P L D 1958 Dacca 32 (PLP)

The petitioner thereafter moved this Court in the exercise of its criminal revisional jurisdiction against the order of acquittal and obtained the present Rule on grounds Nos. 2 and 3 of the petition. Ground No. 2 is : "For that the learn ed judge had not at all considered the evidence in the case and, as such, the appeal should be re‑heard". Ground No. 3 is : "For that the judgment of the Additional Sessions judge did not comply with the provisions of section 367 read with section 424, Criminal P. C., and, as such, it was liable to be set aside." Mr. Bose appearing on behalf of the petitioner has con tended before this Court that the judgment of the Appellate Court is manifestly wrong, inasmuch as the Appellate Court has not touched the evidence adduced by the prosecution and has set aside the order of the trying Magistrate simply on conjectures and surmises. Mr. Ruhul Islam appearing on behalf of the accused oppo site parties has contended before this Court that an appeal is provided under section 417, Criminal P. C., and when the State has not preferred an appeal, this Court is not competent to set aside the order of acquittal by the lower Appellate Court. He has again urged that although the learned Additional Sessions Judge has not referred to the evidence of the wit nesses he has referred to the circumstances and probabilities of the case and has found that the prosecution witnesses deposed falsely with some object in view. In my opinion, this Rule must be made absolute. The order of the lower appellate Court is absolutely hopeless and perfunctory. It is surprising that a Judge of his experience does not know that the Appellate Court is the final Court of fact and he has got to weigh and discuss the evidence led by the parties in the case. Seven P. Ws. were examined on behalf of the prosecution. The learned judge has not referred to the evidence of any of these witnesses. He has only dis posed of the case on certain probabilities and surmises, some of which have no foundation. One of his reasonings is "This is quite probable when poor Hindus in the town are used to hire one pucca room and dine and live there by cooking their meal in some vacant space outside or in the veranda or even within the room concerned." Mr. Ruhul Islam frankly concedes before this Court that there is nothing on record to justify that observation. Then again, the learned Additional Sessions Judge has said "No satisfactory cause can be found out as to why not a single cooking utensil nor any broken part of any such utensil of any of the 7 Hindu tenants could be found in the alleged kitchen or in the court‑yard if this room would have been their kitchen and if the accused would have entered there forcibly". But the learned judge has not taken into consideration the evidence of P. W. 4, Muhammad Abdul Khaleque, A. S. L, who went to the locality immediately after the occurrence and found the kitchen in the disputed room. The learned trial Court has fully discussed the evidence of this witness and has also observed that no reason has been assigned as to why a witness of the status of Brajendra Kumar Das could lie in such a case. The Appellate Court has not given any reason at all wily he did not believe this witness even. The learned Advocate for the petitioner has referred to the decision in the case of Satish Chandra Dus v. Chintaharan Saha and another (43 C W N 25), where Bartley and Khundkar, JJ., laid down the law at page 28 of the report: "The cases referred to suffice to show that this Court has power to interfere in revision with an appellate judgment of acquittal, and that, though that power should be sparingly exercised, it would be wrong to refuse to exercise it in cases where there has been a failure of justice by reason of the Appellate Court not having brought a judicial mind to bear upon the evidence". Their Lordships further observed as follows ; "All we desire to say is that upon a careful consideration of the judgment of the learned Additional Sessions Judge, we are satisfied that he has not directed his mind to the evidence and the circumstances on the record in a manner consonant with a proper exercise‑of appellate discretion". The observations of Their Lordships in that case exactly fit in with the present case before me. This High Court also in an unreported decision in Criminal Revision case No. 108 of 1949, disposed of on 29th April 1949, by Ellis and A. D. Ahmad, JJ., referred to the decision quoted above and observed "We do not appreciate this kind of judgment. The learned Sessions judge should have devoted to the case the consi deration which it merited and should not have disposed of it on the one ground which was founded, as we see from the record, on one statement made by the complainant in his cross‑examination. A question arises whether in revi sion from an appellate order of acquittal we should direct a re‑trial or should order that the appeal should be re‑heard. We find a precedent in the case Satish Chandra Das v. Chintaharan Saha, where Their Lordships Bartley and Khund kar, JJ. observed : "The High Court ha: power to interfere in revision with an appellate order of acquittal even upon questions of fact and, though that power should be sparingly exercised, it would be wrong to refuse to exercise it in A cases where there has been a failure of justice by reason of the Appellate Court not having brought a judicial mind to bear upon the evidence". In the case under report, Their Lordships held that the Appellate Court betrayed a confused idea as to the issue of fact to be tried and rejected the prosecution evidence partly on inadequate grounds and partly without considering circumstances in favour of its truthfulness." In the present case also, the learned Additional Sessions judge did not at all consider the evidence adduced in the case and, as a result, there has been a gross miscarriage of justice and, in that view of the matter, the order of acquittal be set aside and the appeal will be re‑heard. I must add here that I do not wish to be understood as expressing an opinion on the merits, and it may be that, on a full consideration of all the materials on record, facts may come out which might prove or disprove the prosecution case one way or the other. The Rule is accordingly made absolute and the order of the learned Additional Sessions judge is set aside and I direct that the appeal be re‑heard by some other Judge in accordance with law. M. S. Retrial ordered.