Lahiri, J. - This is a revision under section 401 read with sec. 397 of the Code of Criminal Procedure; hereinafter to be referred as "the Code'', from an order of acquittal dated 29.7.78 passed by Shri B.K. Das, Magistrate, First Class, Nalbari in G. R. Case No. 1223/76 acquitting the accused - Respondent No. 1 of the ch­arge under sec. 325 of the Indian Penal Code for short "I.P.C.". 2. Section 378 of "the Code" enables the State Govern­ment to direct the Public Prosecutor to present an appeal to the High Court from an order of acquittal passed by any Court other than the High Court. Similarly, the Central Government may also direct the public prosecutor to present an appeal to the High Court from an order of acquittal where the offence has been investigated by the Delhi Police Establishment constitu­ted under Delhi Special Police Establishment Act, 1946. Such appeals are maintainable on leave being granted by the High Court. Similarly, when an order of acquittal is passed in a case instituted upon a complaint the complainant may present an appeal to the High Court after obtaining special leave. The case in hand is a G.R. Case where the police submitted charge-sheet and the trial was taken up on that basis. The State pro­secuted the accused but notwithstanding the order of acquittal passed the State has not preferred any appeal. The provisions of sec. 401 (3) of ''the Code" corresponds to Sec. 439 of "the Code" 1898 for short, the "Old Code". The sub-section limits the power of the High Court only to set aside the order of acqui­ttal and direct re-trial of the case and expressly prohibits the High Court to convert the findings of acquittal into one of conviction. This is one aspect of the matter. The contours of po­wers of the High Court against an order of acquittal have been outlined by the Supreme Court setting out the constructions and restrictions within which the High Court should exercise its re-visional power against the order of acquittal. A court of com­petent jurisdiction tries the case, examines witnesses and on app­reciation of the evidence reaches the finding of acquittal which should not be lightly busied aside, more so, when the party prosecuting the cases does not prefer an appeal against the im­pugned order. The disinclination of the prosecutor, the State, is also a weighty consideration. A court of com­petent jurisdiction tries the case, examines witnesses and on app­reciation of the evidence reaches the finding of acquittal which should not be lightly busied aside, more so, when the party prosecuting the cases does not prefer an appeal against the im­pugned order. The disinclination of the prosecutor, the State, is also a weighty consideration. It indicates that the interest of public justice did not call for interference with the order of acquittal and/or there was no manifest illegalities which resul­ted miscarriage of justice. 3. We cull from D. Stephens vs. Nosibulla, AIR 1951 SC 196 , Logendra Jha, AIR 1951 SC 316 , K. Chinnaswami Reddy, AIR 1962 SC 1788 , Mahendra Pratap Singh, AIR 1968 SC 707 ,. Khetra Basi Samal, AIR 1970 SC 272 , Satyendra Nath Dutta, AIR 1975 SC 580 and Ayodhya Dube, AIR 1981 SC 1415 the follow­ing basic principles governing the exercise of revisional jurisdic­tion by the High Court in revision against the order of acqui­ttal, which could have been appealed against by the Govern­ment : (i) The revisional power ought not to be exercised ligh­tly; (ii) it may be exercised only in exceptional cases where the interest of public justice requires interference for the correction of manifest illegalities or for the prevention of gross mis-carriage of justice; (Hi) the power ought not to be exercised only on the ground that the court below has taken a wrong view of the law or mis-appreciated the evidence on record. In short, on re-appraisal of the evidence and on reaching a different view from the one taken by the trial Court the High Court should not interfere with an order of acquittal, as it would amount to exercising the appellate power; (iv) until the court reaches the conclusion that glaring defects has resulted in grave failure of justice the power should not be exercised. Now, then, the qu­estion is, when and under what circumstances the High Court shall exercise its jurisdiction ? If it cannot disturb the findings on re-appraisal of evidence or on reaching a different conclusion or even where some legal defects or error seem to have been co­mmitted by the trial court in appreciating the evidence then under what condition should the High Court interfere ? Indeed, this is an exceptional remedy, provided to the aggrieved persons. If it cannot disturb the findings on re-appraisal of evidence or on reaching a different conclusion or even where some legal defects or error seem to have been co­mmitted by the trial court in appreciating the evidence then under what condition should the High Court interfere ? Indeed, this is an exceptional