(1) This revision is directed against the judgment passed in crl. Appeal no. 57/93 by the sessions judge, karimnagar, remanding the case to the trial court with a direction to conduct fresh trial while setting aside conviction and sentence passed by the trial court in c. C. No. 111 /90 by the judicial first class magistrate, metpalli.
(2) Fact sculminatingin this revision briefly stated are these: - petitioners are residents of dharmaram village. P. Ws. 1 to 4 are residents of satharam village, adjoining dharmaram. The lands of p. Ws. 1 to 4 and others of satharam village are irrigated by the water of the two tanks of their village. The source of water for the two tanks is 'mattu kalva' which originates at dharmaram. The petitioners and other villagers of dharmaram village were cross - bunding 'mattu kalva', a rivulet, and irrigating their lands by lift irrigation using oil engines resulting in drying up of the source of water to the two tanks of satharam. Aggrieved by this action of the petitioners and other villagers of dharmaram, the owners of the lands under the two tanks of the satharam made complaints to revenue and police authorities during the year 1986. There was some mediation between the villagers, and petitioners 2 to 8 and others executed at p - 4 agreement on 2 - 10 - 87 not to instal oil engines and dig wells at a distane of 11 yards from the rivulet. Contrary to the agreement, the petitioners in the year 1989 began to use water of the rivulet by installing oil engines depriving the source of the water to the two tanks of satharam. Thereupon, p. W. 1 sarpanch of satharam, gave ex. P - 1 report to s. 1. Of police, mallapur on 8 - 3 - 90, who registered a case in cr. No. 12/90 under section 430, ipc and after investigation of the case, laid charge - sheet against the petitioners.
(3) The petitioners were tried for the offence punishable under section 430, ipc the plea of the petitioners was one of denial. The trial court, after considering the evidence on record, convicted and sentenced the petitioners to one year s. I. And to pay a fine of rs. 1,000/ - each. On appeal by the petitioners, the appellate court set aside the convictions and sentences passed against the petitioners, but remanded the case for fresh trial. The petitioners questioned the said remand order in this revision.
(4) Learned counsel for the petitioners submitted that the remand order is not warranted either factually or legally and that it is liable to be set aside.
(5) Genesis of the dispute between the parties is in respect of sharing the water of a natural rivulet passing through the two villages of dharmaram and satharam. The complaint is that dharmaram being in the upper region of the rivulet, the people of that village are using the water to the maximum thereby diminuting the supply of water to the landsof the sathram village. Admittedly, in this case, no evidence was adduced as to the rights of the parties to draw water from the rivulet. It is not in dispute that some lands of both villages were irrigated from the water of the rivulet. When petitioners also have got a right to irrigate their lands by the water of the rivulet, it cannot be said that they have wrongfully diverted the water. No evidence was adduced as to the lands being irrigated from the water of the rivulet either by law or custom. There is also no evidence as to the sharing of the water of the rivulet by the riparian villages. In fact, in this case, even the investigating officer was not examined to establish all these facts. In view of the above nature of the evidence adduced by the prosecution, the appellate court rightly set aside convictions and sentences passed against the petitioners. The appellate court, having found that the evidence was not properly elicited in the trial court, remanded the case for fresh trial to set right or connect the loose ends in the case. It cannot be said that prosecution was not aware as to what evidence was to be adduced to establish an offence punishable under section 430, ipc. When prosecution has failed to establish its case, it would be just and proper to simply acquit the accused of the charge framed against them. If the rights of the lands owners of the two villages as to the use of the water of the rivulet are not settled by law or custom and sharing of such water results in strife affecting irrigation and peace in the two villages, it is the duty of the concerned revenue authorities to take immediate steps to resolve the disputes between the villagers at an early date.
(6) Regarding the remand and re - trial, the high court of calcutta in ramanlal rathi vs. The state held that if at the end of a criminal prosecution the evidence leaves the court in doubt as to the guilt of the accused the latter is entitled to a verdict of not guilty. A retrial may be ordered when the original trial has not been satisfactory for particular reasons, for example, if evidence had been wrongly rejected which should have been admitted, or admitted when it should have been rejected, or the court had refused to hear certain witness who should have been heard. But retrial cannot be ordered on the ground that the prosecution did not produce the proper evidence and did not know how to prove their case or because the case is a serious one.
(7) The supreme court in ukha kolhe vs. The state of maharashtra held that an order for retrial of a criminal case is made in exceptional cases, and not unless the appellate court is satisfied that the court trying the proceeding had no jurisdiction to try it or that the trial was vitiated; by serious illegalities or irregularities or on account of misconception of the nature of the proceedings and on that account in substance there had been no real trial or that the prosecutor or an accused was, for reasons over which he had no control, prevented from leading or tendering evidence material to the charge, and in the interests of justice the appellate court deems it appropriate, having regard to the circumstances of the case, that the accused should be put on his trial again. An order of re - trial wipes out from the record the earlier proceeding, and exposes the person accused to another trial which affords the prosecutor an opportunity to rectify the infirmities disclosed in the earlier trial, and will not ordinarily be countenanced when it is made merely to enable the prosecutor to lead evidence which he could but has not cared to lead on account of insufficient appreciation of the nature of the case or for other reasons. It was further held that if the evidence led at the trial is deficient in important respects that is not a sufficient ground for ordering retrial. If the appellate court thinks that additional evidence is necessary in the interests of justice and for a just and proper decision of the case the appellate court should, instead of directing a retrial, exercise its power under section 428 (1) , cr. P. C.
(8) In view of the above factual and legal position, i am of the opinion that the order remanding the case for fresh trial is perverse and liable to be set aside.
(9) In the result, the revision is allowed and the order remanding the case for fresh trial is set aside.