# J.lO AKALU AHJR AND OTIIERS v. RAMDEO RAM

- **Citation:** [1974] 1 S.C.R. 130
- **Court:** Supreme Court of India
- **Decided:** 1974
- **Bench:** K. K. Mathew, I. D. Dua
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/j-lo-akalu-ahjr-and-otiiers-v-ramdeo-ram-6638
- **Pages:** 8

## Headnote

A
Code of Crimi11al Procedure (Act 5 of
1898), Ss. 417,
4~5, 439-lflgh
B
<:ourt's power of revision in cases of acquittal by trial court-Scope of. ·
Weight of
e1·idence-E11niity between parties of cb111plai11t and accusedEffect of.
The trial ·court, on a consideration of the evidence, acquitted the appellants
of the offences under Ss. 307 and 307 /109 I.P.C, The State did not file any
appeal against the order of acquittal but the Victim invoked the revisional jurisdiction of the High Court. under Ss. 435 and 439 Cr.P.C.
The High Conrt
.allowed the revision, set aside the acquittal and remitted the case for retrial.
Allowing the appeal to this Court,
HELD : An unrestricted right of appeal from acquittal is specifically conferred only on the State and a private complainant is given the right of appeal
-0nly \Vben the criminal prosecution was instituted on his complaint and then
also subject_ to special leave by the High Court. A private con1plainant can
-0nly claim a right, in co1nmon -\Yith all aggrieved parties in a criminal pro-
.ceeding, to invoke the revisional jurisdiction of the High Court for redress
against miscart·iage of justice arising from an erroneous order of acquittal; '1ut
1he High Court's power in. such cases is circumscribed
by the provisions of
Ss. 417 and 439 .. CrcP.C. and also by the fundamental principles of criminal
jurisprudence.
Jt is only in glaring cases of injustice resulting from some viola1ion of fundanlental principles of la\v by the trial court that the High Conn
is empowered to set aside the order
of acquittal and direct a retrial of the
:acquiue·d accused.
From the \'ery nature of this pawer it should be exercis·
ed only in exceptional cases and \Vith great care and caution. Trials are not
to be lightly se.t aside' \vhen.such orders expose the accused persons to a fresh
trial \Vith all its consequential harassment. The pO\\'er of revision conferred
·en the High Court by Ss. 435 and 439 Cr.P.C. is an extraordinary discretionary
powCr vested in the superior court to be exercised in aid of justice. The High
Court has been invested \Vith this power to see that justice is done in accord· _
.ance \vith the recognised rules of criminal jurisprudence and that the subordinate courts do not exceed their jurisdiction or abuse the power conferred on
them by la\v. As a general rule, this po\Ver, in spite of the wide language of
1he sections does not contemplate interference . with conclusions of fact in the
absence of serious legal infirmity nnd failure of justice. This
power is certainly not intended to be exercised as· to make
one portion of the Criminal
Procedure Code conflict with another as would be the case when. in the garb
of exercising revisional power, the High Court in effect exercises the power of
:appeal in face of statutory prohibition. In revision, the High Court is expreMly
prohibited from converting acquittal into a COD.'\'iction.
It makes it- ~rcfore
all the more incumbent on the High Court to sec that it does not convert the
'finding of acquittal into one of conviction by the indirect method of ordering
a retrial.
The High Court when approached by a private party for exercising
its power of revision in the case of an order of acquittal should therefore
refrai-:i from interfering except when there is a glaring le~al defect of a serious
nature which has resulted in grave failure of justice.
The High Court is not
expected to act as if it is hearing an apptal in spite of the \Vide language
under s. 435 which emoowers it to satisfy itself as to the correctllea, lcplity
or propriety of a finding, sentence or order and as to. the regularity of any
proceeding, and also in spite of the fact that under s. 439 it can exercise inter
alia the power conferred on a court of appeal under _s. 423, Cr.P.C. The power
being discretionary. it is to be exercised judicially and not arbitrarily. Judicial
discretion means a discretion which is informed by tradition. methodiscd · by
analogy and disciplined by sy

## Text

J.lO
AKALU AHJR AND OTIIERS
v.
RAMDEO RAM
May I, 1973
[K. K. MATHEW AND I. D. DUA, 'JJ.]
A
Code of Crimi11al Procedure (Act 5 of
1898), Ss. 417,
4~5, 439-lflgh
B
<:ourt's power of revision in cases of acquittal by trial court-Scope of. ·
Weight of
e1·idence-E11niity between parties of cb111plai11t and accusedEffect of.