remedy, provided to the aggrieved persons. In other cases revisions are barred where there is a right of appeal - vide Section 401(4) and (5) of "the Code". As such, sub-sec. (3) of Sec. 401 is an exception to the general rule that notwithstanding availability of the right of appeal by "the prose-rater''; the jag grieved party is permitted to invoke the revisional jurisdiction of the High Court. The exceptional power, thus con­ferred, is meant for pressing into service only in exceptional cases. It becomes clear on perusal of sec. 401(3) of "the Code" that the main object of permitting a non-prosecutor but aggrieved per­son to prefer a revision against the order of acquittal is to protect ' 'public interest". If an order of acquittal rouse the cons­cience of the Court that the public interest has been undermined by the order of acquittal, we feel that the Court should interfere if there is a gross mis-carriage of justice. The power to invoke the action is given by law to the aggrieved person not so much for his sake but for the sake of the public and advancement of justice. However, the power cannot be allowed to be used to vent his spleen upon other in private fund. Their Lordships have set forth some illustrative cases where the High Court would be justified in interfering with the finding of acquittal in revision. The primary ground on which the court can upset an order of acquittal and direct re-trial are - First, the trial court has no juris­diction to try the case but has acquitted the accused. It is a case of exercise of jurisdiction not vested in court by law. The exercise or jurisdiction under such circumstances would be rende­ring an order of acquittal against the constitution and the law. It should not be allowed to stand. Secondly, where the trial court has wrongly shut out material evidence which the prosecu­tion desired to produce in support of the case. If legal evidence sought to be adduced is not permitted to enter into the records. It should not be allowed to stand. Secondly, where the trial court has wrongly shut out material evidence which the prosecu­tion desired to produce in support of the case. If legal evidence sought to be adduced is not permitted to enter into the records. It would amount to refusing to permit a party to esta­blish his case, which is his statutory right. Apart from the breach of statute, it would amount to clear violation of the principles of natural justice. The door of justice should not be closed to prevent legal evidence to be produced by the party. Thirdly, where the Court admitted and used inadmissi­ble evidence, which has a material bearing on the finding of acquittal, resulting in a failure of justice. It is a breach of law by the Court and amounts to injustice. Fourthly, where material evidence has been over looked by the Court. It is a slip shod order or 'a purported order of acquittal'. If admissible evidence is rejected as inadmissible and an order of acquittal is rendered the order cannot be termed as a legal one, made in accordance with the constitution and the law. The purported order must be reversed. Fifthly, where the acquittal is based on compounding of offence which is invalid in law. The jurisdiction of the Court to compound an offence is limited by the provisions of "the Code''. The court cannot, in breach of the law permit a case to be compo­unded, and render, an order of acquittal. Any of these conditions undoubtedly rouse the conscience of the Court. These illustrative cases show that where injustice has been caused resulting in a mis-carriage of justice the High Court can set aside the order of acquittal. In short, where injustice is writ large the High Court should interfere to uphold the cause of justice, otherwise public interest would suffer. However, "over-looking of evidence" does not, incur opinion, take within its fold non-consideration of inco­nsequential evidence or material which do not at all affect the order of acquittal. The evidence over-looked must be material having a strong bearing on the finding of acquittal. If an order of acquittal can be sustained even without the inadmissible evi­dence treated as admissible, the order of acquittal should not be interfered with. 4. Bearing in mind the principles of law laid down by the Supreme Court let us proceed to dispose the revision. If an order of acquittal can be sustained even without the inadmissible evi­dence treated as admissible, the order of acquittal should not be interfered with. 4. Bearing in mind the principles of law laid down by the Supreme Court let us proceed to dispose the revision. The inci­dent is just that ordinary incident which happens any where and every day. The petitioner-first informant lodged an ejahar that the accused pruned an over-hanging branch of tree standing on the land of the petitioner, and, when the informant objected the accu­sed dealt a blow on his shoulder with the blunt side of the spade. We, however, find