minal Appeal No 119 of 1958
Appeal by special leave from the judgment and order dated July 29 1957 of the Rajasthan High Court Jodhpur in Criminal Appeal No 42 of 1954
16 122 B L Kohli and C L Sareen for the appellants
section K Kapur and D Gupta for the respondent
December 9
The Judgment of the Court was delivered by SUBBA RAO J
This is an appeal by special leave against the conviction and sentence by the High Court of Judicature for Rajasthan at Jodhpur of the 9 appellants under section 304 read with section 149 and section 148 of the Indian Penal Code
The 9 appellants along with 34 other persons were accused before the Sessions Judge Merta
Briefly stated the case of the prosecution was as follows There were two factions in village Harnawa one consisting of Rajputs and other of the cultivators of the village
Admittedly there were disputes between these two factions in respect of certain fields
At about 3 30 pm on October 31 1951 the day after Diwali popularly known as Ram Ram day both the groups went to a temple called Baiji kathan
The cultivators went first to the temple and sat in the place which was usually occupied by the Rajputs
Subsequently when the Rajputs went there they found their usual sitting place occupied by the cultivators and took that as an insult to them
Though they were invited by the pujari to sit in some other place they refused to do so and went to a banyan tree which was at a short distance from the temple
There they held a brief conference and then returned to the temple armed with guns swords and lathies
The Rajputs fired a few shots at the cultivators and also beat them with swords and lathies
As a result 16 of the cultivators received injuries and of these 6 received gun shot injuries of which two persons namely Deena and Deva succumbed to the injuries
Out of the remaining 14 injured persons 3 received grievous injuries and the rest simple ones
Forty three persons alleged to have taken part in the rioting were put up for trial before the Sessions Judge Merta for having committed offences under section 302 read with section 149 and section 148 of the Indian Penal Code
Five of the accused admitted their presence at the scene of 123 occurrence but pleaded that after they had made their customary offerings at the temple and when they were returning they were attacked by the cultivators
Others pleaded alibi
The learned Sessions Judge held that it had not been established that the accused had a common object to kill the cultivators and that it had also not been proved beyond any reasonable doubt that any of the accused was guilty of a particular offence
On these findings he acquitted all the accused
On appeal the learned Judges of the High Court found that the accused were members of an unlawful assembly that they were animated by a common object of beating the cultivators and that further out of the 43 accused it had been clearly established that the appellants who are 9 in number took part in the activities of the unlawful assembly
On that finding they held that the accused were guilty of culpable homicide not amounting to murder under section 304 read with section 149 Indian Penal Code they also held that appellants 1 2 3 and 4 were also guilty under section 148 of the Indian Penal Code as they were armed with deadly weapons and the rest under section 147 Indian Penal Code
For the offence under section 304 read with section 149 the appellants were sentenced to ten years  rigorous imprisonment and for the offence under section 148 appellants 1 to 4 were further sentenced to one year s rigorous imprisonment and the rest under section 147 to six months  rigorous imprisonment
Having examined the entire evidence they agreed with the learned Sessions Judge that no case had been made out against the other accused beyond any reasonable doubt
The appeal was therefore allowed in respect of the nine appellants and dismissed in respect of the others Learned counsel for the appellants contended that the Sessions Judge came to a reasonable conclusion on the evidence and that the
High Court had no substantial and compelling reasons to take a different view
In recent years the words compelling reasons have become words of magic incantation in every 124 appeal against acquittal
The words are so elastic that they are not capable of easy definition with the result their interpretation varied between two extreme views one holding that if a trial court acquitted an accused an appellate court shall not take a different view unless the finding is such that no reasonable person will come to that conclusion and the other accepting only the conscience of the appellate court as the yardstick to ascertain whether there are reasons to compel its interference
In the circumstances we think it necessary to clarify the point
The scope of the powers of an appellate court in an appeal against acquittal has been elucidated by the Privy Council in Sheo Swarup vs King Emperor There Lord Russell observed at p 404 thus   the High Court should and will always give proper weight and consideration to such matters as 1 the views of the trial Judge as to the credibility of the witnesses 2 the presumption of innocence in favour of the accused a presumption certainly not weakened by the fact that he has been acquit ted at his trial 3 the right of the accused to the benefit of any doubt and 4 the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses Adverting to the facts of the case the Privy Council proceeded to state  
