Rajmangal Singh v. Ramnath Singh — 1967 DIGILAW 74 (PAT)

Judgment G.N.PRASAD, J. 1. The petitioner, Rajmangal Singh, is the private complainant of a case instituted upon a police report and tried by the VIth Assistant Sessions Judge of Chapra, holding his Circuit Court at Siwan, on a charge framed against the opposite party, who are five in number, under S. 804 read with S. 34 of the Penal Code. The trial having ended in the acquittal of the accused persons, the petitioner has invoked the revisional jurisdiction of this Court. 2. The alleged occurrence, in course of which Rajballam Singh, a brother of the petitioner, lost his life, took place in the afternoon of the 3rd July, 1965 in a Makai field situated in village Mirjapur adjacent to village Narhan, at a distance of about two miles from Raghunathpur police station. The prosecution case was that on the afternoon in question, the members of the prosecution party, namely, the deceased Rajballam Singh, his brother Rajmangal Singh (P. W. 9) and his son Bipin Bihari Singh (P. W. 4) were engaged in sowing Makai seedlings in the field in question with the assistance of Bhagrasan Gonrh (P. W. 10) and one Sriram Chamar. All of a sudden, the accused persons came from the western side carrying lathis and bhalas and fell upon Rajballam. Accused Ramnath (Opposite Party No. 1), who was armed with a bhala, attempted to strike a blow on the stomach of Rajballam but the weapon struck his left elbow and Rajballam fell down on the ground, Thereupon Dinanath (Opposite Party No. 2) aimed a bhala blow at the neck, but the weapon hit the left hand of Rajballam. This was followed by a Bhala blow on the hip by Prabhunath (Opposite Party No. 3) and a bhala blow on the right leg by Ramji (Opposite Party No. 4); and finally lathi blows by Ballam (Opposite Party No. 5) and the other accused persons. The cries of the victim drew the attention of Rambilas Singh (P. W. 1), Jagdish Singh. (P. W. 3) and Gaya Singh (not examined) who were working in their respective fields nearabout. They all rushed to the place of occurrence, but before they could reach, the accused persons fled away towards the south. After their flight, several other villagers came to the spot. (P. W. 3) and Gaya Singh (not examined) who were working in their respective fields nearabout. They all rushed to the place of occurrence, but before they could reach, the accused persons fled away towards the south. After their flight, several other villagers came to the spot. Among them were Swaminath Singh (P. W. 2), Ramjanam Singh (P. W. 7) and Nageshwar Singh (P. W. 8), and they all learnt what had happened. 3. After the occurrence, Rajballam was removed in an unconscious condition to the State Dispensary at Raghunathpur, where first aid was rendered to him by the Medical Officer (P. W. 13), but Rajballam succumbed to his injuries in the Dispensary at about 4 p. m., on the same afternoon. At 4.15 p. m., on the same afternoon, the first information report was lodged by the petitioner (P. W. 9) before the Assistant Sub. Inspector Mankeshwar Prasad Verma (P. W. 11). The latter instituted a case against the Opposite Party under S. 302 read with S. 148, Penal Code and proceeded with his investigation. The dead body of Rajballam was forwarded to Siwan Hospital, where the autopsy was performed by the Civil Assistant Surgeon, Dr. Surya Narain Misra (P. W. 4 before the committing Magistrate). The doctor found as many as sixteen injuries on the different parts of the dead body as follows ; 1.Incised punctured wound 1/2" x 1/8" x 1" on the back of the left elbo. 2.Incised punctured wound 1/8" x 1/16" x 3/4" on the back of left forearm 3" below left elbow. 3.Diffused swelling 3" x 1" on outer aspect of left forearm 2" below elbow. 4.Bruise 4" x 3" in the middle of the outer aspect of left forearm, 5.Deformity in left elbow region. 6.Lacerated wound 1" x 1" x skin deep on left gluteal region of the buttock 8" below the left iliac crest. 7.Bruise with parallel lines at intervening space 8" x 1" on left gluteal region between injury No. 6 and iliac crest. 8.Swelling of the outer aspect of left thigh with marks of bruises with parallel lines at intervening space of the size 21/2" to 3" x 1" each. 9.Diffused swelling on outer aspect of left knee with four bruise marks of the size 2" x 3/4" each. 8.Swelling of the outer aspect of left thigh with marks of bruises with parallel lines at intervening space of the size 21/2" to 3" x 1" each. 9.Diffused swelling on outer aspect of left knee with four bruise marks of the size 2" x 3/4" each. 10.Diffused swelling on outer aspect of whole of left leg with ten marks of bruises of the size 21/2" to 3" x 1". 