minal Appeal No 138 of 1968
Appeal by special leave from the judgment and order dated the June 10 1968 of the Bombay High Court in Criminal Appeal No 667 of 1967
V section Desai P section Nadkarni and Vineet Kumar for the appellants
section K Dholakia and B D Sharma for the respondent
The Judgment of the Court was delivered by Ray J
This is an appeal by special leave from judgment dated 10 June 1968 of the High Court at Bombay setting aside the order of acquittal of the appellants and convicting them under section 325 read with section 34 of the Indian Penal Code for having assaulted and injured Choharjasing and sentencing each of the appellants to four years rigorous imprisonment and a fine of Rs 1000 each and six months rigorous imprisonment in default of payment of fine and further convicting the appellants under section 323 read with section 34 of the Indian Penal Code for having assaulted and injured Ramkeshwarsing and sentencing each of the appellant s to three months rigorous imprisonment
The sentences were to run concurrently
The appellants and another accused were charged under sec tions 143 147 307 read with section 149 of the Indian Penal Code
The four appellants were also charged under section 148 of the Indian Penal Code
In the alternative the appellants were charged under section 307 read with section 34 of the Indian Penal Code
The appellants and the other accused were further charged under section 326 read with section 149 of the Indian Penal Code
In the alternative they were charged under section 324 read with section 34 of the Indian Penal Code
The appellants and the other accused were further charged under section 324 read with section 149 of the Indian Penal Code
In the alter native they were charged under section 324 read with section 34 of the Indian Penal Code
The complainant Choharjasing and Nandlal are brothers
They resided in room No 5 of Vidya Bhuvan Kurla along with their cousin Ramkeshwarsing and Gayitrising brother in law of Choharjasing
Chollarjasing
Nandlal and Ramkeshwarsing were employed at Premier Automobiles at Kurla
The prosecution witness Awadh Narayan who resided at Moturam Chawl was also employed at Premier Automobiles
Another prosecution witness 624 Dinanath was a shopkeeper residing at Halav Pool Kurla
The first appellant dealt in milk and resided at Maulana Chawl Halav Pool Kurla
Appellant No 2 is the brother of appellant No 1 and resided at a nearby Chawl at Halav Pool and was employed at Premier Automobiles at Kurla
Appellant No 3 also resided at Halav Pool Chawl Kurla and was employed at Premier Automobiles Kurla
Appellant No 4 resided at another Chawl at Kurla and was also employed at Premier Automobiles Kurla
Accused No 5 worked as a Mehtaji of one Jairaj Pandye and resided at Bhagwat Bhuvan Halav Pool Kurla
The prosecution case was this
The relation between Cho harjasing and his brother Nandlal on the one hand and appellants No 1 and 2 on the other were strained for some time
On the morning of 15 October 1964 Nandlal brought a truck load of earth and spread the same in front on their room
On that account there was some altercation between him and appellants No 1 2 and 3
On the morning of 16 October 1964 Choharjasing left his room and went to Podar Hospital at Worli for undergoing an operation for fistula
He returned to his room at about 11 or 12 noon
On his return he was told by his brother Nandlal about the quarrel and that the appellants and another accused had given a threat and enquired as to where Choharjasing was
Nandlal further told Choharjasing that the appellants and the other accused had threatened that they would break Choharjasing s hands and feet
Choharjasing went to the Police Station and filed a non cognizable complaint
The police directed Choharjasing to approach the proper criminal court
Choharjasing went to prosecution witness Dinanath and told him about the threats
Choharjasing then returned to his room and launched with his brother Nandlal cousin Ramkeshwarsing and brother in law Gaitrising
Choharjasing was not feeling comfortable after the operation
He sat on a charpoy cot outside his room
Nandlal was with Choharjasing
Ramkeshwarsing was inside the room
At about 5 or 530 pm the appellants came there
Appellant No 1 was armed with a lathi
Appellants No 2 3 and 4 had also lathis or something like iron bars
Accused No 5 was standing at some distance
Accused No 5 instigated the appellants by shouting the words Dekhte kya ho Mar Dalo  what are you looking at assault them
Appellant No 1 also shouted to assault
The appellants surrounded Choharjasing and Nandlal and started assaulting them with weapons
Appellants No 1 and 4 hit Choharjasing
Appellants No 2 and 3 hit Nandlal
Choharjasing fell down
The assault continued
Appellant No 2 thrust his stick in the mouth of Choharjasing and he lost four of his teeth
Choharjasing and Nandlal both fell unconscious
Ramkeshwar sing received a blow on left hand
625 The Sub Inspector of Police on getting a telephone message came to the spot
On the way the Sub Inspector met appellants No 1 and 4 each of whom had injuries on their person