The trial ·court, on a consideration of the evidence, acquitted the appellants
of the offences under Ss. 307 and 307 /109 I.P.C, The State did not file any
appeal against the order of acquittal but the Victim invoked the revisional jurisdiction of the High Court. under Ss. 435 and 439 Cr.P.C.
The High Conrt
.allowed the revision, set aside the acquittal and remitted the case for retrial.
Allowing the appeal to this Court,
HELD : An unrestricted right of appeal from acquittal is specifically conferred only on the State and a private complainant is given the right of appeal
-0nly \Vben the criminal prosecution was instituted on his complaint and then
also subject_ to special leave by the High Court. A private con1plainant can
-0nly claim a right, in co1nmon -\Yith all aggrieved parties in a criminal pro-
.ceeding, to invoke the revisional jurisdiction of the High Court for redress
against miscart·iage of justice arising from an erroneous order of acquittal; '1ut
1he High Court's power in. such cases is circumscribed
by the provisions of
Ss. 417 and 439 .. CrcP.C. and also by the fundamental principles of criminal
jurisprudence.
Jt is only in glaring cases of injustice resulting from some viola1ion of fundanlental principles of la\v by the trial court that the High Conn
is empowered to set aside the order
of acquittal and direct a retrial of the
:acquiue·d accused.
From the \'ery nature of this pawer it should be exercis·
ed only in exceptional cases and \Vith great care and caution. Trials are not
to be lightly se.t aside' \vhen.such orders expose the accused persons to a fresh
trial \Vith all its consequential harassment. The pO\\'er of revision conferred
·en the High Court by Ss. 435 and 439 Cr.P.C. is an extraordinary discretionary
powCr vested in the superior court to be exercised in aid of justice. The High
Court has been invested \Vith this power to see that justice is done in accord· _
.ance \vith the recognised rules of criminal jurisprudence and that the subordinate courts do not exceed their jurisdiction or abuse the power conferred on
them by la\v. As a general rule, this po\Ver, in spite of the wide language of
1he sections does not contemplate interference . with conclusions of fact in the
absence of serious legal infirmity nnd failure of justice. This
power is certainly not intended to be exercised as· to make
one portion of the Criminal
Procedure Code conflict with another as would be the case when. in the garb
of exercising revisional power, the High Court in effect exercises the power of
:appeal in face of statutory prohibition. In revision, the High Court is expreMly
prohibited from converting acquittal into a COD.'\'iction.
It makes it- ~rcfore
all the more incumbent on the High Court to sec that it does not convert the
'finding of acquittal into one of conviction by the indirect method of ordering
a retrial.
The High Court when approached by a private party for exercising
its power of revision in the case of an order of acquittal should therefore
refrai-:i from interfering except when there is a glaring le~al defect of a serious
nature which has resulted in grave failure of justice.
The High Court is not
expected to act as if it is hearing an apptal in spite of the \Vide language
under s. 435 which emoowers it to satisfy itself as to the correctllea, lcplity
or propriety of a finding, sentence or order and as to. the regularity of any
proceeding, and also in spite of the fact that under s. 439 it can exercise inter
alia the power conferred on a court of appeal under _s. 423, Cr.P.C. The power
being discretionary. it is to be exercised judicially and not arbitrarily. Judicial
discretion means a discretion which is informed by tradition. methodiscd · by
analogy and disciplined by system. [133F-G, H; 134A-D, E-H-13SA-C]
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AKALU AHIR v. RAMDEO (Dua, /.)
131
'1 n the _present· case the High -Court ha.S re-weighed the -evidence from its
O\\'D point of view and though it noticed the, correct legal ~tion regarding the
limits of its jurisdiction to interfere with an order of acquittal. it does-not seem
to have followed those rules.
[136E-F]
··
.
·
B
D. Stenbens v. Nosibolla. (1951) S.C.R. 284. JogentJranath Iha v. Polai/al
Biswas. (19511 S.C.R. 676, K. C. Reddy v. State of Andhra Pradesh; (19631 3
S.C.R. 412, Mohend~a Pratap Singh v. Sarju Singh & Another [19681 2 S.C.R.
287, U. J. S. Chopra v. State of Bombay, (19561 S.C.R. 94 and Amar Chand '-
Aggarwal v. Sha11Ji Bose. 19U A.I.R. S.C. 799, followed.
