Kunjan Mishra v. Jhagru Jha — 1971 DIGILAW 17 (PAT)

JUDGMENT : S. Wasiuddin, J. 1. This criminal appeal and criminal revision arising out of two separate JUDGMENT :s, but in two counter cases, have been heard together with the consent of the parties and for their convenience. This JUDGMENT :, therefore, will govern both these. In the criminal appeal Kunjan Mishra is the complainant appellant and he figures as an accused in the other case and he is opposite party no. 3 in the criminal revision. Jhagru Jha who is petitioner in the criminal revision was an accused in the other case and he figures as respondent no. 1 in the criminal appeal. 2. The case of the prosecution in the criminal appeal briefly stated was as follows. Kunjan Mishra, who is the appellant in criminal appeal is a resident of village Satghara, Police-station Babu Barhi, district Darbhanga and he filed a petition of complaint in the Court of the Sub-divisional Magistrate, Madhubani on the 2nd of January, 1965. His case briefly stated was that on the 31st of December 1964, at about 7 or 8 A.M., he was going to see his field and when he reached near the Government tube-well he saw Naresh (P.W. 6) and Swayambar Jha quarrelling among themselves over taking of water from the tube-well. The grandmother of Swayambar Jha also came there and began to hush up the quarrel, but as a result of the scuffle between P.W. 6 on one hand and Swayambar Jha on the other, the aforesaid grandmother fell down on the tube-well. Kunjan Mishra the appellant then chided both of hem and then went away to his field, but it is alleged that while he was returning back from his field, at about 9 A.M. on the same day and as he reached near the house of Desai Dome, he was surrounded by the accused persons, that is, respondents 1 to 5 of the criminal appeal and on the ORDER :s given by Jhagru Jha, respondent no. 1, Pitamber Jha and Shyam Kant Thakur, that is, respondents 3 and 4 assaulted him with fists and slaps and accused Mukund Jha, that is, respondent no. 5 attempted to take out the money from his pocket but he was prevented from doing so and he raised hulla whereupon Bagish Jha, respondent no. 2 assaulted him with bamboo lathi on his head and Mukund Jha then took out Rs. 5 attempted to take out the money from his pocket but he was prevented from doing so and he raised hulla whereupon Bagish Jha, respondent no. 2 assaulted him with bamboo lathi on his head and Mukund Jha then took out Rs. 13/- in cash and also bunch of keys from his pocket. It is said that after the alleged occurrence the appellant Kunjan Mishra came to Madhubani and got his injury examined by the doctor (P.W. 9) on the same day, at about 3.35 P.M. He then on the 2nd of January, 1965 filed a petition of complaint before the Sub-divisional Magistrate. The Sub-divisional Magistrate ORDER :ed the Sub-Inspector of Police, Babu Barhi Police-station to institute a case and investigate into the matter. Shri Dhanushdhari Pandey, who is P.W. 10 in the case was the Officer-in-charge of the Police-station at the relevant point of time and he on receiving the copy of the complaint sent it to Khajauli Police-station for drawing up a first information report. A formal first information report was drawn up which is Ext. 3 by Shri Rajendra Prasad Singh, Officer-in-charge of Khajauli Police-station, but he investigated the case and after completion of investigation submitted charge-sheet against the accused persons, that is, the present respondents 1 to 5 in the criminal appeal. 3. The defence of the accused persons was that no such occurrence took place, as alleged on behalf of the prosecution and further they also pleaded that the case instituted by the appellant Kunjan Mishra was only a counter-blast of a case filed by accused Jhagru, that is, the petitioner in the criminal revision against Kunjan Mishra and others and in which those persons were also facing trial. Now according to the version of the defence, the occurrence took place in such a manner that Shrinandan Mishra, who is opposite party no. 1 in the criminal revision was abusing accused Jhagru Jha, that is, the petitioner in the criminal revision from the darwaza of Shiva Shankar Jha and when Jhagru Jha demonstrated then Shrinandan Mishra went away after some time returned back along with Kunjan Mishra/Ganesh Jha and Shiva Shankar Jha armed with Barchhi and lathi to the darwaza of Jhagru Jha. 1 in the criminal revision was abusing accused Jhagru Jha, that is, the petitioner in the criminal revision from the darwaza of Shiva Shankar Jha and when Jhagru Jha demonstrated then Shrinandan Mishra went away after some time returned back along with Kunjan Mishra/Ganesh Jha and Shiva Shankar Jha armed with Barchhi and lathi to the darwaza of Jhagru Jha. Seeing them Jhagru Jha ran to save himself, but he was struck with a Barchhi on his head and that when the mother of Jhagru Jha protested, she was also assaulted by Shiva Shankar Jha, Ganesh Jha and Kunjan Mishra with lathi and as a result of the assault the teeth of the mother were also broken. 