judgement:
54 of 1953.
Petition under Article 32 of the Constitution for a writ in the nature of habeas corpus.
Jai Gopal Sethi and Veda Vyas (section K. Kapur, A. K. Datt, A. N. Chona, B. Pathnaik and A. AT.
Sinha, with them) for the petitioners.
C.K. Daphtary, Solicitor General for India (Porus A.Mehta, with him) for the respondents.
March 12.
PATANJALI SASTRI C. J.
This is a petition for a writ of habeas corpus filed by one ham Narayan Singh on behalf of four gentlemen, namely, Dr. section P. Mukerjee, Shri N. C. Chatterjee, Pandit Nandial Sharma and Pandit Guru Dutt Vaid, who are the real petitioners in the case.
These persons were 653 arrested on the evening of the 6th March, 1953, and they are now being prosecuted for alleged defiance of an order prohibiting meetings and processions in the area in question, an offence punishable under section 188 of the Indian Penal Code.
Their detention is sought to be justified on the basis of two remand orders, the one alleged to have been passed by Mr. Dhillon, Additional District Magistrate, Delhi, at about 8 p. m. on the 6th March, 1953, and the other alleged to have been passed by the trying Magistrate at about 3 p. m. on the 9th March while adjourning the case on the representation made before him that a habeas "pus petition was being moved in this Court.
Various questions of law and fact have been argued before us by Mr. Sethi on behalf of the petitioner, but we consider it unnecessary to enter upon a discussion of those questions, as it is now conceded that the first order of remand dated the 6th March even assuming it was a valid one expired on the 9th March and is no longer in force.
As regards the order of remand alleged to have been made by the trying Magistrate on the 9th March, the position is as follows: The trying Magistrate was obviously proceeding at that stage under section 344 of the Criminal Procedure Code, which requires him, if he chooses to adjourn the case pending before him, " to remand by warrant the accused if in custody," and it goes on to provide: Every order made under this section by a court other than a High Court shall be in writing signed by the presiding Judge or Magistrate.
The order of the Magistrate under this section was produced before us in compliance with an order of this Court made on the 10th March, which directed the production in this Court as early as possible of the records before the Additional District Magistrate and the trying Magistrate together with the remand papers for inspection by Counsel for the petitioner.
The order produced merely directs the adjournment of the case till the 11th March and contains no direction for, remanding the accused to custody till that date.
Last 85 654 evening, four slips of paper were handed to the Registrar of this Court at 5 20 p. m.
On one side they purport to be warrants of detention dated 6th March and addressed to the Superintendent of Jail, Delhi, directing the accused to be kept in judicial lock up and to be produced in court on the 9th March 1953.
These warrants contain on their back the following endorsements: Remanded to judicial till 11th March, 1953" In a question of habeas corpus, when the lawfulness or otherwise of the custody of the persons concerned is in question, it is obvious that these documents, if genuine would be of vital importance, but they were not produced, notwithstanding the clear direction contained in our order of the 10th March.
The court records produced before us do not contain any order of remand made on the 9th March.
As we have already observed, we have the order of the trying Magistrate merely adjourning the case to the 11th.
The Solicitor General appearing on behalf of the Government explains that these slips of paper,which would be of crucial importance to the case, were with a police officer who was present in court yesterday, but after the Court rose in the evening the latter thought that their production might be of some importance and therefore they were filed before the Registrar at 5 20 p. m.
We cannot take notice of documents produced in such circumstances, and we are not satisfied that there was any order of remand committing the accused to further custody till the 11th March.
It has been held by this Court that in habeas corpus proceedings, the Court is to have regard to the legality or otherwise of the detention at the time of the return and not with reference to the institution of the proceedings.
The material date on the facts of this case is the 10th March, when the affidavit on behalf of the Government was filed justifying the detention as a lawful one.
But the position, as we have stated, is that on that date there was no order remanding the four persons to custody.
This Court has often reiterated before that those who 655 feel called upon to deprive other persons of their personal liberty in the discharge of what they conceive to be their duty, must strictly and scrupulously observe the forms and rules of the law.
That has not been done in this case.
The petitioners now before us are therefore entitled to be released, and they are set at liberty forthwith.
Petition allowed.

dataset_name: IN-Abs

summary/full:
In habeas corpus proceedings the Court is to have regard to the legality or otherwise of the detention at the time of the return and not with reference to the institution of the proceedings.
Section 344 of the Criminal Procedure Code requires a Magistrate, if he chooses to adjourn a case, " to remand by warrant the accused if in custody " and provides further that every order made under this section by a Court other than a High Court shall be in writing.
Where a trying Magistrate adjourned a case by an order in writing but there was nothing in writing on the record to show that he made an order remanding the accused to custody: Held, that the detention of the accused after the order of adjournment was illegal.
Those who feel called upon to deprive other persons of their personal liberty in the discharge of what they conceive to be their duty, must strictly and scrupulously observe the forms and rules of the law.


judgement:
minal Appeal No.56 '61.
Appeal by special leave from the judgment and order dated August 16, 1960, of the Bombay High Court in Cr. A. No. 225 of 59.
B. B. Tawakley and A. G. Ratnaparkhi, for the appellants.
M. section K. Sastri and P. D. Menon, for the respondent.
July 24.
The judgment of the Court was delivered by SHAH, J.
With special leave, the two appellants Bhagwanbhai Dulabai Jadav and Haribhai Maganbhai Bhandare hereinafter referred to as accused Nos. 1 and 5 respectively have appealed against the order passed by the High Court of Judicature at Bombay setting aside the order of the Judicial Magistrate, First Class, Thana acquitting them and three others of offences punishable under sections 65(a), 66 (b), 81 and 83 of the Bombay Prohibition Act, 25 of 1949 hereinafter called the Act.
The case of the prosecution may briefly be stated: On August 25, 1957, a "wireless message" alerting the officers posted on "watch duty" at Kasheli Naka, District Thana that a motor car bearing No BMY 1068 belonging to the first appeal lant was carrying "contraband goods", was received.
This motor car reached,the Kasheli Naka at about 388 2 30 p.m. on August 28.
The first accused was then driving the car the second accused was sitting by his side and accused 3 to 5 were sitting in the rear seats.
Panchas were called by the Sub Inspector of police Deshpande from a village nearby and in their presence the vehicle was searched and from the luggage compartment (which was opened with the key found on search on the person of the 5th accused), 43 sealed bottles of foreign liquor and a large number of packets of tobacco were found.
A search list was prepared and the five occupants of the vehicle were arrested.
The vehicle and the articles found therein were attached.
The vehicle was handed over to the Central Excise Authorities together with the ignition key and the key of the luggage compartment for taking proceedings in respect of packets of tobacco which were attached.
A charge sheet was then filed in the Court of the Judicial Magistrate, First Class, Thana against the five accused charging them with offences punishable under so.
65 (a), 66 (b), 81 and 83 of the Act.
The accused pleaded not guilty to the charge: they stated that the case was "false and entirely got up", that no "liquor or other contreband" was found in the motor. car and ,,the whole plot was engineered by the enemies of the 1st accused".
They denied that the motor car was searched in their presence.
The fifth accused denied that the key of the luggage compartment was found on his person.
The trial Magistrate held that the brosecution evidence was insufficient to establish that the persons accused before him were acting in conspiracy or were abetting each other in transporting contraband articles in the car and acquitted them.
Against the order of aquittal, the State of Bombay appealed to the High Court of Bombay.
The High Court observed that the trial court treated the case as "a mathematical problem", and 389 examined the evidence giving undue importance to minor discrepanies.
In the view of the High Court the evidence established that in consequence of information received from police station Vapi, motor oar No. BMY 1068 was stopped at 2 30 p.m. on August 28, 1957, near Kasheli Naka, that at that time the 1st accused was driving the motor car which belonged to him, that accused No. 2 was sitting near him and accused Nos.
3 to 5 were sitting in the rear seats, that the key of the luggage compartment was found on the person of the 5th accused, that on opening that compartment in the presence of the Panchas, 43 bottles of foreign liquor and a large number of packets of tobacco were found, and that the evidence warranted the conviction of all the accused for offences punishable under as.
65(a), 66(b), 81 and 83 of the Bombay Prohibition Act.
The High Court accordingly allowed the appeal against accused Nos. 1, 2 and 5 of all the offences and directed each of them to undergo rigorous imprisonment for one year and pay a fine of Rs. 500/ for each of the offences; and in default of payment of fine to rigorous imprisonment for 3 months in respect of each offence, and directed that the substantive sentences do run concurrently.
The appeal against accused Nos. 3 and 4 was dismissed because they could not be served with the notice of appeal.
The High Court was undoubtedly dealing with an appeal against an order of a quittal but the Code of Criminal Procedure placed no special limitation upon the powers of the High Court in dealing with an appeal against an order of aquittal.
The High Court is entrusted with power to review evidence and to arrive at its own conclusion on the evidence.
There are certainly restrictions inherent in the exercise of the power, but those restrictions arise from the nature of the jurisdiction which the High Court exercises.
In a Criminal trial the burden 390 always lies on the prosecution to establish the case against the accused and the accused is presumed to be innocent of the offence charged till the contrary is established.