another version of the story from P. W. 2 Ramesh Sarma, The witness says that it was the accused who had protested against the action of the first informant alleging that be had been trespassing into the land of accused on the pretext of putting up a fencing. It is the common case, that the lands of the accused and the first informant are contiguous. The witness also deposed that there were altercations and abuses bet­ween the parties. It is also in evidence that the accused was busy performing his manual work with a spade. In the course of the altercation and exchange of words, it is alleged by the prosecu­tion, the accused dealt a blow on the first informant, however, taking the pre-caution not to hit him by the sharp side of the spade. The accused dealt a blow by the handle of the spade. It fell on the shoulder of the informant resulting in a hairline fracture. The first informant set forth the origin of the inci­dent in a way to suit his convenience. He claimed that the accused had done something wrong to which the informant protested and he was within his right to protest. on the other tend his own witness P. W. 2, Ramesh Sarma stated the story which shows that the first informant was at fault, committing trespass to which the accused protested and an altercation ensued and ultimately the blow was given by the accused. Altogether, 5 witnesses were examined by the prosecution. P. W. 1 is the first informant, P. W. 2, Ramesh Sarma is his brother-in law and P. W. 3, is the brother of the first informant. Altogether, 5 witnesses were examined by the prosecution. P. W. 1 is the first informant, P. W. 2, Ramesh Sarma is his brother-in law and P. W. 3, is the brother of the first informant. The evidence of P. W. 3, R. Sarma, brother of the first informant could not be relied on by the learned Magistrate and that too very rightly. Indeed, the disinterested witnesses who were present and witnessed occurrence were withheld by the prosecution. They are Suren Barman and Nankan Barman. The prosecution did not examine them although they were independent persons and examined only the injured, his brother and brother in-law. Learned Magistrate was justified in drawing an adverse inference against the prose­cution for withholding the independent witnesses. What we find is that it is a dispute between two neighbours. It is not an excep­tional case where the interest of public justice requires any inter­ference. There is but one minor error committed by learned Ma­gistrate. He found fault with the informant for being late in lodging the First Information Report. However, there was no delay. On scrutiny of entire evidence we find that the prose­cution examined only the relatives of the injured and withheld the other witnesses. The dispute is over possession or dispossession of the land, and, as such, the relatives were interested in the prosecution and naturally they were hostile to the accused who had claimed a part of the land. It is just a dispute between two neighbours which happened way back on 7.10.1976. 9 years have rolled by, and, the wound is healed up. Perhaps the disputations of the neighbours are over. It would amount to causing injustice to re-open the case. We have ourselves perused the evidence and find that P. W. 2, Ramesh, brother-in-law of the injured na­rrated the correct version of the origin of the story. It appe­ars that the injured was fencing, he trespassed into the land of the accused who protested and had to use force to stop the injured from occupying his land by force. The accused had a right to protest his property. He had a spade, but took the pre­caution not to use the sharp side, i.e., not to cause any grievous injury, which depicts his intention not to cause any grievous hurt. We find that the injury said to be hair-line fracture might not be the result of that day's incident. The accused had a right to protest his property. He had a spade, but took the pre­caution not to use the sharp side, i.e., not to cause any grievous injury, which depicts his intention not to cause any grievous hurt. We find that the injury said to be hair-line fracture might not be the result of that day's incident. There is no material to show that the hire-Hoe fracture was fresh nor did the prose­cution examine any Radiologist to prove the nature of the injury. None deposed that it was a fresh injury which could have been sustained by the injured on the date of occurrence. Be that as it may, in our opinion the accused had no intention to cause any grievous hurt. He exercised the right of private defence of property and measured his blow to see that no grievous injury was caused. Considering the entire material we find that the accused had a right of private defence of property. 5. For the foregoing reasons we bold that there has been no mis-carriage of justice. In the result, we find no reason to interfere with the order of acquittal rendered by learned Magis­trate. The petition fails.