4. In the case out of which the criminal appeal arises, the learned Magistrate in view of the evidence on record and the circumstances of the case was of opinion that the charges had not been proved and he, therefore, acquitted all the accused persons, that is, the respondents 1 to 5. Kunjan Mishra, that is, the appellant in criminal appeal filed an application for special leave to prefer an appeal under Section 417(3) of the Code of Criminal Procedure. The special leave was granted and then a regular appeal was filed by the complainant appellant. 5. Now before I enter into the merits of this appeal, it may be stated that at the time of the hearing a preliminary point was raised on behalf of the respondents to the effect that this present appeal is not maintainable because the case was not one which was instituted on a complaint as contemplated by Sub-section (3) of Section 417 of the Code of Criminal Procedure. This is an important point on which the learned counsel of both the parties have made their submissions and, therefore, this point has to be disposed of first. The facts which I have stated above would show that this position was not disputed that a petition of complaint was filed by Kunjan Mishra, who is the appellant in the criminal appeal. Now the relevant portion of the ORDER :of the Sub-divisional Magistrate is to the effect as follows:-- Perused the complaint. S.I. of Police, Babu Barhi will institute this case, investigate and submit final form. Now the relevant portion of the ORDER :of the Sub-divisional Magistrate is to the effect as follows:-- Perused the complaint. S.I. of Police, Babu Barhi will institute this case, investigate and submit final form. It may be mentioned here that there is no mention of the fact whether the complainant was examined on solemn affirmation or not as required by the provisions of Section 200 of the Code of Criminal Procedure. This position was also disputed that the complainant was not examined on solemn affirmation by the learned Sub-divisional Magistrate. The aforesaid ORDER :is dated the 2nd of January, 1965, that is, the date on which the petition of complaint was filed. The next relevant ORDER :in this connection is one dated the 22nd of February, 1965 and it is as follows:-- Charge-sheet under Section 325/ 147 I.P.C. received against Jhagru Jha and 4 others noted in the charge-sheet Column No. 4. Cognizance under Section 325/ 147 I.P.C. taken. To Sri A.K.P. Sinha, Munsif Magistrate, Second Class, for favour of disposal. After this when the case was received in the Court of Shri A.K.P. Sinha, Magistrate, then as required by the provisions of law relating to the criminal trials on the basis of police report, the copies of police papers were furnished to the accused and thereafter the procedure adopted by the learned Magistrate was one of a warrant case on a police report. As stated above the complainant appellant after the ORDER :of acquittal obtained a special leave from a Bench of this Court as contemplated by Sub-section (3) of Section 417 of the Code of Criminal Procedure and then a regular appeal was also filed. 6. A pertinent question antes whether in such circumstances the question regarding the maintainability of the appeal can be agitated. In my opinion in a case where a special leave has been granted and a regular appeal has also been filed, the question relating to its maintainability and competency cannot be regarded as one having been decided and it can be raised subsequently. The grant of special leave does not amount to a decision in the appeal that it is competent and the admission of the appeal does not preclude the accused persons from questioning the competency of this appeal. The grant of special leave does not amount to a decision in the appeal that it is competent and the admission of the appeal does not preclude the accused persons from questioning the competency of this appeal. At the time of the special leave generally the main question which is seen is whether there are such circumstances in which such special leave should be granted and if there is no determination in express words of point regarding competency of the appeal at that stage then naturally it is an open question which can subsequently be raised at the time of the hearing of this appeal. The mere admission of an appeal cannot operate as a base on the principle of resjudicata