Judgment K.Sahai, J. 1. The accused, Mahendra Pratap Singh is member of the Bai practising at Gaya One of the victims Sarju Singh (P. W 13) is a cultivator of village Chaugaon in Gaya District The deceased Kuldip Singh, was also a resident of village Chau gaon, and there is nothing to show that he occupied any position other than that of a cultivator 2. Admittedly there was enmity between the deceased and the accused Though the case of the accused is that there were litigations between his sister on one side and the deceased on the other. it is clear that the accused was interested on the side of his sister This has not been disputed before me. I may add that it is admitted that the party of the accused was successful in the litigations 3. There was a cast under Sec.107 of the Code of Criminal Procedure against the deceased al Nawadah. At the instance of the accused, a notice was issued to deceased Kuldip Singh to show cause why he should not be ordered to furnish interim bail under Sec.117(3) of the Code of Criminal Procedure The date fixed for showing cause was the 18th December. 1961 The prosecution case is that Kuldip started with Sarju Singh (P W 18) and Mosafir Singh (P W 12) from his village it about 5 a.m. At about 7.30 a.m. they reached near an orchard in village Gajra Chatar Accused Mahendra Pratap Singh and an unknown man were sitting outside the orchard and they Followed the deceased and the two witness wvhen they entered the orchard After proceeding a short distance Mahendra Pratap Singh shot Kuldip from behind with a fire-arm described as a revolver Mosafir fied but Sarjii attempted to grapple with Mahendra whereupon the accused shot him also. He received the injury at the back of the right knee joint Thereafter the accused and his companion fled away. Although Kuldip and Sarju foil down on receiving their injuries, they remained conscious They got up and went to a Thakurban in Gajra Chatar which was close by They halted on the way to the Thakurbari for a short time in a paddy field. There they met Bafo (P. W. 15) and Nagesh war Rajwar (P. W. 14) whom they told about the occurrence and also gave the name of the accused as their assailant. 4. There they met Bafo (P. W. 15) and Nagesh war Rajwar (P. W. 14) whom they told about the occurrence and also gave the name of the accused as their assailant. 4. The prosecution case further is that Mahanth Ramsaran Das (P. VV. 2) and Mundrika Singh (P W. 1) met them at (he Thakurban and they gave these witnesses their version of the occurrence and the name of their assailant Mosafii (P.W. 12) also came to the Thakurbari and joined Kuldip and Sarju there. The Mahanth arranged for bear ers who took Kuldip to the hospital at Hasua At the instance oi the doctor the Sub Inspector of Hasua Police Station came to the hospital and recorded the fard-beyan (exhibit 7) on the statement of Kuldip. The Sub Inspector requested the Anchal Adhikari (P. W. 6) of Narhal Block to record the dying declaration of Kuldip and accordingly the Anchal Adhikari recorded it at 11 a.m. This dying declaration is exhibit 5 As the condition of Kuldip was serious, he was moved to Nawadah hospital where Sri D.C. Chatterjee (P W 7) a Deputy Magistrate recorded another dying declare Hon on the statement of Kuldip at 1.40 p.m. This is exhibit 5/1. Kuldip died in the Nawadah hospital at 2.45 p.m. The Sub Inspector (P W. 16) of Hasua Police Station investigated the case. 5. The defence case is that the accused has been Falsely named as the assailant due to enmity. 6. The learned Additional Sessions judge of Gaya, who cried the accused acquitted him. Sarju (P. W 13) has filed this application for revision in this Court The Government has not filed any appeal. 7. It is well settled that the High Court has power to interfere with acquittal on an application by a private party but this power is exercised with great reluctance The High Court does not exercise this power merely when a view different from that of the trying Judge can be taken by another person As the Supreme Court has said in D. Stephens V/s. Nosibolla, AIR 1951 SC 196 the power can "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 has been reiterated in Harihar Cha kravarty v State of West Bengal. AIR 1954 SC 266 8. AIR 1954 SC 266 8. It has also been stated in the earlier cast and has been reaffirmed in the later case that the jurisdiction of the High Court to interfere with acquittal at the instance of a private party is not "used merely because the lower court has taken a wrong view of the law or unappreciated the evidence on record " 9. Certain circumstances have been laid down in K. Chinnaswamy Reddy V/s. State of Andhra Pradesh, AIR 1962 SC 1788 in which the High Court can interfere in such cases Their Lord ships have, however, said that "it is not possible to lay down the criteria for determining such exceptional cases which would cover all contingencies" 10. The legal position clearly, therefore, is that