The burden lies upon the prosecution, and the presumption of innocence applies with equal, if not greater, force in an appeal to the High Court against an order of acquittal.
In applying the presumption of innocence the High Court is undoubtedly slow to disturb findings based on appreciation of oral evidence for the court which has the opportunity of seeing the witnesses is always in a better position to evaluate their evidence than the court which merely persued the record.
In the present case, the High Court in our judgment, was right in holding that the trial court ignored the broad features of the prosecution case, and restricted itself to a consideration of minor discrepancies.
The Magistrate meticulously juxtaposed the evidence of different witnesses on disputed points and discarded the evidence in its entirety when discrepancies were found.
That method was rightly criticised by the High Court as fallacious.
The Magistrate had to consider whether there was any reliable evidence on question which had to be established by the prosecution.
Undoubtedly, in considering whether the evidence was realiable he would be justified in directing his attention to other evidence which contradicted or was inconsistent with the evidence relied upon by the prosecution.
But to discard all evidence because there were discrepancies without any attempt at evaluation of the inherent quality of the evidence was unwarranted.
Sub Inspector Deshpande spoke about the wireless message received at the Kasheli Naka, about the arrival of the motor oar of the first accused at 2 30 in the afternoon of August 28, 1957, about the search of the car in the presence of the Panchas and the discovery of 43 'bottle of foreign 391 liquor and packets of tobacco in the luggage compartment of the motor car.
Nothing was elicited in the cross examination which threw any doubt upon the truth of the story, and no adequate reason was suggested why he should be willing falsely to involve the accused, in the commission of a serious offence by fabricating false evidence.
He was corroborated by the contents of the "Panchnama", which was a written record contemporaneously made about the search, and the evidence of the Panch witness Pandu Kamliya.
Deshpande was also partially supported by headconstable Chodabrey.
The latter witness deposed that the motor oar driven by the lot accused was stopped at Kaheli Naka and panchas were called, but according to him, search was made before the panchas arrived and the bottles were taken out of the luggage compartment and placed near the car.
We agree with the view of High Court that the evidence of Head Constable Codabrey though some what inconsistent with the evidence of Sub Inspector Deshpande and the panch witness, accorded with their story that the liquor bottles were in the motor oar when it was stopped near the Kasheli Naka on the day in question.
That evidence by itself is sufficient to establish that the accused possessed the bottles of foreign liquor.
It was urged, however, that under the law making of a search in the presence of independent witnesses of the locality called for that purpose was obligatory, and as according to the evidence of Head Constable Chodabrey and Panch witness Laxman Ganpat the search was held without complying with the formalities prescribed by section 103 of the Criminal Procedure Code, the panchnama about the search of the motor car, and the evidence of the finding of the articles therein must be discarded and the rest of the evidence was not sufficient to displace the presumption of innocence which 392 by the order of acquittal was reinforced.
We are unable to agree with this contention.
Section 117 of the Act provides, "Save as otherwise expressly provided in this Act, all investigations, arrests, detentions in custody and searches shall be made in accordance with the provisions of the Code of Criminal procedure, 1898: provided that no search shall be deemed to be illegal by reason only of the fact that witnesses for the search were not inhabitants of the locality in which the place searched is situated".
In view of that provision it is obligatory upon a police officer about to make a search to call upon two or more respectable inhabitants of the locality in which the place to be searched is situate to attend and witness the search.
But a motor car is not a place within the meaning of as. 102 and 103 of the Code of Criminal Procedure; nor is there anything in the Act by which a motor car would be so regarded for purposes of a search.
The provisions relating to searches contained in a. 103 of the Code of Criminal procedure have therefore no application and in making a search of a motor vehicle, it was not obligatory upon the police officer to comply with the requirements thereof.
This is not, however, to say that the practice which is generally followed by police officers when investigating offences under the Act to keep respectable persons present on the occasion of the search of a suspected person or of a vehicle may be discarded.
Even though the statute does not make it obligatory, the police officers wisely carry out the search, if it is possible for them to secure the presence of respectable witnesses, in their presence.
This is a healthy practice which leads to cleaner investigation and is a guarantee against the oft repeated charge against police officers of planting articles.
It was strenuously urged by counsel for the appellants that the High Court did not attach suffi 393 cient importance to a piece of evidence which strongly militated against the truth of the prosecution case.
This piece of evidence.
, it was contended, related to the ignition key and the luggage compartment key, produced at the trial.
As we have already observed, the motor car together with the ignition key and luggage compartment key which were attached were handed over to the Excise Authorities for investigating the case in respect of tobacco which was attached with liquor.
The motor car and the keys were produced by the Excise Authorities at the instance of the accused before the Magistrate.
An attempt was made to open the luggage compartment of the motor car by using one of the keys and the trial Magistrate recorded his observations in that behalf.
He has stated that the keys were produced by the Sub Inspector of Central Excise and "with the white key the look of the carrier was tried for thirty minutes.
Oil was allowed to be put.
Even then the lock was not opened.
The yellow key was ,,.hen tried on the petrol tank and was opened immediately.
" It appears, however, from the evidence of Inspector Jambekar that the " 'white key was the ignition key and the yellow was the key of the luggage compartment".
It is true that Head Constable Chodabrey say, that the " 'white key" was the key of the luggage compartment and with that key the first accused bad opened the luggage compartment.
But we fail to appreciate why no attempt was made by the Trial Magistrate to ascertain whether the yellow key could be used for opening the luggage compartment and whether the white key fitted the ignition switch.
In view of this infirmity it is difficult to hold that the story of the finding of the key and the attachment of liquor after opening the luggage compartment of the motor oar was untrue.
394 The case tried by the Trial Magistrate was simple.
Thers is no dispute that the police officers had attached 43 bottles of foreign liquor at the kasheli Naka on the day in question.
It was the case of the accused that these bottles of liquor were not in their possession and Sub Inspector Deshpand made a false panchnama showing that these bottles were found in the luggage compartment of the motor car belonging to the first accused.
The primary question which the trial Magistrate had to consider was about the credibi lity of the prosecution evidence in the light of the defence set up by the accused.
The bottles of foreign liquor attached by the police exceeded Rs.2000/. in value: the trial Magistrate had to consider whether it was reasonably possible that the police officers could procure the bottles to falsely involve the accused, or having attached them from some other person, allow that person to escape and plant them in the motor car of the accused and then make a false panchnama.
No. attempt appears to have been made to examine the evidence in the light of the defence set up or suggested.
It was urged that one Inspector Mane of police station Bhilad was an enemy of the 1st accused.
But that does not explain the conduct of Sub Inspector Deshpande.
It would indeed be difficult for Deshpande to secure this large quantity of foreign liquor, and even if it could be secured no rational ground if; suggested why Deshpande would keep it with him on the possible chance of the first accused arriving at the Kasheli Naka.
The High Court has on a consideration of the evidence of Sub Inspecter Deshpande, the Panch witness Pandu Kamaliya and Head Constable Chodabrey come to the conclusion that the accused Nos. 1, 2 and 5 were guilty of possessing liquor in contravention of the provisions of the Act, and in our view the High Court was right in so holding.
395 But the order of conviction passed by the High Court and the sentence imposed are not according to law.
Section 65 of the Act penalises a person who in contravention of the provisions of the Act, or of any rule, regulation or order made or of any licence, pass, permit or authorization there under (a) imports or exports any intoxicant (other than opium) or hemp, and the expression "import" is defined in section 2(20) as meaning "to bring into the State otherwise than across a customs frontier.
" There is no evidence on the record that the accused or any of them imported the bottles of foreign liquor into the State.
The circumstance that the bottles contained foreign liquor and the accused were residents of the former Portuguese territory of Daman or a locality near about, was not, in our judgment, sufficient to prove that the accused bad imported those bottles.
The High Court was there fore, in our judgment, in error in convicting the accused of the offence under section 65(a).
Again, there is no evidence, and the High Court has considered none, which establishes that two or more persons had agreed to commit or caused to commit any offence under the Act.
Section 83 of the Bombay Prohibition Act provides punishment for conspiracy to commit or cause to commit an offence under the Act.
But an inference of conspiracy cannot be made from the facts proved in this case, viz. that the five accused Were, found in a motorcar which contained in its luggage compartment a number of foreign liquor bottles and some of the accused were blood relations, Conviction for the offence under a. 83 is therefore not warranted by the evidence.
Again, if accused Nos. 1 and 5 are proved to have committed the substantive offence punishable under section 66 (b) of the Act it is difficult to appreciate how they can also be convicted of abetting the commission of that offence.
The offence under section 81 of the Act is therefore also not made out.
The appellants 396 were accordingly liable to be convicted only of the offence under a. 66(b) of the Act, and the maximum term of imprisonment for a first offence punishable under that section is rigorous imprisonment for six months and a fine of Rs. 1, 000/ .
We accordingly modify the order passed by the High Court and maintain the conviction of accused Nos. 1 and 5 under a. 66 (b) and set aside the order of conviction under as.
65 (a), 81 and 83 of the Act and the sentence passed in respect of those offences.
