Scope of jurisdiction to be exercised by High Court.

This petition is by the complainant before the police and is directed against the judgment of acquittal made by the Judicial Magistrate, I Class, II Court, Hubli in C.C. No. 998 of 1971.

2. The petitioner complained before the police in regard to a certain incident which took place in broad day-light on 24th May, 1971. It was his case that the accused trespassed into his house at about 3 P.M. on that day and assaulted him besides damaging some of his properties such as radio, trunk etc. The police. after investigation, placed a charge sheet against the accused under sections 452, 453, 323, 427 read with section 34, Indian Penal Code. The learned Magistrate, after a perusal of the police papers and after hearing the accused, framed charges in respect of those offences. In support of the prosecution two eye witnesses have been examined, among others. They are P.Ws. 1 and 2. P.W.3 is a person who arrives immediately after the incident and speaks to the several circumstances of mischief. The defence of the accused was essentially one of not guilty and alibi. But, in the course of the trial a theory was sought to be developed that the complainant was liable to repay certain sums paid by one of the accused in the expectation of the complainant securing a job for such accused. It is also in evidence that the accused were apprehended by police or various dates at different places. The relationship of witnesses P.Ws. 1 to 3 has been shown to be as follows. P.W.1 was proposing to marry P.W.3, a nurse in a hospital. P.W.2 is the brother of P.W.3. It is brought out in evidence that P.W.2 was accustomed to go and assist P.W.1 in preparing food. On the date of the incident P.W.2 was rendering such assistance to P.W.1. This is ail the relationship that has been brought out between these there witnesses;

3. The learned Magistrate rejects the evidance of P.Ws. 1 and 2 merely on the basis of this relationship and observes thus:

“Even though there is a corroboration between the testimonies of P.W.1 and 2 to a major extent, I decline to accept their testimonies to be independent and influential in the absence of corroboration of their testimonies by the independant witnesses. Out of the 10 witnesses examined on behalf of the prosecution excepting the first three, none is examined as eye witness before the Court. Since P.Ws. 1 to 3 are interested and related to each other, I answer the first and second points in negative and giving the benefit of doubt to all the accused pass the following order”,

4. This is all the relevant discussion bearing on the question and on the basis of such discussion the accused have been acquitted.

5. It is in evidence that although the complainant shouted for help none of the neighbours came to his rescue. In other words, none of the neighbours had witnessed the incident. In such a situation corroboration from an independent witness ought not to be expected. The Court, therefore, had to fall back upon the evidence of the witnesses as have been examined in support of the prosecution case. In the circumstances of the case, it is not also reasonable to rule out the evidence of such witnesses on the ground of interestedness. The trial Court, therefore, ought to have examined the evidence of P.Ws. 1 to 3 on its merits, before rejecting their testimony. The manner of disposal of the case by the trial Court, therefore, leaves much to be desired.

6. But, on behalf of the State, Shri M. Nagappa, the learned High Court Government Pleader, invited attention to certain enunciation of the Supreme Court in the case of Khetra Basi Samal v. State of Orissa1. In that case, the scope, of the jurisdiction exercisable by the High Court under section 439, Criminal Procedure Code, in the context of an order of acquittal, has been succinctly, if I may say so with respect, set out. The relevant enunciation runs thus:

“So where it is not evident that the trial Court shut out any evidence which the prosecution wanted to produce or admitted an