the High Court must not interfere in revision against acquittal at the instance of a private party unless it considers that it is necessary to do so in the interests of public justice and in order to prevent a gross miscarriage of justice As the Government has not filed an appeal it is not possible for me to consider the entire evidence and to decide whether it is a fit case in which the acquittal of the accused should be converted into conviction. The only order which I can pass in exercise of my powers in revision is to order retrial It must be with great reluctance that this Court can take the step of passing an order of retrial Whenever this court feels that the interests of justice undoubtedly require that retrial should be ordered, it will have to be careful not to say anything in the judgment which can be described as the dice being loaded against the accused 11. Keeping the above principles in view, I proceed to consider what order ought to be passed in this case 12. Keeping the above principles in view, I proceed to consider what order ought to be passed in this case 12. Mr Ramananda Sinha has argued that the point upon which the learned Judge has really based his judgment of acquittal is that according to the Arms Expert (P. W 17), it was with a shot gun and not with a revolver that Kuldip and Sarju were shot but Kuldip has said in his fard-beyan (exhibit 7) and dying declaration (exhibits 5 and 5/1) and Sarju Singh has said in his evidence that they were both shot with a rcvolvei Learned counsel has further argued that, after disbelieving the dying declaration on the basis of this point, the learned Judge has proceeded to take into consideration very small points, some of which are based upon errors of record and some oa an erroneous view of the law. It seems to me that there is substance in this argument. It really seems that the learned Judge has convinced him self by reason of the fact that Kuldip and Sarju have stated that they were shot with a revolver while the Arms Expert says that they were shot with a shot gun that the case was not true. He has thereafter recapitulated arguments for the de fence instead of writing a well-balanced judgment. 13. Kuldip Singh has described in the fard beyan (exhibit 7) as well as in the dying declarations (exhibits 5 and 5/1) the fire arm with which he was shot as a revolver Mosafir (P. W. 12) and Sarju (P W 13) have also described the weapon as a revolver Mosafir has been asked in cross-examination and he has said that he had never before seen a revolver in his life It is seldom that a villager sees a revolver. I do not think that, if the weapon used is a small country made shot gun. a villager can know the difference between that weapon and a revolver. The Fire Arms Expert (P W 17) has said that the shots with which Kuldip and Sarju were injured could not be Bred with a revolver but they could be fired with a factory-made or a country-made gun. a villager can know the difference between that weapon and a revolver. The Fire Arms Expert (P W 17) has said that the shots with which Kuldip and Sarju were injured could not be Bred with a revolver but they could be fired with a factory-made or a country-made gun. He has further said that the minimum length of a factory made gun barrel is 28" whereas the length of a country made shot gun may vary from 6" to 1 cubit He has added, however, in cross examination that "a country made gun of 12 Bore which might have been used in case of Kuldip is about 1 1/2 cubits long" In this statement, all that he does is merely not to exclude the possibility of a 1 1/2 cubits long barrel having been used by the accused. It amounts, therefore, to this that the barrel of a country made gun can vary from 6" to 1 1/2 cubits There is no evidence to show that the weapon used had a long barrel The only evidence is that of Mosafir and Sarju and the statements of Kuldip in the fard-beyan and the dying declarations that a revolver was used As it is possible that the gun which was used was a country made gun with a short barrel which could not be differentiated by the villagers from a revolver. I do not think that this difference between a revolver and a shot gun should have led the learned fudge to come to the conclusion that the evidence of the witnesses and the statements made in the fard-beyan and the dying declarations were false He could, of course, disbelieve them on other points As is well-established, a criminal case ought to be decided on a broad view of the evidence and a consideration of the salient features of the case. 14. The learned fudge has said in paragraph 8 of his judgment: The dying declarations having been corroborated by the evidence of two witnesses (P Ws. 12 and 13) and further by the fact that the assailant was named at the earliest opportunity in P. Ws. 14 and 15 the prosecution case can he taken to have been proved beyond all reasonable doubts. 