JUDGMENT
Anant Singh, J.
1. The Government Appeal has been filed by the State against an order of acquittal of the six respondents passed by the learned Sessions Judge of Arrah in two Appeals, No. 489 by respondent Gopi Krishna Karan and No. 488 by the rest both of 1961, disposed of by a common judgment dated the 21st May 1962.
2. A Magistrate, Sri Bireshwar Sen, of Sesaram holding first class powers, had convicted all the six respondents under Section 147 of the Indian Penal Code with no separate sentence, under Section 452, I. P. C., with a sentence of detention till the rising of the court against all, and also a fine of Rs. 1000, in default, six months’ rigorous imprisonment against respondent S.K. Mehta, and a fine of Rs. 300, in default, three months’ rigorous imprisonment each against the rest and the four of the respondents with the exception of Dwarika Prasad Gupta and Gopi Krishna under Section 323 of the Indian Penal Code with no separate sentence, having acquitted all of them under Section 355, I.P.C., and Mehta under Section 148 I.P.C.
2a. The State had filed a Criminal Revision. No. 262 of 1981 for enhancement of the sentences, but on the acquittal of the respondents, it was dismissed by the same judgment.
2b. There was a counter case filed by respondent Mehta against eight accused including some of the prosecution witnesses of the case giving rise to the Government Appeal. It was tried by the same Magistrate who, by a judgment of the same date acquitted all the eight accused of all the charges and Mehta filed a Criminal Revision No. 295 of 1961 before the Sessions Judge. It was dismissed by an Additional Sessions Judge by his order dated the 21st August 1962. Mehta has since filed before this Court Criminal Revision No. 1123/1962.
3. By Order No. 2, D/- 2-11-62, the criminal revision was ordered to be heard with the Government Appeal. I, however, heard them one after the other, but since the facts are common arising out of the same occurrence, I propose to deliver only one judgment which will govern both of them, taking care, at the same time, not to use the evidence of one case in the other.
4. The facts of the case giving rise to the Government Appeal, briefly stated, are as follows: There is one Rohtas Industries Ltd., at Dalmianagar within Dehri police station, two miles north of it in the district of Shahabad. Sri Vishnu Prasad Poddar (P. W. 11) was, during the relevant period, the Works Manager and, practically, the administrative head of the firm. S.K. Mehta, Respondent No. 1, was the Establishment Officer, and the other respondents were holding inferior posts on the firm. Mehta was in charge of the guest house and conveyances. They were all subordinate to Sri Poddar.
5. On the 10th of July 1959, Sri Poddar issued a circular order (Ext. 2) transferring one Kamta Prasad Singh who was then Assistant-incharge of the canteen, as in charge of the guest house and conveyances with immediate effect, in place of Mehta, who was directed to hand over charge of the guest house and conveyances with immediate effect to Kamta Prasad Singh. Mehta did not obey the order and in reply to his transfer order, as conveyed to him in Ext. 2, sent a letter (Ext. 2/1) to the Works. Manager, Sri Poddar on the 11th July 1959, expressing his inability to understand the order and asking him, “please let me know the reason and the policy for needful.” The same day, the Works Manager Sri Poddar replied Mehta in Ext. 2/2 saying, “this is the decision of the management which has been conveyed to you, and which has to be followed with immediate effect.” Mehta still wrote another letter Ext. 2/3 the same day to the Works Manager saying, “the snatching of these two important Departments which are under Establishment since very beginning without any rhyme and reason is clear victimisation which is quite unjustified please,” On receipt of this letter, Sri Poddar drew up a charge-sheet, Ext. 3, dated 13-7-59 (12-7-59 being Sunday), charging him with indiscipline under four heads as stated therein and ordering him to hand over all the keys and charge of the guest house and conveyances to Sri Kamta Prasad Singh, as ordered earlier, by 2 p. m. the same day and further directing him to show cause against the charge-sheet by 4 p. m. on that very date (13-7-59). This charge-sheet was served on Mehta at 10 a.m. the same day.
6. At about 11-30 a.m., on 13-7-59, Sri Poddar was in the office room which was situate above the basement floor, having some discussion with his Controller of Accounts Sri Durga Charao Dey (P. W. 1) and Motan Mal Oswal (P. W. 2), Deputy Controller of Accounts. The discussion being over, Sri Poddar and Dey stood up. Sri Poddar proceeded towards the door of his office room. He had hardly crossed the length of his office table and was proceeding towards the door when, all of a sudden Mehta rushed into the room from the western door, pounced upon him and slapped him in his cheek causing injuries to his right eyebrow and on the right side of the bridge of his nose. Poddar’s spectacles, which he was wearing at the time, were thrown out and fell on the floor. It broke into pieces. After having slapped Sri Poddar, Mehta was seen pointing his revolver towards him and, by that time, a few more persons had entered into the office room of Sri Poddar, and among them were the other respondents. At the time Mehta was pointing his revolver at Poddar, Havindar Bishwanath Tripathi (P. W. 9) rushed in and struck Mehta on his right hand by which he was holding the revolver with the result that Mehta lost the grip of the revolver. Thereafter, Mehta and the other respondents, who had come soon following him, all attacked Poddar with fists, shoes and hands. In the meantime, A. P. Jain (P. W. 10), B. D. Singh (P. W. 8), Rajkumar Singh (P. W. 7), Rambachan Pathak (P. W. 5) and some others rushed into the room, and when they intervened with a view to protecting Poddar, they were also assaulted by the respondents with fists and hands. The allegation is that respondents Tribhuwan Tiwari and Suraj Kumar Lal assaulted A. P. Jain (P. W. 10), respondents Dwarika Prasad Gupta, Suraj Kumar Lal, Ram Nagina Tiwari and Gopi Krishna Karan assaulted Bishwanath Tripathi (P. W. 9), and respondent Dwarika Prasad Gupta assaulted B. D. Singh (P. W 8). It was during the courss of the melee that Poddar was taken to the basement floor by Sri Saxena and Sri Sukla (not examined) when the respondents were still there. They, however, left the place soon thereafter, and Poddar was taken back to Sri A. P. Jain’s room on the floor above the basement floor and was given first aid there by one Dr. J. N. Singh (not examined).