11.Swelling and deformity of left ankle wish crepitus and abnormal movements. 12.Punctured wound with incised margin 1/8" x 1/16" x 1/2" on outer aspect of left leg 3" above ankle. 13.Punctured wound with incised margin -" x 1/2" x 11/4" on medial aspect of right leg 3" above ankle medial malleulus. 14.Incised wound 1/2" x 1/4" x -" skin deep on the neck of left ear; 15.Bruise 8" x 1" on left side back running obliquely between posterior wall of left exilia and spine, and, 16. Bruise 4" x 1" on left side of chest wall in posterior axilliary line 6" above the left iliac crest. On dissection of injury No. 5, a lot of blood clot was found in the muscles and elbow joint with dislocation of radius interiorly and fracture of radius and ulna in upper part. Injury Nos. 1 and 3 were connected with it. On dissection of injury No. 11 also, a lot of blood clot was found in the muscles associated with comminuted fracture of lower end of fibula and fracture of lower end tibia medial malleulus. Extensive blood clot under the skin was also found in the left thigh and leg as well as lacerations of the muscles in the lower part. Injury No. 13 was deep to the muscles, but the bone was intact. Blood clot was also found underneath the skin and at the site of the other injuries. All the injuries were ante-mortem. Injury Nos. 1, 2, 12, 13 and 14 were caused by sharp pointed weapon like bhala, and the rest by hard blunt substance like lathi. Injuries Nos. 5 and 11 were grievous and the rest simple. 4. The opinion of the doctor was taken in his examination-in-chief before the committing Magistrate as follows : "In my opinion death in this case was caused by shock and haemorrhage on account of the injuries stated above. The person was also suffering from chronic suppurative disease of right lung and spleen. 4. The opinion of the doctor was taken in his examination-in-chief before the committing Magistrate as follows : "In my opinion death in this case was caused by shock and haemorrhage on account of the injuries stated above. The person was also suffering from chronic suppurative disease of right lung and spleen. All the injuries taken together were sufficient to cause the death of that man." In cross-examination, the doctor stated : None of the injuries is on a vital part of body. No particular injury was responsible for haemorrhage. Had the man not suffering from lung and spleen disease, there could have been a possibility of his survival. But for the disease above referred to, injuries were not sufficient to cause the death of the man." 5. In due course, the police submitted charge-sheet in the case under S. 302 read with S. 34 of the Penal Code. But the committing Magistrate committed the accused persons for trial on a charge under S. 304 read with S. 34, Penal Code. 6. On 14-12-1965, the learned Sessions Judge transferred the case to the Assistant Sessions Judge for trial. On 3-1-1966, the Assistant Sessions Judge fixed 31-1-1966 to 4-2-1966 for the trial of the case at Siwan. Two days before the date fixed for the commencement of the trial, namely, on 29-1-1966, the petitioner filed a petition before the Sessions Judge for recalling the trial from the file of the Assistant Sessions Judge on the ground that the case was really one under S. 302/34, and not under S. 304/34 of the Penal Code, and as such the Assistant Sessions Judge was not competent to try it. The learned Sessions Judge rejected the petition, but made an observation that it would be for the Assistant Sessions Judge to look into the matter before proceeding with the trial. Thereupon, on 31-1.1966, when the trial was to begin, the Assistant Public Prosecutor filed a petition before the Assistant Sessions Judge to frame charges against the accused persons under S. 302 read with S. 34 of the Penal Code. The learned Assistant Judge heard both the parties at great length and passed a fairly long order holding that it was a case of culpable homicide not amounting to murder within the purview of S. 304, and not a case of murder within the purview of S. 302, Penal Code. The learned Assistant Judge heard both the parties at great length and passed a fairly long order holding that it was a case of culpable homicide not amounting to murder within the purview of S. 304, and not a case of murder within the purview of S. 302, Penal Code. Accordingly, the learned Assistant Sessions Judge decided to proceed with the trial on the charge as framed by the committing Magistrate. Thereupon, the Assistant Public Prosecutor applied for one days time, which was granted. 