Judgment

ALAGIRISWAMI, J. :- This is an appeal by special leave against the judgment of the High Court of Patna which allowed an appeal against the acquittal of the appellants and convicted them to life imprisonment for an offence under Section 302 read with Section 149 of the Indian Penal Code.

2. Nineteen persons were committed by the Munsif Magistrate of Banka, District Bhagalpur to take their trial before the Sessions Court of offences under Section 148 and Section 302 read with S. 149 of the Indian Penal Code. One of them, Jyotish Mandal was murdered before the Sessions trial. The other 18 were acquitted by the learned Sessions Judge of Bhagalpur. On an appeal by the State against this acquittal the four appellants were sentenced as above mentioned.

3. It appears to us that the learned Judges of the High Court have ignored very important points in the evidence in the case and allowed the appeal against acquittal and convicted the present appellants. It is not necessary to set out at great length the various decisions regarding the powers of the High Court in an appeal against acquittal. The classic statement is found in the decision of the Privy Council in Sheo Swarup v. King Emperor, AIR 1934 PC 227 (2) = (36 Cri LJ 786) to the following effect :

"Sections 417, 418 and 423 of the Code give to the High Court full power to review at large 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. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, 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 acquitted 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."

In Sanwat Singh v. State of Rajasthan, (1961) 3 SCR 120 = (1961 Cri LJ 766) Subba Rao, J. (as he then was) reviewed all decisions rendered by this Court on this subject and expressed the conclusions that can be drawn from those decisions about the powers of the High Court in an appeal against acquittal in the following words :

"(1) an appellate court has full powers to review the evidence upon which the order of acquittal is founded; (2) the principles laid down in Sheo Swarup s case, (AIR 1934 PC 227 (2) = 36 Cri LJ 786) 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 quantum 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."

4. We do not consider it necessary to refer to all the later decisions on this subject except the latest one in State of Uttar Pradesh v. Samman Dass, Cri. A. No. 17 of 1971 D/- 11-1-1972 = (reported in AIR 1972 SC 677) to the following effect :

"This Court in an appeal under Article 136 of the Constitution does not normally re-appraise the evidence and interfere with the assessment of that evidence by the High Court. Where, however,