7. The Medical Officer, Dr. B. N. Deo (P. W. 8) of the Local Government Dispensary at Dehri, was brought by two other doctors in a car to Sri Poddar’s Office. He met Poddar and looked for injuries on his person and saw some marks of injury on his face nearabout his right eye. He, however, did not write any injury report or any prescription for the treatmeat of the injuries of Poddar. He remained near him for 15 to 20 minutes. While he was still there, where some doctors of Dalmianagar and Sri Saxena and Sri M. L. Burman amongst others were also-present, the officer in charge of Dehri Police Station Sri Ratneshwar Prasad (P. W. 12) having had an information of some trouble brewing, reached the place of occurrence at about 12.10, p. m. He met Sri Poddar and asked him to give his statement about the occurrence. Sri Poddar dictated his statement to his typist and after it was typed, Poddar signed it (Ext. 4). He handed it over to P. W. 12 at about 12. 45 p. m, and on its basis, a formal first information report was later drawn up at the thana at 1-20 p. m. the same day. P. W. 12, at the time of his visit, did not find any injury on the person of Poddar and no-blood came out from his nose when he was asked by P. W. 12 to sneeze. P. W. 12, however, seized Poddar’s handkerchief (Ext. II) which contained blood stains at two places. He seized under a seizure list (Ext. 9) the spectacles (Ext. III) of Poddar in a damaged condition with five pieces of broken lens (Ext. III/1). He recorded in the general office the statements of Dey (P. W. 1) and Oswal (P. W. 2), but did not examine any other person then. He did not also ask any of the doctors present there to examine the injuries of Poddar. He visited the quarter of Mehta at 1.50 a.m. and remained there till 3.30 p. m. He saw the injury report prepared by the junior Sub-Inspector, Rajeshwar Prasad, of respondents S.K. Mehta and Suraj Kumar Lal. He seized the revolver (Ext. VI) of Mehta. Respondents Suraj Kumar Lal. Tribhuwan Tiwari and Gopi Krishna Karan, besides-one Kailash and Ramapati Singh, were found thereat the quarter of Mehta. P. W. 12 examined them all. He then went back to the general office of the Rohtas. Industries where he examined and arrested, among others, A. P. Jain (P. W. 10), Raj Kumar Singh (P. W. 7), B. D. Singh (P. W. 8) and Rambachan Pathak (P. W. 5). He found injuries on all four of them and prepared their injury reports, though they were not brought on the record. He examined thereafter Bishwanath Tripathi (P. W. 9), Shyamsundar Singh (P. W. 4), Gulabchand Tiwari (P. W. 6) and a few others. On the requisition from the Sub-Inspec-tor of Dehri, the injuries of P. Ws. 10, 5, 8 and 7 were examined between 5 and 5-30 p. m. on 13-7-1958, by the same medical officer of the Dehri Government Dispensary (P. W. 3) who had earlier at the time of his visit to Poddar seen marks of some injuries on him. It was, however, the next day at 8 a. m. that P. W. 3 again examined the injuries of Poddar and wrote his injury report. (After describing the injuries in rest of this para 1 and para 8 the judgment proceeded:)
9. While the investigation was in progress Poddar, on 27-7-1959, filed a petition of complaint (Ext. 5) before the District Magistrate of Shahabad and examined himself also on oath, giving the details of his case and making a complaint against the local police officers in general to the effect that his case was being spoiled by them and the statements of witnesses were not being recorded faithfully and that several witnesses tendered on their behalf were not being examined, because the police, as a whole, were against Poddar and Rohtas Industries. The District Magistrate made an order for amalgamating the complaint with the police case started on the information of Poddar. The case was supervised by the Superintendent of Police, who however, did not re-commend for submission of any charge-sheet. Charge-sheet was ultimately submitted on 5-8-1959 by the A. S. P. (P. W. 14) by the order of the Deputy Inspector General of Police concerned against the several respondents.
10. It appears that at about 12-10. p. m. about 35 minutes prior to the lodging of the case by Poddar, on the date of the occurrence (13-7-1959), Mehta also had handed over his report, a certified copy of which is Ext. 7 and the original is Ext. D, in his own quarter to another Sub Inspector of Police, Rajeshwar Prasad, giving his counter version of the occurrence that he had been called on phone at about 11.30 a.m. the same day by Poddar to his office and asked to sign a typed charge report on his refusal on the ground that he would require time to prepare papers for making over the charge, Poddar and his men, who were there, started assaulting him, and when Suraj Kumar Lal came over there to his help, he was also assaulted by them. He made eight persons including P. W. 11 Sri Poddar, P. W. 7 Raj Kumar Singh, P. W. 8 B. D. Singh and P. W. 10 A. P. Jain as accused in the case. There was a charge-sheet submitted against all of them.
11. The accused in the two cases were put on their trial separately with the aforesaid results. The accused in each case tried to support their version of the occurrence denying the case of the prosecution. No defence witness was examined in either case.
12. The occurrence in Poddar’s case was deposed to by P. Ws. 1, 2 and 4 to 10 and Poddar himself (P. W. 11). The doctor (P. W. 3) certified to the injuries on the five witnesses as also on the respondents Mehta and Suraj Kumar Lal as already indicated. Ajodhya Prasad is a photographer who had taken photographs (Exts. I to 1/5) from different angles of Poddar’s room. He has been given by mis. take the same number 11 as Poddar. One Gurupada Bhattacharya (P. W, 13) was the Government Physicist who proved a report (Ext. 11) of an Assistant Chemical Examiner relating to the examination of the revolver (Ext. VI) of Mehta to the effect that the deposit was cellulose material, and the odors on burning suggested that it consisted of cotton fibre. (P. Ws. 12 and 14 are the two investigating officers.
13. It would appear from the facts, as stated by each party, that there was an occurrence at about the same time, on the same date and at the same place, namely, the office room of Poddar, situate on the-floor above the basement floor of the general office building. It is also not much in dispute and is established from the evidence of at least the five injured witnesses, as supported by the medical evidence already referred to that on the side of the Poddar’s case, five persons, namely, Poddar himself (P. W. 11), A. P. Jain (P. W. 10), Raj Kumar Singh (P. W. 7), Rambachan Pathak (P. W. 5) and Bish-wanath Dayal Singh (P. W. 8), had sustained some injuries. It will also appear from the evidence of the doctor (P. W. 3) that on the side of Mehta, he and Suraj Kumar Lal had sustained some injuries. The difference is only as to the genesis of the occurrence. According to Poddar’s case, Mehta appeared in the former’s chamber all of a sudden, carrying a revolver and was soon followed by the other respondents who all participated in the assault on him and the other aforesaid four persons on his side in the manner as has already been stated whereas, according to Mehta, he was, by phone, called by Poddar to the latter’s office where he and Suraj Kumar Lal, who had come to his rescue, were both assaulted by Poddar and his men who were made accused in Mehta’s case. Thus, the decision of the case lies within a very narrow compass. It is a pity that the learned Magistrate allowed a very lengthy cross-examination of the wit-nesses, particularly of Poddar, Most of the cros exa-mination was directed to the alleged discrimination by Poddar and his management against the Biharees in general and Mehta in particular, since he was espo-using the cause of the Biharees. Again, the questions of rivalry between different labour unions working in the Rohtas Industries, various industrial awards, value of furniture of the guest house and the like, were allowed to be introduced, although these matters had no relevancy whatsoever, Poddar was the Administrative Head, and Mehta was his subordinate. Poddar had every right to transfer Mehta with or without reasons and even by way of victimisation, as Mehta could think. If the order of Poddar depriving Mehta of his charge of the guest house and conveyances was unjustified and was even by way of victimisation, Mehta had his remedy by an appeal to the higher authorities of the Management, and not by challenging the propriety of the order, taking the law in his own hands, if the allegations made by Poddar and his men are true. Thus, the only question for consideration was whether Mehta and the men of his group indulged in the assaults on Poddar and his men in the manner as alleged, or whether the defence version of Mehta was true, or even reasonally probable.
