Judgment

KRISHNA IYER, J.:- This appeal by special leave, by three out of twenty three, who alone were convicted by the High Court in reversal of a total acquittal by the trial court, turns on the propriety of the Court of Appeal convicting accused persons whose initial advantage of a presumption of innocence has been strengthened by a judicial affirmation at the first level.

2. The few facts are these. Two groups - the complainants and the accused - Have been on terms of bitter hostility - a background material which has legitimately induced both the courts to be very sceptical about the veracity of the prosecution witnesses in the absence of unlaying corroboration. As found by both the courts, a confrontation and exchange of violence occurred on June 22, 1964 each party calling the other aggressor. Anyway, several on the prosecution side did receive gunshot wounds, although luckily not fatal, and three among the accused bunch had on their person lathi blow injuries. The trial Judge disbelieved the version of the defence but found the PWs too partisan to pin his faith on, and in consequence acquitted everyone. The High Court agreed that unless the infirmity of interested testimony was cured by other credible evidence the fate of the case would be the same and on that basis dismissed the State s appeal against all but the three appellants before us. Was this exceptional treatment justified (a) by the evidence, and (b) in the light of first court s acquittal?

3. An encounter did take place and a case and counter-case ensued. The accused - Except a few who pleaded alibi in vain -claimed that they were attacked. Even the trial court has rejected this contention and fire High Court has held that, having regard to the number and nature of injuries and the number of persons who have been hit by the power, the accused were the attackers. We see no reason to disturb this conclusion. Even so, how could you hand-pick three out of twenty three for punishment? The complainant s plea is that when attacked by guns he and his men went at them, disarmed them and beat them with lathis. The convicted three have injuries which fit in with this version. The appellate Court has taken these injuries as corroborative of participation in the rioting and attempt to murder (read with S. 149, I.P.C.) charged against all the accused. The short question is whether these wounds bring home the guilt so strongly as to warrant upsetting of an earlier acquittal.

4. The principle of law is well settled that merely because a different view of the evidence is possible - minds differ as rivers differ - you cannot cancel a finding against guilt. But the appellant Court is untrammelled in its power to re-evaluate the evidence bearing in mind the seriousness of overthrowing an acquittal once recorded. In that view we cannot find any error of law in the High Court reconsidering the probative value of the oral and circumstantial evidence in the case. Nor are we persuaded to think that the appellate Court has failed to observed the built-in restraints on exercise of power while upsetting an acquittal. On the other hand, the Court has made the correct approach that only those accused against whom there was additional probative reinforcement could be convicted. So, it found that the injuries on the persons of the three appellants and the fact that Siya Ram, appellant No, 2, had a gun in his hands at the time of the occurrence were sufficient, together with the other evidence, to hold the appellants guilty.

5. We cannot part with this case without mentioning the serious error some subordinate courts commit in the application of the rule of benefit of reasonable doubt. For instance, in the present case the learned Sessions Judge has misguided himself by chasing bare possibilities of doubt and exalting them into sufficiently militating factors justifying acquittal. The following passage illustrates the grievous mistake of the learned Judge:

"I must concede that probabilities for