Judgment

CHANDRACHUD, J. :- The appellants, eleven in all, were acquitted by the Additional Sessions Judge Gonda, but the order of acquittal was set aside in appeal by the High Court of Allahabad (Lucknow Bench). The High Court has convicted the appellants under Section 302, 325 and 323 read with Section 149 and under Section 147 of the Penal Code. They have been sentenced of life imprisonment for the offence of murder and to shorter terms for the other offences is directed against that judgment. The charge against the appellants is that on the evening of September 17, 1966 they formed an unlawful assembly and in prosecution of the common object of that assembly they caused the death of Hausla Prasad and injuries to Rampher, Dwarika and Lakhu.

2. On September 17, 1966 which was a Kajri Tij day Rampher and the deceased Hausla Prasad had gone to a temple which is at a distance of about 8 miles from the village of Jhampur where they lived. They left the temple late in the afternoon along with Dwarika and Lakhu who they met at the temple. Soon after they crossed a river near the village of Singha Chanda they are alleged to have been attacked by the appellants. Dwarika brought a bullock-cart from a village called Gauhani and thereafter the four injured persons proceeded to the Tarabganj police station. On the way Rampher dictated the First Information Reports to a boy called Gorakhnath and soon thereafter the report was lodged at the police station at about 12.30 at night.

Hausla Prasad succumbed to his injuries just before the party reached the police station. He had 12 injuries on his person, Lakhu had a swelling, Rampher had received 6 injuries while Dwarika had received 9 injuries. The injuries received by these persons including Hausla Prasad were mostly contused lacerated wounds and abrasions.

3. The prosecution examined Rampher, Dwarika, Lakhu. Ram Shanker and Ram Kripal (P.Ws. 2 to 6) as eye-witnesses to the occurrence. The learned Additional Sessions Judge held that these witnesses were not worthy of credit and acquitted the appellants. The High Court was not impressed by the evidence of Ram Shankar and Ram Kripal but accepting the evidence of Rampher, Dwarika and Lakhu it convicted the appellants of the offences of which they were charged.

Learned counsel for the State, when called upon, raised a fundamental objection to our entertaining the various questions raised on behalf of the appellants. He contends that the sole question in the appeal is whether the High Court was right in accepting the evidence of the three eye-witnesses and therefore this Court, in the exercise of its powers under Article 136 of the Constitution ought not to re-appreciate that evidence in order to determine whether it can sustain the conviction of the appellants.

4. The question as regards the power of this Court in criminal appeals by special leave from the judgment of High Courts setting aside acquittals has been discussed in numerous cases but the precise scope of the power is still being debated as a live issue. In case after case, counsel have contended that this Court does not under Article 136 function as yet another court of appeal and therefore on matters of appreciation of evidence, the final word must rest with the High Court. Considering the staggering mass of work which is gradually accumulating in this Court, such a rule will bring welcome relief. But it is overstating the rule to say that the verdict of the High Court on questions of fact, including assessment of evidence, cannot ever be re-opened in this Court.

The true position is that if the High Court has set aside an order of acquittal, this Court in an appeal under article 136 from the judgment of the High Court will examine the evidence only if the High Court has failed to apply correctly the principles governing appeals against acquittal. In a series of decisions. High Court had taken the view that upon an appeal from an acquittal, the appellate Court is not entitled to interfere