14. In order to appreciate the motive for the occurrence in Poddar’s case, it is necessary to analyse the whole background. The fact of the deprivation of Mehta of the charge of the guest house and conveyances, as conveyed by Poddar in Ext. 2, dated 10th July 1959, and his extreme resentment over it cannot be doubted. His resentment is quite explicit from his very first letter (Ext. 2/1) dated 11-7-59, wherein he said: I fail to understand why Guest house and Conveyance Departments are being transferred to Sri Kamta Prasad Singh. Please let me know the reason and policy for needful. “The word ‘needful’ is significant. It would indicate that he was contemplating to take some action against the order of his transfer. Surely he could not contemplate any legal action since no action could lie. He did not contemplate going in appeal to the higher authorities, otherwise he could have said so. What action he contemplated to take against the order, would follow from his subsequent conduct. In his next letter (Ext. 2/3) dated 11-7-59, he adopted a still more defiant attitude when he told Poddar that his transfer was “withot any rhyme and reason.” “clear victimisation” and “quite unjustified please.” It was sort of warning to Poddar, as particularly the word “please” would signify. The language used by him in his aforesaid letters is sufficiently eloquent of his temper and extreme annoyance against Poddar. He did not comply with the order of his transfer, and instead, lodged at 9 a. m. only 1 1/2 hours before the occurrence, a sanha (Ext. 7/1) at the police station to the following effect: “To The Officer-in-charge, Dehri Police Station, for many years, Sri V. Poddar, the Works Manager of the Rohtas Industries Ltd., Dalmianagar has been harassing me on account of my siding with the Bihari (employees). Recently on 11-7-1959, he has given me a notice intimating me to make over charge of the Guest House and of the Conveyance Department without assigning any reason.
When I asked him the reason, he did not give any reply rather it has come to my notice that Poddarjee is making preparations to take charge from me forcibly by collecting gundas through Kamta Singh, Rajkumar Singh and others, consequently there is an apprehension of breach of the peace. Their actions have given rise to strong suspicion of danger to life and property.
Therefore, I inform the P. S. so that proper action be taken. Sd/. S.K. Mehta, 13-7-1959.
Mehta was holding under the Management a responsible office of Establishment Officer, and he should have known that his transfer did not require assigning of any reason to him by Poddar, and he had no business to run to the police. Once he was asked to hand ever charge of the guest house end conveyances as a peaceful and disciplined worker, it was his duty to have complied with the order of his transfer made by his boss. The failure on his part to comply with the order, writing intemperate letters to the boss and rushing to the police are eloquent of the defiant spirit he had adopted. Poddar is a very highly educated person having had held high offices in various industrial concerns in India and abroad and at the relevant time, he was working as Works Manager drawing a salary of Rs. 3750 per month. He started his career with the Rohtas Industries as an apprentice in 1938, and gradually and by degrees rose to the high office of Works Manager. This speaks of his efficiency and integrity, and it is too much to think, as Mehta reported in the aforesaid sanha, that Sri Poddar was making preparations to take charge from him “forcibly by collecting gundas through Kamta Singh, Raj Kumar Sineh and others,…”. Poddar, as the Head of the Management, had ample powers and sufficient materials in the disobedience of Mehta in refusing to hand over charge, to dismiss him and, in fact, he did draw up a charge-sheet against him on his act of indiscipline which was served on Mehta at 10 a. m. only about half an hour before the occurrence. Poddar hardly needed to take charge from Mehta by force with the help of gundas when be could dismiss him so easily. Mehta did not care to disclose his source, how he came to know that Poddar was making preparations to take charge from him by force with the help of gundas. An intimation to the police that on that account there was an apprehension of the breach of the peace is another factor to indicate how the mind of Mehta was working. It is obvious that he was trying to forestall his defence of the action he had decided to take against Poddar, since the occurrence came only 1 1/2 hours later.
15. Poddar in his charge-sheet (Ext. 3) had given time to Mehta to hand over charge by 2 p. m. of that day, and having so given the time, it does not, in the least, appeal to reason that a man in his position would precipitate a crisis by making an attempt to take over charge by force from Mehta, some 3 1/2 hours before the given time. The defence of Mehta, as he gave in his examination under Section 342 of the Code of Criminal Procedure is self-condemned. He has said that when Poddarjee asked him to sign the charge report, he replied that he would himself prepare the charge report concerning the guest house and conveyances which would take time. But he never came out with this plea that the preparation of the charge report would take time in his letters which he had written earlier to Poddar, nor in the sanaha which he had lodged with the police. It was obviously a fanciful defence on a realisation that he had do valid defence to have refused to have made over the charge of the guest house and conveyances. Unless Poddar had gone mad, he could not have called Mehta to his own office and got him assaulted there on his refusal to sign the charge report. He had, no doubt, reasons to be annoyed at the disobedience of Mehta, but his annoyance was legitimate and had already found a legitimate expression in the drawing of the charge-sheet against Mehta. His annoyance could not go to the length of getting Mehta to his office room and have him assaulted there. Mehta, as will appear from the letters, was not an easy man to be bullied. On his own words, he was a sort of agitator for the Biharees’ cause. It must have been known to Poddar. He would not, therefore, run the risk of unpopularity with his own staff and prosecution by dealing with Mehta in the manner as alleged, when, as evidence shows, some police officers were already near about the office. Mr. Akbar Imam for the respondents has, however, contended that for the same reason that some police officers were around, Mehta and his men would not have in broad day light ventured to assault Poddar and his other men in the general office. But it is apparent from his letters and the sanaha that his attitude towards Poddar had become aggressive and defiant in his frustration over losing the charge of the guest house and the conveyances which may have been of some special advantage and for importance to him Seeing no way out, by any legal means as a subordinate of Poddar, he could not have spent his wrath on him otherwise than by choosing to assault him and his supporters publicly with a view to terrorise them.