7. On 1-2-1966, when the trial was about to begin, the petitioner, Rajmangal Singh, filed a petition before the trial Court stating that he intended to move the superior Court against its order D/- 31-1-1966, and asking for stay of the further hearing of the case. The Assistant Public Prosecutor did not join in this move and was on the contrary ready with his witnesses to proceed with the case. The learned Assistant Sessions Judge observed that it was a State case and the Assistant Public Prosecutor was incharge to conduct it, and as such a private lawyer appearing on behalf of the private complainant could not be heard unless and until he was permitted by the Assistant Public Prosecutor. Accordingly, the learned Judge rejected the petition for stay and proceeded with the examination of the prosecution witnesses. The petitioner however, filed a petition before the learned Sessions Judge for transfer of the case, but the learned Sessions Judge summarily rejected the prayer by his order dated the 3rd February 1966. The trial, accordingly, proceeded on a charge under S. 304/34, Penal Code, and ultimately the accused persons were acquitted by the impugned order of the learned Assistant Sessions Judge dated the 21st February, 1966. 8. When the application was taken up for hearing in this Court, learned counsel for the opposite party challenged the locus standi of the petitioner to move this Court against the order of acquittal recorded by the trial Court in favour of the accused persons. She relied upon the decision of the Supreme Court in Thakur Ram V/s. State of Bihar, AIR 1966 SC 911 where Mudholkar, J. made the following observation: "In a case which has proceeded on a police report a private party has really no locus standi. She relied upon the decision of the Supreme Court in Thakur Ram V/s. State of Bihar, AIR 1966 SC 911 where Mudholkar, J. made the following observation: "In a case which has proceeded on a police report a private party has really no locus standi. No doubt, the terms of S. 435 under which the jurisdiction of the learned Sessions Judge was invoked are very wide and be could even have taken up the matter suo motu. It would, however, not be irrelevant to bear in mind the fact that the Courts jurisdiction was invoked by a private party. The criminal law is not to be used as an instrument of wrecking private vengeance by an aggrieved party against the person who according to that party, had caused injury to it. Barring a few exceptions, in criminal matters the party who is treated as the aggrieved party is the State which is the custodian of the social interests of the community at large and so it is for the State to take all the steps necessary for bringing the person who has acted against the social interests of the community to book." In reply, learned counsel for the petitioner relied upon an earlier decision of the Supreme Court in K. Chinnaswamy Reddy V/s. State of Andhra Pradesh, AIR 1962 SC 1788 and urged that the present was a case of an exceptional nature justifying the exercise of the revisional powers of this Court because there had been a flagrant failure of justice by reason of the trial having been held by a Court which had no jurisdiction to try it. Learned counsel for the petitioner contended that it was a case of an out and out murder, and as such only the Sessions Judge or the Additional Sessions Judge was competent to try it. 9. In my opinion, it is unnecessary to discuss the limits upon the role of the private complainant in relation to a police case, that is to say, a case instituted upon a police report. Suffice it to say that in a case of murder, it is the duty of the private complainant to give information of the occurrence to the police and to assist the police in its investigation. But he is not entitled to take up the conduct of the case in Court. For that the duty and responsibility is of the State. Suffice it to say that in a case of murder, it is the duty of the private complainant to give information of the occurrence to the police and to assist the police in its investigation. But he is not entitled to take up the conduct of the case in Court. For that the duty and responsibility is of the State. It is for the State to take the necessary steps for bringing the offender to book. That is why the law provides that in proper cases it is the duty of the State to prefer an appeal in a case where it feels that an order of acquittal is unjustified or has resulted in failure of justice. Under the Code of Criminal Procedure, the conduct of such a case in Court is the responsibility of the Public Prosecutor. The private complainant has nothing to do with the conduct of such a case. Therefore, the petitioner (P. W. 9) in this case was not entitled to insist that the case should have been tried as a murder case, and not as a case of manslaughter or culpable homicide not amounting to