12 and 13) and further by the fact that the assailant was named at the earliest opportunity in P. Ws. 14 and 15 the prosecution case can he taken to have been proved beyond all reasonable doubts. The argument seems to be formidable at the first sight but the contention has still to be scrutinised in order to find out as to whether it can be accepted in toto" He has then considered the difference between a revolver and a shot gun in paragraphs 9 and 10 of the judgment and has said that a doubt is cast upon the intrinsic worth of the dying declarations when the evidence belies the use of a revolver and that the doubt cannot be dispelled by a mere argument that Sarju might have mistaken a country made gun for a revolver. 15 Another reason considered by the learned Judge is that, as Kuldip was shot from behind, he could not have seen the assailant and the weapon used and hence the mention of a revolver and the name of the accused as assailant in the fard-beyan and dying declarations was hearsay. It is impossible to think that, simply because Kuldip was shot from behind, he did not know who had shot him nor did he know the weapon with which he was shot. When Mahendra Pratap Singh and his companion started going behind him and his party, he could have easily seen Mahendra He remained conscious after being shot He could have also seen Mahendra using his weapon to shoot Sarju just after shooting him It was not necessary, therefore, for him to be told by others about who was hJs assailant and what weapon he had used 16. An argument which the learned Judge has accepted and which has been advanced in the Court also is that, if Kuldip had seen Mahendra Pratap Singh with a revolver, he could have immediately become cautious and taken steps to prevent Mahendra from using the revolver There is, however, no evidence to show that Kuldip saw the revolver when Mahendra started going some steps behind him and his party. Sarju (P W 13) has actually said that he did not see any weapon when he first saw Mahendra. Much has been made out of the statement in the fard-bevan of Kuldip to the effect that Mahendra had a revolver in his hand. Sarju (P W 13) has actually said that he did not see any weapon when he first saw Mahendra. Much has been made out of the statement in the fard-bevan of Kuldip to the effect that Mahendra had a revolver in his hand. If it is true that he had already been shot by Mahendra with a revolver and he had already seen Sarju being shot with a revolver by Mahendra, he could certainly state in the fard beyan that Mahendra was armed with a revolver. This does not show that he saw Mahendra armed with a revolver when he first saw him The entire argument that he should have become cautions therefore, falls to the ground. 17. It appears that there was a charring mark round the injury of Sarju (P W 13) but there was no charring mark on or about the injury of Kuldip. It only shows that Kuldip was shot from a slightly longer distance than Sarju P W 17 has said that, in the case of a country-made gun, charring would be caused from a distance of 1 foot. He has further said that he did not think that there would be marks of burning when the shooting la done from a distance of 1 1/2 feet. That being so, the fact that there was no mark of charring found at or about the injury of Kuldip merely shows that he might have been shot from a distance of 1 1/2 feet or more. The learned fudge has also commented upon the absence of tattooing marks at of about the injury of Kuldip The firearms expert (P. W. 17) has said that tattooing marks would be caused if a shot is fired from a distance of about 4 or 5 feet, and the evidence shows that Mahendra was at a distance of about two steps when he fired the shot at Kuldip It is difficult to expect evidence to be very accurate about distance It may well have been a distance of three steps, and in that ease there would be no tattooing mark It seems to me that these are very minor points, and the learned Judge should not have given them the importance which he has done. 18. 18. One point taken by the learned Judge against the dying declarations is that there is evidence that there were attendants at the time when the dying declarations were recorded, and the theory that Mosafir or some other attendant put the name of the accused as the assailant in the mind of Kuldip could not he excluded It appear from the evidence of P. W. 3, who recorded the dying declaration (exhibit 5). that he does not remember if any attendant of Kuldip was with him at the time when exhibit 5 was recorded P W 7, who recorded exhibit 5(1), has not been cross-examined at all. The learned Judge has. therefore, committed an error of record in saying that there is evidence that there were attendants. 