16. It appears that Mehta had nothing to fear from the police, may be, he had some arrangement with them. The very prompt action taken by the police on the sanaha (Ext. 7/1) of Mehta recorded under Station Diary entry No. 249 is eloquent. It did not disclose any material for the police to Jake any action in the matter. The police should have realised that Mehta himself was in the wrong in not having complied with the order of his transfer. He did not disclose any source of his knowledge as to any apprehension of the breach of the peace at the hands of Poddar. Still only at 9.15 a. m. one Sub-Inspector Rajeshwar Prasad with a constable Allauddin was deputed to investigate into the sanaha entry No. 249 of Mebta, as will appear from the Station Diary entry No. 250 of 13-7-59 (Ext. 8). It is well to remember that Sub-Inspector Rajeshwar Prasad and the constable having been deputed at 9.15 a. m. were likely to have reached near about the scene sometime before the occurrence which took place at about 10.35 a. m. the distance being only two miles. The occurrence took place in the office room of Poddar. They do not seem to have rushed to his office room after the occurrence but Rajeshwar Prasad was found taking report of Mehta in his quarter, when the Sub-Inspector (P. W. 12) visited it at 1.50 p. m. the same day. The exact time of his visit to Mehta’s quarter is not known, but the fact is that he did not go immediately to Poddar’s office which was the scene of the occurrence. This could not be, unless he was trying to help Mehta, and this may be the reason why the prosecution did not examine Rajeshwar Prasad and constable Allauddin, although they were charge-sheet witnesses.
17. P. W. 12, when be came on the scene, hardly evidenced any interest that was expected of him. He was particular to notice no injury on Poddar and any blood in his nose by making him to sneeze, but did not ask the Government Doctor (P. W. 3), who was there to examine Poddar. Except P. Ws. 1 and 2, he did not care to examine the other witnesses nor did he search for other injured persons on the plea that be had no knowledge about them. But it was his duty to find that out by questioning person present there. He has admitted having made no note in his diary about his enquiry from Poddar if there were injuries on any one else. Of the statements of witnesses, he wrote only that he “thought best and not verbatim.” He did not care to get the blood at two places on the handkerchief of Poddar chemically examined. The A. S. P. (P. W. 14) who took up the investigation from the 15th also did got the blood on the handkerchief chemically examined although he too had noticed no apparent mark of injury on Poddar when he had seen him on the 13th. The injuries on Poddar, being not prominent as a causal observer, P. Ws. 12 and 14 could have well missed to notice them, if they were speaking the truth, but a careful investigation demanded that P. W. 12 should have at once asked P. Ws. 3, who was present there to examine Poddar’s injuries and, later either P. W. 12 or P. W. 14 should have got the handkerchief chemically examined. The fact, however cannot be denied that Poddar bad sustained two injuries and the other four P. Ws. 5, 7, 8 and 10 had also sustained some injuries which P. W. 12 had seen for himself at 1-50 p.m. and they were the same evening certified to by the Government Doctor (P. W. 3). It was not even suggested that they received their injuries somewhere else or that they were manufactured ones. They were obviously all injured in the same fracas in which respondents Mehta and Suraj kumar Lal were injured as the report of the same doctor (P. W. 3) would show. There were so many respectable witnesses to swear to the occurrence as alleged by Poddar and still the two investigating officers) P. Ws. 12 and 14, were not inclined, not even the Superintendent of Police, to submit any charge-sheet in the case until the charge-sheet was ordered by the Deputy Inspector General of Police. They had only to seek for prima facie evidence of which there was no dearth, and they usurped the roll of a judge in weighing the evidence. There can be little-doubt that the conduct of the local Police was hostile enough to the prosecution case. Poddar does not seem to have been very much in the wrong in having made a complaint to the District Magistrate against the Police. It is clear that Mehta had the backing of the Police and, therefore, it is no surprise that he and his men could uot fear the Police, when they chose to assault Poddar and his men in broad day light in Poddar’s office room. On the other hand, Poddar had hardly any notice to act in the manner as alleged.
18. If the defence version was true that Poddar had kept from before in his office room, some 7 to 8 persons with a view to get Mehta assaulted on getting him there by a phone call and if Mehta went there alone, followed a little later by Suraj Kumar Lal only, Poddar and his men would not get worse for it, since on Poddar’s side, including Poddar, five persons sustained injuries whereas on Mehta’s side he and Suraj kumar Lal only got some minor injuries. Poddar, if he had been so inclined, would get Mehta assaulted eleswhere by his men and not take the risk of getting him to his room and himself partake in the assault on him. If at all he could think of doing so, Mehta and Suraj Kumar Lal, who came to his rescue, could have been crushed and not escaped with minor injuries which they might have sustained in the scuffle with some of the prosecution witnesses who came to the rescue of Poddar. It should be noticed that three of the injuries of Mehta were in one knee and down below. He could even get them by striking against some furniture of the room, while scuffling or leaving. The nature of their injuries has already been seen. The fact that five persons on the side of Poddar and only two persons on the side of Mehta got some minor injuries by itself is another circumstance to indicate that Mehta must have taken aggression and he must have more men on his side. Now being in the aggression, Poddar and his men could legitimately beat them back in self-defence, whereas Mehta and his men could have little justification to plead.
19. The learned Sessions Judge, while appraising the evidence, has not at all taken into consideration the above backgrounds and the circumstances of the case and formed his opinion on very minor omissions and discrepancies which he most wrongly has treated as material contradictions. Circumstances can never lie though the witnesses can, and judging in the background of the circumstances referred to above, one cannot but accept the evidence of the witnesses who have deposed to the case of Poddar.
20. These witnesses, as I have already indicated, are Sri Poddar himself (P. W. 11) and P. Ws. 1, 2, 4, 5, 6, 7, 8, 9 and 10. With the exception of Ram. bachan Pathak (P. W. 5), who was working as a contractor for the preceding 7 or 8 years and Raj Kumar Singh (P. W. 7), who was a socialist worker, the rest were employees in the firm. P. W. 1 was the Controller of Accounts. P. W. 2 was the Deputy Controller of Accounts, P. W. 4 was the Establishment Clerk, P. W. 6 was a Darwan in the Watch and Ward Department for the preceding 8 years, P. W. 8 was a clerk in the Sales Department, P. W. 10 was the Miscellaneous Purchase Officer since July, 1959. having been in service in the firm since 1940 and Poddar (P. W. 11), as already indicated, was the Works Manager.