murder. Even after the acquittal of the accused persons, the petitioner cannot insist that the case should have been tried as a murder case either by the Sessions Judge or by the Additional Sessions Judge. The trial of a murder case by an Assistant Sessions Judge is, no doubt, without jurisdiction; but if this has happened, then the agency which must move in the matter is the State, and not the private complainant. At the same time it is clear that if it is brought to the notice of this Court, either by the private complainant or in any other manner, that a case of murder has been tried by an Assistant Sessions Judge, then this Court will not decline to interfere merely on the ground that it has been moved by the private complainant. The reason is that the functions of this Court in relation to the records of an inferior criminal Court and its powers of interference in appropriate cases are not dependent upon the role of the private complainant. Therefore, it is necessary to determine whether the instant case is a case of murder which the Assistant Sessions Judge had absolutely no jurisdiction to try. 10. Therefore, it is necessary to determine whether the instant case is a case of murder which the Assistant Sessions Judge had absolutely no jurisdiction to try. 10. The contention of the learned counsel for the petitioner is that the offence disclosed in this case was an offence falling within the third clause of S. 300, Penal Code. I, therefore, proceed to consider whether this contention is well founded. 11. The scope and content of the third clause of S. 300 is not in doubt. This clause consists of two parts. Under the first part, it must be proved that there was an intention to inflict the injury that is found to be present, and under the second part, it must be proved that the injury was sufficient in the ordinary course of nature to cause death. In Virsa Singh V/s. State of Punjab, 1958 SCR 1495 : ( AIR 1958 SC 465 ) this clause was elaborately explained by Vivian Bose J., and it was held that to bring a case under S. 300 thirdly, four elements must be established; (i) it must be established that a bodily injury is present, (ii) the nature of the injury must be proved, (iii) it must be proved that there was an intention to inflict that particular injury, that is to say, it was not accidental or un-intentional, and (iv) it must be proved that the injury that was inflicted and intended to be inflicted was sufficient to cause death in the ordinary course of nature. With regard to the fourth element mentioned above, the inquiry has to be purely objective and inferential and has nothing to do with the intention of the offender. In order to determine whether the injury inflicted and intended to be inflicted was sufficient to cause death in the ordinary course of nature or not, it is a matter of inference or deduction from the proved facts about the nature of the injury. In other words, the Court must consider the medical evidence and form its opinion from the nature of the injuries found to have been inflicted upon the deceased whether they were of such a nature as to be sufficient to cause death in the ordinary course of nature. In other words, the Court must consider the medical evidence and form its opinion from the nature of the injuries found to have been inflicted upon the deceased whether they were of such a nature as to be sufficient to cause death in the ordinary course of nature. If the Court is in a position to record an affirmative finding to this effect, then it must held that it was a case of murder falling under S. 300 thirdly. In arriving at its finding on this point, the Court can take assistance from the opinion as to the cause of death given by the medical officer who has conducted the post-mortem examination, but that opinion is not conclusive or binding upon the Court. The Court has to form its own independent judgment upon an examination of the nature of the injuries inflicted and intended to be inflicted that they were sufficient to cause death in the ordinary course of nature. See Brij Bhukhan V/s. State of Uttar Pradesh, AIR 1957 SC 474 . There it was held that where the doctor does not say that any of the injuries was sufficient to cause death in the ordinary course of nature, it is open to the Court to look into the nature of the injuries and come to its own conclusion. 