and mere granting of special leave or the admission of the appeal would not (Sic) conclude the matter regarding the competency of this appeal. I may also mention here that there are three decisions of two High Courts in this connection. One of these is in the case of (1) State through Medical Officer of Health, Maradabad versus Ishwar Saran, reported in A.I.R. 1964 All, 497. The other is in the case of (2) Raja Ram versus Ram Achal and another, reported in A.I.R. 1962 Allahabad, page 6 and the last one is in the case of (3) K. Damodaran versus V.K. Sippi, reported in A.I.R. 1960 Ker, 389. Similar views have been expressed in those decisions and I am in agreement with the views expressed in those decisions. In this view of matter, this question can be agitated and there can be no doubt about it. 7. The next question which rises is about the competency of the appeal. Sub-section (3) of Section 417 of the Code of Criminal Procedure lays down as follows:-- (3) If such an ORDER :of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the ORDER :of acquittal, the complainant may present such an appeal to the High Court. The right of an appeal by a private party, such as the complainant in a case was conferred after the amendment in 1955 of the Code of Criminal Procedure, but such a right is restricted and limited to such type of cases where it can be said that the case has been instituted upon a complaint, that is to say, cases where a Magistrate takes cognizance of an offence upon receiving a complaint of facts which constitute such an offence. The manner in which a case can be instituted on a complaint and other conditions one has to look into the provisions of Section 190 of the Code of Criminal Procedure. Section 190 of the Code of Criminal Procedure lays down that any-Presidency Magistrate, District Magistrate or Sub-divisional Magistrate, and any other Magistrate specially empowered in this behalf, may take cognizance of any offence under Clause (a) upon receiving a complaint of facts which constitute such an offence. A question then arises what is a complaint and the definition of the word complaint has been laid in Clause 4(b) of the Code of Criminal Procedure. 8. Here in this case as I have already pointed above, although a complaint was filed, but the Sub-divisional Magistrate did not examine the complainant on oath, but he did mention this fact that he perused the complaint and thereafter he ORDER :ed the Sub-Inspector of Police to institute the case, investigate and submit final form. It has been urged by the learned counsel for the respondents that this is clearly a case in which it cannot be said that it was instituted on a complaint because there was an ORDER :to the Police Officer to institute and investigate and that a final form was submitted which was a charge-sheet and the cognizance was taken on the charge-sheet and not on the complaint. It has been urged on the other hand by the learned counsel for the appellant that the words "perused the complaint" show that the learned Magistrate had applied his mind and although he did not examine the complainant on solemn affirmation but when he referred to the Police Officer and also mentioned there the word "investigate", then this would tantamount to a passing of an ORDER :virtually for an inquiry as contemplated by Section 202 of the Code of Criminal Procedure. Several decisions have been filed on behalf of both the parties in support of their respective contentions, but I think it will be proper only to refer to such decisions which are after the passing of the Amendment Act of 1955 by which this new provision, viz., Sub-section (3) of Section 417 was incorporated in the Code. The first decision to which I may refer in the case of (4) Kartar Singh versus Bajrangi Lall and others, reported in A.I.R. 1964 Pat, 61. This is a single Judge decision of our High Court. In this case also a complaint had been filed and the Magistrate without examining the complainant on solemn affirmation sent it to the police stating in the ORDER :that there was a clear allegation disclosing a cognizable offence and it was for the police to institute a case and conduct the investigation. In that case also after the completion of the investigation the police officer submitted charge sheet and in such circumstance it was held that it could not be a case in which it could be said that it had been instituted on a complaint. Reliance has also been placed on a decision in the case of (5) Sk. Osman Gani versus Baramdeo Singh and others, reported in A.I.R. 1959 Cal, 145. There are very important observation in the Calcutta decision which I may quote here:-- The expression "any case instituted upon complaint" must mean only that class of cases where not merely the complainant comes to court with a petition of complaint but the Magistrate takes cognizance of the offence or offence alleged on the basis of that complaint. When the complainant came to court with a petition of complaint but the Magistrate did not take cognizance on that complaint but referred it to the police and then on receipt of a report from the police he took cognizance, it cannot be held that the case was one instituted on a complaint within the meaning of the expression in Section 417(3). 