21. As it was office hours, the witnesses were expected to be present in the general office building at the time of the occurrence. P. W.s 1 and 2 were actually in the room of Poddar, having just finished their discussion with him when, according to both of them, Mehta rushed into the room and gave a slap to Poddar in his face, as a result of which Poddar’s spectacles which he was wearing, fell down. According to P. W. 1, soon after giving the slap and almost simultaneously, some other persons entered into the room and, among them, he could identify specifically respondents Dwarika Prasad Gupta, Suraj Kumar Lal and Tribhuwan Tiwari, besides one Ramjanam who was not an accused in the case. His further evidence is, “the accused persons” pushed him also, that Mehta had in his hand a revolver which he pointed towards Poddarji, but Havildar Bishwanath Tripathi (P.W.9) gave a blow with his ‘Muka’ on his hand, as a result whereof the revolver fell from his hand, and that A. P. Jain (P. W. 10), Rajkumar Singh (P. W. 7) and Ram bachan Pathak (P. W. 5), who all had arrived in the meantime, tried to save Poddarji. The witness being a heart patient got nervous and went back to his office room which was in the same building after 5 or 6 office rooms from the office room of Poddar. (His Lordship here discussed the evidence (Paras 22-29) of P. Ws. 2 and 4 to 10. The judgment proceeded:)
30. The last witness is Poddar himself and he has given a full account of the whole story from the beginning to the end. The evidence of Poddar is that while he was proceeding towards the door of his room, all of a sudden, Mehta rushed into it from the western door, pounced upon him and slapped on his cheek whereby he received injuries on his right eyebrow and the bridge of his nose and his spectacles were thrown out and fell down. Immediately alter receiving the slap, when he saw towards Mehta, he found him pointing his revolver towards him and “by that time” a few persons had entered into his chamber among whom he identified the other five respondents. Havindar (P. W. 9) had rushed in and struck Mehta on his right hand with which he was holding his revolver, and Mehta lost the grip of it. After that Mehta and the other respondents attacked him by their right and left hands. Referring to the above part of the incident the witness said, “But after this incident, Mr. A. P. Jain (P. W. 10), Mr. B. D. Singh (P. W. 8), Mr. Rajkumar Singh (P. W. 7) and Rambachan Pathak (P. W. 5) and some others rushed in the room”. Mr. Saxena and Mr. Sukla also came and took him away to the basement floor and, thereafter, he described the other events which need not be referred to.
31. All the witnesses deposing to the occurrence appear to be quite respectable ones. They had absolutely no animus against Mehta and the other respondents except that Poddar had his annoyance against Mehta over his failure to have made over the charge of the guest house and conveyances. But I have already indicated that there was no sufficient reason why Poddar would concoct altogether a false case. It is true that most of the witnesses are subordinate to Poddar, and P. W. 5 was a contractor in the concern. The socialist worker (P. W. 7) might also have some concern with the concern. But Mehta and the other respondents were equally the employees in the firm. It does not stand to reason why co-workers of the firm as also the contractor and a socialist worker would falsely implicate the respondents. The evidence of the five injured witnesses has been adequately supported by the medical evidence and the presence of the broken spectacles of Poddar as was found by the Sub Inspector. I have, therefore, no reason to doubt whatsoever the evidence of the witnesses deposing to the occurrence. It is true that there have been a good deal of omissions in the statements of the witnesses as given at the trial compared with what they are supposed to have stated before the two investigating officers. Also, all the details of the occurrence have not been spoken to by all the witnesses. But that is only natural and it shows that the witnesses were not deposing in consultation after comparing notes. In a melee like this, all witnesses cannot see every part of the occurrence. Some can see some while others may not see those details spoken to by some other witnesses. The learned Sessions Judge was entirely in the wrong to have doubted their veracity because all the witnesses did not say what was told by some other witnesses. The various contradictions pointed out by the learned Sessions Judge in the evidence of the witnesses are not contradictions, but they are mere omissions most minor ones of what was not told by them before the police, I need hardly refer to all such omissions, or the so-called inconsistencies in the evidence of the witnesses. I have referred to at some length the evidence of the various witnesses and it would appear that there is no real inconsistency. The general story told by them is one and the same thought it is only the charge of the specific assaults by the individual respondents which have not been described with specific details by the witnesses. This was also again natural that in the confusion, all the witnesses could not mark the various assaults at different stages committed by the various respondents.
32. The learned Sessions Judge has made much of the so-called omissions in the first information report which Poddar had handed over to P. W. 12, which is Ext. 4 and to the following effect:
Dear Sir,
I was in my office at about 11.38 a. m. standing talking to Mr. Oswal and Mr. De and was just to leave for my lunch when Mr. S.K. Mehta Establishment Officer, suddenly entered my room and slapped me. My spectacles were thrown out. By the time I could recover Mr. Dwarika Prasad Gupta, Mr. Tribhuwan Tiwari, Mr. Suraj Kumar Lal, Mr. Gopi Krishan Karan, Mr. Ram Nagina Tiwari and a few others else entered my room. Mr. Mehta took out his revolver and aimed at me when the Warder Tripathi and one other Warder look his hand off. In the meantime other people attacked. One of them had a cane in his hand. There were one or two workmen and one or two others also. Afterwards so many other people came inside including Mr. A. P. Jain (P. W. 10), Mr. Shyamsunder (P. W. 4), Mr. Raj Kumar Singh (P. W. 7), Mr. B. D. Singh (P. W. 8), Mr. Ram Bachan Pathak (P. W. 5). Subsequently Mr. B. B. Sukla and Mr. J. P. Saxena came in and took me from the office to the basement.
I do not find anything in this first information report contrary to the evidence of Poddar, or as a matter of that, of other witnesses. The learned Sessions fudge, however, has tried to interpret the meaning of the word “afterwards” occurring after a description of the incident which related to the assault on Poddar as indicating that witnesses P. Ws. 10, 4, 7, 8 land 5, mentioned thereafter, could not have arrived Jin time to have seen the assault by Mehta and the other respondents named therein as they have claimed. He was grossly in error. The word “afterwards” was obviously used to indicate the sequence of the various events forming part of the same transaction A similar expression ”but after this incident,” referring to the above part of the occurrence, was used by Poddar in his evidence also, while describing about the arrival of P. Ws. 10, 4, 7, 8 & 5. The occurrence had consisted of so many parts beginning with the slapping by Mehta of Poddar, and aiming of re. volver at him followed by further attack.on him by the various other respondents. The expression ”afterwards” in the first information report or “but after this incident” in the evidence of Poddar did not necessarily indicate that these witnesses came “after the occurrence was over,” as the learned Judge has assumed, while analysing the evidence of P. Ws. 10, 4, 7, 8 and 5. Besides, Poddar, in his confusion, may not have marked the exact time of their arrival. As I have already indicated, these witnesses were all near about and they could all be in time to have seen the occurrence, and there is no reason to disbelieve their evidence. This could not be contradicted with what Poddar said about them in his first information report. It is only the maker of a statement who can be contradicted with his previous statement, but no one else. Thus, the witnesses, deposing to the occurrence, cannot be contradicted by what was told by Poddar in his first information report. The evidence of, at least, those witnesses, P. Ws. 1, 2, 9 and Poddar himself, who were present from the very beginning, cannot be challenged on any such ground.