·
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( 1) The appraisal of the evidence by the trial judge in the instant.case is
not perfect or free from.flaw and a court of·appeal may well have felt jmtilled
in dtsagreei.Dg with his conclusions.
But it does not follo\V that on re1·ision by
.a private complainant 'the High Court is entitled to rcappraist; the evidtllCC for
itself as if it is acting as a court of appeaf and then order a retrial.: [137.'\.-B]
(21 The expression of opinion by the High·Court on the present c•idence
with respect to the commission of alleged offenCe would not . be
binding and
would not be relevant in a retria1. But it may nevertheless leave an uncon,Oous
impression on the mind of the Court holding the fresh trial. fl37C-D]
(3) Enmity between the _complainant's party and the -accused is usually a
double-edged weapon providing motive both for the offcnCe as well as for false
implication.
The evidence, in such cases, bas to ... be scrutinised with care so
that neither the guilty" party escapes on the plea of enmity
nor an innocent
perum gets·wrongly convicted on that basis .. [131G-Hl .
Cn1i.11NAL APPEL.LATE Jun1so1cnoN : Criminal Appeal No. 40 of
l970.
.
.
Appeal by special leave from tbe judgment and order October
14, 1969 of the Patna High Court ill Criminal Revision No. 190 of
1969.
.
B. P. Singh, for the appellant.·
D. Goburdhan, for the respondents.
The Judgment of the Court was delivered by
DUA, J : This is an appeal by special leave. The three appelF
lants and one Ramchander Kann were tried in the court of the 2nd
Assistant Sessions Judge, Chapra for offences under ss. 307 and 307_/
109, I.P.C. Akalu Ahir and Chandrika Singh were charged under
s. 307 I.P.C. for. firing pistol shots and i:un shots at Ramdeo Ram
at 11.00 p.m. on June 13, 1966, whereas Jagarnath and Ramchander
Kanu were charged under ss. 307/109, I.P.C. for·having abetted the
commission of the aforesaid offence.
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The occurrence is stated to~ be an off-shoot of election rivalry
arising out of the election for the office of Mukhia _of village Arakpur.
Indeed the enmity between the two rival gronps was of lon.z standing
and is not denied. But enmity as usual is a double-edged weapon,
providing motive both for the offence as well as for false implication.
The evidence in such a case, has, therefore, to be scrutinised with
care so that neither the guilty party wrongly escapes on the plea of
enmity, nor an innoce.Jlt ·person gets wrongly convicted on that basis.
In this case there were three eye witnesses. Ramdeo Ram, the
victim of the fire shots, appeared as P. W .1. Puljharia as P. W. 9 and
.
132
SUPREME COURT REPORTS
[ 1974 j 1 S.C.R. ./
Ploughman Bhuidhar Chamar as P. W. 10. The ·trial Judge after
consTderincr the evidence· oi:t the record. felt no doubt about the fact
that Ramdeo Ram had been injured by gun shots, but he did not
feel impressed by the prosecution evidence w~th respect to the ~ann~r
in which the occurrence had taken place, with the result ·that m _his
opinion, the prosecution had not been able to prove the charges agamst
the eccused persons beyond reasonable· doubt.
The State did not file any ~ppcaJ against the order of acquittal.
Ramdeo Ram, the victim of the gun shots, however, presented in
the Hiuh Court in January, 1969 a revision petition under ss. 435
A
n
and 439, Cr.P.C. from the order acquitting the four accused persons. From a note on the printed application for revision, it appears
that the name of Jagamath Kanu was expunged from the array of
respondents in the revision: vide, court's order dated Ju~y 3, 1969.
·c
The High Court at the ·outset noticed that the scope of mterference ·
in revision at the .instance of private parties in cases of acquittal is
very limited.
In this connection, it referred to the followin;;: four
decisions of this Court :-
·
(i) D. Stenbens v. Nosibol/a( 1)
(ii) logendranath Iha v .. Polai/al Biswas(2 )
D
(iii)· K. C. Reddy v. State of Andhra Pradesh(•) and
(iv) Mohendra Pratap Singh v. Sarju Singh & another(<)
After quoting from K. C. Reddy (supra), the categories of cases·
attracting interference by a High Court on a private ·party's revision
and the observation that the said list was not exhaustive of all the
circumstances in which a High Court may interfere and that other
E
defect in the jndgment under .revision mnst be analogous to those
actually indicated, the . High Court proceeded to consider the case,
professedly keeping those limits in view.
It then criticised the appraisal of the evidence by the trial court and found fault with several
observations made by that court in such appraisal.