9. Similar view was also expressed in the decision of this Court in the case of (6) Harbans Singh versus Daroga Singh and others, reported in A.I.R. 1962 Pat, 27. In this present case no doubt a complaint had been filed, but a question arises whether the cognizance had been taken on that complaint. 9. Similar view was also expressed in the decision of this Court in the case of (6) Harbans Singh versus Daroga Singh and others, reported in A.I.R. 1962 Pat, 27. In this present case no doubt a complaint had been filed, but a question arises whether the cognizance had been taken on that complaint. The words "taking cognizance" have not been defined any where in the Code as to what "taking cognizance" means, I may refer to a decision in the case of (7) Narayandas Bhagwandas versus The State of West Bengal of the Supreme Court, reported in A.I.R. 1959 SC, 1118. Their Lordships in that case were pleased to observe as follows:-- As to when cognizance is taken of an offence will depend upon the facts and circumstances of each case and it is impossible to attempt to define what is meant by taking cognizance. Issuing of a search warrant for the purpose of an investigation or of a warrant of arrest for that purpose cannot by themselves be regarded as acts by which cognizance is taken of an offence. It is only when a Magistrate applies his mind for the purpose of proceeding under Section 200 and subsequent Sections of Ch. XVI of the Code of Criminal Procedure or under Section 204 of Ch. XVII of the Code that it can be positively stated that he had applied his mind and therefore had taken cognizance. In another decision in the case of (8) Gopal Das Sindhi and others versus State of Assam and another, reported in A.I.R. 1961 SC, 986, it was held that when a Magistrate applies his mind not for the purpose of proceeding under the terms of Sections of Chapter XVI, but for taking action of some other kind, e.g., ORDER :ing investigation under Section 156(2) or issuing a search warrant for the purpose of investigation, he cannot be said to have taken cognizance of any offence. In the case of (9) Jamuna Singh and others versus Bhadai Shah, reported in A.I.R. 1964 SC, 1541 a complaint had been filed and the Sub-divisional Magistrate after examining the complainant on solemn affirmation passed an ORDER :to the effect as follows:-- Examined the complainant on S.A. The offence is cognizable one. To S.I. Baikunthpur for instituting a case and report by 12-12-56. To S.I. Baikunthpur for instituting a case and report by 12-12-56. A similar point arose for decision in that case whether in such circumstance it could be said that it was a case instituted on a complaint and whether the complainant could apply for a special leave under Sub-section (3) of Section 417 of the Code of Criminal Procedure. As I have already stated above, the right of appeal under Section 417(3) is limited only to cases instituted upon a complaint. The Code does not contain any definition of the words "institution of a case". But when a Magistrate takes cognizance of an offence upon receiving a complaint of facts which constitute such an offence a case is instituted in the Magistrate's court and such a case is one instituted on a complaint, but when a Magistrate takes cognizance of an offence upon a report in writing of such facts made by a police officer it is a case instituted in the Magistrate's Court on a police report. It has also been laid down in the aforesaid decision of the Supreme Court that when a Magistrate applies his mind for proceeding under the various provisions of Chapter XVI of the Code of Criminal Procedure, he must be held to have taken cognizance of the offences mentioned in the complaint. In this present case, as I have stated above, no doubt, the learned Magistrate used the word "perused". It has been urged that the word "perused" indicates that the learned Magistrate had applied his judicial mind and it could be said that he had taken cognizance, but the application of the judicial mind as has been observed in several decisions should be for a specific purpose, such as, to proceed under the various provisions of Chapter XVI of the Code of Criminal