P L D 1957 Dacca 612 (PLP)

RAHMAN, J.‑This appeal under section 417 of the Code of Criminal Procedure has been filed by the Provincial Government against the acquittal of the three respondents herein on the charge under sections 302/34 of the P. P. C. The said three respondents together with two others were charged under the said sections 302/34 and the res pondent Ghyasuddin Ahmed alias Kalu was further charged under section 324 of the P. P. C. According to the prosecution, the said five accused persons, who were closely related to one another, had, out of previous animosity between the deceased Kitab Ali and his father, P. W.8 Jobed Ali, and the respondent No. 1 herein, on the 26th of Sravan 1362 B. S., corresponding to 12th August 1955, at about 10 a. m. or 10‑30 a. m., caused the death of the deceased Kitab Ali by inflicting as many as 11 injuries on his person by ramdaos, ballam and sword, as also voluntarily caused hurt to P. W. 1 Rahim by a ballam. The deceased Kitab Ali, P. W.

1. Rahim and one Suti Ali used, according to the prosecution, to ferry passengers in a dinghy boat across the river Brahmuputra from Mymensingh Bazar Ghat to the other bank at Char -Gobindapur. On the date of the incident, they had ferried four passengers across from Mymensingh to Char‑Gobindapur and were waiting there for passengers to be ferried back to Mymensingh, when, it is alleged, the five accused persons came running variously armed and then fell upon P. W. 1 Rahim Ali who received 4 injuries, 2 on the forehead, 1 on the shoulder and the other on the back, by the spear or ballam of Ghyasuddin Ahmed alias Kalu. As a result of the said injuries, the said P. W. 1 fell into the river and, seeing this, the deceased Kitab Ali also dived into the river out of fear but, when he rose up to the surface, the 5 accused who had also jumped into the river pursued and attacked him and inflicted as many as 11 injuries all over his body. The deceased tried to seek shelter behind a banana clump, but by this time he was almost exhausted and the accused left the place. The deceased was carried to the dinghy boat where he named his assailants and then. within a short while thereafter died. He was brought in the boat to the Mymensingh Kotwali police station at about 12‑45 p. m., where P. W. 1 Rahimali lodged the first informa tion report. The dead body of the deceased was sent to the morgue by the police for post‑mortem examination. The injured Rahim Ali was also sent for examination to the Medical Officer and, in the usual course, the police, having completed investigation, sent up the 5 accused persons to stand their trial under sections 302/34 of the P. P. C. with a further charge against the respondent Ghyasuddin Ahmed alias Kalu under section 324 of the P. P. C. The motive alleged for the murder was the previous animosity between the accused on the one side and the deceased Kitab Ali and his father, P. W. 8 Jobed Ali, on the other. It was said that the accused Mafiz had filed as many as 3 applications under section 107 of the Code of Criminal Procedure against the deceased and is father Jobed Ali and that one of these cases had been dismissed just a few days before the occurrence in question took place. The accused persons did not dispute that some kind of occurrence did take place nor did they dispute that the deceased Kitab Ali had met his death in this occurrence. But, according to them, the manner and the place of occurrence were different from that alleged by the prosecution. Further more, whilst two of the accused, namely, Helaluddin, and Samiuddin who have since been acquitted, were not present at the occurrence and had not taken any part therein, two others who had taken part in the said occurrence had been left out. The occurrence happened, according to the defence, in the following way:‑ A short while before the occurrence, the deceased Kitab Ali's brother Omar had filthil5 abused the respondent Kalu in the latter's field with reference to the case under section 107 of the Criminal P. C. that hat been dismissed a few days ago. At this, Kalu, who was totally unarmed, attempted to assault Omar who then ran away. At about 10 or 10‑30 a.m., however, whilst Kalu was smoking a bidi at the shop of P. W. 4 Mafiz, the said deceased Kitab Ali together with P. Ws. Rahim and Suti as also Omar and one Salam and one Fakem came running variously armed to assault the respondent Ghyasuddin alias Kalu, The latter ran for fear of his life shouting that he was being killed, pursued by the deceased and his party. From the west then advanced one Tafiz and Gunjpr, who were not made accused in this case, and' the respondents Mafiz and Sherabdi. Of these persons, respondent Mafiz had a small dao, used for cutting jute, in hand and Tafiz, Gunjor and Sherabuddin had only small pointed bamboo sticks each, used for steeping jute. According to the defence, these persons advanced to the assistance of respondent Ghyasuddin Ahmed alias Kalu leaving their work in the filed. A skirmish thereupon followed between the parties of the deceased and of the respondents and whatever was done by any one of the respondents' party was done in self‑defence. The defence also claimed that the respondents Ghyasuddin Ahmed alias Kalu and Sherabuddin also received injuries. In this case, the prosecution examined some 16 witnesses and the defence also examined 4 witnesses. The learned Additional Sessions Judge of Mymensingh. 