Law: Criminal Procedure Code (V of 1898)

Section: 439

Criminal Procedure Code (V of 1898), S. 439--Acquit tal by appellate Court-Evidence not judicially examined and appreciated-Failure of justice-High Court will interfere in revision even on question of fact.  The High Court has power to interfere in revision with an appellate order of acquittal even upon questions of fact and, though that power should be sparingly exercised, it would be wrong to refuse to exercise it in cases where there has been a failure of justice. by reason of the Appellate Court not having brought a judicial mind to bear' upon the evidence.   Criminal Revision 108 of 1949 (Dacca) and Satish Chandra Das v. Chintaharan Saha and another 43 C W N 25 rel.   Criminal trial-Appellate Court-Final Court of fact -Duty towards evidence led by the parties.  JUDGMENT   CHAKRABURTI, J.-The three accused opposite pasties in this case, Afiruddin, Rahmatullah and Manohar Khan, were convicted on 29th June 1956, by a Magistrate, accused AfiKud din and Rahmatullah under section 448, P. P. C., and accused Manohar Khan wader sections 448/109, P. P. C., and sentenced to pay a fine of Rs. 100 each, in default to rigorous imprison ment for two months each, The conviction and sentences were set aside on appeal. It is against that appellate order of acquittal that this rule is directed.   The petitioner with some other persons is living in the disputed house for a long time. The accused Manohar Khan is a recent purchaser of this house. The purchase was made in the name of his wife in the year 1358 B. S. The petitioner before this Court along with other co-tenants were paying rent to them. Manohar Khan was in khas possession of one room of the first floor: The petitioner along with six other tenants are in possession of the ground floor. There are 8 rooms in the ground floor and the 7 tenants occupied the 7 rooms and one room was used .as a kitchen by all the 7 tenants. The petitioner and the other co-tenants are dealers in ghee and it is said that they usually go about for selling ghee in the town and return to the house for their meals at noon. The prosecution case is that-on 31st March 1954, the two accused Afiruddin and…