33. The learned Sessions Judge has again tried to give altogether a queer meaning to the expression “in the mean time other people attacked” by saying that Poddar in the first information report did not indicate who those “other people” were and whom they attacked. The expression ”other people” follows the names of the respondents, and it most certainly refers to them. The word “attacked” obviously refers to the attack on him by them. He did not refer to the attack on any wall. The language used has to be taken as a whole, and no word or expression should be interpreted divorced from its context. At least there was no vagueness or omission so far as the report (Ext, 4) referred to the case of assault on Poddar by Mehta with a slap and his pointing out his revolver at him, It fully corroborates the evidence of Poddar and other witnesses given at the trial, and there was no escape from the conclusion that Mehta did attack Poddar in the manner alleged. But I am surprised that the learned Sessions Judge thought it fit to acquit him as well by merely picking out holes in the prosecution case.
34. Even confining the evidence to the four corners of the first information report (Ext. 4) itself, there can be no escape from the conclusion that the other respondents whose names were duly mentioned therein, who were five in number, besides a few others had joined hands with Mehta in the attack on Poddar, if not any other person. Thus, no one could escape from the charge of being a member of an unlawful assembly and being trespassers having shared the common object of assaulting Poddar and as further evidence shows also the common object of assaulting those who came to the rescue of Poddar. The learned Judge was very much in the wrong in thinking that the expression “other people attacked could have meant people other than the respondents because on the evidence, others also, besides the respondents, had entered into the room of Poddar. It may be that others might have also joined in attacking Poddar, but surely “other people” did not exclude the respondents whose names immediately occurred before the expression.
35. What, however, the first information did not mention was about the injuries on the other four injured witnesses whose names I have already mentioned. Poddar’s explanation was that it was the Sub-Inspector (P. W. 12) who had asked him to give a brief account of the assaults only on him and therefore, ha did not mention about the injuries on the other four prosecution witnesses. It may be quite probable, since I have already shown that the police was hostile to the prosecution. Be that as it may, the fact cannot be doubted that those five persons had received some injuries in the same fracas and therefore, any omission about this fact in the first information report (Ext. 4) is of no consequence. Besides, this omission can affect only the charge of specific assaults by the respondents on the different injured witnesses. The charge of trespass and unlawful assembly by all the six respondents, for the reasons I have already indicated, remains unaffected.
36. The learned Sessions Judge, after setting out the facts of the case, started with a severe criticism of the evidence of the doctor (P. W. S) in relation to his examination of the injuries of Poddar as if Poddar had sustained no injury. He thought that although be was not a highly qualified medical officer, he was chosen to examine Poddar when eminent doctors with foreign qualifications were available. But he was the doctor of the Government dispensary, and he was selected by the police to examine the injuries of all the injured persons including those of the two of the respondents, Mehta and Suraj Kumar Lal. I wonder that there could be taken any exception to his evidence on this ground. The learned Judge viewed his evidence with suspicion also because, on the first day, when he had examined him, he did not prepare his injury report, nor did he write out a prescription for him, and because on that occasion he had seen only one injury, whereas on the second occasion he found two injuries. But it is well to remember that the police officer (P. W. 12) had appeared at the scene when this doctor was still there near Poddar. The Sub-Inspector admittedly did not ask this doctor to examine Poddar in his presence and write out his injury report, and on his own, he could not have prepared any injury report until the matter was referred to him by the police. As to his failure to have prescribed any prescription for treat merit, it might not have been necessary, the injuries being so minor which could have been attended to by any other doctor. As to his noticing the second injury which he had not seen at his first examination, it was only a painful swelling which could develop even later on. He had seen at least one injury on the first occasion. The learned Sessions Judge doubted about the injuries of Poddar also because the two police officers (P. W’s. 12 and 14) had not noticed them. But as I have already indicated, they might have missed to notice them since the injuries were superficial. The fact of the injuries of Poddar was hardly material), when the presence of Poddar’s broken spectacles and his blood-stained handkerchief which P. W. 12 had picked up. would sufficiently corroborate the story of Poddar as to the assault on him and the presence of his injuries was only an additional piece of evidence.
37. The learned Sessions Judge has been critical also on the propriety of the charges framed by the Magistrate. Mehta was charged separately under Section 148 of the Indian Penal Code and with others again under Section 147 of the Code, and the learned judge thought that it was improper. But 1 do not think so. There could be an alternative charge, although it should have been indicated in so many words, which, however, was not done by the learned Magistrate. As to the charge under Section 323 of the Indian Penal Code against some of the respondents, the charge was they assaulted P. W. 9 and others.” The learned judge thought that, who those others were, should have been mentioned in the charge. But the Magistrate has acquitted on this ground the respondents who were charged with it. As to the merits of the case, the learned judge was not quite right in having taken an exception to the way the learned Magistrate has dealt with the evidence. I must say in fairness to the Magistrate that he dealt with the evidence in a quite proper and legal manner, and if he has made any error, he has made in favour of the respondents.
38. The learned Magistrate, it appears, took the line of least resistance in acquitting Mehta on the charge under Section 148 of the Indian Penal Code giving the benefit of doubt on the question, if he had taken his revolver at Poddar’s place. The reason for this mainly was that when the revolver was seized, it was covered with some dust, indicating thereby the improbability of its having been taken out. The report (Ext. 11) dated 20-7.59 of the Assistant Chemical Examiner, proved by Sri Gurupada Bhattacharya (P. W. 13) however, indicates that the deposit on the revolver was cellulose material giving an odors of cotton fiber on burning. Be that as it may the presence of some dust over the revolver found after the occurrence would not make the prosecution story improbable that it could not have been taken out, for, some dust might have been thrown over it by Mehta after the occurrence. The learned Magistrate, as also the learned Sessions Judge, viewed with suspicion the prosecution story about the revolver having been aimed at Poddar by Mehta, because the witnesses were not quite consistent in what position they had seen it. P. W. 4 did not speak about it at all, and P. W. 10 had only guessed about it by feeling it on the body of Mehta. The learned Judge was still more critical because the witnesses could not say what happened to the revolver, But I am not at all impressed with these criticisms. The revolver must not have been kept stationary from the point of time it was taken out till P. W. 9 knocked it down from the hand of Mehta. The witnesses might have seen it in different position at different stages and as to what became of it, the inference is clear that it was taken away by Mehta, a fact which could not have been marked or noticed by the witnesses. I would not give the benefit of doubt to the respondents even in this connection though putting the defence case at its highest, I would convict Mehta not under Section 148 but under Section 147 of the Indian Penal,Code, as the learned Magistrate has done.
