MANGLI PRASAD Vs. BUDH SEN

JUDGEMENT

(1.) This is a reference by the Sessions Judge of Farrukhabad recommending that, the acquittal of Budh Sen, Brahmanand and Babu Ram, opposite parties, be set aside and that a re-trial be ordered. The prosecution case was that the applicant, Mangli Prasad, was the own cousin of Budh Sen, opposite party. Bramhanand opposite-party is the son of Budh Sen and Babu Ram opposite party is their relation. Mangli Prasad was childless and the opposite parties naturally expected that they would succeed him. Recently, however, Mangli Prasad got his tenancy partitioned and got the name of his sister's son entered in his khata with the consent of the zamindars. This annoyed the opposite parties who felt that their right of ascession was jeopardised. Consequently they assaulted Mangli Prasad on 27 December 1946, and caused him a number of injuries.

(2.) Evidence was produced before the learned Magistrate by both the parties. Mangli Prasad does not complain that any part of his evidence was not recorded. The learned Magistrate on a consideration of that evidence came to the conclusion that the case was doubtful and acquitted the opposite-parties. Thereupon Mangli Prasad went in revision to the learned Sessions Judge who has gone into the facts. He has come to the conclusion that the learned Magistrate arrived at wrong findings. He has, therefore, recommended that the acquittal should be set aside as there has been a great miscarriage of justice in this case and a retrial be ordered. It may be mentioned that Mangli Prasad had eight simple injuries on his body, none of which appeared to-be of a very serious nature. The only question arises for determination in this reference whether this Court should interfere in cases this kind. A number of authorities have been cited before me from both sides in this connection.

(3.) The first of these is the case of Nand Ram V/s. Kazan and Anr. A.I.R. (8) 1921 all 266. That was a case where Nand Ram was grievously assaulted and as a result of that assault was unconscious for four days. It was held therein that an order of acquittal should only be revised in cases where the alleged offence is of a serious character, and a Judge comes to the opinion that there has been a miscarriage of justice, where for instance the lower Court has misquoted the evidence, or where having evidence before it which prima facie is reasonable and credible the Judge gives no grounds whatever for rejecting it and does not satisfactorily review it. The next case is that of Dhum Bahadur V/s. Hori Lal . This was a case under Section 408, Indian Penal Code, against a karinda. A retrial was ordered and it was said that the power had to be exercised sparingly and with caution. The reason why the power was exercised was that the judgment of the trial Magistrate was full of surmises and special pleadings. It was said that "the trial Courts are expected to record findings with definiteness and precision and not to indulge in airy generalities." These two cases show that before this Court will interfere with a finding of acquittal, it has to be satisfied that the case is of a serious character and there has been a serious miscarriage of justice.