We also modify the sentence imposed by the High Court for the offence under a. 66 (b) of the Act, and direct that each appellant do suffer rigorous imprisonment for six months and pay a fine of Rs. 500/ , and in default of payment of fine do suffer rigorous imprisonment for one month and fifteen days.
Subject to that modification the appeal is dismissed.

summary/full:
The two appellants, who were tried along with there others, were acquitted by the Judicial Magistrate of charges under sections 65(a),66(b),81 and 83 of the Bombay Prohibition Act, 1949, but were convicted by the High Court in appeal by the State.
The Magistrate found that the prosecution evidence was insufficient to establish conspiracy or abetment in transporting the contraband liquor and tobacco found in the car on search.
The High Court took a different view of the evidence and allowed the appeal so far as the appellants and another were concerned.
It was urged on behalf of the appellants that the search was in contravention of section 103 of the Code of Criminal Procedure and the finding of the contraband articles had not been proved.
Held, that a motor car was not a 'place ' within the meaning of sections 102 and 103 of the Code of Criminal Procedure or the Bombay Prohibition Act, 1949, and section 103 of the Code had therefore no application to a search of a motor vehicle.
Consequently, it was not obligatory upon the Police Officer to comply with the formalities prescribed by that section nor upon the Court to discard the Panchnama or the evidence of the finding of the articles where no witnesses of the locality could be called.
Although the High Court in the convicting the appellants under section 66 (b) of the Prohibitiuontion Act, conviction under sections Act was not sustainable and must rate was in error in discarding the entire evidence because discrepancies therein without appraising its intrinsic value.
387 Held, further that the Code of Criminal Procedure places no special limitation on the powers of the High Court in deal ing with an appeal against acquittal, It can review the evi dence and arrive at its own conclusion.
The presumption of innocence applies with equal, if not greater force in such an appeal and the burden of proving its own case lying as always on the prosecution.
The High Court would not therefore lightly disturb findings arrived at by the trial court on appreciation of the oral evidences


judgement:
riminal Apeal No. 6 of 1960.
Appeal by special leave from the judgment and order dated July 1, 1959, of the Andhra Pradesh High Court in Cr.
Revision Case No. 403 of 1958 and Criminal Revision Petn.
No. 337 of 1957.
P. Ram Reddy, for the appellant.
K.R. Choudhuri, and P. D. M for respondent No. 1.
K. R. Chaudhuri, for respondent No. 2. 1962.
July 25.
The Judgment of the Court was delivered by WANCHOO, J.
This is an appeal by special leave against the judgment of the Andhra Pradesh High Court.
The appellant was convicted under section 411 of the Indian Penal Code by the Assistant Sessions Judge of Kurnool.
Along with him, another person Hussain Saheb was also tried and was convicted under so. 457 and 380 of the Indian Penal Code.
The case for the prosecution briefly was that the house of Rahayya in Dudyia was burgied on the night of April 20, 1957.
Ramayya and his wife were sleeping outside and on waking in the morning they found that the house had been burgled and valuable property stolen.
The matter was reported to the police and during the course of investigation the police recovered 17 ornaments on the information given by the appellant.
The other accused had also given information on the basis of which another stolen ornament was recovered.
The Assistant Sessions Judge on a consideration of the evidence came to the conclusion that the other accused had actually committed house breaking and had removed ornaments from the house of Ramayya and had handed over 17 ornaments out 415 of that property to the appellant.
He also came to the conclusion that the seventeen ornaments recovered at the instance of the appellant were in his possession and he therefore found him guilty under section 411 of the Indian Penal Code.
The appellant and the other accused went in appeal to the Sessions Judge.
The Sessions Judge held that the appellant had not been proved to be in possession of the seventeen ornaments which were recovered at his instance from a garden.
The statement of the appellant in this respect was that "he would show the place where he had hidden them (the ornaments)".
Thereafter he went to the garden and dug out two bundles containing the seventeen ornaments from there.
The Sessions Judge held that the recovery of ornaments from the garden at the instance of the appellant was proved; but he further held that that part of the statement of the appellant where he said that he had hidden the ornaments was not admissible in evidence.
Therefore, he took the view that as the ornaments were recovered from a place which was accessible to all and sundry and there was no other evidence to show that the appellant had hidden them, it could not be held that the ornaments were in the appellant 's possession.
He therefore gave the benefit of doubt to the appellant and ordered his acquittal.
He also acquitted the other accused at whose instance one of the stolen ornaments was recovered.
This accused had stated that he given the ornaments to Bada Sab (P. W. 5) and took the police party to Bada Sab and asked him to return the ornaments, which Bada Sab did.
The Sessions Judge, however, on a consideration of the evidence against the other accused thought the case against him was also doubtful and ordered his acquittal, though he ordered the return of ornaments to Ramayya.
This was followed by a revision by Ramayya against the appellant and the other accused.
The 416 High Court has allowed the revision and directed that the matter should go back to the Sessions Judge so that the accused should be re tried on the charges on which they had been brought to trial on the former occasion.
It is against this order of the High Court directing retrial that the present appeal by special leave is directed.
It may be mentioned, however, that only Chinnaswamy Reddy has appealed while the other accused has not appealed against the order of the High Court.
The main contention of the appellant before us is that this was a revision by a private party.
There were no exceptional circumstances in this case which would justify the High Court in interfering with an order of acquittal at the instance of a private party.
Further, it is urged that a. 439 (4) of the Code of Criminal Procedure specifically forbids the High Court from converting a finding of acquittal into one of conviction and that a reading of the judgment of the High Court shows that by the indirect method of retrial the High Court has practically directed the Sessions Court to convict the appellant and thus indirectly converted finding of acquittal into one of conviction, through it has not been done and could not be done directly.
The extent of the jurisdiction of the High Court in the matter of interfering in revision against an order of acquittal has been considered by this Court on a number of occasions.
In D, Stephens vs Nosibolla (1) this Court observed "The revisional jurisdiction conferred on the High Court under section 439 of the Code of Criminal Procedure is not to be lightly exer cised when it in invoked by a private comp lainant against an order of acquittal, against which the Government has a right of appeal under a. 417.
It could be exercised only (1) ; 417 in exceptional cases where the interests of public justice require interference for the correction of a manifest illegality or the prevention of a gross miscarriage of justice.
This jurisdiction is not ordinarily invoked or used merely because the lower Court has taken a wrong view of the law or misappreciated the evidence on the record." Again, in Logendranath Jha vs Shri Polailal Biswas(1), this Court observed "Though sub section
(1) of section 439 of the Criminal Procedure Code authorises the High Court to exercise in its discretion any of the powers conferred on a court of appeal by section 423, yet sub a.
(4) specifically excludes the power to " 'convert a finding of acquittal into one of conviction".
This does not mean that in dealing with a revision petition by a private party against an order of acquittal, the High Court can in the absence of any error on a point of law reappraise the evidence and reverse the findings of facts on which the acquittal was based, provided only it stops short of finding the accused guilty and passing, sentence on him by ordering a re trial.
" These two cases clearly lay down the limits of the High Court 's jurisdiction to interfere with an order of acquittal in revision; in particular, Logendranath Jha 's case (1) stresses that it is not open to a High Court to convert a finding of acquittal into one of conviction in view of the provisions of section 439 (4) and that the High Court cannot do this even indirectly by ordering re trial.
What had happened in that case was that the High Court reversed pure findings of facts based on the trial court 's appreciation of evidence but formally (1) ; 418 complied with sub a.
(4) by directing only a retrial of the appellants without convicting them, and warned that the court retrying the case should not be influenced by any expression of opinion contained in the judgment of the High Court.
In that connection this Court observed that there could be little doubt that the dice was loaded against the appellants of that case and it might prove difficult for any subordinate judicial officer dealing with the case to put aside altogether the strong views expressed in the judgment as to the credibility of the prosecution witnesses and the circumstances of the case in general.
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 to 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 a. 439 forbids a High Court from converting a finding of acquittal into one of conviction and that makes it all the more incumbent on 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 set 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 419 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 a. 439 (4).
We have therefore to see whether the order 'of the High Court setting aside the order of acquittal in this case can be upheld on these principles.
A perusal of the judgment of the High Court shows that the High Court has gone into the evidence in great detail so far as the case against the appellant was concerned.
In our opinion, the High Court should not have dealt with evidence in such detail when it was going to order a retrial, for such detailed consideration of evidence, as pointed out in Logendranath 's case (1) amounts to loading the dice against the appellant, when the case goes back for retrial.
If the matter stood at this only, we would have no hesitation in setting aside the order of the High Court directing a retrial; but there is one important circumstance in this case to which the High Court has adverted in passing, which, in our opinion, was sufficient to enable the High Court to set aside the acquittal in this case.
It would then have been unnecessary to consider the evidence in that detail in which the High Court has gone into it, and thus load the (1) [1951] S.C.R.676.
420 dice against the appellant, when the case goes back for retrial.
That circumstance is that the Assistant Sessions Judge had admitted in evidence that part of the statement of the appellant in which he stated that he would show the place where he had hidden the ornaments and relying on it he held that the appellant was in possession of the seventeen ornaments, he had dug out from the garden which he owned along with others.