39. As to the charge under Section 355 of the Indian Penal Code against the respondents, the learned Magistrate, acquitted them of it since there was no clear evidence, if the accused had the intention to dishonour Mr. Poddar. The consequence of the act of the respondents was without doubt dishonouring him, but this may not have been the primary intention and, therefore, the Magistrate was not wrong in having acquitted all the accused of this charge.
40. The charge under Section 452 of the Indian Penal Code against all the respondents was for committing house trespass by going into the office room of Poddar used as human dwelling after making preparations of causing hurt to V. Poddar and actually committing assault on him and those who came to his rescue.
41. On the charge under Section 147 of the Indian Penal Code against the six respondents, the common object of the unlawful assembly was to commit criminal trespass into the office of Poddar with the intention to assault him and others who came to his rescue and actually assaulting them. It has been seen that the number of the members of the unlawful assembly was more than five. Mehta was first to enter into the room. He was soon followed by the other respondents, besides some others. As the evidence is, Mehta was first to open the assault on Poddar and was joined by the other respondents who, according to P. W. 11, all attacked him. The presence of the other members of the unlawful assembly has been spoken to by other witnesses, though all of them have not spoken to the particular part played by them in committing the assault. P. Ws. 4, 7, 9 and 11 have identified all the six respondents as participating in the occurrence. P. W. 1 identified four with the exception of Bam Nagina Tiwari and Gopi Kishna Karan; P. W. 2 identified five with the exception of ham Nagina Tiwari, P. W. 5 identified only Mehta and Suraj Kumar Lai; P. W. 6 identified Mehta alone; P. W. 8 identified Mehta and Dwarika Prasad Gupta, the latter as assaulting him also and P. W. 10 identified four except Ram Nagina Tiwari and Dwarika Prasad Gupta. Thus, the charge underSub-section147 and 452 of the Indian Penal-Code are clearly proved against all the respondents. In the circumstances of the case, the evidence of Foddar alone even taken individually is sufficient enough to sustain those two charges against all the six respondents on the chage under S 323 of the Indian Penal Code against Mehta for the assault on him. There was, however, no charge framed against the other respondents for the assault on him.
42. As to the specific charge under Section 323 of the Indian Penal Code, it is proved beyond any manner of doubt against Mehta.
43. There was a charge under Section 323 of the Indian Penal Code against respondents Dwarika Prasad Gupta, Suraj Kumar Lal, Ram Nagina Tiwari and Gopi Krishan Karan for causing hurt to Havildar Bisbwanath Tiipathi and others. The learned trial judge acquitted them of this charge on the ground of vagueness in the charge as to who those others were who were said to have been assaulted by the aforesaid tour respondents. I think, he was right.
44. There was a charge under Section 323 of the Indian Penal Code against Dwarika Prasad Gupta for causing hurt to “P. W. B. G. Singh” but since there was no. P. W. B. G. Singh, but he was B. D. Singh (P. W. 8), the Magistrate has given the benefit of doubt. In view of the mistake in the charge in the name of B. D. Singh (P. W. 8), who deposed to have been assaulted at the hand of Dwarika Prasad Gupta, his acquittal need not be interfered with.
45. There was a charge under Section 323 of the Indian Penal Code against respondents Tribhuwan Tiwari, Suraj Kumar Lal and Bam Nagina Tiwari for causing hunt to A. P. Jain (P. W. 10). In Para. 15 of his judgment, the learned Magistrate acquitted these respondents on this charge because he thought that there was no medical evidence of A. P. Jain. This is a serious error of record. A. P. Jain had six injuries which were certified to by the doctor (P. W. 3). In effect, however, he recorded a finding of acquittal of all those, except Mehta who were charged under Section 323 of the Indian Penal Code. But in the operative portion of his order, he convicted, besides Mehta, also Tribhuwan Tiwari, Suraj Kumar Lal and Bam Nagina Tiwari under Section 323 of the Indian Penal Code. This was clearly wrong. Res-pondents Dwarika Prasad Gupta and Suraj Kumar Lal and not Ram Nagina Tiwari, because A. P. Jain attributed no assault to him, can very well be convicted on the charge under Section 323 of the Indian Penal Code with having assaulted A. P. Jain. This, Mehta, Dwarika Prasad Gupta and Suraj Kumar Lal may alone should be convicted on the charge under Section 323 of the Indian Penal Code with having assaulted A. P. Jain (P. W. 10).
46. Mr. Akbar Imam has raised some technical objections to the maintainability of the appeal by the State. It will be recalled that Poddar after lodging his report (Ext. 4) before the police on the 13th, July 1959, had also filed a complaint on the 27th, July 1959 before the District Magistrate and that complaint was ordered to be amalgamated with the police case. A charge-sheet was actually submitted by the police on the 5th August 1959. Mr. Akbar Imam’s contention is that although the police submitted charge-sheet in the case, it should, nevertheless, be treated as a complaint case and therefore, any appeal by the State will be incompetent. In support of his argument, he has relied upon a decision of the Supreme Court in Jamuna Singh v. Bhadai Shah . But in that case the Magistrate, after taking cognizance of the offence on a complaint filed by the complainant had ordered the police for “instituting a case” and called for report. The police however, treating the complaint as First Information Report, subsequently submitted charge-sheet to the Magistrate and it was held that it would nevertheless remain to be a complaint case, since the case was actually started on the complaint petition filed before the Magistrate and its reference to the police was in the nature of enquiry under Section 202 of the Code of Criminal Procedure. But in the instant case, it was initially instituted before the police and the police submitted charge-sheet. The fact of the District Magistrate entertaining a complaint in between and ordering the police to amalgamate the two cases will make no difference. It would remain to be a police case instituted on the first information report lodged by Poddar. The nature of the police case would not change, if in the meantime, a complaint is filed. There is a clear Bench decision of this Court in Harbans Singh v- Daroea Singh, AIR 1982 Pat 27 on this point.
