iminal Appeals Nos 159 and 160 of 1965
Appeals by special leave from the judgment and order dated July 28 1965 of the Patna High Court in Criminal Appeal Nos 533 and 534 of 1963
R K Garg D P Singh section C Agarwala section P Singh and KM K Nair for the appellants in both the appeals
B P Jha for the respondent in both the appeals The Judgment of the Court was delivered by Hegde J
In these connected appeals by special leave the legality of the convictions of the appellants appellant Mohar Rai under section 324 of the Indian Penal Code and appellant Bharath Rai under section 324109 of the Indian Penal Code is challenged
In the trial court the former was convicted under section 307 of the Indian Penal Code and the latter under section 307109 of the Indian Penal Code
The High Court of Patna in appeal altered their convictions as set out above
In order to appreciate the contentions advanced on behalf of the appellants it is necessary to state briefly the prosecution as 527 well as the defence version
The case made out by the prosecution is that because of previous enmity Mohar Rai shot and injured PW I Balli Ahir at the instigation of Bharath Rai on the evening of October 8 1961 in Natwar Bazar
The existence of enmity between the appellants and most of the prosecution witnesses who speak to the occurrence is satisfactorily established
Many of the prosecution witnesses appear to have been proceeded against under section 107 of the Code of Criminal Procedure at the instance of the appellants
The plea of the appellants was that on the day of incident when they were returning to their house in the evening they were way laid by PW1 and several others one of those persons fired shots at Mohar Rai but it missed him to save himself he Mohar Rai ran away from the scene subsequently two more shots were fired meanwhile he got into the house of Lal Bahadur Mistri PW9 but his assailants pursued him forced their entry into the house of PW9 and there assaulted him thereafter with a view to foist a false case against him forcibly thrust into his hands the revolver Ex II and then handed him over with exhibit
III to Janardan Singh PW 15 the police constable
ThE plea of Bharath Rai was that during the incident mentioned by Mohar Rai he was caught hold of and assaulted by some of the prosecution witnesses
The High Court and the trial court have rejected the plea of the appellants and relying on the prosecution evidence convicted the appellants as mentioned earlier
This Court being a Court of special jurisdiction does not reassess the evidence in a case except under exceptional circumstances
It was urged on behalf of the appellants that they did not have a fair trial the High Court as well as the trial court on an erroneous view of the law refused to take into consideration their defence they ignored important circumstances appearing in their favour and further some of the conclusions reached by them are unsupported by any evidence on record
We have to see how far these submissions are well founded
Out of the incident mentioned above the State came to ini tiate as many as three prosecutions
G R Case 1370TR 20 of 6163 in the Court Of the Munsif Magistrate I Class Sasaram was instituted on the basis of the complaint lodged by Mohar Rai
GR 506 of 1962 on the file of the Munsif Magistrate I Class Sasaram was a case under section 19f of the Indian Arms Act against Mohar Rai for being armed with a revolver at the time of the incident mentioned earlier
The third case is the one with which we are concerned in these appeals
The case instituted on the basis of the complaint made by Mohar Rai was acquitted on February 1 1963
The Arms Act case ended in acquittal on May 13 1964
The appeal against that order was dismissed by the High Court of Patna on September 5 1966
A copy of the judgment in that appeal was produced at the hearing of these 528 appeals and received as additional evidence with our permis sion
The trial court as well as the High Court refused to examine the defence of the appellants solely on the ground that the case pleaded by them had been rejected by the learned Munsif Magistrate I Class Sasaram in the prosecution commenced at the instance of Mohar Rai
The prosecution case was that immediately after the occur rence Mohar Rai was chased and caught and at that time he had in his hands the revolver ExIII
Very soon thereafter he was produced before Audeshwar Prasad Singh PW19 with the revolver in question
The further case of the prosecution was that PW 19 seized that revolver later during investigation he seized the three cartridges said to have been fired by Mohar Rai as well as a misfired cartridge the revolver as well as the seized cartridges were sent to the ballistic expert for examination
These facts were spoken to by the prosecution witnesses in particular by PW Janardhan Singh the constable to whom Mohar Rai was handed over immediately after the occurrence and PW 19 the investigating officer
PW 19 deposed that the number of the revolver seized is 545465
He is positive that the revolver seized from Mohar Rai is exhibit 111 though in his report to the ballistic expert he had given the number of the revolver sent for examination as 545466 but in that report itself he had added a note to say that the last two digits were not clear
The prosecution proceeded on the basis there is no ambiguity about it that exhibit III was the weapon that was used in the commission of the offen ce
The ballistic expert who was examined as DW 1 was positive that the seized empties as well as the misfired cartridge could not have been fired from EXIII