They have no reason to think that the High Court failed to take all proper matters into consideration in arriving at their conclusions of fact
 These two passages indicate the principles to be followed by an appellate court in disposing of an appeal against acquittal and also the proper care it should take in re evaluating the evidence
The Privy Council explained its earlier observations in Nur Mohammad vs Emperor 2 thus at p 152 Their Lordships do not think it necessary to read it all again but would like to observe that there really is only one principle in the strict use of the word laid down there that is that the High 1 1934 LR 61 IA 398
2 AIR 1945 PC 151
125 Court has full power to review at large all the evidence upon which the order of acquittal was founded and to reach the conclusion that upon that evidence the order of acquittal should be reversed
 These two decisions establish that the power of an appellate court in an appeal against acquittal is not different from that it has in an appeal against conviction the difference lies more in the manner of approach and perspective rather than in the content of the power
These decisions defining the scope of the power of an appellate court had been followed by all the courts in India till the year 1951 when it is said this Court in Surajpal Singh vs The State 1 laid down a different principle
But a perusal of that judgment does not bear out the construction which is very often placed thereon
The passage relied upon is found at p 201 and it reads thus It is well established that in an appeal under section 417 of the Criminal Procedure Code the High Court has full power to review the evidence upon which the order of acquittal was founded but it is equally well settled that the presumption of innocence of the accused is further reinforced by his acquittal by the trial court and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons
 On the facts of that case this Court held we are inclined to hold that the Sessions Judge had taken a reasonable view of the facts of the case and in our opinion there were no good reasons for reversing that view
We think that these observations are nothing more than a restatement of the law laid down by the Privy Council and the application of the same to the facts of the case before the Court
Though in one paragraph the learned Judges used the words substantial and compelling reasons and in the next paragraph the words good reasons these observations were not intended to record any disagreement 11952 SCR 193
126 with the observations of Lord Russell in Sheo Swarup s case 1 as to matters a High Court would keep in view when exercising its power under section 417 of the Criminal Procedure Code
If it had been so intended this Court would have at least referred to Sheo Swarup s case 1 which it did not
The same words were again repeated by this Court in Ajmer Singh vs The State of Punjab 2
In that case the appellate court set aside an order of acquittal on the ground that the accused had failed to explain the circumstances appearing against him
This court held that as the presumption of innocence of an accused is reinforced by the order of acquittal the appellate court could have interfered only for substantial and compelling reasons
The observations made in respect of the earlier decisions applied to this case also
Mahajan J as he then was delivering the judgment of the court in Puran vs State of Punjab 3 again used the words very substantial and compelling reasons but immediately thereafter the learned Judge referred to the decision of Sheo Swarup s case1 and narrated the circumstances which an appellate court should bear in mind in interfering with an order of acquittal
This juxtaposition of the so called formula and the circumstances narrated in Sheo Swarup s case 1 indicate that the learned Judge used those words only to comprehend the statement of law made by the Privy Council
Mukherjea J as he then was in C M Narayan vs
State of Travancore Cochin 4 again referred to thePrivy Council decision and affirmed the wide powerof an appellate court and also the proper approach in an appeal against acquittal
The learned Judge did not introduce any further limitation on the power of the appellate court
But it was observed that the High Court had not clearly kept before it the well settled principles and reversed the decision of the trial court without noticing or giving due weight and consideration to important matters relied upon by that court 
In Tulsiram Kanu vs The State 5 this 1 1934 LR 61 IA 398
2  3 A IR 4 5 AIR 1954 8C I 127 Court used a different phraseology to describe the approach of an appellate court against an order of acquittal
There the Sessions Court expressed that there was clearly reasonable doubt in respect of the guilt of the accused on the evidence put before it
Kania C J observed that it required good and sufficiently cogent reasons to overcome such reasonable doubt before the appellate court came to a different conclusion