2nd Court, duly summed up the evidence before the assessors who aided him in the trial. The assessors were unanimously of the opinion that the three respondents in this appeal were guilty under sections 302/34 of the P. P. C. and that respondent Ghyasuddin Ahmed alias Kalu was also guilty under section 324 of the P. P. C. The learned Judge, however, upon a consideration of the evidence, which was not entirely free from blemishes, came to the conclusion that the prose cution had succeeded in establishing that the respondents in this appeal had voluntarily caused the injuries upon the deceased and P. W. 1 Rahim Ali, as found by the medical officers concerned. But, upon the same medical evidence, he held that since P. W. 2, the doctor, who carried out the post‑mortem examination over the dead body of the deceased Kitab Ali, was of the opinion that no single injury except possibly one was by itself sufficient to cause death, the necessary intention required for an offence under section 302 of the P. P. C. had not been made out. If the prosecution story were to be believed, it appeared that the deceased Kitab Ali was completely unarmed and at the absolute mercy of his assailants who, armed as they were with such dangerous weapons as ballam, ramdao and even a sword, could immediately have given such an injury as would by itself have been sufficient to cause death. The evidence, however, disclosed that out of some ten injuries inflicted upon him only one could be said to be possibly so dangerous as to be sufficient in the ordinary course of nature to result in death. Furthermore, the deceased Kitab Ali did not expire immediately but survived for a sufficient length of time to be carried to the dinghy boat and had sufficient consciousness even then to be able to name his assailants. Upon this evidence the learned Additional Sessions Judge held that the intention with which the injuries were caused was on intention sufficient only to constitute the offence under section 324 of the P. P. C. and, therefore, he acquitted them under sections 302/34 of the Code and convicted each of the three respondents under section 324 of the P. P. C. and sentenced them to suffer rigorous imprisonment for three years each. The other two accused persons were acquitted as there was no sufficient evidence of their complicity in the occurrence. It is against this order of acquittal that the Provincial Government has preferred this appeal and their contention is that upon the facts proved and accepted by the learned Additional Sessions Judge the one and the only offence for which the respondents could have been convicted was the offence under sections 302/34 of the P. P. C. There can be no doubt that in view of the decision of their Lordships of the Judicial Committee in the case of Kishan Singh v. The King‑Emperor (55 I C 390), the Provincial Govern ment has, under section 417 of the Code of Criminal Pro cedure, the right to appeal even in such a case, where there has been no total acquittal, but only a partial acquittal in respect of the more heinous offence. The only question, therefore, that was urged before us on behalf of the appellant was that the acquittal in the present case in respect of the charge under sections 302/34 of the P. P. C. was not justified and that the ends of justice demanded that the respondents herein should be convicted of the said offence. The learned Advocate for the State, possibly under the impression that we are bound by the findings of fact of the learned Additional Sessions Judge, did not take us through the evidence in the case except the evidence of the medical officer upon the basis of which the learned Judge seems to have come to his finding on the question of the intention of the res pondents in the present case. The evidence of P. W. 2, the doctor, who held the post‑mortem examination, was to the effect that no single injury was sufficient to cause death by itself with the probable exception of injury No. 6 which was a punctured wound, 1 " x " x cavity‑deep, situated on the left six intra costal space at the mid‑axillary line. In an appeal against acquittal, however, it is now well settled that we are not bound to accept the findings of fact of the trial Court. The entire case is open to us and it is also, in our opinion, open in such cases to the respondents in the appeal to contend that the conviction even for the lesser offence is not justified upon the evidence on record. Their Lordships of the Judicial Committee