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TMI Blog1962 (7) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... on the basis of which another stolen ornament was recovered. The Assistant Sessions Judge on a consideration of the evidence came to the conclusion that the other accused had actually committed house breaking and had removed ornaments from the house of Ramayya and had handed over 17 ornaments out of that property to the appellant. He also came to the conclusion that the seventeen ornaments recovered at the instance of the appellant were in his possession and he therefore found him guilty under s. 411 of the Indian Penal Code. The appellant and the other accused went in appeal to the Sessions Judge. The Sessions Judge held that the appellant had not been proved to be in possession of the seventeen ornaments which were recovered at his instance from a garden. The statement of the appellant in this respect was that he would show the place where he had hidden them (the ornaments) . Thereafter he went to the garden and dug out two bundles containing the seventeen ornaments from there. The Sessions Judge held that the recovery of ornaments from the garden at the instance of the appellant was proved; but he further held that that part of the statement of the appellant where he said that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f occasions. In D, Stephens v. Nosibolla ([1951] S.C.R. 284) this Court observed The revisional jurisdiction conferred on the High Court under s. 439 of the Code of Criminal Procedure is not to be lightly exercised when it in invoked by a private complainant against an order of acquittal, against which the Government has a right of appeal under a. 417. It could be exercised only in exceptional cases where the interests of public justice require interference for the correction of a manifest illegality or the prevention of a gross miscarriage of justice. This jurisdiction is not ordinarily invoked or used merely because the lower Court has taken a wrong view of the law or mis-appreciated the evidence on the record. Again, in Logendranath Jha v. Shri Polailal Biswas ((1951) S.C.R. 676), this Court observed Though sub-s. (1) of s. 439 of the Criminal Procedure Code authorises the High Court to exercise in its discretion any of the powers conferred on a court of appeal by s. 423, yet sub-a. (4) specifically excludes the power to 'convert a finding of acquittal into one of conviction . This does not mean that in dealing with a revision petition by a private party against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inding of acquittal in revision and it is only in exceptional cases that this power should be exercised. It is not possible to lay down the criteria for determining such exceptional cases which would cover all contingencies. We may however indicate some cases of this kind, which would in our opinion justify the High Court in interfering with a finding of acquittal in revision. These cases may be: where the trial court has no jurisdiction to try the case but has still acquitted the accused, or where the trial court has wrongly shut out evidence which the prosecution wished to produce, or where the appeal court has wrongly held evidence which was admitted by the trial court to be inadmissible, or where material evidence has been overlooked either by the trial court or by the appeal court, or where the acquittal is based on a compounding of the offence, which is invalid under the law. These and other cases of similar nature can properly be held to be cases of exceptional nature, where the High Court can justifiably interfere with an order of acquittal; and in such a case it is obvious that it cannot be said that the High Court was doing indirectly what it could not do directly in view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hese circumstances, the case would clearly be covered by the principles we have set out above in as much as relevant evidence was ruled out as inadmissible and the High Court would be justified in interfering with the order of acquittal so that the evidence may be reappraised after taking into account the evidence which was wrongly ruled out as inadmissible. It seems that the High Court was conscious of this aspect of the matter, for it says in one part of the judgment that the only possible inference that could be drawn was that the appellant was in possession of stolen goods before they were put in that secret spot, as admitted by the appellant in his statement, part of which is admissible under s. 27 of the Indian Evidence Act. If the High Court had confined itself only to the admissibility of this part of the statement, it would have been justified in interfering with the order of acquittal. Unfortunately, the High Court went further and appraised the evidence also which it should not have done, as held by this Court in Logendranath's case. However, if admissible evidence was ruled out and was not taken into consideration, that would in our opinion be a ground for interferi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... related to its discovery in the setting in which it is discovered. This was exemplified further by the Judicial Committee by observing Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence., the fact discovered is very relevant. If however to the statement the words be added with which I stabbed A', these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant. If we may respectfully say so, this case clearly brings out what part of the statement is admissible under a. 27. It is only that part which distinctly relates to the discovery which is admissible; but if any part of the statement distinctly relates to the discovery it will be admissible wholly and the court cannot say that it will excise one part of the statement because it is of a confessional nature. Section 27 makes that part of the statement which is distinctly related to the discovery admissible as a whole, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the evidence. The next question is what order should be passed in a case like the present. The High Court also considered this aspect of the matter. Two contingencies arise in such a case. In the first place there may be an acquittal by the trial court. In such a case if the High Court is justified, on principles we have enunciated above, to interfere with the order of acquittal in revision, the only course open to it is to set aside the acquittal and send the case back to the trial court !or retrial. But there may be another type of case, namely, where the trial court has convicted the accused while the appeal court has acquitted him. In such a case if the conclusion of the High Court is that the order of the appeal court must be set aside, the question is whether the appeal court should be ordered to re-hear the appeal after admitting the statement it had ruled out or whether there should K necessarily be a retrial. So far asthis is concerned, we are of opinion that it in open to the High Court to take either of the two courses. It may order a retrial or it may order the appeal court to re-hear the appeal. It will depend upon the facts of each case whether the High Court w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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