This observation was made in connection with a High Court s judgment which had not taken into consideration the different detailed reasons given by the Sessions Judge
In Madan Mohan Singh s case 1 on appeal by special leave this Court said that the High Court had not kept the rules and principles of administration of criminal justice clearly before it and that therefore the judgment was vitiated by non advertence to and misapprehension of various material facts transpiring in evidence and the consequent failure to give true weight and consideration to the findings upon which the trial court based its decision 
In Zwinglee Ariel vs State of M P 2 this Court again cited the passage from the decision of the Privy Council extracted above and applied it to the facts of that case
In Rao Shiv Bahadur Singh vs State of Vindhya Pradesh1 Bhagwati J speaking for the Court after referring to an earlier decision of this Court accepted the principle laid down by the Privy Council and indeed restated the observations of the Privy Council in four propositions
It may be noticed that the learned Judge did not use the words cc substantial and compelling reasons
In section A A Biyabani vs The State of Madras 4 Jagannadhadas J after referring to the earlier decisions observed at p 647 thus While no doubt on such an appeal the High Court was entitled to go into the facts and arrive at its own estimate of the evidence it is also settled law that where the case turns on oral evidence of witnesses the estimate of such evidence by the trial court is not to be lightly set aside
 1 AIR 1954 SC 637
2 AIR 1954 SC 15
3 A IR 4 AIR 1954 SC 645
128 The learned Judge did not repeat the so called formula but in effect accepted the approach of the Privy Council
The question was again raised prominently in the Supreme Court in Aher Raja Khima v
The State of Saurashtra1
Bose J expressing the majority view stated at p 1287 thus It is in our opinion well settled that it is not enough for the High Court to take a different view of the evidence there must also be substantial and compelling reasons for holding that the trial court was wrong Ajmer Singh vs State of Punjab 2 and if the trial Court takes a reasonable view of the facts of the case interference under section 417 is not justifiable unless there are really strong reasons for reversing that view
 It may be noticed that the learned Judge equated substantial and compelling reasons with strong reasons
Kapur J in bhagwan Das V State of Rajasthan1 referred to the earlier decisions and observed that the High Court should not set aside an acquittal unless there are  substantial and compelling reasons for doing so
In Balbir Singh vs State of Punjab 4 this Court observed much to the same effect thus at p 222 It is now well settled that though the High Court has full power to review the evidence upon which an order of acquittal is founded it is equally well settled that the presumption of innocence of the accused person is further reinforced by his acquittal by the trial Court and the views of the trial Judge as to the credibility of the witnesses must be given proper weight and consideration and the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses must also be kept in mind and there must be substantial and compelling reasons for the appellate Court to come to a conclusion different from that of the trial Judge
 These observations only restate the principles laid down by this Court in earlier decisions
There are 1  2 1953 SCP 418 423
3 AI R 4 AIR 1957 SC 216
129 other decisions of this Court where without discussion this Court affirmed the judgments of the High Courts where they interfered with an order of acquittal without violating the principles laid down by the Privy Council
There is no difficulty in applying the principles laid down by the Privy Council and accepted by this Court to the facts of each case
But appellate courts are finding considerable difficulty in understanding the scope of the words substantial and compelling reasons used by this Court in the decisions cited above
This Court obviously did not and could not add a condition to section 417 of the Criminal Procedure Code
The words were intended to convey the idea that an appellate court not only shall bear in mind the principles laid down by the Privy Council but also must give its clear reasons for coming to the conclusion that the order of acquittal was wrong
The foregoing discussion yields the following results 1 an appellate court has full power to review the evidence upon which the order of acquittal is founded 2 the principles laid down in Sheo Swarup s case1 afford a correct guide for the appellate court s approach to a case in disposing of such an appeal and 3 the different phraseology used in the judgments of this Court such as i substantial and compelling reasons ii good and sufficiently cogent reasons and iii strong reasons are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts but should also express those reasons in its judgment which lead it to hold that the acquittal was not justified
With this background we shall now look at the judgment of the Sessions Judge and that of the High 1 1934 LR 61 IA 398
17 130 Court to ascertain whether the High Court anywhere departed from the principles laid down by the Privy Council