The reasons recorded by the trial court for rejecting the evidence of P. W .1, Ramdeo
Ram and of his wife Pnljharia, P. W. 9, were considered by the High
F
Court to be "much too infirm". The High Court also felt that the evidence of Ramdeo Ram had been misread by the trial court when it
observed that his statement to the police was not in conformity \vith
·his evidence in court.·. The result of this unfortunate misreading of
the ·evidence, in the opinion of the High Court, was that the evidence
of an important witness like Ramdeo Ram had not received proper
consideration ·at the hands of the trial Judge: 111e
contradictions
G
found ·by the trial Court in the evidence of Puljharia, P.W. 9 was
also not considered by the High Court to be material as in its view
such contradictions h"ad no bearing on the manner of the occurrence
bnt could only have some relevance to the question of the identity
of the culprits. Feeling dissatisfied with the manner in which the trial
court ·had sought to explain away the evidence of two out of three
eye witnesses, the High Court felt that the acquittal of the accused
H
(l} [1951] S.C.R. 284.
(3) [1963] 3 S.C.R. 412.
(2) [1951] S.C.R. 676.
(4) (1968]2 S.C.R. 237 •.
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,, AKALU AHIR v. RAMDEO tDua, !.)
133
could not be allowed to stand.
Considering th~ to be an exceptional
case, the High Court allowed the revision and, setting aside the acquittal, sent the case back for re-trial.
On appeal in this Court. it was contended that the High Court
had over-stepped the limits of its power in dealing with revisions
against orders of acquittal at the instance of private parties It was
further contended that as a court Of revision, the High Court was
not justified in examining the evidence as if it was a court of appeal
and was. as such, required to see if the evidence had been correctly
appraised by the trial court.
Finally it was strenuously pressed that
order directing a re-trial on the facts and circumstances of this case
was not only uncalled for but was calculated to result in grave injustice to the appellant.
Turning first to the legal position, it is necessary to bear in mind
that an appeal is a creature of statute and there is no inherent right
of appeal.
Section 404, Cr.P.C. expressly so provides. In U.J.S.
Chopra v. State of Bombay(') while discussing the historical background of s. 439(6), Cr.P.C., S. R. Das, J., as then he was, pointed out
that in England there is no provision for an appeal by the Crown against
an order of acquittal and in our country s. 407 of the Code of Criminal
Procedure 1861 prohibited an appeal from acquittal.
The Code of
Criminal Procedure 1872 by s. 272 permitted the Government to file
an. appeal from acquittal and this was repeated in s. 41 7 of the Code of
Criminal Procedure 1882 and again in 1898.
The object of limiting
the right of appeal against the orders of acquittal to the State Government was to ensure that such appeals are filed only when there has been
miscarriage of justice and not when inspired by vindictiveness.
A private party had, therefore, no right of appeal.
The aggrieved party
could, however, move the authorities concerned to consider the question
-of presenting an appeal against acquittal.
This indicates that punish- .
ment for offences is normally the responsibility of the State as the
guardian of law and order.
Thus, section 417, . Cr.P.C. before its
amendment by Act 36 of 1955 empowered only the State Government
to direct the Public Prosecutor to present an appeal from an order of .
acquittal. In 1955, however, this section was amended and it was
provided, inter alia, that where an order of acquittal is passed in a case
instituted upon c.omplaint the. complainant may present an appeal provided that the High Court on his application grants him special leaYe to
do so.
Even in case when the complainant has a right to present an
appeal against acquittal, his failure in securing special leave would under
s. 417 ( 5) bar the State Government also from appealing.
This reflects the Parliament's anxiety not to expose the orders of acquittal
to plurality of appeals by preserving to the State as guardian of law
and order, a distinct right of appeal wholly unaffected by the result
of the complainant's right to appeal.
Now adverting to the power of revision conferred on a High Court
by s. 439 read withs. 435, Cr. P .C. it is an extraordinary discretionary power vested in the superior court to be exercised in aid
(!) [1956] 2 S.C.R. 94.
134
SUPREME COURT REPORTS
[ 1974 j I s.C.Jt.
of justice : in other words, to ~et right grave injusti~e. . Th_e High
Court has been invested with this power to see that JUS!ice ts done
in accordance \\ith the recognised rules of criminal jurisprudence and
that the subordinate courts do not exceed their jurisdiction or abuse
the power conferred on them by Jaw.