The Sessions Judge however held that that part of the statement of the appellant where he stated that he had hidden the ornaments was inadmissible in evidence.
The same applies to the case against the other accused, 'who had stated that he had given one ornament to Bada Sab and would get it recovered from him.
Though the Sessions Judge has not in specific trems ruled out that part of the other accused 's statement where he said that he had given the ornament to Bada Sab, he did not consistently with what be said with respect to the appellant, attach importance to this statement of the other accused.
If therefore this part of the statement of the appellant and the other accused which led to discovery of ornaments is admissible, it must be held that the appeal court wrongly ruled out evidence which was admissible.
In these circumstances, the case would clearly be covered by the principles we have set out above in as much as relevant evidence was ruled out as inadmissible and the High Court would be justified in interfering with the order of acquittal so that the evidence may be reappraised after taking into account the evidence which was wrongly ruled out as inadmissible.
It seems that the High Court was conscious of this aspect of the matter, for it says in one part of the judgment that the only possible inference that could be drawn was that the appellant was in possession of stolen goods before they were put in that secret spot, as admitted by the appellant in his statement, part of which 421 is admissible under section 27 of the Indian Evidence Act.
If the High Court had confined itself only to the admissibility of this part of the statement, it would have been justified in interfering with the order of acquittal.
Unfortunately, the High Court went further and appraised the evidence also which it should not have done, as held by this Court in Logendranath 's case.
However, if admissible evidence was ruled out and was not taken into consideration, that would in our opinion be a ground for interfering with the order of acquittal in revision.
Let us then turn to the question whether the statement of the appellant to the effect that ,he had hidden them (the ornaments)" and "would point out the place" where they were, is wholly admissible in evidence under section 27 or only that part of it is admissible where he stated that he would point out the place but not that part where he stated that he had hidden the ornaments.
The Sessions Judge in this connection relied on Pulukuri Kotayya vs King Emperor (2) where a part of the statement leading to the recovery of a knife in a murder case was held inadmissible by the Judicial Committee.
In that case the Judicial Committee considered section 27 of the Indian Evidence Act, which is in these terms : "Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.
" This section is an exception to sections 25 and 26, which prohibit the proof of a confession made to a police officer or a confession made while a person is in (1) ; (2) [1946] L.R. 74 I.A. 65. 422 police custody, unless it is made in immediate presence of a magistrate.
Section 27 allows that part of the statement made by the accused to the police "whether it amounts to a confession or not" which relates distinctly to the fact thereby discovered to be proved.
Thus even a confessional statement before the police which distinctly relates to the discovery of a fact may be proved under section 87.
The Judicial Committee had in that case to consider how much of the information given by the accused to the police would be admissible under a. 17 and laid stress on the words "so much of such information as relates distinctly to the fact thereby discovered" in that connection.
It held that the extent of the information admissible must depend on the exact nature of the discovered to which such information is required to relate.
It was further pointed out that "the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact.
" It was further observed.
that "Information as to past user, or the past history of the object produced is not related to its discovery in the setting in which it is discovered.
" This was exemplified further by the Judicial Committee by observing "Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house ' leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence.
, the fact discovered is very relevant.
If however to the statement the words be added with which 423 I stabbed A ', these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant.
" If we may respectfully say so, this case clearly brings out what part of the statement is admissible under a. 27.
It is only that part which distinctly relates to the discovery which is admissible; but if any part of the statement distinctly relates to the discovery it will be admissible wholly and the court cannot say that it will excise one part of the statement because it is of a confessional nature.
Section 27 makes that part of the statement which is distinctly related to the discovery admissible as a whole, whether it be in the nature of confession or not.
Now the statement in this case is said to be that the appellant stated that he would show the place where he had hidden the ornaments.
The Sessions Judge has held that part of this statement which is to the effect 'where he had hidden them" is not admissible.
It is clear that if that part of the statement is excised the remaining statement (namely, that he would show the place) would be completely meaningless.
The whole of this statement in our opinion relates distinctly to the discovery of ornaments and is admissible under section 27 of the Indian Evidence Act.
The words "where he had hidden them" are not on a par with the words "with which I stabbed the deceased" in the example given in the judgment of the Judicial Committee.
These words (namely, where he had hidden them) have nothing to do with the past history of the crime and axe distinctly related to the actual discovery that took place by virtue of that statement.
It is however urged that in a case where the offence consists of possession even the words "where he had hidden them " would be inadmissible as they would amount to an admission by the accused that he was in possession.
There are in our opinion two answers to this argument.
In the first place, 424 s 27 itself says that where the statement distinctly relates to the discovery it will be admissible whether it amounts to a confession or not.
In the second place, these words by themselves though they may show possession of the appellants would not prove the offence, for after the articles have been recovered, the prosecution has still to show that the articles recovered are connected with the crime, i. e. in this case, the prosecution will have to show that they are stolen property.
We are therefore of opinion that the entire statement of the appellant (2) as well as of the other accused Who stated that he had given the ornament to Bada Sab and would have it recovered from him) would be admissible in evidence and the Sessions Judge was wrong in ruling out part of it.
Therefore, as relevant and admissible evidence was ruled out by.
the Sessions Judge, this is,% fit case where the High Court would be entitled to set aside the finding of acquittal in revision, though it is unfortunate that the High Court did not confine itself only to this point and went on to make rather strong remarks about other parts of the evidence.
The next question is what order should be passed in a case like the present.
The High Court also considered this aspect of the matter.
Two contingencies arise in such a case.
In the first place there may be an acquittal by the trial court.
In such a case if the High Court is justified, on principles we have enunciated above, to interfere with the order of acquittal in revision, the only course open to it is to set aside the acquittal and send the case back to the trial court !or retrial.
But there may be another type of case, namely, where the trial court has convicted the accused while the appeal court has acquitted him.
In such a case if the conclusion of the High Court is that the order of the appeal court must be set aside, the question is whether the appeal court should be 425 ordered to re hear the appeal after admitting the statement it had ruled out or whether there should K necessarily be a retrial.
So far asthis is concerned, we are of opinion that it in open to the High Court to take either of the two courses.
It may order a retrial or it may order the appeal court to re hear the appeal.
It will depend upon the facts of each case whether the High Court would order the appeal court to re hear the appeal or would order a retrial by the trial court.
Where, as in this case, the entire evidence is there and it was the appeal court which ruled out the evidence that had been admitted by the trial court, the proper course in our opinion is to send back the appeal for rehearing to the appeal court.
In such a case the order of the trial court would stand subject to the decision of the appeal court on re hearing.
In the present case it is not disputed that the entire evidence has been led and the only defect is that the appeal court wrongly ruled out evidence which was admitted by the trial court.
In the circumstances we are of opinion that the proper course is to direct the appeal court to re hear the appeal and either maintain the conviction after taking into consideration the evidence which was ruled out by it previously or to acquit the accused if that is the just course to take.
We should like to add that the appeal court when it re hears the appeal should not be influenced by any observations of the High Court on the appreciation of the evidence and should bring to bear its own mind on the evidence after taking into consideration that part of the evidence which was, considered inadmissible previously by it.
We therefore allow the appeal subject to the modification indicated above.
This leaves the case of the other accused.
We are of opinion that as we are directing the appeal court to re hear the appeal with respect to the appellant it is only proper that the order relating to the 426 other accused should also be set aside and his appeal should also be re heard in the manner indicated above.
We therefore set aside the order of the High Court with respect to the retrial of the other accused and direct that his appeal will also be re heard along with the appeal of the appellant.
Appeal allowed.

summary/full:
The appellant, tried with another, was convicted under section 411 Indian Penal Code while the other was convicted under sections 457 and 380 of the Code by the Assistant Sessions judge.
The appellant had stated to the police during investigation that she would show the place where he had hidden them (the ornaments)" and thereafter went to the garden and dug out two bundles containing the ornaments.
The other accused person had also similarly stated that he had given the 413 ornaments to one Bada Sab, took the police party to Bada Sab and asked him to return the ornament which he did.
The Sessions Judge on appeal took the view that that part of the statement of the appellant where he said that he 'had hidden the ornaments was not admissible in evidence and in the absence of any other evidence possession of the ornament could not be said to have been proved.
He, therefore, held that the appellant was entitled to the benefit of doubt and acquitted him.
He also took a similar view with regard to the other accused person and acquitted him.
The order of acquittal was set aside by the High Court in revision under section 439 of the Code of Criminal Procedure and a retrial was directed.
It was against the order of retrial that the appeal was directed.
Held, that it was open to a High Court in revision and at the instance of a private party to set aside an order of acquittal though the State might not have appealed.
But such jurisdiction should be exercised only in exceptional cases, as where a glaring defect in the procedure or a manifest error of law leading to a flagrant miscarriage of justice has taken place.
When section 439(4) of the Code forbids the High Court from converting a finding of acquittal into one of conviction, it is not proper that the High Court should do the same indirectly by ordering a retrial.
It was not possible to lay down the criteria for by which to judge such exceptional cases.
