TMI Blog1970 (8) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... 340 and 346 pertaining to khata No. 82 in village Ibrahim Nagar District Shahbad. The complainant s case is that those lands belonged to him and the appellants unlawfully trespassed into that property on November 19, 1961 and harvested the rice crop. The appellants pleaded not guilty to the charge. The learned trial magistrate held the appellants guilty and convicted them as mentioned earlier. In appeal the learned District Judge, Shahbad acquitted the appellants. He felt unable to rely on the prosecution case for three different reasons. Firstly he came to the conclusion that the witnesses who spoke about the occurrence are all interested witnesses and it is unsafe to place reliance on their testimony. He secondly came to the conclusion th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basic of the evidence on record then the view in support of the acquittal of the accused should be preferred. The fact that the High Court is inclined to take a different view of the evidence on record is not sufficient to, interfere with the order of acquittal. The learned appellate judge has come to the conclusion that P.Ws. 1 to 4 are interested witnesses and it is unsafe to place reliance on their testimony. It is established in evidence that P.Ws. 1 to 3 are interested witnesses. They are the enemies of the appellants. This aspect of the case was not considered by the High, Court at all. The occurrence Is said to have taken place on November 19, 1961 but the complaint in respect of the same was filed on November 27, 1961. The ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication before the police mentioning that there was an apprehension of breach of peace. The delay of about 8 days in filing the complaint in a case of this nature throws a great deal of doubt on the prosecution story. It was the duty of the prosecution to explain the delay satisfactorily. Failure of the prosecution to do so undoubtedly is a circumstance of considerable importance. According to the complainant, as the appellants were reaping the crop the Police Inspector happened to come there and that he had seen some of the appellants harvesting the crop. If that be so the Inspector of Police would have been an extremely important witness. His evidence would have been useful in determining the guilt of the accused. He is a disinterested ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... single judge of the Madras High Court erred in thinking that the decision of the Allahabad High Court lent any support to his conclusion that an appeal filed under S. 417(3), Cr. P.C. abates on the death of the complainant. The question of abatement of criminal appeals is dealt with by s. 431 of Criminal Procedure Code. That section reads Every appeal under S. 41 1 A, sub-s. 1 ) or s. 417 shall finally abate on the death of the accused and every other appeal under this Chapter (except an appeal from a sentence of fine) shall abate on the death of the appellant. From this section it is clear that an appeal under s. 417 can only abate on the death of the accused and not otherwise. Once an appeal against an acquittal is entertained by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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