The evidence of this witness has been accepted both by the trial court as well as by the High Court
From that it follows that the prosecution case that Mohar Rai fired three shots from exhibit
III cannot be accepted as true
If this part of the prosecution case fails then very little remains in the prosecution case
The trial court and the High Court have brushed aside this important aspect on a wholly untenable basis
They opined that by some mistake a revolver different from that seized from Mohar Rai might have been sent to the ballistic expert
The conclusion has no basis on the material on record
It is just a speculation a process not open to courts
Evidently overwhelmed by the evidence of the large number of Witnesses who deposed in favour of the prosecution case forgetting the fact that most of them belong to the faction opposed to the appel lants
the trial court and the High Court ignored the probabilities and lost sight of the evidence afforded by the circumstances appearing in the case
Both those courts failed to realise that the fact that exhibit III was not the revolver that was used during the 529 incident went to probablise the plea taken by Mohar Rai
At this stage we may recall the fact that both the trial Magistrate as well as the High Court rejected the prosecution case and acquitted Mohar Rai in the case against him under section 19f of the Arms Act
It is true that the decision of the trial court in that case was rendered after the Assistant Sessions Judge Sasaram convicted the appellants in the present case and therefore it may be that the appellants cannot take the benefit of the rule laid down by this Court in Pritam Singh vs The State of Punjab1 and affirmed in Manipur Administration vs Thokchom Bira Singh2
But even without the assistance of that rule on the basis of the prosecution evidence itself the prosecution version stands discredited
Once it is proved that the empties recovered from the scene could not have been fired from exhibit
III the prosecution case that those empties were fired from exhibit
III by Mohar Rai stands falsified
The trial court as well as the High Court wholly ignored the significance of the injuries found on the appellants
Mohar Rai had sustained as many as 13 injuries and Bharath Rai 14
We get it from the evidence of PW 15 that he noticed injuries on the person of Mohar Rai when he was produced before him immediately after the occurrence
Therefore the version of the appellants that they sustained injuries at the time of the occurrence is highly probabilised
Under these circumstances the prosecution had a duty to explain those injuries
The evidence of Dr Bishun Prasad Sinha PW 18 clearly shows that those injuries could not have been self inflicted and further according to him it was most unlikely that they would have been caused at the instance of the appellants themselves
Under these circumstances we are unable to agree with the High Court that the prosecution had no duty to offer any explanation as regards those injuries
In our judgment the failure of the prosecution to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the incident is not true or at any rate not wholly true
Further those injuries probabilise the plea taken by the appellants
Both the trial court as well as the High Court refused to take into consideration the plea of the appellants on the ground that that plea did not commend itself to the trial Magistrate in the case instituted on the complaint of Mohar Rai
They were erroneously of the view that the plea in question was barred by the rule laid down by this Court in Pritam Singh s case1
In that case this Court accepted as correct the following statement of 1 AIR 1956 SC 415
2  530 the law made by the Judicial Committee in Sambasivam vs Public Prosecutor Federation of Malaya The effect of a verdict of acquittal pronounced by a competent court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence
To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication
The maxim res judicata pro vetitate accipitur  is no less applicable to criminal than to civil proceedings
Here the appellant having been acquitted at the first trial on the charge of having ammunition in his possession the prosecution was bound to accept the correctness of that verdict and was precluded from taking any step to challenge it at the second trial
 Dixon J of the Australian High Court in the King vs Wilkes2 explained the legal position in these words  Whilst there is not a great deal of authority upon the subject it appears to me that there is nothing wrong in the view that there is an issue estoppel if it appears by record of itself or as explained by proper evidence that the same point was determined in favour of a prisoner in a previous criminal trial which is brought in issue on a second criminal trial of the same prisoner
That seems to be implied in the language used by Wright J in R vs Ollis 1960 II QB 758 at p 769 which in effect I have adapted in the fore going statement
There must be a prior proceeding determined against the Crown necessarily involving an issue which again arises in a subsequent proceeding by the Crown against the same prisoner
The allegation of the Crown in the subsequent proceeding must itself be inconsistent with the acquittal of the prisoner in the previous proceeding
But if such a condition of affairs arises I see no reason why the ordinary rules of issue estoppel should not apply
Such rules are not to be confused with those of res judicata which in criminal proceedings are expressed in the pleas of autrefois acquit and autrefois convict