Procedure. It was also submitted that in this present case although the word "institute" is there in the ORDER :of the learned Magistrate but the word "investigate" also appears and, therefore, the latter word which was used by the learned Magistrate would show that he had referred the matter to the police for inquiry as contemplated by Section 202 of the Code of Criminal Procedure. In the decision reported in (9) A.I.R. 1964 SC, 1541 the words "instituting a case" only appear and their Lordships of the Supreme Court were pleased to hold that if the Magistrate had used the words "for investigation" instead of the words "for instituting a case" the ORDER :would be clearly under Section 202 of the Code of Criminal Procedure. But the fact that he used the words "for instituting a case" did not make any difference because the Magistrate had already examined the complainant under Section 200 and that examination proceeded on the, basis that he had taken cognizance and it could not be said that the cognizance had not been taken. The learned counsel have also referred to a recent decision of the Supreme Court in the case of (10) Bhimappa Bassappa Bhu Sannavar versus Laxman Shivarayappa Samagouda and others, reported in A.I.R. 1970 SC. 1153. The facts of the case were quite different from the present facts. In that case a certain house was set on fire and the police arrested respondent nos. 1 and 2 and they were charge-sheeted. The complainant was dissatisfied because the police had not prosecuted one Melappa and so a complaint was filed and he was also put on trial The Magistrate inquired into the two cases, arising out of the complaint case and the other on the police report and all the three respondents were committed for trial to the Court of Sessions. The two Sessions cases were separately numbered and the respondents were acquitted. The complainant thereafter made an application under Section 417(3) of the Code of Criminal Procedure. The application was dismissed by the Mysore High Court holding that the petitioner had no locus standi when the State had prosecuted the offenders. A criminal revision was also filed by the complainant which also was dismissed. The complainant thereafter went in special leave to the Supreme Court and the question arose as to what was meant by the word "instituted". Their Lordships of the Supreme Court held that there were two cases, one of the cases was instituted on a report of the Police Officer and the other on the complaint of the complainant and there can be no merger because the identity of the two cases was maintained right up to the end of the Sessions trial and there was no charge-sheet in the other case. So it was held that the complainant could pray for special leave under Section 417(3) of the Code of Criminal Procedure. Reference was also made to a decision in the case of (11) Api Samal and others versus Bisi Mallik, reported in A.I.R. 1953 Ori, 33, but that also does not apply to the facts of the present case because there it was only held that omission to examine the complainant on oath was only an irregularity and so this decision was in a different context and not in the light of the provisions of Sub-section (3) of Section 417 of the Code of Criminal Procedure, Similar view as expressed in (5) A.I.R. 1959 Cal, 145 which I have referred above was also held in a decision in the case of (12) B.V. Huchappa versus N. Venkataswamy and others, reported in A.I.R. 1960 Mys, 172. 10. On a consideration of the various provisions of the Code and the different decisions particularly the decisions of the Supreme Court to which I have referred above, the position is quite clear that it can be said that cognizance has been taken only when the Magistrate proceeds to take action under one of the sections of Chapter XVI of the Code of Criminal Procedure and if the Magistrate has examined the complainant on solemn affirmation then this fact by itself within the scheme of the Code is clearly indicative of the fact that cognizance had been taken. In this case the complainant was not examined and the petition of complaint was sent to the police officer with a direction that he should institute a case and investigate and then submit final form. The word "investigate" occurring has to be read conjunctively with the word "institute" and obviously when the learned Magistrate did not examine the complainant on oath, he did not take cognizance and directed the police not only to institute a case, but also investigate and then submit a final form. I have already stated above that final form was submitted and it was in the nature of a charge-sheet and then the respondents were tried in accordance with the procedure laid down for a case which is on a police report. I have already stated above that final form was submitted and it was in the nature of a charge-sheet and then the respondents were tried in accordance with the procedure laid down for a case which is on a police report. In view of these facts, it cannot be said that the case was instituted on a complaint and, therefore, the complainant could not ask for special leave as contemplated by Sub-section (3) of Section 417 of the Code of Criminal Procedure and the appeal, therefore, would be incompetent. 