19. Another comment which the learned Judge has made is that the injury on the back of the knee could not have been caused to Sarju if the shot was fired when he was looking in the direction staled by him When two person are grapphing with each other, they are not stationary; they keep moving There can be no doubt that Kuldip and Sarju were injured by shots fired at them Sarju had nothing to said by giving a wrong description of the situation in which he and his assailant were at the time of shooting if he has given a wrong description ii must be due to a faulty memory. 20. It is certainly true that Kuldip, Sarju and Mosafir could falsely implicate the accused on account of enmity It was, therefore, necessary for the learned Judge to scrutinise their evidence cautiously and to decide whether they were reliable or not Instead of that he seems to have discarded their evidence on very unimportant points For instance he has discarded the evidence of Sarju because he did not point out to the investigating officer the place at a distance of 100 or 150 vards from the orchard where he first saw the accused sitting. The only other two points are those which I have already dealt with viz. difference between a revolver and a shot gun and the misdescription about the situation in which he and the accused were at the time of shooting These are hardly points on which the evidence of an eyewitness can he discarded. 21. The only other two points are those which I have already dealt with viz. difference between a revolver and a shot gun and the misdescription about the situation in which he and the accused were at the time of shooting These are hardly points on which the evidence of an eyewitness can he discarded. 21. Mosafirs evidence has been discarded firstly, because of the difference between a revolver and a shot gun and. secondly, because he did not run to the police station and did not run to help the injured persons He has also relied upon the defence witnesses in order to hold that Mosafir did not come and join the injured persons at the thakubari I shall presently deal with the defence witnesses As to why he did not run to the police station or why he did not run to the help of the injured persons depends entirely upon the tamperament and presence of mind of a person as to how he could react in a moment of danger As I have said in the case of Sarju, the learned Judge ought to have considered the intrinsic merit of the evidence or Mosafir, taking into consideration really important circumstances and probabilities. That he does not appeal in have done. 22. Nageshwar (P. VV 4) has stated that the injured persons told him about the occurrence and also save him the name of the accused as the assailant He has further stated that he saw two persons fleeing away. Bajo (P. W. 15) has been tendered. The investigating officer has said that Bajo told him that he could identify the person fleeing away, it that person was shown to him. Instead of taking into consideration the merit of the evidence of Nageshwar, the learned Judge has made a great point of the fact that, though Bajo claimed to have Identified the person fleeing away, * neither P W 14 nor P. W. 15 identified the accused at a test identification parade. Instead of taking into consideration the merit of the evidence of Nageshwar, the learned Judge has made a great point of the fact that, though Bajo claimed to have Identified the person fleeing away, * neither P W 14 nor P. W. 15 identified the accused at a test identification parade. There seems to be hardly any point in this, because Nageshwar does not claim, nor is there anything in the cross-examination of Bajo to show, that they saw the face, or knew the names, of the two persons whom they saw fleeing away The only other point which the learned Judge has mentioned in his judgment is that they "prevaricated and their evidence is not trustworthy" The learned Judge could easily have shown what he meant if he had discussed their evidence properly. Without taking the merits of the evidence and other substantial points into consideration, he should not have discarded their evidence. He should have considered whether they were independent witnesses, whether they were examined by the investigating officer without much delay, and whether there was any other circumstance which might lead him to believe or disbelieve Nageshwars evidence. He has made in error in saying that "there is, therefore, no evidence of the fact that the accused was named as assailant before the dying declaration was recorded, because the evidence of P W 15 if believed, is there. 23. Mundrika (P. W. 1) and Ramasuran Das (P W 2) have stated in their evidence in the Sessions Court that they did not hear the injured naming the assailant before them. It has, how ever, been brought out by the prosecution from the evidence of the investigating officer (P W 18) that both these witnesses told him that both the injured persons gave the name of the accused as the man who fired shots at them. The learned Judge has rightly said that their statements before the police cannot be treated as substantive evidence in the case. They must be treated to be unreliable witnesses, and their evidence in Court also cannot be accepted. 