The scope of 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.

Judgment

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 S. 304, read with S. 149, and S. 148 of the Indian Penal Code.

2. 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 p. m. 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 west 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 gunshot 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 S. 302, read with S. 149, and S. 148 of the Indian Penal Code. Five of the accused admitted their presence at the scene of 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.

3. 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.

4. 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 S. 304, read with S. 149, Indian Penal Code; they also held that appellants 1, 2, 3, and 4 were also guilty under S. 148 of the Indian Penal code, as they were armed with deadly weapons and the rest under S. 147, Indian Penal Code. For the offence under S. 304, read with S. 149, the appellants were sentenced to ten years rigorous imprisonment, and for the offence under S. 148, appellants 1 to 4 were further sentenced to one year s rigorous imprisonment and the rest under S. 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.

5. 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.

6. In recent years the words "compelling reasons" have become words of magic incantation in every appeal against acquittal. The words are so elastic that they