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TMI Blog1950 (3) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... ns, by making an opening in the ridge of an adjoining field belonging to one Sadhram. On the same day, in the afternoon, one Sukhchaindass, brother of the appellant, Prandas, stopped the water flowing from Sadhram's field, alleging that Prandas had asked him not to allow the water to pass through that field, as he had purchased it from Sadhram. Next day, while Hariram and his father, Gayaram, were sitting in the verandah of one Thandaram, the latter proposed to Prandas, who was in his own verandah (opposite to that of Thandaram) that the dispute between him and Gayaram Should be settled amicably by panchayat. While this proposal was being discussed, an altercation ensued, and Prandas proceeded with a lathi to the place where Gayaram was standing and inflicted on him several blows. The first blow was warded off by Gayaram with his right hand, but the next two blows fell on his head and he fell down. Thereafter, some of the relations of Prandas beat Hariram and Hiraram, sons of Gayaram, and Tiharu, cousin of Gayaram and Prandas struck Bahartin, wife of Gayaram. Hiraram then retaliated by striking Prandas on the head. 3. The same evening, between 9 and 9-45 P. M., several re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ole which he had picked from the land. There were many such gedis lying there. Pran also struck back Hira with a similarly picked up pole. Then, Gaya, Hari Nanki and Tiharu also went over and attacked Pran on one side, and to help Pran, came Panch Ram, Videshi and Ghurbin and the parties began to strike one another. I could not notice who was striking whom. It was like a Rout dance, one hitting the other. All had picked the nearby lying gedi poles and had begun to strike one another. Agardas stated that having heard a noise from a distance, he came near Thandaram's verandah, and saw Prandas striking Gayaram with a lathi on the head, but, being frightened, he immediately ran back. Relying on the evidence of Agardas and certain other circumstances, the learned Sessions Judge came to the conclusion that the prosecution had proved that the appellant was responsible for the fatal injury of Gayaram and believing Thandaram, he held that Gayaram and his sons and Tiharu are shown to be the aggressors on Pran, and Pran helped by other accused as defenders, against an unjustified assault, had thus a private right to defend his and their persons against it. He referred to the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unless the judgment is perverse or the subordinate Court has in some way or other misdirected itself so as to produce a miscarriage of justice. In our opinion, the true position in regard to the jurisdiction of the High Court under Section. 417, Criminal P. C. in an appeal from an order of acquittal has been stated in -- 'Sheo Swarup v. Emperor' at pp. 229, 230 (A), in these words : Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its- conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat Gayaram and his companions were assaulted one after another, without any provocation, cannot be accepted, but in fact there was a free fight in which both parties assaulted each other. On this aspect of the case, the High Court seems to have at first sight expressed two conflicting opinions in two separate parts of its judgment. In para 26 of the judgment, the learned Judges say : Although the prosecution evidence mainly emanated from interested witnesses, it was supported, as shown, by that of Agardas; and it was also corroborated by Hariram's first information report, Ex. P-1. in the next paragraph, they proceed to say: Exception 4 to Section 300, Penal Code cannot operate in his (Prandas's) favour, inasmuch as although the culpable homicide can be said to have been committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel, it cannot be said that Prandas had not taken undue advantage or acted in a cruel or unusual manner. These two statements can be reconciled only on the footing that in the earlier paragraph, the learned Judges of the High Court were referring only to that part of the prosecution case which related to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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