12. The scope and applicability of S. 300 thirdly was also indicated by Hidayatullah, J. in Anda V/s. The State of Rajasthan, AIR 1966 SC 148 . At p. 151 of the report, his Lordship observed : "The third clause views the matters from a general stand point. It speaks of an intention to cause bodily injury which is sufficient in the ordinary course of nature to cause death. The emphasis here is on the sufficiency of the injury in the ordinary course of nature to cause death. The sufficiency is the high probability of death in the ordinary way of nature and when this exists and death ensues and the causing of such injury is intended the offence is murder. Sometimes the nature of the weapon used, sometimes the part of the body on which the injury is caused, and sometimes both are relevant. The determinant factor is the intentional injury which must be sufficient to cause death in the ordinary course of nature. Sometimes the nature of the weapon used, sometimes the part of the body on which the injury is caused, and sometimes both are relevant. The determinant factor is the intentional injury which must be sufficient to cause death in the ordinary course of nature. If the intended injury cannot be said to be sufficient in the ordinary course of nature to cause death, that is to say, the probability of death is not so high, the offence does not fall within murder but within culpable homicide not amounting to murder or something less. The illustration appended to the clause 3rdly reads : (c) A intentionally gives Z a sword-cut or club-wound sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequence. Here A is guilty of murder although he may not have intended to cause Zs death. The sufficiency of an intentional injury to cause death in the ordinary way of nature is the gist of the clause irrespective of an intention to cause death." 13 In the light of these decisions, I proceed to consider the evidence of Dr. Surya Narain Misra recorded by the committing Magistrate, which was tendered at the trial under S. 509 (wrongly mentioned in the deposition as S. 288) of the Code of Criminal Procedure. I have already set out the medical evidence at length in paragraph 3 of this judgment. A scrutiny of these injuries shows that none of them had been inflicted on a vital part of the body. The injuries were, no doubt, numerous, but what is relevant is the nature, and not the number of the injuries. Only two of them, namely, Nos. 5 and 11 on the left elbow and on the left ankle respectively were grievous. Both of them were on non-vital parts of the body and were evidently not sufficient in the ordinary course of nature to cause death. The rest of the injuries were simple, though five of them were caused by sharp pointed weapon like bhala. Besides, the doctor has stated that no particular injury was responsible for haemorrhage. In other words, no individual injury was sufficient to cause death in the ordinary course of nature. The question, therefore, is whether death was the result of the cumulative effect of the various injuries. Besides, the doctor has stated that no particular injury was responsible for haemorrhage. In other words, no individual injury was sufficient to cause death in the ordinary course of nature. The question, therefore, is whether death was the result of the cumulative effect of the various injuries. That, no doubt, is the opinion of the doctor which I have set out in paragraph 4 of this judgment. But the evidence of the doctor discloses another significant fact, namely, that the victim was also suffering from chronic suppurative disease of right lung and spleen. Suppurative, as Dorland says in his medical dictionary at page 1331, is that producing pus or associating with suppuration or formation of pus. Evidently, therefore, the victim had already a fairly damaged right lung and spleen, which must have greatly impaired the power of resistance which a normal human being possesses. In other words, had the deceased possessed a normal lung and spleen, it was possible that he would have survived the various injuries which had been caused to him. That is why, the doctor also has stated that had the man not suffered from lung and spleen disease, there could have been a possibility of his survival. Evidently, it was on account of presence of the lung and spleen disease that the doctor also thought that the injuries which he had found on the dead body were sufficient to cause the death of the man; but such diseases of the lung and spleen are not expected in a normal human being and, therefore, it must follow that in the normal course, the injuries were not sufficient to cause death of a human being. Upon the materials on the record, therefore, the case cannot be brought within the second part of S. 300 thirdly. 