Judgement

HEGDE, J. : - In these connected appeals by special leave the legality of the convictions of the appellants - appellant Mohan Rai under S. 324 of the Indian Penal Code and appellant Bharath Rai under S. 324/109 of the Indian Penal Code - is challenged. In the trial Court the former was convicted under S. 307 of the Indian Penal Code and the latter under S. 307/109 of the Indian Penal Code. The High Court of Patna, in appeal, altered their convictions as set out above.

2. In order to appreciate the contentions advanced on behalf of the appellants it is necessary to state briefly the prosecution as well as the defence version. The case made out by the prosecution is that because of previous enmity Mohan Rai shot and injured P. W. I Balli Ahir, at the instigation of Bharath Rai, on the evening of October 8 1961, in Natwar Bazar. The existence of enmity between the appellants and most of the prosecution witnesses who speak to the occurrence, is satisfactorily established. Many of the prosecution witnesses appear to have been proceeded against under S. 107 of the Code of Criminal Procedure at the instance of the appellants. The plea of the appellants was that on the day of incident when they were returning to their house in the evening they were way-laid by P. W. 1 and several others; one of those persons fired shots at Mohan Rai, but it missed him; to save himself he (Mohan Rai) ran away from the scene subsequently two more shots were fired; meanwhile he got into the house of Lal Bahadur Mistri (P. W. 9), but his assailants pursued him, forced their entry into the house of P. W. 9 and there assaulted him; thereafter with a view to foist a false case against him forcibly thrust into his hands the revolver (Ex. III) and then handed him over with Ex. III to Janardan Singh (P. W. 15), the police constable. The plea of Bharath Rai was that during the incident mentioned by Mohan Rai, he was caught hold of and assaulted by some of the prosecution witnesses. The High Court and the trial Court have rejected the plea of the appellants and relying on the prosecution evidence convicted the appellants as mentioned earlier. This Court being a Court of special jurisdiction does not reassess the evidence in a case except under exceptional circumstances. It was urged on behalf of the appellants that they did not have a fair trial, the High Court as well as the trial Court on an erroneous view of the law refused to take into consideration their defence, they ignored important circumstances appearing in their favour and further some of the conclusions reached by them are unsupported by any evidence on record. We have to see how far these submissions are well founded.

3. Out of the incident mentioned above, the State came to initiate as many as three prosecutions. G. R. Case 1370/TR-20 of 61/63 in the Court of the Munsif-Magistrate 1st Class, Sasaram was instituted on the basis of the complaint lodged by Mohan Rai G. R. 506 of 1962 on the file of the Munsif-Magistrate 1st Class, Sasaram was a case under S. 19 (f) of the Indian Arms Act against Mohan Rai for being armed with a revolver at the time of the incident mentioned earlier. The third case is the one with which we are concerned in these appeals. The case instituted on the basis of the complaint made by Mohan Rai was acquitted (sic) on Feb. 7, 1963. The Arms-Act case ended in acquittal on May 13, 1964. The appeal against that order was dismissed by the High Court of Patna on September 5, 1966. A copy of the judgment in that appeal was produced at the hearing of these appeals and received as additional evidence with our permission.

4. The trial Court as well as the High Court refused to examine the defence of the appellants solely on the ground that the case pleaded by them had been rejected by the learned Munsif-Magistrate 1st Class, Sasaram in the prosecution commenced at the instance of Mohan Rai.

5. The prosecution case was that immediately after the occurrence, Mohan Rai was chased and