fully discussed the nature and scope of an appeal under section 417 of the Code of Criminal Procedure in the case of Sheo Swarup and others v. The King‑Emperor (61 I A 398), where Lord Russel of Killowen pointed out:‑ "Sections 417, 418 and 423 of the Code give to the High Court full power to review at large‑ the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated to the Code. But in exercising the power conferred by the Code and before reaching its conclusion upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witness, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right ‑of the accused to the benefit of any doubt, and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who bad the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognized in the administration of justice." The view that in an appeal against acquittal, the accused is also entitled to ask the Court to consider all the evidence before it and all the possible grounds which my be raised against the conviction, even in respect of lesser offence was also accepted in, the case of Emperor v. Panchaksharam (A I R 1938 Mad. 723), where Horwill, J., observed that the provisions of section 439 of the Code of Criminal Procedure made it quite clear that in. such a case if, upon consideration of the evidence, the High Court bearing an appeal against acquittal was satisfied that even a conviction for the lesser offence was not justified, it could suo moto in exercise of its revisional power set aside that conviction too. In the present case, however, it is not necessary for us to go to that extent. The learned counsel for the res pondents has not contended before us that the conviction of the respondents under section 324 of the P. P. C. were not justified upon the evidence in this case. We have, how ever, ourselves perused the evidence and upon the evidence in this case we feel that the learned Judge has rightly come to the conclusion that the intention necessary for an offence of murder under section 302 of the P. P. C. had not been made out by the prosecution in this case. The learned Advocate for the State, however, urged that even if the necessary intention for murder had not been made out, then, in ‑view of the evidence that at least one of the injuries had entered the chest cavity and that the injured person had, in fact, died within a short time after receiving the injuries, it was manifeslty indicated that at least the intention was to cause such injuries as might be likely to cause death and, therefore, the respondents should, in any event have been convicted under section 304, Part 1, or at least Part II, and not under section 324 of the P. P. C.. In answer to this, the learned counsel appearing for the respondents has urged that in an appeal against acquittal the State should not be allowed to urge any point not taken in its grounds of appeal or to put forward any arguments which goes beyond the ambit of the grounds of appeal. There is, of course, no ground taken in the grounds of appeal before us that in any event the conviction should be altered into one under section 304 of the P. P. C. In support of this contention, the learned counsel relied on a decision of a Division Bench of the Sind Chief Court in the case of Emperor v. Pursumal Gerimal and another, (A I R 1938 Sind 108) where Davis, J. C., observed that although strictly speaking there may be no bar to Government attempting to snatch a conviction by making out a case different to the one made out in its grounds of appeal, yet the Courts would be justi fied in asking that in cases where an appeal against acquittal is to be made all matters should be carefully considered in all their aspects before the appeal is filed, for the liberty of a person once acquitted has again to be put in jeopardy arid that in such cases Government should be bound down in argument and should consider itself so bound down in argument to the grounds raised in the memorandum of appeal. These observations of Davis, J. C., find also support from the observations of Ranade. J., of the Bombay High Court in the case of Queen‑Empress v. Karigowda (19 Bom. 51), where his Lordship was of the opinion that the High Court, exer cising its jurisdiction in the matter of appeals against acquittal: should confine its exercise to the particular grounds of objection which are raised by Government against the acquittal complained of. We are in respectful agreement with these observations, particularly in a case of this kind where the appeal, if we may say so, is against only a partial acquittal. In this view of the matter, we uphold the objection of the learned counsel for the respondents that the State is not to be permitted to travel beyond the grounds taken in the memorandum of appeal and snatch a conviction anyhow in this case. For the reasons given by us, we are satisfied that there is no substance in this appeal. The appeal is accord ingly dismissed. HASAN, J.‑‑I agree. Z. A. S. Appeal dismissed.