They are pleas which are concerned with the judicial determination of an alleged criminal liability and in the case of conviction with the substitution of a new liability
Issue estoppel is concerned with the judicial establishment of a pro 1 2 77CLR511 at pp518 519
531 position of a law or fact between parties
It depends upon well known doctrines which control the relitigation of issues which are settled by prior litigation This Court endorsed that statement in Manipur Administra tion s case 
But the law laid down in those cases has no application to the facts of the present case
In both the prosecution in the complaint made by Mohar Rai as well as in tie complaint made by PW the prosecutor before the court was the State
Therefore the decision in the former case cannot operate as an issue estoppel against the appellants in the present case because they were not parties in the former case
In other words the plea taken by the appellants in this case was never before litigated between them and the State the opposite party in the present case
All that can be said is that the case put forward by the State in the one case is inconsistent with that put forward by it in the other
In those circumstances it was wrong to hold that the appellants were estopped from putting forward their defence
That apart it is doubtful though for the purpose of this case it is unnecessary to express any final opinion on this point whether the rule in question could be pressed against an accused the reason being that while a prosecution cannot succeed unless it proved its case beyond reasonable doubt the nature of the proof required of an accused in substantiating the plea taken by him is different it is sufficient if he proves that plea taken by him is reasonable and probable
In that event he is entitled to the benefit of doubt
This aspect was noticed by this Court in Manipur Administration s1 case where it was observed Before parting we think it proper to make one observation
The question has sometimes been mooted as to whether the same principle of issue estoppel could be raised against an accused the argument against its application being that the prosecution cannot succeed unless it proved to the satisfaction of the Court trying the accused by evidence led before it that he is guilty of the offence charged
We prefer to express no opinion on this question since it does not arise for examination
 For the reasons mentioned above we are satisfied that the trial court as well as the High Court erred in summarily rejecting the defence of the appellants on the sole ground that the version put forward by them having been rejected by the court in GR case 13761TR 20 of 6163 in the court of the Munsif Magistrate I Class Sasaram the same cannot be again considered
We think that the defence of the appellants is highly probabilised by 1  532 three important circumstances namely i the same was put forward immediately after the occurrence ii it satisfactorily explains the injuries found on the persons of the appellants while the prosecution evidence fails to explain those injuries
and iii the prosecution evidence itself shows that Mohar Rai could not have used exhibit III and therefore his version that that weapon was thrust on him is probablised
The last contention taken by Mr Garg is that admission of exhibit 4 an inadmissible document has greatly prejudiced the case of the appellants
According to him the admission of that document is hit by section 162 of the Code of Criminal Procedure
In the alternative he contended that that document could not have been used to discredit the plea taken by Mohar Rai We have earlier noted the two divergent versions given by PW1 and Mohar Rai in respect of the incident that took place on the evening of October 8 1961
Quite naturally both these complaints were investigated simultaneously
The statement given by PW1 was recorded as first information in one case and the statement given by Mohar Rai as first information in the other
Appellant Bharath Rai was questioned during the investigation
His statement is exhibit 4
The trial court came to the conclusion that it was not hit by section 162 as the same was not recorded in the course of investigation in the case against Bharath Rai
The High Court justified the admission of that document on the basis of the rule laid down by this Court in Faddi V State of Madhya Pradesh  namely where the person who lodged the first information report regarding one offence is himself subsequently accused of that offence and tried and the report lodged by him is not a confessional first information report but is an admission by him of certain facts which have a bearing on the question to be determined by the Court viz how and by whom the offence was committed or whether the statement of the accused in the court denying the correctness of certain statements of the prosecution witnesses is correct or not the first information report is admissible to prove against him his admissions which are relevant under section 21 of the Evidence Act
It was contended on behalf of the appellants that whether that statement is held to have been taken during the investigation of the complaint made by PW 1 or during the investigation of the complaint made by Mohar Rai in either case it is hit by section 162 of the Code of Criminal Procedure 
It was also urged that the rule laid down in Faddi s case has no application to the facts of the present case In the instant case no portion of exhibit 4 was relied on as an admission of Bharath Rai
Hence the rule laid down in Faddi s case  could not have been called into aid