14. Learned counsel for the petitioner, however, contended that the statements made by Mr. Misra in his cross-examination were inconsistent with what he said while stating his opinion in his examination-in-chief. In his examination-in chief the doctor had said that all the injuries taken together were sufficient to cause the death of that man; but before saying that, he had also indicated that the victim was suffering from chronic suppurative disease of right lung and spleen. In his examination-in chief the doctor had said that all the injuries taken together were sufficient to cause the death of that man; but before saying that, he had also indicated that the victim was suffering from chronic suppurative disease of right lung and spleen. It was, therefore, inevitable that he was questioned about his opinion in his cross-examination, and when his attention was drawn to the presence of the lung and spleen disease, the doctor clarified the position by saying in effect that on account of the lung and spleen disease, the injuries caused to him were sufficient to cause his death, meaning thereby that if he had not suffered from such disease, the injuries would not have been sufficient to cause his death. I do not, therefore, find any inconsistency in the two portions of the evidence of Dr. Misra. If the prosecution felt that the evidence of the doctor was inconsistent in any respect, then it should have taken steps to have the matter clarified by summoning and examining the doctor at the trial. But that was not done, evidently because the prosecution did not feel that the doctors evidence needed clarification on any point. 15. From the materials on the record, it is clear that on account of the lung and spleen disease with which the deceased was suffering from before, he was unable to survive the injuries although they had been caused only on non-vital parts of his body. Therefore, even if it were to be assumed that the injuries were not accidental but intentional, it cannot be held that they were sufficient to cause death in the ordinary course of nature so as to fall within the purview of S. 300 thirdly. 16. Learned counsel for the petitioner then contended that the present case was similar to Andas case, AIR 1966 SC 148 referred to above. That was a case where the victim had sustained more than thirty wounds and injuries. There were fractures of the right and left ulnas, second and third metacarpal bones of the right hand and second metacarpal bone of the left hand, compound fractures of the right tibia and right fibula, the tibia being fractured at two places and fracture of the left fibula. These fractures lay under large bruises and lacerated wounds. There were fractures of the right and left ulnas, second and third metacarpal bones of the right hand and second metacarpal bone of the left hand, compound fractures of the right tibia and right fibula, the tibia being fractured at two places and fracture of the left fibula. These fractures lay under large bruises and lacerated wounds. There were sixteen lacerated wounds on the arms and legs, besides there was a hematoma on the right forehead and a big bruise on the middle of chest. When the victim was admitted into hospital, he was bleeding profusely from his injuries and the right tibia which was fractured at two places was splintered and the broken ends were protruding. At the site of other injuries muscle tags were protruding out of the wounds. At the autopsy the lungs were pale and the heart empty which showed that enormous quantity of blood must have been lost. The medical opinion as to the cause of the death was that all the injuries collectively were sufficient to cause death in the ordinary course of nature although individually no injury was of that character. But it is manifest that the nature of the injuries in Andas case, AIR 1966 SC 148 was far more serious than in the present case. Here there was no injury on any vital part of the body, as in Andas case, AIR 1966 SC 148 . Besides, there is nothing to show that the victim in that case was suffering from lung and spleen disease, as in the present case. Therefore, it is impossible to place the present case in the same category as Andas case, AIR 1966 SC 148 . In that very case, it was pointed out at page 152 of the report that no case can be an authority on facts. Therefore, merely on the ground that Andas case AIR 1966 SC 148 was held to be a case of murder falling within S. 300 thirdly, I am unable to hold that the present case was of the same category. 17. Therefore, merely on the ground that Andas case AIR 1966 SC 148 was held to be a case of murder falling within S. 300 thirdly, I am unable to hold that the present case was of the same category. 