, is of the view that the prosecution case of
Ratnababu running from the siphon to the field of PW 23 and
that he was chased by the accused, is improbable. It is the
view of the learned Judge that ,the prosecution has not come
forward with the truth as to how the accused, after the
occurrence at the cross—bund, happened to be near the
field of PW 23. Regarding the occurrence at the cross-bund,
the court’s view is that there is the evidence of only PWs 5
and 6. Though PWs 5 and 6 had received injuries, they have
not said anything as to how accused Nos. 5, 14, 29 and 30
sustained injuries. These accused also have sustained
injuries at the same time as PWs 5 and 6 and at the same
place, namely, the cross-bund. The prosecution has stressed
as to how these accused received injuries. In view of these
and other circumstances, the finding of the learned Sessions
Judge is that these four accused had acted in self defence
at the incident that took place at the cross–bunding by PWs
5 and 6. The injuries sustained by PWs 5 and 6 being of a
very minor nature sustained by them when the said accused
acted in self defence, none of those accused are guilty of
any offence regarding this particular incident.
Regarding the second stage of the occurrence at the field of
PW 23, the Trial Court’s view is that the witnesses, who
spoke to the same, are PWs 1 to 4, 7 and 13. PWs 7 and 13
had received injuries. After a consideration of the
evidence of PWs 1 to 4, the learned Judge expresses the view
that they are tutored witnesses and that they have been
selected because they belong to the party of PW 23. The
learned Judge-disbelieved their evidence and eschewed the
same from consideration. Left with the two other witnesses,
namely, PWs 7 and 13, the Trial Court is of the view that
they being interested witnesses, their evidence will have to
be treated with great caution and that it would be safe to
accept their evidence only if it is corroborated by other
independent evidence. Ultimately the learned Judge held
that their evidence cannot be accepted regarding the attack
on Kuteswara Rao. Having regard to the evidence adduced in
the case, the learned Judge has recorded a finding that
none of the accused can be held liable for the offence of
causing the death of Kuteswara Rao.
8-L797Sup.C.I./73
874
But so far as the attack on Ratnababu was concerned, the
learned Judge took into account the evidence of PWs 7 and 8,
the medical evidence as also the dying declaration, Ext. P
15, and convicted accused Nos. 5 to 7, 14, 18, 19, 24 and 25
in the manner mentioned by us earlier. The learned Judge
has also given reasons as to why some of these accused are
not guilty of the other offences with which they were
charged and also for acquitting the rest of the twenty two
accused. The learned Judge has also given the reasons for
convicting some of the accused only under sections 323 and
324. The learned Judge’s further view is that though certa
in charges had been framed read with ,section 34 or
alternatively with 149, in the manner in which the incident
has ultimately been found to, have happened, there is no
scope for making any of the accused constructively liable
under these provisions.
We have already mentioned that it is only the convicted
eight accused, who had filed two different appeals before
the High Court challenging their conviction. The State had
not filed an appeal under section 417 of the Criminal
Procedure Code, either challenging the acquittal of these
eight accused of the other offences or against the acquittal
of the remaining twenty two accused of III the charges.. We
are particularly mentioning this aspect because if the State
had filed such an appeal, the nature of jurisdiction
exercised by the High Court will be entirely different. On
the other hand, it was the brother of one of the deceased,
namely, PW 7, who had, filed, as a private party, a Criminal
Revision ,challenging the complete acquittal of the twenty
two accused as well as the acquittal of the eight convicted
persons of the other charges.
After a review of the earlier decisions, the extent of the
jurisdiction of the High Court in the matter of interfering
in revision against an order of acquittal has been laid down
by this Court in K. Chinnaswami Reddy v. State of Andhra
Pradesh(1) as follows
“It is true that it is open to, a High Court
in revision to set aside an order of acquittal
even at the instance of private parties,
though the State may not have thought fit lo
appeal; but this jurisdiction should in our
opinion be exercised by the, High Court only
in exceptional cases, when there is some
glaring defect in the procedure or there is a
manifest error on a point of law and
consequently there has been a flagrant
miscarriage of justice. Sub-section (4) of s.
439 forbids a High Court from converting a
finding of acquittal into one of conviction
and that makes it all the more incumbent on
(1) [1963] 3 S. C. R. 412.
875
the High Court to see that it does not convert
the finding of acquittal into one of
conviction by the indirect method of ordering
retrial, when it cannot. itself directly
convert a finding of acquittal into a finding
of conviction. This places limitations on
the, power- of the High Court to get aside a
finding of acquittal in revision and it is
only in exceptional cases that this power
should be exercised. It is not possible to
lay down the criteria for determining such
exceptional cases which would cover all
contingencies. We may however indicate some
cases of this kind, which would in our opinion
justify the High Court in interfering with a
finding of acquittal in revision. These cases
may be : where the trial court has no
Jurisdiction to try the case but has still
acquitted the accused, or where the trial
court has wrongly shut out evidence which the
prosecution wished to produce, or where, the
appeal court has wrongly held evidence which
was admitted by the trial court to be
inadmissible, or where material evidence has
been overlooked either by the trial court or
by the appeal court, or where the acquittal is
based on a compounding of the offence, which
is invalid under the law. These and other
cases of similar nature can properly be held
to be cases of exceptional nature, where the
High Court can justifiably interfere with an
order of acquittal; and in such a case it is
obvious that it cannot be said that the High
Court was doing indirectly what it could not
do directly in view of the provisions of 439
(4).”
The above principles have also been reiterated in
Mahendra Pratap Singh v. Sarju Singh & Anr.(1), Khetrabasi
Samal etc. v. State of Orissa etc.(2) and Amar Chand
Agerwalla v. Shanti Bose and Another ctc.(3).