They were put in the police van
The van was taken to the place of incident
Choharjasing and Nandlal were lying unconscious
Witnesses Awadh Narayan and Dinanath were present there
Choharjsing
and Nandlal were put into the van and removed to the hospital
At the time of admission to the hospital Choharjasing had 12 injuries
Nandlal had 5 injuries
Appellant No 4 had 3 injuries
Choharjasing and Nandlal were detained in the hospital as indoor patients from 16 October 1964 to 12 November 1964
Appellant No 4 in spite of medical advice left the hospital on 17 October 1964
The trial Court acquitted all the 5 accused
The trial Court gave these reasons
Choharjasing and Ramkeshwarsing did not mention accused No 5
Witness Award Narayan did not mention accused No 5
Ramkeshwarsing did not mention accused No 2 3 and 5
Witness Awadh Narayan did not mention accused No 3
Choharjasing and Nandlal were all thin and of weak build
The accused were hefty in build
It is difficult to say why so many persons would engage in the assault on two weak persons particularly when Choharjasing had just returned after operation from the hospital
The injuries on appellants No 1 and 4 were not satisfactorily explained
The possibility of persons from the crowd feeling enraged at the assault on accused No 1 to 5 who were holding important offices in the local Congress organisation and then rushing forward and inflicting injuries on the assaulters of Choharjasing and Nandlal two well known persons of the locality cannot be ruled out as contended for by the defence
Iron bars and sticks were not recovered
Ramkeshwarsing had failed to go to the police station of his own accord
He and Choharjasing did not implicate accused No 5 in their earlier statements
The presence of accused No 2 and 3 is not free from doubt
Ramkeshwarsing and Awadh Narayan did not mention accused No 2 in their earlier statements
Ramkeshwarsing did not mention the name of accused No in his statement to the police
Choharjasing and Nandlal could not explain how accused No 1 and 4 came to receive the injuries
Though the injuries on Choharjasing and Nandlal are no doubt serious the evidence does not satisfactorily establish that they were caused by the accused in furtherance of their common intention and that they formed an unlawful assembly and used force or violence and they rioted with deadly weapons in prosecution of their common intention
The defence that accused No 1 was assaulted and seeing 626 this accused No 4 came there and he was assaulted cannot in the circumstances be overlooked
With these reasons the trial Court acquitted all the five accused
The High Court set aside the order of acquittal
The High Court arrived at these conclusions
The evidence established that the grievous injury inflicted on Choharjasing and Nandlal and the simple injury inflicted on Ramkeshwarsing were inflicted by the appellants
The trouble arose on account of dispute over the open space adjoining the room of Choharjasing
The appellants could not be convicted under section 307 of the Indian Penal Code The appellants were guilty of causing grievous hurt
The High Court therefore convicted the appellants for injuries sustained by Choharjasing Nandlal and Ramkeshwarsing
Counsel for the appellants made these submissions
The High Court interfered with the acquittal without giving any reasons The first information report about the cognizance of the offence was wrongly admitted in evidence
The incident on the morning of 16 October 1964 could not be believed and therefore the entire prosecution would fail
As to the incident on the morning of 16 October 1964 the trial Court said that the time of recording the complaint on 16 October 1964 was 1105 am
where as the complainant s version in court was that he returned from the hospital at about 11 am or 12 noon when he received information from Nandlal
Further in the complaint Choharjasing did not mention about any of the accused and Nandlal also did not mention accused No 5
The land on which earth was spread belonged to one Khot and therefore appellant No 1 could not have interest in that land
Or these grounds the trial Court did not accept the version that there was any occurrence on the morning of 16 October 1964
The High Court however accepted the version that there was an incident on the morning of 16 October 1964 and said that Chohajasing would not have taken the trouble of going to the police and lodging a complaint
The High Court gave two broad reasons for accepting the prosecution version about the incident on the morning of 16 October 1964
First there was the complaint by Choharjasing
Secondly Choharjasing had gone to the hospital on the morning of 16 October 1964 and on his return from the hospital he went to lodge the complaint
Choharjasing would not have done so if there had been no incident in the morning
The High Court referred to the first information report about the commission of the offence and said that once the statement was admitted in evidence it afforded a very strong corroboration 627 to the testimony of Choharjasing so far as the complicity of accused No 1 to 4 in the crime was concerned and the first information report was admissible under section 157 of the Evidence Act