It was, however, clear that the High Court would be justified in interfering in cases such as (1) where the trial court had wrongly shut out evidence sought to be adduced by the prosecution, (2) where the appeal court had wrongly held evidence admitted by the trial court to be inadmissible, (3) where material evidence has been overlooked either by the trial court or the court of appeal or, (4) where the acquittal was based on a compounding of the offence not permitted by law and cases similar to the above.
D. Stephens vs Nosibolla, ; and Logendra nath Jha, vs Shri Polailal Biswas, ; , referred to.
There could be no doubt in the instant case that the entire statements of the appellant as well as of the other accused person would be admissible tinder section 27 of the Indian Evidence Act and the Sessions judge was in error in ruling out parts of them and the High Court was clearly justified in setting aside the acquittal in revision.
Pulukuri Kotayya vs King Emperor, (1946) L.R. 74 I.A. 65, referred to. 414


judgement:
iminal Appeals Nos.
56 and 57 of 1962.
Appeals by special leave from the judgment and order dated October 4, 1961, of the Punjab High Court in Criminal Appeals Nos. 635 and 636 of 1961 and Murder Reference No. 59 of 1961.
Frank Anthony, Ghanshiam and P.C. Aggarwala for the appellants.
N.S. Bindra, Kartar Singh, Assistant Advocate General for the State of Punjab and P. D. Menon, for the respondents.
July 30.
The Judgment of the Court was delivered by GAJENDRAGADKAR, J.
The two appellants Jai Dev and Hari Singh along with four others Yudhbir Singh, Dhanpat Singh, Sajjan Singh and Parbhati were charged with having committed offences under s.148 and ss 302 and 326 both read with s.149 of the 491 Indian Penal Code.
The case against them was that on September 14, 1960, they formed themselves into an unlawful assembly in the area of Dhani Khord and that the common object of this unlawful assembly was to commit the offence of rioting while armed with deadly weapons and that in pursuance of the said common object the offence of rioting was committed.
That is how the charge under section 148 was framed.
The prosecution further alleged that on the same day and at the same time and place, while the accused persons were members of an unlawful assembly, they had another common object of committing the murders of Hukma, Jai Narain, Jai Dev, Amin Lal, Mst.
Sagroli and Mst.
Dil Kaur and that in pursuance of the said common object, the said persons were murdered.
Dhanpat Singh killed Hukma, Sajjan Singh attacked Hukma, Yudhbir Singh shot at Amin Lal, Jai Dev shot at Mst.
Sagroli and victim Jaidev, and Hari Singh shot at Jai Narain and Parbhati killed Mst.
Dil Kaur.
It is the murder of these six victims which gave rise to the charge against the six accused persons under section 302/149 of the Indian.
Penal Code.
An assault made by the members of the said assembly on Rama Chander, Jug Lal, Mst.
Chan Kaur, Sirya, Murti and Murli gave rise to a similar charge under section 326/149.
At the same trial along with these six persons, Basti Ram was tried on the charge that he had abetted the commission of the offence of murder by the members of the unlawful assembly and thus rendered himself liable to be punished under section 302/109 of the Indian Penal Code.
The case against these seven accused persons was tried by the learned Addl.
Sessions Judge, Gurgaon.
He held that the charges against Parbhati and Basti Ram had not been proved beyond a reasonable doubte ; so, he acquitted both the said accused persons.
In respect of the remaining five accused persons, the learned Judge held that all the three 492 charges framed against them had been proved, beyond a reasonable doubt.
For the offence of murder, the learned Judge directed that all the five should be hanged; for the offence under section 326/149 he sentenced each one of them two years rigorous imprisonment and for the offence under is.
148 he sentenced each one to suffer R. I. for one year.
These two latter sentences were ordered to run concurrently and that too if the death penalty imposed on them was not confirmed by the High Court.
Against this order of conviction and sentence, three appeals were prefered on behalf of the five condemned persons.
The sentences of death imposed on them were also submitted for confirmation.
The Punjab High Court dealt with the confirmation proceedings and the three appeals together and held that the conviction of Yudhbir Singh, Dhanpat Singh and Sajjan Singh was not justified and so, the said order of conviction was set aside and consequently, they were ordered to be acquitted and discharged.
In regard to Jai Dev and Hari Singh the High Court differed from the view taken by the trial Court and held that they were guilty not under section 302/149 but only under section 302, of the Indian Penal Code.
In the result, the appeals preferred by them were dismissed and their conviction for the offence of murder and the sentences of death imposed on them were confirmed.
It is this order which is challenged by the two appellants before us in their appeals Nos. 56 and 57 of 1962.
These two appeals have brought to this Court by special leave.
The incident which has given rise to the present criminal proceedings occurred in Khosra No.388 in Mauza Ahrod known as 'Inamwala field ' on September 14, 1960, at about 10.30 A.M.
This incident has led to the death of six persons already 493 mentioned as well as the death of Ram Pat who belonged to the faction of the appellants.
It has also resulted in injuries to nine persons three of whom belonged to the side of the appellants and six to the side of the complainants.
The incident itself was in a sense a tragic and gruesome culmination of the battle for possession of the land which was waged between the appellants on the one hand and the faction of the complainants on the other.
One of the principal points which fell to be considered in the courts below was : who was in possession of the said field at the material time ? The appellants pleaded that they were in possession of the field and were cultivating the field at the time of the incident, whereas the prosecution contends that the complainants ' party was in possession of the field and the appellants virtually invaded the field and caused this massacre.
The prosecution case is that between 9 and 10 A.M. on the date of the offence, the appellants and, their brothers Ram Pat and Basti Ram came to the field with their tractor and started ploughing the bajra crop which had been sown by the villagers who were tenants in possession.
Jug Lal, Amin Lal, Ram Chander, Sunda, Jai Dev, Hukma and others remonstrated with the appellants that the crops raised by them should not be destroyed.
Dhanpat Singh who was driving the tractor was armed with pharsi while the appellants were standing armed with rifles.
Yudhbir Singh had a pistol.
Sajjan Singh and Parbhati had phars is and Ram Pat had a bhalla.
Thus all the appellants were armed with deadly weapons and three of them had fire arm.
According to the prosecution, the remonstrance made by Juglal and others did not help and the appellants told them that they had got possession of the land and that they would not permit any interference in their ploughing operations.
That invitably led to an 494 altercation and an attempt was made to stop the working of the tractor.
This immediately led to the terrible souffle which resulted in so many deaths.
Sajjan Singh gave a pharsi blow to Juglal whose left arm was touched.
Thereupon, Ram Pat raised his bhalla against Juglal causing injuries to the latter on the left side of the abdomen and on the right hand wrist.
Hukma then snatched the bhalla from the hands of Ram Pat and gave a blow to him in self defence.
As a result, Ram Pat fell on the ground and died.
Sajjan Singh, Dhanpat Singh and Parbhati then gave blows to Hukma with pharsis, Hukma fell on the ground unconscious.
At this stage, Amin Lal asked the appellants and their friends not to kill people but the only result of this intercession was that he was shot by the pistol of Yudhbir Singh.
Then everybody on the complaints; side started to run away.
Thereafter Jai Narain was shot dead by the appel lant Hari Singh.
Dil Kaur was killed by Parbhati and others, and victim Jai Dev and Met.
Sagroli were shot dead by the appellant Jai Dev.
That, in substance, is the prosecution case.
On the other hand, the defence was that all the accused persons had gone to Inamwala field at about 8.30 A.M. on September 14, 1960, and were engaged in the lawful act of ploughing the land of which they had taken possession.
They had put the tractor on the portion of the bajra crop which was 'kharaba ' with the object of using it for manure.
After this operation had gone on for nearly two hours, a large number of residents of Dhani Sobha and Ahrod, including women, came on the spot armed with deadly weapons and they started abusing and assaulting the accused persons with the weapons which they carried.
The accused persons then used jellies, kassi and lathi in self defenoe.
Amin Lal from the complainants ' party was armed with a pistol which he aimed at the accused persons, 495 Sajjan Singh then gave a lathi blow to Amin Lal and in consequence, the pistol fell down on the ground from his hands.
It was then picked up by Yodhbir Singh and he used it is retaliation against the assailants and fired five or six rounds.
Basti Ram who was charged with abetment of the principal offences denied his presence, while the six other accused persons admitted their presence on the spot and pleaded self defence.
The prosecution sought to prove its case by leading oral evidence of the witnesses who were present at the scene and some of whom had received injuries themselves.
It also relied on documentary evidence and the evidence of the Investigating Officer.
Soon after the incident, First Information Report was filed by the appellant Jai Dev in which the version of the accused persons was set out and a case was made out against the villagers.
In fact, it was by resson of this F.I.R. that the investigation originally commenced.
Subsequently, when it was discovered that on the scene of the offence six persons on the complainants ' side had been killed and six injured, information wag lodged setting out the contrary version and that led to two cross proceedings.
In one proceeding the members of the complainants party were the accused, whereas in the other proceeding the appellants and their companions were the accused persons.
since the trial ended in the conviction of the appellants and their companions, the case made out in the complaint filed by the appellant Jai Dev has been held to be not proved.
At this stage, it would be convenient to refer very briefly to the findings recorded by the trial Court and the conclusions reached by the.
High Court in appeal.