The framework of the judgment of the learned Sessions Judge may be shortly stated thus The first question was whether the case of the prosecution that the Rajputs met
under a banyan tree conspired to beat the Jats and came back to the temple armed with weapons was true
This fact was spoken to by several eve witnesses including Goga PW 1 Chandra PW 2 and Doongar Singh PW 21
This fact was also mentioned in the First Information Report lodged by Doongar Singh PW 21
There were 20 eyewitnesses who spoke about the conspiracy and out of them PWs 5 8 9 11 12 15 16 17 18
24 and 25 received injuries during the riot
The learned Sessions Judge considered the evidence of PWs 1 and 2 and rejected it on unsubstantial grounds and on the basis of insignificant discrepancies
Therefter he noticed that all the other eye witnesses with slight and inconsequential variations spoke to the fact of their returning from the banyan tree with lathies swords and guns  but he did not give a definite finding whether he accepted that evidence or not though at the fag end of the judgment he found that he could not hold that the assembly of Rajputs had any common object of killing anybody
Then the learned Sessions Judge proceeded to consider whether any of the Rajputs were recognized by any of the witnesses
He divided the accused into three groups namely i those accused who were amongst the Rajputs when they had come for darshan of Baiji ii those accused who were amongst the Rajputs when they returned from the banyan tree but for whom the evidence of taking part in the actual rioting is divided and iii those accused for whom most of the eye witnesses have stated that they had committed rioting and inflicted injuries on the assembly of cultivators
Taking the first group the learned Sessions Judge for the reasons given by him earlier rejected the evidence of Goga and Chandra pointed out that 28 accused had not been named unanimously by all the eye witnesses 131 noticed that there was long standing enmity between the Rajputs and the cultivators and laid down a criterion that for determining the presence of any particular accused there should be an allegation against him about doing any overt act in the unlawful assembly
By applying the said yardstick he held that none of the accused falling in the first group which included appellants 7 8 and 9 was guilty of the offences with which they were charged
Coming to the second category with which we are not concerned in this appeal the learned Sessions Judge again applied the test that an overt act should be proved against each of the accused and held that no case had been made out against them
Adverting to the third group after noticing that 12 of the eye witnesses were those who received injuries the learned Sessions Judge applied another test for accepting their evidence
In effect and substance the test adopted by him was that an accused identified only by one witness and not proved to have done any overt act should be acquitted by giving him the benefit of doubt
Applying this test to the said witnesses he held that the said accused were not guilty
After considering the evidence in the aforesaid manner he came to the following final conclusion I cannot hold that the assembly of Rajputs had any common object of killing anybody
All happened at the spur of the moment
Those Rajputs who took part in the rioting have not been truthfully named
Innocent persons have been implicated and the cases of those persons who are alleged to have committed any overt acts are also full of doubts
 On appeal the learned Judges of the High Court as already stated allowed the appeal in respect of the 9 appellants and dismissed it in regard to the others
The learned Judges of the High Court observed that it had not the slightest hesitation in holding that the case put forward by the prosecution by and large represented the substantial truth and that the incidents at the banyan tree were true
They pointed out that the reasons given by the Sessions Judge for not believing the evidence of the main witnesses Goga 132 and Chandra who spoke as to what happened at the banyan tree could not be sustained and that the alleged discrepancies and contradictions in their evidence were not such as to detract from truthfulness
We have also gone through the evidence of Goga and Chandra and we entirely agree with the observations of the learned Judges of the High Court that their evidence was natural and consistent and that the alleged discrepancies pointed out by the Ses sions Judge were not either contradictions at all or even if they were so they were so trivial as to affect in any way their veracity
The learned Judges further pointed out that the evidence of Goga and Chandra was supported by the evidence of Doongar Singh P W 21 a police constable who gave the First Information Report at the earliest point of time
The recitals in the First Information Report corroborate his evidence
The learned Judges then indicated that this version was practically supported by other eve witnesses and that they did not see any reason why it should have been invented if it was not true