The first information report is not substantive evidence
It can be used for one of the limited purposes of corroborating or contradicting the makers thereof
Another purpose for which the first information report can be used is to show the implication of the accused to be not an afterthought or that the information is a piece of evidence res gestao
In certain cases the first infor mation report can be used under section 321 of the Evidence Act or under section 8 of the Evidence Act as to the cause of the informant s death or as part of the informer s conduct
The High Court was wrong in holding that the first information report would be admissible under section 157 of the Evidence Act
When the maker of the first information report was examined in court the report was not tendered by the prosecution in accordance with the provisions of the Evidence Act
The appellants were denied the opportunity of cross examination on the first information report
The first information report was therefore wrongly relied upon in evidence for the purposes suggested by the High Court
It is therefore to  seen as to whether the High Court was justified in convicting the appellants on the evidence and the grounds mentioned in the judgment
The evidence of the complainant is that in the afternoon of 16 October 1964 all the appellants came armed with lathis or something like iron bars and all the four appellants assaulted Choharjasing and Nandlal with what the appellants had in their hands
The further evidence is that appellant No 2 thrust the lathi into Choharjasing s mouth and be lost four of his teeth as a result of that
Nandlal in his evidence stated that appellant No 2 gave a blow with a stick on his head
Nandlal and Choharjasing were attempting to run away when appellant No 3 assaulted Nandlal on his head with what looked like an iron bar and appellant No 4 also assaulted him with what he was holding and which also looked like an iron bar
Nandlal further said that appellant No 2 assaulted him before he fell down and after he bad fallen down all the appellants assaulted him
Witness Ramkeshwarsing said that he saw all the appellants and when Choharjasing and Nandlal had fallen on the ground they were assaulted by all the appellants with sticks and iron bars
Ramkeshwarsing further said that in the statement to the police he mentioned that he saw appellant No 1 2 and two others
628 Witness Awadh Narayan said that he knew all the appellants and he saw sticks in their hands
He corroborated Nandlal s evidence that appellant No 2 assaulted with a stick Choharjasing on the mouth
He also said that all the appellants continued assaulting Choharjasing and Nandlal
He said that in his statement to the police he mentioned the names of appellants No 1 and 2
Witness Dinanath said that he knew Choharjasing and Nandlal for a few years and he also know the appellants
He said that appellant No 2 had a stick in his hand and appellant No 2 assaulted Nandlal on his head
His further evidence was that appellant No 2 gave a straight and perpendicular blow with a stick on the mouth of Choharjasing
The Sessions Court was wrong in holding that Ramkeshwarsing did not mention the name of appellant No 2
He not only stated in his oral evidence that he had mentioned the name of appellant No 2 to the police but this was also not challenged in cross examination
The other witnesses Choharjasing Nandlal Awadh Narayan and Dinanath all spoke about the appellants who assaulted Choharjasing and Nandlal
As to appellant No 3 Choharjasing said that appellants No 3 and 4 carried something like iron bars of a black colour
As far as appellant No 3 is concerned there is no contradictory police statement on the part of Choharjasing
The oral evidence of Nandlal in relation to appellant No 3 was that he assaulted Nandlal
Nandlal in his statement to the police also mentioned about appellant No 3
There is no contradictory police statement on the part of Nandlal as far as appellant No 3 was concerned
Nor was any such contradiction put to Nandlal
The medical evidence about the injuries to Choharjasing was that the injuries could be caused by hard and blunt substance like iron bars and lathis and were likely to cause death if not medically attended to
The medical evidence about the injuries to Nandlal was that those injuries could be caused by coining in contact with hard and blunt substance such as lathi bamboo stones iron bars etc
and were serious injuries and were likely to cause death if not medically attended to
Ramkeshwarsing in his oral evidence said that the appellants assaulted Choharjasing and Nandlal He said that he did not mention appellants No 3 and 4 in the police statement because he did not know them
There is no contradictory police statement as far as witness Ramkeshwarsing is concerned in relation to appellant No 3
In his police statement he mentioned appellants No 1 and 2 and he said that two others assaulted Choharjasing and Nandlal
Ramakeshwarsing thus spoke of four persons 629 assaulting Chohajasing and Nandlal