The trial Court found that the evidence adduced by the accused persons in support of their case that they had obtained possession of 496 the land before the date of the offence, was not satisfactory and that the documents and the entries made in the revenue papers were no more than paper entries and were not "as good as they looked".
According to the learned trial Judge, the actual possession of the land all along remained with the complaints ' party Jug Lal and his compa nions and that the crop standing at the spot at the time of the incident had been sown by and belonged to the complaints party.
This finding necessarily meant that the ploughing of the land by the accused persons was without any lawful justification and constituted an act of trespass.
The trial Court accordingly held that the accused persons were the aggressors and that the complainants! party in fact had a right of private defence.
That is how it came to the conclusion that the six accused persons were members of an unlawful assembly and had gone to the field in question armed with deadly weapons with a common object of committing the offences which were charged against them.
Dealing with the case on this basis, the trial Judge did not think it necessary to enquire which of the victims had been killed by which of the particular accused persons.
As we have already indicated, he was not satisfied that the charge had been proved against Parbhati or against Basti Rama; but in regard to the remaining five persons, he held that the evidence conclusively established the charges under section 148 and sections 302 and 326/149.
In dealing with the defence, the trial Judge has categorically rejected the defence version that Amin Lal was armed with a pistol and that after the said pistol fell down from his hands it was picked up by Yudhbir Singh.
According to the trial Court, no one on the complainants, side was armed with fire arms, whereas three persons on the side of the accused were armed with fire arms.
Yudhbir Singh had a pistol and the appellants Jai Dev and Hari Singh had rifles.
497 When the matter was argued before the High Court, the High Court was not inclined to accept the finding of the trial Court on the question of possession.
In its judgment, the High Court has referred in detail to the disputes which preceded the commission of these offences in regard to the possession of the land.
It appears that this land was given as a charitable gift by the proprietary body. 'of the village Ahrod to one Baba Kanhar Dass many, years ago.
Thereafter, it continued in the cultivation of Amin Lal, Jug Lal, Charanji Lal and Duli Chand as tenants.
Kanhar Dass subsequently sold the entire piece of land to the appellants and their brothers Basti Ram and Ram Pat on May 30, 1958, for a sum of Rs.25,000/ .
These purchasers belonged to the village Kulana and so, the villagers of Ahrod treated them as strangers and they were annoyed that the land which had been gifted by the villagers to Kanbar Dass by way of a charitable gift had been sold by him to strangers.
In their resentment, the proprietary body of Ahrod filed a declaratory suit challenging the sale deed soon after the sale deed was executed.
When that sent failed, two pre emption suits were filed but they were also dismissed.
The appellants and their two brothers then filed a suit for possession.
In that suit a decree was passed and the documentary evidence produced in the case shows that in execution of the decree possession was delivered to the decree holders.
It appears that some persons offered resentence to the delivery of possession and 15 bighas of land was claimed by the resisters.
Litigation followed in respect of that and whatever may be the position with regard to those 15 bighas, &wording to the High Court, possession of 56 bighas and 6 bighas of land was definitely delivered over 'to Basti Ram and his brothers on December 23, 1959.
In other words, reversing the finding of the trial Court on this point, the High Court came to the conclusion that the field where the offences 498 took place was in the possession of the appellants and their companions.
The High Court has also found that the crop in the field had been ploughed by the appellants and their companions and that the operations which were carried on by them on the morning of September 14. 1960, did not constitute trespass in any sense.
On the evidence, the High Court has come to the conclusion that the villagers who did Dot tolerate that the strangers should take possession of the land had come to the filed to take possession and they were armed.
It appears that the number of villagers was much larger than the number of persons on the side of the accused party, though the weapons carried by the latter included fire arms and so, the latter party had superiority, in arms.
The High Court has, therefore, come to the conclusion that the party of the accused persons was entitled to exercise its right of private defence.
The property of which they were in possession was threatened by persons who were 'armed with weapons and so, the right to defend their property against an assault whih threatened grievous hurt, if not death, gave them the right to use force even the extent of causing death to the assailants.
It is substantially as a result of this finding that the High Court took the view that Sajjan Singh, Yudhbir Singh and Dhanpat Singh who were responsible for the death of the three of the victims were not guilty of any offence.
In the circumstances, they were entitled to defend their property against assailants, who threatened them with death, even by causing their death.
That is how these three accused persons have been acquitted in appeal.
In regard to the appellants Jai Dev and Hari Singh, the High Court has held that at the time when these two appellants caused the deaths of Jai Dev and Jai Narain respectively, there was no apprehension of any danger at all.
499 As soon as Amin Lal was shot dead, all the villagers who had come to the field ran away and there was no longer any justification whatever for using any force against the running villagers.
Since at the relevant time the property had been saved form the trespass and the assailants bad been completely dispersed, the right of private defence ceased to exist and so, the appellants who were proved to have caused the two deaths could not claim protection either of the right of private defence or could not even plead that they had merely exceeded the right of private defence; so, they are guilty of the offence of murder under section 302.
That is how the appellants have been convicted of the said offence and have been ordered to be hanged.
The question which the appeal raises for our decision thus lies within a very narrow compass.
The findings of fact recorded by the High Court in favour of the appellants would be accepted as binding on the parties for the purpose of this appeal.
In other words, we would deal with the case of the appellants on the basis that initially they and their companions had the right of private defence.
Mr. Anthony contends that having regard to the circu.
mstances under which the appellants fired from their rifles, it would be erroneous to hold that the right of private defence had come to an end, According to him, allowance must be made in favour of the appellants in determining the issue.
because it is now found that they were faced with an angry mob whose members were armed with weapons and who appeared determined to dispossess the appellants and their friends of the field in question.
The decision of the point thus raised by Mr. Anthony would substantially depend upon the scope and effect of the provisions of section 100 of the Indian Penal Code.
Section 100 provides, inter alia, that the right of private defence of the body extends under the 500 restrictions mentioned in section 99, to the voluntary causing of death if the offence which occasions the exercise of the right be an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault.
In other words, if the person claiming the right of private defence has to face assailants who can be reasonably apprehended to cause grievous hurt to him, it would be open to him to defend himself by causing the death of the assailant.
In appreciating the validity of the appellants ' argument, it would be necessary to recall the basic assumptions underlying the law of self defence, In a well ordered civilised society it is generally assumed that the State would take care of the persons and properties of individual citizens and that normally it is the function of the State to afford protection to such persons and their properties.
This, however, does not mean that a person suddenly called upon to face an assault must run away and thus protect himself, He is entitled to resist the attack and defend himself.
The same is the position if he has to meet an attack on his property, In other words, where an individual citizen or his property is faced with a danger and immediate aid from the State machinery is not readily available, the individual citizen is entitled to protect himself and his property.
That being so, it is a. necessary corollary to the doctrine ' of private defence that the violence which the citizen predefending himself or his property is entitled to use must not be unduly disproportionate to the injury which is to be averted or which is reasonably prehended and should not exceed its legitimate purpose.
The exercise of the right of private defence must never be vindictive or malicious.
There can be no doubt that in judging the conduct of a person who proves that he had a right of 501 private defence, allowance has necessarily to be made for his feelings at the relevant time.
Ile is faced with an assault which causes a reasonable apprehension of death or grievous hurt and that inevitably creates in his mind some excitement and confusion.
At such a moment, the uppermost feeling in his mind would be toward off the danger and to save himself or his property, and so, he would naturally be anxious to strike a decisive blow in exercise of his right.
It is no doubt true that in striking a decisive blow, he must not use more force than appears to be reasonably necessary.
But in dealing with the question as to whether more force is used than is necessary or than was justified by the prevailing circumstances, it would be inappro, priate to adopt tests of detached objectivity which would be so natural in a court room, for instance, long after the incident has taken place.
That is why in some judicial decisions it has been observed that the means which a threatened person adopts of the force which be uses should not be weighed in golden scales.
To begin with, the person exercising a right of private defence must consider whether the threat to his person or his property is real and immediate.
If he reaches the conclusion reasonably that the threat is immediate and real, he is entitled to exercise his right.
In the exercise of his right, he must use force necessary for the purpose and he must stop using the force as soon as the threat has disappeared.
So long as the threat lasts and the right of private defence can be legitimately exercised, it would not be fair to require, as Mayne has observed, that "he should modulate his defence step by step.
according to the attack, before there is reason to believe the attack is over" (1).
The law of private defence does not require that the person assaulted or facing an apprehension of an assault must run away for safety.
It entitles him to defend himself and law gives him the right to (1) Mayne s Criminal law of Indians 4th Ed.
P.23.1 502 secure his victory over his assailant by using the necessary force.
This necessarily postulates that as soon as the cause for the reasonable apprehension has disappeared and the threat has either been destroyed or has been put to rout, there can be no occasion to exercise the right of private defence.
If the danger is continuing, the right is there; if the danger or the apprehension about it has ceased to exist, there is no longer the right of private defence, (vide sections 102 and 105 of the Indian Penal Code).
This position cannot be and has not been disputed before us and so, the narrow question which we must proceed to examine is whether in the light of this legal position, the appellants could be said, to have had a right of private defence at the time when the appellant Jai Dev fired at the victim Jai Dev and the appllant Hari Singh fired at the victim Jai Narain.