The trial court and the High Court relied on Bharath Rai s statement that it was Naulakh Rai who fired a pistol 1  523 to contradict the statement of Mohar Rai in his complaint that a pistol was fired by Dudhnath
No portion of exhibit 4 could have been used for that purpose either under section 157 or section 145 of the Evidence Act
As Bharath Rai was not examined as a witness in the present case his previous statement could not have been used either to contradict his evidence or corroborate it even if it is to be held that it is a statement coming under section 154 of the Code of Criminal Procedure  see Nazir Ali vs State of UP1
The circumstances noticed above in our opinion not merely affect the value and weight to be attached to the prosecution evidence but they persuade us to doubt the prosecution version
In the circumstances we are unable to resist the conclusion that there has been a miscarriage of justice
We accordingly allow these appeals and acquit the appellants
Their bail bonds do stand cancelled
RKPS Appeals allowed
1 AIR 1957 SC 366


Summary:
The first appellant was convicted unders
324 IPC for shooting and injuring PW 1 at the instigation of the second appellant who was himself convicted of an offence under section 324 read with section 109 IPC
The existence of enmity between the appellants and most of the prosecution witnesses who spoke to the occurrence was satisfactorily established
The plea of the appellants in their defence was that on the date of the incident when they were returning home in the evening they were way laid by PWI and several others and were assaulted thereafter with a view to foist a false case against them a revolver was forcibly thrust into the hands of the first appellant
In connection with this incident the State came to initiate three prosecutions  One case was instituted on the basis of a complaint by the first appellant a second case was commenced against the first appellant under section 19f of the Indian Arms Act for being armed with a revolver and the third was the present case
The case instituted on the first appellant s complaint as well as the case against him under the Arms Act were both dismissed
The trial court as well as the High Court refused to examine the defence of the appellants solely on the ground that the case pleaded by them had been rejected by the Magistrate in the prosecution commenced on these basis of the complaint by the first appellant
In appeal to this Court it was contended on behalf of the appellants that they did not have a fair trial the High Court as well as the trial court on an erroneous view of the law refused to take their defence into consideration they ignored important circumstances appearing in favour of the appellants and furthermore some of the conclusions reached by them were unsupported by any evidence on record
It was also contended that an inadmissible document namely a statement made by the second appellant in the course of the investigation was wrongly admitted this admission was hit by a 162 of the Code of Criminal Procedure which bad also greatly prejudiced the case of the appellants
HELD  The appeals must be allowed and the appellants acquitted
i The trial court as well as the High Court erred in summarily ejecting the defence of the appellants on the sole ground that the version put forward by them having been rejected by the Magistrate in the case filed on the complaint of the first appellant it could not be considered again
The defence of the appellants was highly Probabilised by three important circumstances namely 1 it was put forward immediately after the occurrence 2 it satisfactorily explained the injuries found on the persons of the appellants while the prosecution evidence failed to 526 explain those injuries and 3 the prosecution evidence itself showed that the first appellant could not have used the revolver exhibited and therefore his version that weapon was thrust on him was probabilised
531 H 532 B In both the prosecutions in the complaint made by the first appellant as well as in the complaint made by PWI the prosecutor before the court was the State
Therefore the decision in the former case could not operate as an issue estoppel against the appellants in the present case because they were not parties in the former case
In other words the plea taken by the appellants in this case was never before litigated between them and the State the Opposite party in the present case
All that ran be said is that the case put forward by the State in the one case was in consistent with that put forward by it in the other
In those circumstances it was wrong to hold that the appellants were estopped from putting forward their defence
1531 B D Pritam Singh vs The State of Punjab AIR 1956 SC 415 Manipur Administration vs Thokchom Bira Singh 1964 SCR 123 Sambasivam vs
Public Prosecutor  and King vs Wilkes  at pp
518 519 referred to
ii The trial court and the High Court relied on the second appellant s statement in the document admitted in evidence to the effect that it was a particular person who fired a pistol to contradict the statement of the first appellant in his complaint that a pistol was fired by some other person
No portionof this statement could have been used for that purpose either section 157 ors
145 of the Evidence Act
As the second appellant was not examined as a witness in the present case his previous statement could not have been used either to contradict his evidence or corroborate it even if it were to be held that it was a statement falling under s154 of the Code of Criminal Procedure
532 H 533 B Nazir Ali vs State of UP
AIR 1957 SC 366 distinguished