11. Now as regards the merit, I have already stated above, the case of the prosecution and the defence in the case. The learned Magistrate acquitted the respondents and in his JUDGMENT : he has given several reasons. One of the reasons is that on the evidence itself P.Ws. 6 and 8 had not done anything and so why was the subsequent assault. The learned Magistrate did not accept the genesis of the occurrence. He was also of opinion that the injuries which were found on Ganga Dai were such which could not have been caused by a fall as was the case of the prosecution in that case, he was also of opinion that injuries were found on Jhagru Jha, respondent no. 1 and there was no explanation of these injuries. He was also of opinion that the witnesses were not disinterested. The learned counsel for the appellants has contended that the Magistrate had acquitted the respondents only on the ground that the incident on the tube-well was not proved and that the acquittal was because the prosecution failed to explain the injuries on Ganga Dai and Jhagru Jha and that the learned Magistrate has not given cogent reasons and has taken an erroneous view of the matter. I have already stated the reasons which have been given by the learned Magistrate and then on a perusal of the evidence it also appears to me that the prosecution had not been able to prove the case. There were seven witnesses examined on behalf of the prosecution. P.W. 1 was Chhatradhari Mishra, who is a relation of Kunjan Mishra the complainant-appellant. There were seven witnesses examined on behalf of the prosecution. P.W. 1 was Chhatradhari Mishra, who is a relation of Kunjan Mishra the complainant-appellant. He was an interested witness because he has interest in some sikmi land which stands in the name of Mushar Mishra and which is in possession of this witness and Jhagru the respondent is a Bhagina of Mushar Mishra P.W. 2. Sheo Thakur stated that he was a teacher in the school in which Kunjan Mishra was the headmaster and, therefore it is clear from his evidence that Kunjan Mishra was a headmaster of a school. But on turning to the evidence of P.W. 8 Kunjan Mishra, it appears that when he was questioned about a certain plot of land, such as, plot no. 727, he stated that he did not know and when he was further questioned he stated very strangely that he could not read and write and could merely sign his name. It is very strange that although he was said to be the headmaster, but he was as illiterate as he posed to be. P.W. 2 also appears to be an interested witness. It appears from the evidence of the other witnesses also that there was no dispute prior to this occurrence and with regard to the genesis of the occurrence there are certainly doubts as discussed by the learned Magistrate, I see no reasons also to differ from the reasonings given by the learned Magistrate and, therefore, I find that there is no merit in this appeal. 12. Now with regard to the criminal revision, it may be stated here that there are four opposite parties in it, but at the time of the admission the Bench was pleased to admit the criminal revision only in respect of Shrinandan Mishra, opposite party no. 1 and Ganesh Mishra alias Ganesh Jha, opposite party no. 4 and it was not admitted in respect of opposite party nos. 2 and 3. As I have already stated that there was a counter-case and the case of the prosecution in the counter-case briefly stated was as follows: On 31.12.64 at about 8 A.M. in village Satghara, Police Station Babu Barhi accused Shrinandan Mishra was abusing Jhagru Jha, P.W. 5 who was standing at the darwaza of Shiva Shankar Jha accused. 2 and 3. As I have already stated that there was a counter-case and the case of the prosecution in the counter-case briefly stated was as follows: On 31.12.64 at about 8 A.M. in village Satghara, Police Station Babu Barhi accused Shrinandan Mishra was abusing Jhagru Jha, P.W. 5 who was standing at the darwaza of Shiva Shankar Jha accused. Jhagru Jha protested but in spite of this Shrinandan did not stop abusing whereupon he also abused him by way of retaliation. Thereafter Shrinandan Mishra went away from that place and returned back to the place along with Ganesh Jha, Kunjan Mishra and Shiva Shankar Jha accused. Shrinandan Mishra gave a Barchhi blow on the back of the head of P.W. 5. Ganga Dai (P.W. 6) the mother of P.W. 5 protested whereupon she was also assaulted by Ganesh Jha, Kunjan Mishra and Sheo Shankar Jha with lathi. It is also alleged that as a result of the assault with lathi one of the teeth of P.W. 6 was broken and after the alleged incident both P.Ws. 5 and 6 went to Babu Barhi hospital and got their injuries examined by a doctor at 12. 