In dealing with this question, the most significant circumstance against the appellants is that both the victims were at a long distance from appellants when they were shot dead.
We will take the case of victim Jai Dev first.
According to Gurbux Singh (P. W. 37), Assistant Sub Inspector, the dead body of Jai Dev was found at a distance of 70 paces from the place of the tractor, but it was discovered that it had been dragged from a place at a longer distance where Jai Dev stood when he was fired dead.
From that place to the place where his dead holy was actually found there was a trail of blood which unambiguously showed that Jai Dev fell down at a more distant place and that he was dragged nearer the scene of the offence after he fell down.
This statement is corroborated by the memo prepared on September 14, 1960 (item No. 104).
Blood stained earth was taken from both these spots.
Roughly stated, the spot where Jai Dev was shot at can be said to be about 300 paces away from the tractror where the appellant Jai Dev stood.
It is 503 true that Gurbux Singh made no express reference to the trail of blood in rough site plan which he had prepared on the day of the offence.
But iten 8 in the plan, we were told, does refer to the dragging and that is enough corroboration to the evidence of Gurbux Singh.
Besides, in considering the effect of the omission to mention the trail of blood in the rough plan, we cannot ignore the fact that at that time Gurbux Singh 's mind was really concentrated on the F. I. R. received by the Police from the appellant Jai Dev himself and that means that at that time the impression in the mind of Gurbux Singh must have been that the deceased Jai Dev belonged to the party of the aggressors and so, blood marks caused by the dragging of his body may not have appeared to him to be of any significance.
However that may be, the sworn testimony of Gurbux Singh is corroborated by the memo contemporaneously prepared and it would be idle to suggest that this evidence should be disbelieved because the rough site plan prepared by Gurbux Singh does not refer to the trail of blood.
Mr. Anthony has, however, strongly relied on the statement of Juglal (P. W. 13) who has narrated the incident as it took place, and in that connection has stated that the accused Jai Dev then opened fire from his rifle killing Jai Dev deceased at the spot.
It is suggested that the words "at the spot" show that the victim Jai Dev was standing at the spot when the appellant Jai Dev shot at him.
We are not inclined to accept this contention.
What the witness obviously meant was that from the spot where the appellant Jai Dev was standing, he fired at the victim Jai Dev.
Besides, reading the account given by Juglal as a 504 whole, it would not be fair to treat the, words 'fat the spot" in that technical way.
Similarly, the. argument that according to Jai Dev all the show, were fired almost simultaneously, is also not wellfounded.
When a witness gives an account.
off on incident like this, he is bound to, refer to one event after another.
That does not mean, that, these two appellants and their companions fired almost simultaneously.
Therefore, we are not. satisfied that the evidence of Juglal supports the argument that the victim Jai Dev was near the scene of the offence when the, appellant Jai Dev fired at him, Mr. Anthony has also relied on the statement of Chuni Lal (P.W. 16), in support of the same argument.
But it is clear this witness was obviously making a mistake between the two documents P.N.F. and P.N.E. A statement like this which is the result of confusion cannot legitimately be pressed into service for the purpose of showing that victim Jai Dev was near about the scene of the offence.
Then again, the statement of Hira Lal (P.W. 5) on which Mr. Anthony relies shows that in the committing Court he had said that Jai Dev had been injured at the spot; but he has added that, he,, had said so because subsequently after the occurrence,, he saw the dead body of Jai Dev near the scene of the offence.
Therefore, in our opinion, having regard to the evidence on the record, the High Court was right in coming to the conclusion that Jai Dev deceased was standing at a fairly long distance from the scene of the offence when he was shot at.
That takes us to the case of the victim JaiNarain.
Jai Narain was in fact not in the Inamwala field at all.
According to the prosecution, he was on the machan in the adjoining field which he was cultivating and it was whilst he was in his own field that the appellant Hari Singh fired at him.
The distance between 505 the appellant and the victim has been found to be about 400 paces.
Now this conclusion is also supported by evidence on the record.
Jai Narain 's mother, Chand Kaur (P.W. 10) says that she saw her son falling on the ground from the machan, and that clearly means the machan in the field of which Jai Narain was in possession.
The position of this field is shown in the rough plan and sketch prepared by the Sub Inspector (P.A.J.).
The evidence of Hira Lal (P.W. 5) supports the same conclusion, and Gurbux Singh swears to the same fact.
He says that the dead body of Jainarain was found lying at a distance of more than 400 spaces from the point where the tractor was said to be standing at the time of the occurrence.
That is the effect of the evidence of Juglal (P. W. 13) also.
Thus, there can be no doubt that the victim Jainarain was at a long distance from the field in question and like the appellant Jai Dev who took a clean aim.
at the victim Jai Dev who was standing a distance and shot him dead, the appellant Hari Singh also took a clean aim at the victim Jai Narain who was away from him and shot him dead.
That is the conclusion of the High Court and we see no reason to interfere with it.
In the course of his arguments, Mr. Anthony relied on the fact that some of the prosecution witnesses on whose evidence the High Court has relied were not accepted by the trial Court as truthful witnesses, and he contends that the High Court should not have differed from the appreciation of evidence recorded by the trial Court.
There are two obvious answers to this point.
In the first place it is not wholly accurate to say that the trial Court has completely disbelieved the evidence given by the prosecution witnesses.
It may be conceded in favour of Mr. Anthony that in dealing with a part of a prosecution case relating to Parbhati and Basti Ram, the trial Court did not accept the evidence of 506 the witnesses which incriminated them, and in that connection, he has referred to the criticism made by the defence against those witnesses and has observed that there is force in that criticism.
But, while appreciating the effect of the observations made by the trial Court in dealing with that particular aspect of the matter, we cannot lose sight of the fact that as to the actual occurrence the trial Court, in substance, has believed the major part of the prosecution evidence and has stated that the said evidence is quite consistent with medical evidence.
In other words, the sequence of events, the part played by the assailants as against the specific victims and the rest of the prosecution story have, on the whole, been believed by the trial Court.
In this connection, we ought to add that the trial Court did not feel called upon to consider the individual case of each one of the accused persons because it held that a charge under section 149 had been proved.
But when the High Court came to a contrary conclusion on that point, it became necessary for the High Court to examine the case against each one of the accused persons before it, and so, it would not be accurate to say that the High Court has believed the witnesses whom the trial court had entirely disbelieved.
That is the first answer to Mr. Anthony 's contention.
The second answer to the said contention is that even if the trial Court had disbelieved the evidence, it was open to the High Court, on a reconsideration of the matter, to come to a contrary conclusion.
It is true that in dealing with oral evidence a Court of Appeal would normally be reluctant to differ from the appreciation of oral evidence by the trial Court, because obviously the trial Court has the advantage of watching the demeanor of the witnesses; but that is not to say that even in a proper case, the Appeal Court cannot interfere with such appreciation.
Besides, the criticism made by the trial Court is not so much in relation to the demeanour of the witnesses as in 507 regard to their partisan character and the over.
statements which they made as partisan witnesses are generally apt to do.
Therefore, we see no justification for contending that the finding of the High Court as to the distances at which the Victims Jai Dev and Jai Narain were shot at should not be accepted.
Mr. Anthony then argued that the fact that the victims were at a long distance from the assailants when they were fired at, will not really be decisive of the point which we are called upon to consider in the present appeal.
He contends that if the assailants were surrounded by a very big mob some of whom were armed with deadly weapons and all of whom were determined to dispossess them at any cost, it was open to the appellants and their companions to shoot at the mob because they were themselves reasonably apprehensive of an assault by the mob which would have led at least to grievous hurt, if not death; and he argues that if three of the assailants who had fire arms fired almost simultaneously,that would be within the legitimate exercise of the right of private defence and the fact that somebody was killed who was standing at a distance, would make no difference in law.
The argument thus presented is no doubt prima facie attractive; but the assumption of fact on which it is based is not justified in the circumstances of this case.
The High Court has found that at the time when the appellants fired shots from their rifles, the villagers had already started running away and there was no danger either to the property or to the bodies of the assailants.
In this connection, it is important to remember that the defence version that Amin Lal had a pistol had been rejected by both the courts, so that whereas the crowd that threatened the appellants and their friends was larger in number, the weap ons in the hands of the assailants were far more 508 powerful than the weapons in the hands of the crowd.
Having regard to the events that took place and the nature of the assault as, it developed, it is clear that Amin Lal who was one of the leaders of the villagers was shot dead and that, according to the evidence, competely frightened the villagers who began to run away helterskelter.
Sunda (P. W.4) has described how Amin Lal stepped forward for the help of Hukma, but he was fired at from the pistol by Yudhbir Singh, and having received a fatal injury on big chest Amin Lal fell down dead on the ground.
This witness adds " 'the members of the complainant party feeling frightened because of the firing opened by Yudhbir Singh ran in the direction of the village abadi".
Similarly, the statement of Mst.
Sarian (P. W. 12) would seem to show that when the victim Jai Dev was fired at, he had run away.
On the probabilities, it is very easy to believe that when the villagers found that the appellants and their friends were inclined to use their firearms, they must have been frightened, even the large number of the villagers would have meant nothing.