We have, therefore, to see whether the order of the High
Court setting aside the order of acquittal of the eight
convicted accused of certain charges as well as the
acquittal of the remaining twenty two accused of all the
charges can be upheld on the above principles. The High
Court has admittedly not considered the grievance the eight
convicted accused in their Criminal Appeals Nos. 201 and 202
of 1969. A perusal of the Judgment of the High Court shows
that it has mainly dealt with the Criminal Revision filed by
the private party. In that context, it has considered the
material evidence in some detail and has practically
expressed an opinion against the, accused in some
respects.It has practically given a finding that all the
thirty accused will have to be convicted under
(1) [1968] (2) S C. R. 287. (2)[1970] (1) S. C. R. 880.
3) Criminal Appeal 12-1972.
Nos. 101-103 decided on22
87 6
section 302 read with either section 149 or at any rate
section 34. It has held that the dying declaration of
Ratnababu, Ext. P 15, is admissible even regarding the
attack on the other deceased, Koteswara Rao. The High Court
has also expressed its opinion that’. Ext. P 15
establishes, on the facts of the present case, that accused-
Nos. 1 to 4 attacked Koteswara Rao and caused his death.
The High Court’s view also appears to be that the search or
corroboration made by the Trial Court regarding the evidence
of some of the prosecution witnesses was unnecessary. Even
some of the convicted accused should have been convicted for
more serious offences. More or less on this reasoning, the
High Court remanded the entire case for retrial.
We are of the opinion that the entire approach made by the
High Court in dealing with the Criminal Revision filed
against acquittal by the private party is contrary to the
principles laid down in the decisions referred to above.
Notwithstanding the fact that sub-section (4) of section 459
does not authorise the High Court to convert a finding of
acquittal into one of conviction, it has in fact contravened
this provision by recording a finding of guilt against the
accused and directing the Trial Court to convict them after
a retrial. There is no question of lack of Jurisdiction in
the Trial Court to try the case; nor was any attack made
that any evidence has been shut out at the trial. Whether
the dying declaration, Ext. P 15, by Ratnababu can be taken
into account regarding the attack on Koteswara Rao, is a
matter which the Trial Court was entitled to decide one way
or the ‘other. If its view was wrong, the High Court could
have gone into that aspect and differed from this opinion of
the Sessions Court if the State had filed an appeal against
acquittal. Further the mere fact that the learned Trial
Judge held that this piece of evidence is not relevant,
while considering the attack on Koteswara Rao, does not
amount to-shutting out of evidence at the trial. In fact
that evidence has already come on record. Therefore, in
this case there has been no shutting out at the trial of any
evidence which the prosecution wanted to adduce or the
defence wanted to lead. All available evidence has been let
in by both the prosecution and the accused.
Nor can it be stated that there has been any glaring defect
in the procedure or a manifest error on a point of law and
consequently leading to a flagrant miscarriage of justice.
As mentioned earlier, sub-section (4) of section 439
forbids, a High Court from converting a finding of acquittal
into one of conviction by an indirect method of ordering
retrial when the High Court itself cannot directly convert a
finding of acquittal into a finding of conviction. The High
Court, in our opinion, has missed these very important
limitations on its power to set aside the finding of
acquittal in revision which could be done only in ‘very
exception-
8 7 7
al circumstances. In the case on hand, the High Court was
not justified in considering the evidence in such detail if
it was really going to order a retrial. Such a detailed
consideration of evidence and an expression of opinion about
the guilt of the accused, in our opinion, has really loaded
the dice against the accused when the case goes bark for
retrial. Much stress has been laid by the High Court that
though substantive charges had been framed against the
accused read with section 34 or alternatively with section
149 IPC, the Trial Court has not recorded any finding in
this regard. Here again, the High Court’s view is,
erroneous. We have already referred to the finding recorded
by the Trial Court that in view of the definite case of the
prosecution and the, nature of the evidence, none of the
accused can be held constructively liable. It is on that
ground that the Trial Court has not found the accused.
constructively guilty.
We have indicated the reasons, which prompted the High Court
to order a retrial. The consequence of this will be to, put
considerable strain on the accused who have already gone
through a trial at considerable stress and expense. After
going through the judgment of the learned Sessions Judge, we
cannot certainly say, particularly in view of the evidence
on record, that either the acquittal of the twentytwo
accused or the acquittal of the eight convicted accused of
the rest of the charges was not justified. At any rate, it
may be safely stated that the learned Sessions Judge has
taken into account all the relevant circumstances. It may
be that there are slight mistakes in some of the reasons
given by him but the judgment as a whole shows that he has
really applied his mind to the various pieces of evidence
before passing the order of acquittal in the manner he has
done. In the particular circumstances of this case, the
interference in revision by the High Court at the instance
of the private party was not justified. The two, appeals
filed by the convicted accused, namely, Criminal Appeals
Nos. 201 and 202 of 1969 have not been dealt with by the
High Court on merits. The appellants therein have a right
to have those appeals heard and dispossed of by the High
Court according to law.
In the result, Criminal Appeal No. 173 of 1970 is allowed
and the judgment and order of the High Court in Criminal
Revision Case No. 727 of 1969 are set aside and the said
Criminal Revision will stand dismissed. Criminal Appeal No.
174 of 1970 is also allowed and in consequence Criminal
Appeals Nos. 201 and 202 of 1969 filed by the eight accused
are remanded to the High Court for bearing and disposal
according to law.
V.P.S. Appeal partly allowed,. 8 78