As a general rule, this power,
in spite of the wide Iangua~e of ss. 435 ~d 439, Cr. ~. C: does not
contemplate interference with the conclus1ons of fact m the absence
of serious legal infirmity and failu.re of justice.
This po~r is certainly not intended to be so exerc1Sed as to make one portion of the
Code of Criminal Procedure conflict with another, as would seem to
be the case when in the garb of exercising revisional power, the High
Court in effect exercises the power of appeal in face of statutory prohibition.
The unrestricted right of appeal from acquittal is specifically conferred only on the State and a private complainant is given this right
only when the criminal pros~cution was institu~ed on his co~plaint
and then also subject to special leave by the High Court.
It 1s further provided in s. 439(5), Cr. P. C. that where no appeal
is
brought in a case i11 which an appeal is provided, l)O proceeamgs by
way of revision would be entertained at the instance of the party who
could have appealed.
The State Government, therefore, having failed
to appeal, cannot apply for revision of an order of acquittal.
Again
0n revision, the High Court is expressly prohibited from converting
an acquittal into a conviction.
Considering the problem facing the
Court in this case in the background of this scheme, the High Court
when approached by a private party for exercising its power of re·
vision from an order of acquittal, should appropriately refrain from
interfering except when there is a glaring legal defect of a serious
nature which has resulted in grave failure of justice. It is not expected to act under ss. 435 /439, Cr. P .C. as if it is a hearing on
appeal in spite of the wide language under s. 435 which empowers it
to satisfy itself as to the correctness, legality or propriety of a finding,
sentence or order and as to the regularity of any proce<ding and also
in spite of the fact that under s. 439 it can exer,·ise inter alia the
power conferred on a court of appeal under s.
4'.L, Cr.P.C.
The
power being discretionary, it has to be exercised judiciousiy, and not
arbitrarily.· Judicial discretion, as has often been said, means a discretion which is informed by tradition, methodised by analogy and
disciplined by system.
In hnar Chand Aggarwal v. Shanti Bose(I),
this Court said that normally the jurisdiction of the High Court under
s. 439, Cr.P.C. is to be exercised only in exceptional cases when
there is a glaring defect in the procedure or there is a manifest error
on point of law and there has consequently been flagrant miscarriage
of justice.
In the background of the position just stated a private
complai1_1ant ca~ ?nly claim a right, in common with all
aggrieved
par!Jes m a cnmmal proceedings, to invoke the revisional jurisdiction
of the High Court for redress against miscarriage of justice arising
from an err.one~ms ord~r of acquittal.
The High Court's power in
such cases 1s c1rcumscnbed by the provisions of ss. 417 and 439,
Cr.P.C. and also by the fundamental principles of our criminal juris-
(J) A.I.R. 1973 S.C. 799.
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AKALU AHIR v. RAMDEO (Dua, !.)
135
pru<l.:nce. Ii is only in glaring cases of injustice resulting from some
violation of fundamental principles of law by the trial court in the
course of trial, that the High Court is empowered to set nside the
order of acquittal and direct the re-trial of the acquitted
accused ·
persons.
From the very nature of this power, it should l::c exercised
in exceptional cases and With great care and caution.
Trials
are
not to be lightly set aside whom such orders expose the accused persons
to a fresh trial· with all its consequential harassment. This matter is not
res integra and has indeed been dealt with ·by this Court at least in
the four cases noticed by the High Court. In K, C. Reddy (supra),
this Court examined two of its earlier decisions in D. Stenbens (supra)
and Jogendranath !ha (supra) and after quoting certain
passages
from those decisions observed as follows :-
"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, Jogendranath Jha's cas~ stresses
that it is not open to a High Court to convert a finding of
acquittal into _one of conviction in
view_ of the pfovisions
of s. 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 complied with sub-s. ( 4) by directing only a re-trial
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 !11e judgment of the High
Court.
In that connection this Court observed that there
could be littl? doubt that the dice was loaded against the
appellants of that case and it might prove diffi•ult 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."
.
This Court then proceeded to observe that the High Court is certainly
entitled in revision to set aside the order of acquittal even at the
instance of"private parties, though the State may not have thought fit
to appeal, but it was emphasised that this jurisdiction ,;hould be exercised only in exceptional cases when "there is some glarinJ~ defect
in the procedure or there is a manifest error on a pqint of law and
consequently there has been a flagrant miscarriage of justice." In
face of prohibition in s. 439(4) Cr.P.C. for the High Court to con·
vert a finding of acquittal into one of conviction, it makes 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 re-trial. No doubt, in the opinion of this Court, ·no criteria
• for determining such exceptional cases which would cover all contingencies for· attracting the High Court's power of ord~ring re·trial can
be laid down.