The large number would have merely led to a large number of deaths that is about all.
Therefore, as soon as fire arms were used for the first time killing Amin Lal on the spot, the villagers must have run away.
That is the evidence given by some of the witnesses and that is the conclusion of the High Court.
It is in the light of this conclusion that we have to deal with the point raised by Mr. Anthony.
If, at the time when the two appellants used their rifles against their respective victims standing at considerable distances from them, all the villagers had run away, there was obviously no threat continuing and so, the right of private defence bad clearly and unambiguously come to an end.
That is why 509 we think the High Court was right in holding that the appellants were guilty of murder under section 302 of the Indian Penal code.
That leave two minor question to be considered.
Mr. Anthony has contended that the examination of the appellant Hari Singh under section 342 of the Code of Criminal Procedure has been very defective in regard to the question of distance on which the prosecution strongly relied against him before the High Court, and he argues that this defect in the examination of the appellant Hari Singh really vitiates the trial.
It is true that in asking him questions, the learned trial Judge did not put the point of distance between him and the victim Jai Narain clearly; but that in our opinion, cannot by itself necessarily vitiage the trial or affect the conclusion of the High Court.
In dealing with this point, we must have regard to all the questions put by the trial Judge to the appellant.
Besides, it is not so much the point of distance by itself which goes against the appellant Hari Singh as the conclusion that at the time when he fired at Jai Narain, the threat had ceased; and if the threat had ceased and there was no justification for using the firearms.
, the appellant would be guilty of murder even if Jai Narain was not far away from him.
It is unnecessary to emphasize that it is for the party pleading self defence to prove the circumstances giving rise to the exercise of the right of self defence, and this right cannot be said to be proved as soon as we reach the conclusion that at the relevant time there was no threat either to the person of the appellant or the person or property of his companions.
In support of his contention that the failure to put the relevant point against the appellant Hari Singh would affect the final conclusion of the High Court, Mr. Anthony has relied on a decision 510 of this Court in Hate Singh Bhagat Singh vs State of Madhya Bharat (1).
In that case, this Court has no doubt referred to the fact that it was important to put to the accused each material fact which is intended to be used against him and to afford him a chance of explaining it if he can.
But these observations must be read in the light of the other conclusions reached by this Court in that case.
It would, we think, be incorrect to suggest that these observations are intended to lay down a general and inexorable rule that wherever it is found that one of the point used against the accused person has not been put to him, either the trial in vitiated or his conviction is rendered bad.
The examination of the accused person under a. 342 is undoubtedly intended to give him an opportunity to explain any circumstances appearing in the evidence against him.
In exercising its powers under section 342, the Court must take care to put all relevant circumstances appearing in the evidence to the accused person.
It would not be enough to put a few general and broad questions to the accused, for by adopting such a course the accused may not get opportunity of explaining all the relevant circumstances.
On the other hand, it would not be fair or right that the Court should put to the accused person detailed questions which may amount to his cross examination.
The ultimate test in determining whether or not the amused has been fairly examined under a. 342 would be to enquire whether, having regard to all the questions put to him, he did get an opportunity to say what he wanted to say in respect of prosecution case against him.
If it appears that the examination of the accused person was defective and thereby a prejudice has been caused to him, that would no doubt be a serious infirmity.
It is obvious that no general rule can be laid down in regard to the manner in which (1) A. I. R. 511 the accused person should be examined under section 342.
Broadly stated.
however, the true position appears to be that passion for brevity which may be content ' with asking a few omnibus general questions is as much inconsistent with the requirements of section 342 as anxiety for thoroughness which may dictate an unduly detailed and large number of questions which may amount to the cross examination of the accused person.
Besides, in the present case.
as we have already shown, failure to put the specific point of distance is really not very material.
The last argument which Mr. Anthony has urged before us is that the prosecution should have examined a ballistic expert in this case and since no expert has been examined, it cannot be said that the projection has proved its case that the appellants caused the deaths of the two victims by shooting from the rifles which they carried.
In support of this argument, Mr. Anthony has referred us to the decision of this Court in Mohinder Singh vs The State (1).
In that case.
it has been observed by this Court that it has always been considered to be duty of the prosecution, in a case where death is due to injuries or wounds caused by a lethal weapon, to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with the weapon with which and in the manner in which they are alleged to have been caused.
We do not see bow this principle can be invoked by Mr. Anthony in the present case.
The rifles which the appellants are alleged to have used have not been recovered and so, there was no occasion to examine any expert in respect of the injuries caused to the two victims by the appellants.
What Mr. Anthony suggests is that an expert should have been examined for the purpose of determining whether any of the injuries found on the persons of the several victims could (1) A. I. R. 512 have been inflicted by the revolver which had been recovered in this case.
Now, the story about the recovery of this revolver is very interesting.
According to the defence, Amin Lal was carrying a revolver and when he was hit with a lathi by Sajjan Singh, the revolver fell down from his hands and Yudhbir Singh picked it up and fired it at Amin Lal.
Now this revolver was carried away by Yudhbir Singh to his house and he says that he produced the same before the Polio ') Investigating Officer.
On the other hand, according to Gurbux Singh, it was the accused Sajjan Singh who after his arrest produced the pistol and two live cartridges before him.
It would thus appear that the revolver had been produced by one of the accused persons on the allegation that it was carried by Amin Lal and had been used by Yudhbir Singh in self defence after it had fallen down from Amin Lal 's hands.
It has not been the prosecution case that it is this revolver which had been used by Yudhbir Singh.
It may well be that the revolver has been deliberately surrendered by the accused in order to introduce complications in the case.
We think, in such a case it is difficult to understand for what purpose the prosecution was expected to examine the expert.
Therefore, in our opinion, the decision in the case of Mohinder Singh vs The State (1) has no application to the case before us.
In the result, we agree with the High Court in holding that the two appellants are guilty of murder under section 302.
The only question which now remains to be considered is one of sentence.
Mr. Bindra for the State has left this question to us since, presumably, he did not feel justified in pressing for the imposition of the sentence of death.
We have carefully (1) A. I. R. 513 considered all the facts leading to the commission of this offence and we are not inclined to accept the view of the High Court that the circumstances of this case require the imposition of the maximum penalty on the two offenders.
On the question of sentence, it would be relevant to take into account the background of the incident, the nature and extent of the threat held out by the crowd of villagers.
the excitement which must have been caused at the time of the incident, and.
so, though we have felt no difficulty in agreeing with the decision of the High Court that at the time when the two appellants fired shots from their rifles the threat had ceased to exist, it would not be unreasonable to take into account the fact that, the excitement in their minds may have continued, and that, in the special circumstances of this case, may be regarded as an extenuating circumstance.
We, therefore, think that the ends of justice would be met if the sentence of death imposed on the two appellants is set aside and instead, an order is passed directing that they should suffer impri sonment for life.
Accordingly, we confirm the conviction of the appellants under section 302 and convert the sentence of death.
imposed on them into one of imprisonment, for life.
Conviction confirmed.
Sentence reduced.

summary/full:
The appellants along with four others were charged with having committed offences under section 148 and sections 202 and 326, read with section 149, of the Indian Penal Code.
The incident which gave rise to the present criminal proceedings related to a cultivable field in respect of which a dispute arose as to its possession between the appellants and the faction of the complainants.
On September 14, 1960, a rioting took place in the field which resulted in the death of six persons and injuries to nine persons.
The appellant 's case was that they were in possessions of the field and were cultivating it at the time of the incident whereas the prosecution contended that the complainant 's party was in possession and that the appellants virtually invaded it and caused a massacre.
The High Court found that the crop in the field had been ploughed by the appellants and their companions and that when the operations were being carried on by them on the day of rioting, the villagers, who did not tolerate the strangers, came to the field armed with weapons to take forcible Possession of the field, that as soon as fire arms were used for the first time killing a person, the villagers started running away and that after all the villagers had run away, the appellants used their rifles against their respective victims when the latter were standing at a considerable distance from them.
The High Court took the view that as at the relevant time the property had been saved from the trespass, there was no justification for using any force against the running villagers and so, the appellants who were proved to have caused the deaths of the victims could not claim protection of the right of private defence and were guilty of the offence of murder under s 302.
Held, that the appellants were rightly convicted under s.302 of the Indian Penal Code on the findings given by the High Court.
490 In exercising the right of private defence, the force which a person defending himself or his property is entitled to use must not be unduly disproportionate to the injury which is to be averted or which is reasonably apprehended and should not exceed its legitimate purpose.
The use of the force must be stopped as soon as the threat has disappeared.
The exercise of the right of private defence must never be vindictive or malicious, In exercising its powers under section 342 of the Code of Criminal Procedure the Court must take care to put all the relevant circumstances appearing in the evidence to the accused, so that he might get an opportunity, to say what he wanted to do so in respect of the prosecution case against him, but it is not necessary that the Court should put to the accused detailed questions which may amount to his cross.
examination.
Held, that the failure to put the specific point of the distance from which the appellants used their rifles, under section 342 of the Code of Criminal Procedure, did not vitiate the trial or affect the conclusion of the High Court.