That was not challenged in cross examination
Witness Awadh Narayan spoke of appel lant No 3
There is no contradictory police statement of Awadh Narayan in relation to appellant No 3
Witness Dinanath spoke about appellant No 3 assaulting Choharjasing and Nandlal
There is no cross examination of Dinanath that appellant No 3 gave a blow with a stick to Nandlal
On behalf of the appellants it was contended that appellants No 2 and 3 did not receive any injuries and therefore it was improbable that they would be involved in the assault
That contention is unacceptable because of the clear and convincing evidence of several witnesses about appellants No 2 and 3 assaulting Choharjasing and Nandlal
The trial Court was wrong in holding that the names of appellants No 2 and 3 were not mentioned by the witnesses to the police
The names of appellants No 2 and 3 were mentioned by the witnesses to the police
The oral evidence of the witnesses was to that effect
That evidence was not challenged
The High Court was therefore justified in coming to the con clusion that the acquittal of appellants No 2 and 3 by the trial Court was to be set aside
The evidence of the several witnesses that appellants No 2 and 3 assaulted Choharjasing and Nandlal cannot be discarded on the statement that the appellants No 2 and 3 did not receive injuries
It does not follow that appellants No 2 and 3 were not at the scene of occurrence and did not commit the acts of assault just because there was no injury on them
As far as appellants No 1 and 4 are concerned the High Court was correct in holding that they were wrongly acquitted by the trial Court
12 injuries on Choharjasing and 5 injuries on Nandlal were all serious in nature
The oral evidence was rightly accepted by the High Court that all the appellants were guilty of assaulting Choharjasing Nandlal and Ramkeshwarsing
Counsel for the appellants relied on the decisions of this Court in Harbans Singh and Anr
vs State of Punjab 1962Suppl
1 SCR 1041 and Khedu Mohton  Ors
vs State of Bihar  in support of the proposition that the High Court should not have interfered with the acquittal by the trial Court and if on the ruling of this Court in Khedu Mohton  Ors
vs State of Bihar supra two reasonable conclusions can be reached on the basis of the evidence on record then the acquittal of the accused should be preferred
The observations in Khedu Mohton s case mean this If two conclusions can be reached with a plausible appearance of reason the court should can in favour of that which leads to acquittal and not to that 630 which leads to t conviction
Two views and conclusions cannot both be right and one must be preferred over the other because our criminal jurisdiction demands that the benefit of doubt must prevail
As to powers of the appellate court this Court in Sanwat Singh  Ors
vs State of Rajasthan  laid down three principles
First the appellate court had power to review the evidence upon which the order of acquittal is founded
Second the principles laid down by the Judicial Committee in Sheo Swarup vs King Emperor 61 IA 398 are a correct guide for the approach by an appellate court
These principles are that the views of the trial Judge as to the credibility of the witnesses the presumption of innocence in favour of the accused the right of the accused to the benefit of doubt and the slowness of an appellate court in disturbing the finding of fact arrived at by a Judge who had the advantage of seeing the witnesses are the rules and principles  in the administration of justice
Thirdly the appellate court in coming to its own conclusion should not only consider every matter on record having a hearing on the questions of fact and the reasons given by the trial court in support of the order of acquittal but should also express reasons to hold that the acquittal was not justified
in the light of the rulings of this Court to which reference has been made we are satisfied that the High Court kept in view the rules and principles of appreciation of evidence and the right of the accused to the benefit of doubt and the High Court gave reasons as to why the occurrence on the morning of 16 October 1964 was proved and also why the appellants were found on the evidence on record to be guilty of having committed an offence
Benefit of doubt was not sustainable in the present case inasmuch as the materials on record
did not exclude the guilt of the appellants
This Court in Khedu Mohton  Ors
vs State of Bihar supra set aside the judgment of the High Court and restored that of the Sessions Judge by acquitting the appellants because the High Court did not deal with finding of the first appellate court that it was unsafe to place reliance on the evidence of four prosecution witnesses who were interested witnesses
Another feature which vitiated the approach of the High Court in that case was that there was a delay of 8 days in filing the complaint and the first appellate court said that it threw a great deal of doubt on the prosecution story
The High Court made reference to some information lead before the Police and did not properly assess the delay in the filing of the complaint
