Gian Chand vs Charanjiv Lal Talwar
1970 Latest Caselaw 200 Del

JUDGMENT

P.S. Safeer, J.

(1) As I have stated in an earlier order today, I have taken cognizance of the subject matter in controversy suo motu under section 439 of the Criminal Procedure Code.

(2) The learned counsel for the petitiioner has assisted me by drawing my attention to the law laid down by the Supreme Court in K. Chinnaswami Reddy v. State of Andhra Pradesh^. The Supreme Court was dealing with the provisions of section 439 and was laying down the law after considering sub-section (4) thereof. According to the provisions of that sub-section a High Court cannot turn an acquittal into a conviction. The High Court cannot on its own appraisal of evidence substitute the conviction in place of acquittal The Supreme Court considered the statute and applying the test of judicial caution came to the conclusion that only under exceptional circumstances even the power to remind for retrial could be exercised. It was indicated that the High Court would be justified in interfering under section 439 in case the impugned acquittal was by a court which may have tried the case without having any jurisdiction or if the courts below had admitted into evidence that which was inadmissible or had disallowed the production of evidence.

(3) Mr. Bipin Behari Lal in a very fairly presented argument stated that the Supreme Court also ruled that in case the courts below had overlooked evidence, then even the High Court could interfere with an acquittal. Mr Lal took me partially through the evidence of Public Witness PW1. The entire evidence of Public Witness PWs 1 to 5 has, however, been perused by me, while Mr. D R. Sethi, counsel for the respondent read it out. It became necessary to peruse that evidence in order to test the submission made by the learned counsel for the petitioner that material evidence had been overlooked.

(4) I am of the view that overlooking of material evidence so as to justify interference under section 439 of the Criminal Procedure Code will be in a case where material evidence, documentary or oral, is ignored. It may be also in a case where there may be material assertions in evidence which is properly appreciated may have titled the decision in one way or the other Mere erroneous appraisal of evidence will not amount to overlooking it so as to merit interference with an acquittal in exercise of the lowers conferred by section 439 of the Criminal Procedure Code.

(5) After perusing the evidence of Public Witness PWs 1 to 5 and then considering the observations contained in paragraph 6 of the judgment made by the Additional Sessions Judge on 15th February, 1967, I am of the view that this is not a case which calls for an interference under section 439 of the Criminal Procedure Code.

(6) After receiving complete assistance from counsel for both the sides, I am of the view that even if it could be said in this case that the appellate court did not quite thoroughly go into the evidence, then also it would not be appropriate that the same evidence be reappraised.

(7) On principle sending back the case for re-decision by another Additional Sessions Judge would mean conferring a type of appellate power on a court of concurrent jurisdiction. Even if the same officer was to deal with it he would be exercising powers of review. Such a remand should be highly merited and should be very exceptional, P.W. I Giaii Chand, the petitioner before me, was the complainant and it was on the basis of his complaint that the case was started against three persons. Two of the co-accused of the present respondent, viz. Musarat and Behari Lal were acquitted by the trial Court.

(8) The prosecution allegations were that the present respondent No. I hired the services of those two co-accused persons, and while one of them was actually removing the tinsheets, the other was handling them and placing them on the roof belonging to respondent No. 1. Respondent No I had addressed encouraging words to the co-accused urging them to gather speed in removing the tin sheets. The acquittal of those 'two accused persons was after weighing evidence with which I am concerned. P W. l, Gian Chand stated the Public Witness . his related to him. It is curious in this case that P. W. 3 had denied on oath the relation ship admitted by P. W.I. Public Witness . 2 is a class by himself. He magnified the case for the present petitioner to the extent of stating that the son and the wife of respondent No. 1 were handling the tin sheets after their removal. They were never apprehended Public Witness . 4 is the brother of Public Witness . 5, Sugna Mal, who admittedly was the care-taker of the premises, i. e. chowkidor. There is good deal of diversion between the depositions of these witnesses.

(9) The question which really calls for determination is whether the court will be justified in this case in sendidg it back to another Additional Sessions Judge for re-hearing the parties on this very evidence. I am not pursuaded that any evidence has been overlooked and that the case calls for an interference with the acquittal of fie respondent. The petition is dismissed.