LexKHEDU MOHTON AND ORS. versus STATE OF BIHAR
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A B KHEDU MOHTON AND ORS. V. STA TE OF BIHAR August 17, 1970 [K. S. HEGDE. AND I. D. DUA, JJ.] BJ~ Code of Criminal Procedure (Act 5 of 1898), ss. 417(3) and 4"1- Arreol again.it acquirtal-Death o) complainanf-/f appeal abates. Practice and Procedure-Powers of appellate court in appeals C against acquittal. D E F G H The appellants were prosecuted for dishonestly cutting and removing the paddy crop oi the complainant. The complaint was flied 8 days after the incident. T'..e trial court convicted them. The •PJ?ellate court •cq11itted them 011 the grounds : ( 1) that the prosecution witnesses were unreli~ble; (2) that there was considerable delay in filing the 1.om· plaint for which no explanation was given; and (3) the Inspector of Police who was alleged to 1have been an eye-witness of the occurrence ... was not examined. The complainant filed an appeal to the High Co1Jrt under s.417(3) Cr. P.C. During the pendency of the appeal the com· plainant died. The High Court set aside the acquittal and convicted the appellants. In appeal to this Court, HELD : · ( i) The question of abatement of criminal appeals is dealt with by s.431 Cr. P.C., and according lo that section an appeal under s. 417 can only abate on the death of the accused and not otherwise. Therefore, once the appeal against acquittal is entertained by the High ( ourt, it become~ its duty to decide it on merits even though the com· r'»inant died. [R42 G-Hl Tlwthan v. M11rugan, A.LR. 1958 Mad. 624, overruled. \ii) Unless the conclusion that the accused were not guilty, reached '~· the first appellate court, was palpably wrong, or was based on an erroneous view of the . Jaw or that the decision was likely to result in fr;,ve injustice. the High Court should be reluctant to interfere with that ..:onclusion. If t\\'O reasonable conclu~ions can be reached on the · ..... ~is of the evi<l~ncc on record then the view in suµport of the acquittal ~; the accused should he preferred. [840 H, 841 Al· (iii) In the present cas.e, the prosecution witnesses were obviously interested witnesses being the enemies of the accused, and the explana- !;ons given hy the complainant for the delay in filing the complaint and ~~e non-examination of the Inspector of Police were false. therefore. !he High <:ourt erred in interfering with the order of acquittal. [841 B-Cl CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No: 162 of 1967. Appeal by special leave from the judgment and order dated May 3, 1967 of the Patna High Court in Criminal Appeal No. 40 of 1965. I 840 SUPREME COURT REPORTS E. C. Agrawa/a, for the appellants. B. P. Iha, for the respondent. The Judgment of the Court was delivered by (1971 J 1 S.C.R. Hegde, J. This appeal by special leave is directed against the decision of single judge of the High Court of Judicature at Patna setting aside the acquittal of the appellants and convicting them under ss. 379/149, l.P.C. as well as under s. 143, I.P.C. The appellants were prosecuted before the Munsiff Magistrate, 1st Class, Arrah for dishonestly cutting and removing the paddy crop in plots Nos. 340 and 346 pertaining tc khata No. 82 in village Ibrahim Nagar District Shahbad. The complainant's _case is that those lands belonged to him and the appellants unlawfully trespassed into that property on November 19, 1961 and harvested the rice crop. The appellants pleaded not guilty to the charge. The learned trial magistrate held the appellants guilty and con- victed them as mentioned earlier.. In appeal the learned District Judge, Shahbad acquitted the appellants. He felt unable to rely on the prosecution case for three different reasons. Firstly he came to the conclusion that the witnes!les who spoke aboJt the occurrence are all interested witnesses and it is unsafe to µlace reliance on their testimony. He secondly came to the conclusion that there was considerable delay in filing the complaint and the delay in question has not been explained by the prosecution and that circumstance throws doubt on the prosecution case. LastJ~· he held that the non-exan1ination of the police inspector who is said to have come to the place of occurrence «t the time oi the occurrence and seen some of the appellants harvesting the crop casts further doubt on the prosecution case. The High Court differing from the 1st appellate court held that there was no delay in filing the complaint nor was the n
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