Judgment

PATANJALI SASTRI J.: This is an appeal by special leave from an order of the High Court of Judicature at Patna setting aside an order of acquittal of the appellants by the Ses. J., Purnea, & directing their retrial.

2. The appellants were prosecuted for alleged offences under Ss. 147, 148, 323, 324, 326, 302 & 302/149, Penal Code, at the instance of one Polai Lal Biswas who lodged a complaint against them before the police. The prosecution case was that, while the complainant was harvesting the paddy crop on his field at about 10 a.m. on 29-11-1949, a mob of about fifty persons came on to the field armed with ballams, lathis & other weapons & that the first appellant Logendranath Jha, who was leading the mob, demanded a settlement of all outstanding disputes with the complainant & said he would not allow the paddy to be removed unless the disputes were settled. An altercation followed as a result of which Logendra ordered an assault by his men. Then Logendra & one of his men Harihar gave ballam blows to one of the labourers Kangali who fell down & died on the spot. Information was given to the police who investigated the case & Sub-mitted the charge-sheet. The committing Magistrate found that a prima facie case was made out & committed the appellants to the Court of Sessions for trial.

3. The appellants pleaded not guilty alleging, inter alia , that Mohender & Debender, the brothers of Logendra (appellants 2 & 3) were not present in the village of Dandkhora with which they had no concern, as all the lands in that village had been allotted to Logendra at a previous partition, that Logendra himself was not in the village at the time of the occurrence but arrived soon after & was dragged to the place at the instance of his enemies in the village & was placed under arrest by the Assistant Sub--Inspector of Police who had arrived there previously. It was also alleged that there were two factions in the village, one of which was led by one Harimohan, a relation of the complainant, & the other by Logendra & there had been numerous revenue & criminal proceedings & long-standing enmity between the families of these leaders as a result of which this false case was foisted upon the appellants.

4. The learned Ses. J. examined the evidence in great detail & found that the existence of factions as alleged by the appellants was true. He found, however, that the appellants plea of alibi was not satisfactorily made out, "but the truth of the prosecution", he proceeded to observe, "cannot be judged by the falsehood of the defence nor can the prosecution derive its strength from the weakness of the defence. Prosecution must stand on its own legs & must prove the story told by it at the very first stage. The manner of occurrence alleged by the prosecution must be established beyond doubt before the accused persons can be convicted." Approaching the case in this manner and seeing that the basis of the prosecution case was that Polai had batai settlement of the disputed land & had raised the paddy crop which he was harvesting when the occurrence took place, the learned Ses. J, examined the evidence of the prosecution witnesses who belonged to the opposite faction critically & found that the story of the prosecution was not acceptable. Polai, who was alleged to have taken the land on batai settlement from his own maternal grandmother, Parasmani who brought him up from his childhood, was only 19 years old & unmarried & was still living with his grandmother. He did not Claim to be a bataidar of any other person. "In these circumstances", said the learned Judge, "it does not appear to me to be probable that Polai would have been allowed to maintain himself by running adhi cultivation of his mamu s land in the lifetime of his nani who has brought him up from his infancy like her own child. Nor does it appeal to me that the unmarried boy Polai would have undertaken upon himself the task of running batai cultivation of the lands of his mamu