The High Court can only interfere with an acquittal in revision if there is a manifest illegality in the judgment of the Court of Session or a gross miscarriage of justice.

Judgement

HIDAYATULLAH J. :- This is an appeal against the judgment, July 17, 1963, of a learned single Judge of the High Court at Patna setting aside the acquittal of the appellant ordered by the 1st Additional Sessions Judge, Gaya and directing his retrial.

2. The only question in this appeal is whether the High Court in exercising its revisional powers under Section 439 of the Code of Criminal Procedure acted in accordance with the principles settled by this Court for interference with acquittal by way of revision filed by a private party. To apply those principles certain facts may first be stated.

3. The appellant was tried on three charges levelled against him; first was under Section 302 of the Indian Penal Code for intentionally causing the death of one Kuldip Singh with a firearm on December 18, 1961 in village Gajra Chatar; the second was attempt to murder Kuldip Singh s companion Sarju Singh by shooting at him with the same weapon: and the third was the unlawful possession of the weapon (a revolver) which is an offence under the Arms Act. It appears that there was some ill-feeling between the appellant and Kuldip Singh, not directly but because the appellant, who is a lawyer, was conducting cases on behalf of his sister in a prolonged litigation started by Kuldip Sing and his party. The litigation concerned the possession of land and it is admitted before us that all the cases had in fact ended in favour of the appellant s sister.

4. The occurrence is stated to have taken place when an inquiry into a case under Section 107 of the Code of Criminal Procedure was taking place. A notice had been issued to Kuldip Singh s party to show cause why they should not be proceeded against and asked to furnish interim bail. The prosecution story is that the deceased Kuldip Singh accompanied by Sarju Singh the injured man, and one Musafir Singh (PW 12) were proceeding towards village Nawadah via Tilaya Railway.Station. They had started early in the morning and had taken an hour and a half to reach village Gajra Chatar where the incident is said to have taken place. When they reached near a garden, they found two persons sitting under a tree and approaching them they recognised the appellant but the other was unknown. These persons began to shadow Kuldip Singh and his companions and after they had proceeded a little further towards the garden, one of them fired at Kuldip on his back. The prosecution case is that Sarju immediately turned round and attempted to catch hold of the appellant who had fired with a revolver, but the appellant shot Sarju on his leg behind the knee. Thereafter, the appellant and his companion ran away.

5. The report of the incident was made by Kuldip Singh himself who seems not to have lost his consciousness and in the report he named the appellant. Subsequently, Kuldip made two dying declarations in which he again named the appellant as the assailant, describing the weapon of attack as a revolver. Kuldip died and the case was started against the appellant as stated already.

6. The learned Sessions Judge on an appraisal of the evidence found it unsatisfactory. He began by stating that the medical evidence as also the evidence of the ballistic expert (PW 17) clearly disclosed that the assault was not committed with a revolver but with a shot gun. He also could not believe the evidence that Sarju could be shot from behind when he was grappling with the appellant. He felt that this created doubt as to whether the injured persons and Musafir who all consistently described the weapon as a revolver had in fact been able to see the weapon or to identify the assailant. Having found this unworthy of credit, the learned Sessions Judge went into a number of other circumstances which in his opinion tended to show that the prosecution case was not free from concoction and hence not free from doubt. He felt that the attack was from an ambush and the deceased and the witnesses had named the appellant with whom they had deep enmi