This Court found there that the information before the police prior to the complaint was 631 an application that there was an apprehension of breach of peace
It is in this context of facts that this Court said that the High Court was wrong in setting aside the acquittal
Once the appellate court came to the conclusion that the view of the trial court was unreasonable that itself would provide a reason for interference
Again if it was found that the High Court applied the correct principles in setting aside the order of acquittal this Court would not ordinarily interfere with the order of conviction passed by the High Court in an appeal against acquittal or review the entire evidence where the High Court was right in its view of evidence
Therefore if the High Court has kept in view the rules and principles of appreciation of the entire evidence and has given reasons for setting aside the order of acquittal this Court would not interfere with the order of the High Court See Harbans Singh vs State of Punjab supra
This Court in Nihal Singh  Ors
vs State of Punjab  said that there were two ways of dealing with an appeal by this Court from an order of conviction setting aside an acquittal
One of the modes was to go through the evidence and find out whether the High Court had infringed the principles laid down in Sanwat Singh vs State of Rajasthan supra or whether the appeal was an exceptional one within the ruling of this Court in State of Bombay vs Rusy Mistry AIR 1960 SC 391 where the finding was such that it shocks the conscience of the court or that it disregarded the forms of legal process or substantial and grave injustice had been done
In dealing with an appeal against an acquittal the High Court can go into the questions of law and fact and reach its own conclusion on evidence provided it pays due regard to the fact that the matter had been before the Court of Sessions and the Sessions Judge had the chance and opportunity of seeing the witnesses depose to the facts See Laxman Kalu Nikalie vs The State of Maharashtra 1968 3 SCR 685
The High Court was correct in setting aside the order of acquittal and convicting the appellants
The appeal therefore fails and is dismissed
If the appellants are on bail their bail bonds are cancelled
They will surrender and serve out the sentence
VPS Appeal dismissed


Summary:
The High Court set aside an order of acquittal of the appellants on various charges and convicted them
One of the items of evidence on which the High Court relied was the first information report
Though it was not proved through its maker when be gave evidence in the trial court
the High Court held it to be admissible under section 157 of the Evidence Act
in appeal to this Court HELD  1 The High Court was wrong in holding that the First Information Report would be admissible under section 157 of the Evidence Act
Under that section
it could not be used as substantive evidence but only to corroborate its maker
The appellants were also denied the opportunity of cross examination on the First Information Report
627 A D 2 The High Court however was correct in setting aside the order of acquittal and convicting the appellants on the other evidence
1639 D G In dealing with an appeal against acquittal the High Court can go into questions of law and fact and reach its own conclusion on evidence provided it pays due regard to the principles for such review
These principles are giving due regard to the views of the trial Judge as to the credibi lity of the witnesses the presumption of innocence in favour of the accused the right of the accused to any benefit of doubt and the slowness of an appellate court in disturbing the finding of fact arrived at by a Judge who had the advantage of seeing the witnesses
The appellate court ill coming to its own conclusion should not only consider every matter oil record having a bearing on questions of fact and the reasons given by the trial court in support of the order of acquittal but should also express reasons for holding that the acquittal was not justified
If two conclusions can be reached with a plausible appearance of reason the court should lean in favour of that which leads to acquittal and not to that which lead to conviction
But once the appellate court comes to the conclusion that the view of the trial court was unreasonable that itself would provide a reason for interference
629 H 630 A E 631 B D In the present case the High Court bid kept in view the rules and principles of appreciation of evidence in setting aside the order of quitting
In such a case
this Court would not ordinarily interfere with the order of conviction by the High Court in an appeal against an acquittal or review the evidence
630 E 631 B D Harbans Singh and Anr
vs State of Punjab 1962 Supp 1 SCR 104 Senwat Singh  Ors
vs State of Rajasthan  Nihal Singh  Ors
vs State of Punjab   State of Bombay vs Rusy Mistry ATR and Laxman Kalu Nikalje State of Maharashtra  followed
623 Khedu Mohton  Ors
vs State of Bihar  and Sheo Swarup vs King Emperor 61 IA 398 referred to