Having regard to the said evidence they found themselves entirely unable to accept the conclusion of the learned trial Judge that this was a case where a stray beating was given by some individuals on the side of the Rajputs to some individuals on the Bide of the Jats
They found that the Rajputs were members of an unlawful assembly and that they were all animated by a common object of beating the cultivators
Having held that the learned Sessions Judge was clearly wrong on the question of unlawful assembly the learned Judges proceeded to consider the case of each accused
They adopted the following principle based upon the decision of this Court in Abdul Gani vs State of M P 1 We quite recognise that in a case of rioting where two inimical factions are involved exaggerations are bound to be made and some innocent persons are likely to be falsely implicated but all the same it is the duty of the courts not to throw out the whole case by following the easy method of 1 AIR 1954 SC 31
133 relying on discrepancies and where the case for the prosecution is substantially true to find out if any of the accused participated in the offence and if their presence is established beyond all reasonable doubt punish them for the offences committed by them
 They found on the evidence that appellant 1 Sanwat Singh who was present on the spot was a member of the unlawful assembly and had actually struck Sheonath with his sword as a result of which his three fingers were cut that appellant 2 Dhan Singh was one of the persons who took a leading part in the beating that appellant 3 Mangej Singh was undoubtedly one of the participants in the unlawful assembly that appellant 4 Kalu Singh was armed with a sword and attacked the Jats and that his version that he had been first attacked by the Jats was not true that appellant 5 Narain Singh was one of the members of the unlawful assembly and that he had given beatings to PW 25 that appellant 6 Gulab Singh struck Sheokaran Jat with lathies and that appellant 7 Sabal Singh appellant 8 Baney Singh and appellant 9 Inder Singh who admitted their presence at the spot but stated that they were attacked by the Jats were clearly participators in the beating
As regards the other accused the learned Judges having examined the entire evidence agreed with the Sessions Judge in holding that no case had been made out against those accused beyond all reasonable doubt
So far as these accused are concerned there is no evidence to show that any of them had a weapon or that they had taken any active part in assaulting one or other of the Jats
In the result the learned Judges of the High Court found that the appellants formed an unlawful assembly to beat the Jats and that they must have known that murders were likely to be committed in prosecution of that common object
On that finding they convicted and senten ced the appellants as stated earlier in the judgment
Now can it be said that as learned counsel for the appellants argues the Judges of the High Court had ignored any of the principles laid down by the Privy 134 Council and subsequently accepted by this Court We think not
The foregoing analysis of the findings of the two courts discloses the following facts The Sessions judge on the general case of the prosecution that the Rajputs chagrined by the attitude of the Jats in occupying their usual place in the temple went to the banyan tree conferred for a short time and came back to the temple to attack the Jats rejected the evidence of the main witnesses for the prosecution namely Goga Chandra and Doongar Singh on grounds which do not stand a moment s scrutiny and ignored the voluminous evidence which corroborated the evidence of the said three witnesses without giving valid or acceptable reasons for the same
The learned Sessions Judge did not even give a definite finding on this version of the prosecution case though impliedly he must be deemed to have rejected it
In regard to the individual cases he divided the witnesses into three categories and applying mechanical tests refused to act upon their evidence
The High Court rightly pointed out that there was no reason why the voluminous evidence in support of the general case and why the evidence of the three witnesses Goga Chandra and Doongar Singh should be rejected
The learned Judges of the High Court accepted their evidence which conclusively established that the general case was true and that the appellants actually took active part in attacking the Jats with swords and lathies
In doing so the learned Judges did not depart from any of the principles laid down by the Privy Council
Indeed they interfered with the judgment of the Sessions Judge as they came to the conclusion that the said judgment in so far as the appellants were concerned was clearly wrong and contrary to the overwhelming and reliable evidence adduced in the case
The learned Judges of the High Court in our opinion approached the case from a correct perspective and gave definite findings on a consideration of the entire evidence
The question now is whether the appellants have made out any case for interference with the judgment of the High Court under article 136 of the Constitution
135 Article 136 of the Constitution confers a wide discretionary power on this Court to entertain appeals in suitable cases not otherwise provided for by the Constitution