30 P.M. and on the same day at about 4. 30 P.M. P.W. 5 lodged information at the Police Station at Babu Barhi and his fardbeyan was recorded by Shri Dhanushdhari Pandey, Officer-in-charge of Babu Barhi Police Station who took up investigation and after completion of the investigation submitted charge-sheet. 13. The defence of the accused persons was that they were innocent and had been falsely implicated and this present case was a counter-blast to the case filed by Kunjan Mishra against P.W. 5 and others. It may be noted here again that this Kunjan Mishra is the appellant in the criminal appeal which I have already discussed above. 14. There were thus two versions before the court and the learned Magistrate on the basis of the reasons given by him acquitted the accused persons of the case. Jhagru Jha being aggrieved with that ORDER :has referred this criminal revision and I have already stated that it has been admitted in respect of two of the opposite parties. 15. 14. There were thus two versions before the court and the learned Magistrate on the basis of the reasons given by him acquitted the accused persons of the case. Jhagru Jha being aggrieved with that ORDER :has referred this criminal revision and I have already stated that it has been admitted in respect of two of the opposite parties. 15. The contention of the learned counsel appearing for the petitioner was that the learned Magistrate did not properly appreciate the evidence on record and the circumstances of the case and that he has not given cogent reasons for acquittal. After hearing the learned counsel of both the parties and perusing the evidence on record and the JUDGMENT : of the case, I find that the learned Magistrate has acquitted giving one of the grounds that there was an improbability of Shrinandan Mishra hurling the abuses because no reason has been given as to why he was abusing There was nothing also to show as to what was the occasion of doing so and why he would start abusing without giving any rhyme or reason for the same. As regards the place of occurrence it has also been mentioned by the learned Magistrate and also it appears from the evidence on record that there was bleeding from the injuries caused on the injured persons. The injuries were also of such nature that blood would fall, but surprisingly enough no blood was found there. There was also a discrepancy on the point as to what was the actual place of assault, that is to say, whether it was in the khalihan or whether it was at the darwaza. According to the witnesses of the prosecution P.W. 6 on being injured fell down and became unconscious. There was some discrepancy on this point and further it also appears very strange that although he fell down and became unconscious yet nobody went to his rescue at that time. The injuries are said to have been caused on P.Ws. 5 and 6. 16. There were only seven witnesses examined on behalf of the prosecution and out of these the eye-witnesses of the occurrence are P.Ws. 1, 2 and 4. Out of these eye-witnesses P.W. 2 is an accused in the counter case. P.W. 4 is on litigating terms with Kunjan Mishra (opposite party no. 5 and 6. 16. There were only seven witnesses examined on behalf of the prosecution and out of these the eye-witnesses of the occurrence are P.Ws. 1, 2 and 4. Out of these eye-witnesses P.W. 2 is an accused in the counter case. P.W. 4 is on litigating terms with Kunjan Mishra (opposite party no. 3) and it also appears that there was a civil suit between him and Kunjan Mishra in which P.W. 4 was unsuccessful. It also appears that there was some litigation between the son of P.W. (Sic) and Kunjan Mishra. There were also injuries on the person of one of the accused persons, viz. Kunjan Mishra, but it appears that there was no explanation about the injuries on his person. It was on a consideration of all these facts, evidence and the circumstances of the case, the learned Magistrate acquitted the opposite party. I see no reason to differ from the reasonings and the findings given by the learned Magistrate and, therefore, there is no merit in this revision also. In the result, both the criminal appeal as well as the criminal revision fail and both are dismissed.