17. Learned counsel for the petitioner then contended that since the lung and spleen disease of the victim was chronic, the villegers must have been aware that he was suffering from such disease, and if with such knowledge the accused persons inflicted multiple injuries on different parts of his body, then it must be held that they were actuated with the intention of causing his death. This argument cannot, however, bring the case within S. 300 thirdly. If there was an intention to cause death, then the offence would fall under S. 300 firstly or under S. 300 secondly. But there is nothing to indicate that there was any outward manifestation of the heart and lung disease from which Rajballam suffered. It was not that he was confined to bed or unable to pursue his normal avocations. Upon the prosecution case itself, he was engaged in the work of cultivation as a normal agriculturist. There is nothing on the record to show that he was under the treatment of any medical man or that he was ever seen bringing or taking any medicine. In other words, there was nothing to indicate that he was suffering from disease of the lung and spleen so that the villagers must have been aware that he was suffering from such disease. Had it been a case of intention to cause his death, then there would not have been a total absence of injury on any vital part of his body, in spite of the fact that bhalas had been used in inflicting several of the injuries. I am, therefore, unable to hold that it was a case falling within the first or the second clause of S. 300, Indian Penal Code. 18. From the foregoing discussions, it must follow that the case was rightly tried as one involving an offence of culpable homicide not amounting to murder. Therefore, the trial was not without jurisdiction. This Court, therefore, will not interfere merely because the trial has ended in acquittal. 19. 18. From the foregoing discussions, it must follow that the case was rightly tried as one involving an offence of culpable homicide not amounting to murder. Therefore, the trial was not without jurisdiction. This Court, therefore, will not interfere merely because the trial has ended in acquittal. 19. Learned counsel for the petitioner contended in the alternative that even assuming that the trial was with jurisdiction, a case for interference with the acquittal has been made out since it is perverse. In support of this contention, it was pointed out that the evidence of the eye-witnesses, who were four in number namely, P. Ws. 1, 3, 4 and 9, has been rejected on flimsy grounds. In my opinion, once it is held that the trial was with jurisdiction and there is nothing to show that it was vitiated by any serious illegality or irregularity, this Court will not interfere with the acquittal, particularly at the instance of the private complainant, by reappraising the evidence afresh. In exercise of its powers under S. 439 of the Code of Criminal Procedure, this Court cannot convert a finding of acquittal into one of conviction. No doubt, in a proper case, this Court can direct a re-trial after setting aside the acquittal, but a re-trial can only be made in exceptional cases, and not unless this Court is satisfied that the trial was without jurisdiction or vitiated by serious illegalities or irregularities or the result of misconception of the nature of the proceedings, and on that account in substance, there was no real trial. Re-trial could also be ordered if the prosecutor for some reason over which he had no control, was prevented from leading or tendering evidence material to the charge and in the interest of justice this Court deems it appropriate, having regard to the circumstances of the case, that there should be a re-trial. See Ukha Kolhe V/s. State of Maharashtra, AIR 1968 SC 1531. Therefore, a re-trial cannot be ordered merely because the appraisement of the evidence made by the trial court is not satisfactory. Re-trial may perhaps be ordered if the appreciation of the evidence made by the trial Court is so thoroughly erroneous as to be wholly unacceptable. See Ukha Kolhe V/s. State of Maharashtra, AIR 1968 SC 1531. Therefore, a re-trial cannot be ordered merely because the appraisement of the evidence made by the trial court is not satisfactory. Re-trial may perhaps be ordered if the appreciation of the evidence made by the trial Court is so thoroughly erroneous as to be wholly unacceptable. But having considered the discussion of the evidence made by the Assistant Sessions Judge in the present case, I am not satisfied that this is a case of such gross nature. The learned Judge has given his reasons for not accepting the claim of the eye-witnesses that they had been the accused persons participating in the occurrence. He has referred to various circumstances for not accepting their claim as genuine eye-witnesses. I am, therefore, unable to hold that the order of acquittal is perverse. 20. In the result, this application fails and is dismissed.