24. The learned Judge has rightly said that their statements before the police cannot be treated as substantive evidence in the case. They must be treated to be unreliable witnesses, and their evidence in Court also cannot be accepted. 24. Basdeo Singh (D. W. 1) and Hari Shanker (D. W. 2) have stated that the Injured persons said at the thakurbari that they had been injured by some unknown persons who had stolen their money It appears that the investigating officer (P W 16) examined them on the very date of occurrence The learned Judge has himself satd, however, that no importance could be attached to the statements of these witnesses; but he appears to have placed reliance upon them because "the prosecution did not dare to cross-examine those witnesses on the point as to whether the identical version was set up before the police when they were examined by the Sub Inspector which indicates mat it was put at the earliest opportunity before the police". In making this observation, he clearly committed an error of law. Under Sec.162 of the Code of Criminal Procedure, the prosecution can cross-examine prosecution witnesses and not defence witnesses as to their statements before the police Merely because of this error, the learned Judge has arrived at the conclusion that the identical version put forward by these witnesses in the Court was given by them before the police. This assumption, based as it is, upon an error of law cannot stand. It appears to have influenced him a great deal in accepting the evidence of P. Ws 1 and 2 He has, undoubtedly, stated that there is nothing in the cross-examination of these witnesses to indicate that they are lying; but this is not based upon any discussion of their evidence, and appears to be merely due to the fact that the prosecution did not cross-examine them as to their statements before the police. 25. 25. P W 11 is a bench-clerk He has stated thai the accused was present on behalf of the First party but did not turn up when the case was called at about 2.30 p.m The has also stated that the accused asked him before tiffin when his case would be called out This has been pointed on to me by the learned Advocate for the Licensed as the only basis for the statement of the learned Judge that the accused was at Nawadah up to 2 p.m The learned Judge should have considered the evidence more carefully before coming to such a conclusion. Some medical certificates, which have not been put in evidence, have been relied upon by the learned Judge for saying that the accused was lying ill at Patna. This should not have been done. 26. Lastly, the learned Judge has considered it improbable for the accused to have fired the shots when he and his sister were successful in their litigations against Kuldip and others before hand. This may have been so, and, on the other hand, it may be that the accused wished to eliminate a person who was troubling him with unneces sary litigations. The saying that enmity cuts both ways is perfectly true, and I do not think that the learned Judge should have speculated as to whether the accused was more likely to have shot the deceased and Sarju on the two injured persons were more likely to have falsely Implicated the accused. 27. I have considered almost all the circumstances and points raised by the learned Judge As I have not discussed the evidence, it is impossible for me to say whether the accused is guilty or not. My conclusion, however, is that the learned Judge has not discussed and weighed the evidence fairly. 27. I have considered almost all the circumstances and points raised by the learned Judge As I have not discussed the evidence, it is impossible for me to say whether the accused is guilty or not. My conclusion, however, is that the learned Judge has not discussed and weighed the evidence fairly. The main plank of his conclusion is the difference between a revolver and a shot gun, and that, in my opinion, could not form the basis for rejection of the entire prosecution evidence As I have repeatedly said, the learned Judge should have taken into consideration the intrinsic worth of the prosecution evidence and the defence evidence, and, in doing so, he could have used important points including substantial and material contradictions as well as strong probabilities I a m, therefore, of the view that me interests of public justice require that there should be a proper evaluation of the evidence against the accused. If the judgment in question Is allowed to stand. I feel that there will be a miscarriage of justice. 28. In the circumstances mentioned above, I allow the application, and set aside the judgment passed by the learned trying Judge. I direct that the accused should now be retried by a Court of competent jurisdiction. Nothing which I have said in this judgment should be construed by the Judge who holds the next trial as my opinion about the reliability or unreliability of the evidence adduced in the case.