It is implicit in the reserve power that it cannot be exhaustively defined but decided cases  do not permit interference unless by disregard to the forms of legal process or some violation of the principles of natural justice or otherwise substantial and grave injustice has been done
Though article 136 is couched in widest terms the practice of this Court is not to interfere on questions of fact except in excep tional cases when the finding is such that it shocks the conscience of the court
In the present case the High Court has not contravened any of the principles laid down in Sheo Swarup s case 1 and has also given reasons which led it to hold that the acquittal was not justified
In the circumstances no case has been made out for our not accepting the said findings
In the result the appeal fails and is dismissed
Appeal dismissed


Summary:
There were two rival factions in a certain village one con sisting of Rajputs and the other of cultivators
On a particular festival day both the groups went to a temple for worship and cultivators who reached the temple first occupied a place therein which was usually occupied by Rajputs
Subsequently Rajputs arrived and resented the occupation of the sitting place by the cultivators
They shifted to a short distance and after holding a brief conference came back to the temple and attacked the cultivators with guns swords and lathis as a result of which several persons were injured and two were killed
43 persons alleged to have taken part in the rioting were put up for trial before the Sessions judge for having committed offences under section 302 read with section 149 and section 148 of the Indian Penal Code
The Sessions judge held that a common object on the part of the accused to kill the cultivators had not been established and that it had also not been proved beyond reasonable doubt that the accused were guilty of a particular offence
On these findings the Sessions judge acquitted all the accused
On appeal the High Court after examining the entire evidence found some of the accused guilty of culpable homicide not amounting to murder under section 304 read with section 149 and section 148 of the Indian Penal Code and sentenced them to various terms of imprisonment
The appeal in respect of some other accused was dismissed as no case had been made out against them beyond any reasonable doubt On appeal by special leave against the conviction and sentence by the High Court Held that the words substantial and compelling reasons for setting aside an order of acquittal used by this Court in its decisions were intended to convey the idea that an appellate court shall not only bear in mind the principles laid down by the Privy Council in Sheo Swarup s case but must also give its clear reasons for coming to the conclusion that the order of acquittal was wrong
The following results emanate from a discussion of the case law on appeals against acquittal 1an appellate court has full power to review the evidence upon which the order of acquittal is founded 2 the principles 121 laid down in Sheo Swarup s case afford a correct guide for the appellate court s approach to a case disposing of such an appeal 3 the different phraseology used in the judgments of this Court such as 1 substantial and compelling reasons II good and sufficiently cogent reasons and III strong reasons are not intended to curtail the undoubted power of an appellate Court in an appeal against acquittal to review the entire evidence and to come to its own conclusion but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the Court below in support of its order of acquittal in arriving at a conclusion on those facts but should express the reasons in its judgment which led it to hold that the acquittal was not justified
Sheo Swarup vs King Emperor 1934 L R 61 I A 398 con sidered and followed
Nur Mohammad vs Emperoy AIR 1945 PC 151 Surajpal Singh vs The State   Ajmer Singh vs The State of Punjab   Puran vs State of Punjab AIR 1953 SC 459 C M narayan vs State of Travancore Cochin  Tulsiram Kanu vs The State AIR 1954 SC 1 Madan Mohan Singh s case AIR 1954 SC 637 Zwinglee Ariel vs State of U P AIR 1954 SC 15 Rao Shiv Bahadur Singh vs State of Vixdhya Pradesh   section A A Biyabani vs The State of Madras AI R  Aher Raja Khima vs The State of Saurashtra   Bhagwan Das vs The State of Rajasthan  and Balbir Singh vs State of Punjab AIR 1957 SC 216 discussed
The High Court approached the instant case from a correct perspective and gave definite findings on a consideration of the entire evidence and in so doing it did not depart from any of the principles laid down by the Privy Council in Sheo Swarup s case and also gave reasons for holding that the acquittal was not justified
Abdul Gani vs State of M P AIR 1954 SC 31 referred to
Although the powers of this Court under article 136 of the Constitution are very wide interference is not permitted unless by disregard to the forms of legal process or some violation of the principles of natural justice or otherwise substantial and grave injustice has been done on questions of fact the practice of this Court is not to interfere except in exceptional cases when the finding is such that it shocks the conscience of this Court