This Court, however, by way of illustration, indicated
136
SUPREME COURT REPORTS
[ 1974 j 1 $.C.R.
the following categories of cases which would justify the High Court
in interfering with a finding of acquittal in revision :-
(i) Where the trial court has no jurisdiction to try the
case, but has still acquitted the accused;
(ii) Where the trial court has wrongly shut out evidence
which the prosecution wished to. produce;
(iii) Where the appellate court has wrongly held the evidence which was admitted by the trial court to be
inadmissible;
(iv) Where the ·material evidence has been ever-looked
either by the trial court or by the appellate court; and
( v) Where the acquittal is based on a compounding of the
offence which is invalid under the law.
These categories were however, merely illustrative and it was
clarified that other ca'l!!S of similar nature can also be properly held to
be of exceptional nature where the. High Court can justifiably interfere with the order of acquittal. In Mohendra Prat~ Singh
(supra)
the position was again reviewed and the rule laid down in the three
earlier cases reaffirmed.
In that case the reading of the judgment of
the High Court. made it plain that it had re-weighed the evidence
from its own point of view and reached inferences contrary to those
of the Sessions Jud_ge on almost every point.
This Court pointed out
that it was not the duty of the High Court to do so while dealing
with an acql!ittal on revision, when the Government had not chosen
to file an appeal against it.
"In other words" said this Court, "the
learned Judge· in the High Court has not attended to the rules laid
down by this Court and has acted in breach of them"
In the present case also we feel that the High Court has reweighed
the evidence from its own point of view and though at the outset
it noticed the correct legal position arid expressly acknowledged the
limits within which it was called upon to decide whether or not to
interfere with the order of acquittal, in actual practice, it does not
seem to have attended to the rules laid down by this Court in the
four decisions noticed by it.
As
observed in D. Stenben's case
(supra), the revisional jurisdiction under s. 439, Cr.P.C. is not to be
lightly exercised when invoked by a private party against an order
of acquittal against which the Governmeet has a right of appeal under
s. 417.
This Jurisdiction is not ordinarily invoked or used merely
because the lower court has taken a wrong view of the law or mis--
appreciated the
evidence
on record. Again, as pointed out in
logendranath lha's case (supra), when s. 439( 4) specifically excludes
the power to "convert a finding of acquittal into one of conviction"
the High Court cannot, when dealing with a revision petition by ~
private party against an order of acquittal, in the absence of any
error on a point of law, i:.e-appraise the evidence and reverse
the
find_ings of fact .on which the ac9uittal was based ~Y resorting to the
device of s!oppmg ~ort of findmg the accused gmlty and passing sent~nce on him.
This would be a suuterfuge impermissible in our judicial process.
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AKALU AHIR v. RAMDEO (Dua,!.)
137
No doubt, the appraisal of evidence by
the trial Judge [r. the
case in hand is not perfect or free from flaw and a court of appeal
may well have felt jnstified in disagreeing with its conclusion, bnt
from this it does not follow that on revision by a private complainant,
the High Court is entitled to re-appraise (he evidence for itself as
if it is acting as a court of appeal and then order a re-trial.
It is
unfortunate that a serious offence inspired by rivalry and jealousy
in the matter of election to the office of village Mukhia, ~hould go
unpunished.
But that can scarcely he a valid ground for ignoring
or for not strictly following the law as enunciated by this Conrt.
There is also another aspect of the mauer.
The High Court has
evaluated the evidence on the existing record.
On re-trial the trial
court will have to consider the evidence led at the re-trial and arrive
at its conclusion on that record. The expression of opinion on the
present evidence with respect to the commission of the alleged offence
would not be binding and would, therefore, hardly be relevant.
But
it may nevertheless leave an unconscious impression on the mind of
the court holding the fresh trial.
This aspect also seems to lend some
support to the view that normally re-trial should not be ordered unless there is some infirmity rendering the trial defective.
In view of the foregoing discussions, in our opinion, the High
Court had committed, a serious error in directing re-trial on the basis
of its re-assessment af the oral evidence on the record, while exercising its power of revision at the instance of a private complainant.
We are, therefore, constrained to ailow this appeal, quash the im•
pugned order of the High Court and restore that of the trial conrt.
V.P.S.
Appeal allowed.