47. Then even in a complaint case, the State is competent to file an appeal against an order of acquittal subject to the provisions of Sub-Section(5) of Section 417 of the Code of Criminal Procedure. These pro-visions are as follows:
417. (1) Subject to the provisions of Sub-Section(5), the State Government may, in any case direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court.
2. * * * *
3. If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.
4. * * * *
5. If, in any case, the application under Sub-Section(3) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under Sub-Section(1).
It is only when an application under Sub.S.(3) for the grant of special leave to appeal from an order of acquittal has been refused that the State is debarred from filing an appeal, but, otherwise, the State also can file an appeal against an order of acquittal in a complaint case. In the instant case, there was no appeal filed by Poddar under Section 417 (3) of the Code of Criminal Procedure, and therefore, this appeal by the State is quite competent.
48. Under Article 157 of the Indian Limitation Act, the period of limitation is three months from an order of acquittal under the Code of Criminal Procedure. The order of acquittal is dated 21-5-62 and the appeal by the State was filed on 21-8-62. Mr. Imam’s argument is that it was filed one day late, since three months expired on 20-8.62, when the appeal should have been filed. The argument is faulty because in computing the period of limitation, the date of the order would be excluded. In State of Uttar Pradesh v. C. Tobit which was cited by Mr. Imam in another connection although there was no question of limitation involved in that case, there is a mention that the period of limitation for appealing from the order of acquittal passed by the Sessions Judge on July 24, 1953, expired on January 24, 1954, for the period of limitation then was six months. I do not think there was any (sic) limitation in filing this appeal.
49. The memorandum of appeal was filed on the 21st August 1962 with a copy of the judgment of the Sessions Judge certified to be “True copy” by an officer of the Advocate-General’s office. Section 419 of the Code of Criminal Procedure provides that–
Every appeal shall be made in the form of a petition in writing presented by the appellant or his pleader and every such petition shall (unless the Court to which it is presented otherwise directs) be accompanied by a copy of the judgment or order appealed against….
Mr. Imam has raised a contention that the copy of the judgment or order appealed against must be a copy certified by a public officer having the custody of the document to be “a true copy” of such document within the meaning of Section 76 of the Evidence Act which is to the following effect:
76. Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefore together with a certificate written at the toot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorised by law to make use of a seal, and such copies so certified shall be called certified copies.
Explanation.–Any officer who, by the ordinary course of official duty is authorised to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this Section.
It has been held in the case of the State of Uttar Pradesh v. C. Tobit, already referred to in another connection, that the “copy” referred to in Section 419 of the Code of Criminal Procedure “must be a certified copy” within the meaning of Section 76 of the Evidence Act and not merely a plain copy.
50. According to Mr. Imam’s argument, the Advocate General is not a public officer, having the custody of the public document in the ordinary course of official duty so as to be able to issue a certified copy to himself, and therefore, any certificate appended to by any officer of his office will not make it a certified copy. He has relied upon a decision of a Single Judge in re T.S. Swaminathan, A.I.R. 1944 Mad. 419 to say that the temporary custody of the Advocate General of the document would not make him competent to have issued a copy. In the above case, certain record and registers of the court of a joint Magistrate were received before a Special First Class Magistrate in certain connection, and it was held that the accused was not entitled to inspect those records because they were the records of the joint Magistrate’s court. The facts of that case have no application to the facts of the present case. The Advocate General is a public officer, as defined in Section 2(17) (h) of the Code of Civil Procedure, which includes every officer in the service or pay of the government, or Remunerated by fee or commission for the performance of any public duty. The Advocate General, as a public officer, has the custody of the document in the ordinary course of official duty since the record, after the acquittal of any accused in any case, is remitted to him, when necessary, for filing an appeal. If he decides to file an appeal, there is no legal bar to his issuing a certified copy to himself for being presented with the memorandum of appeal in a particular case.
51. It seems it has been the practice of this Court to accept a certified copy of a judgment or order appealed against issued by the office of the Advocate General and filed along with the memorandum of appeal. While this appeal was filed along with a certified copy of the judgment issued by the Advocate General, no objection was taken by the court and the appeal was admitted and therefore, no objection can be allowed to be raised now. Section 419 of the Code of Criminal Procedure itself provides for dispensing with the Sling of a copy of a judgment or order appealed against at the time of admission, and when no objection was taken to the acceptance of the copy any other kind of certified copy shall be deemed to have been dispensed with. There is, thus, no merit in this connection either.
52. The appeal is quite competent, and the respondents must be held guilty of the charges, as already indicated.
53. Now, corning to the question of sentence Under Section 423 (1) (a) of the Code of Criminal Procedure, the appellate court in an appeal from an order of acquittal can pass any sentence on the accused according to law,” and the power of the appellate court is not in any way, restricted or limited to the power of the trial court. But the court of appeal should not impose a punishment higher than what the trial court could have awarded consistent with its powers. The decisions in Public Prosecutor v. Annamalai Udayan and Roddepalli B. Lakshminarayana v. S. Sanyasi Appa Rao may be referred to in this connection. The Magistrate trying this case held first class powers, and he could award a substantive sentence of imprisonment up to two years, subject to the punishment prescribed for a particular offence. Mr. Imam has, however, contended that the respondents should not be put in a worse position by awarding any higher sentence than what they would have been awarded if they had not filed any appeal to the Sessions Judge. But it should be remembered that the State had filed a revision application for enhancement of the sentence, and, but for the acquittal of the respondents by the Sessions Judge, there could have been a reference made before this Court for enhancement of the sentence. The respondents are found to have been guilty of great high handedness and that without any justification whatsoever. A deterrent sentence, in the circumstances of the case, is indeed called for. A sentence of detention till the rising of the court is meaningless, and it is only complying with the letter of the law and not the spirit. The offence under Section 452 of the Indian Penal Code of which all the respondents have been found guilty is punishable with imprisonment for a term which may extend to seven years and also with fine. A sentence of imprisonment is, thus compulsory. Since Mehta was the leader in the crime, he deserves a higher punishment than the rest who were only his camp followers.
54. In the result, the Government Appeal is allowed, and all the six respondents are convicted under Sections 452 and 147 of the Indian Penal Code. Respondents S.K. Mehta, Dwarika Prasad Gupta and Suraj Kumar Lal are also convicted under Section 323 of the Indian Penal Code. They are acquitted of the other offence of which they have been charged. S.K. Mehta is sentenced to rigorous imprisonment for a term of six months, and the other five respondents for a term of three months each under Section 452, I. P.C. and no separate sentence is passed on the other counts. His Lordship then considered (Paras 55, 56) the Criminal Revision filed by Mehta and found no merit in the same.
55. In the result, the Government Appeal is allowed, as stated above, and the Criminal Revision is dismissed.