The presumption of innocence continues all throughout the trial and till the disposal of the case in the final Court of appeal. The appellate court should assess the entire evidence and materials before it to see if the case against the accused has been affirmatively proved beyond all reasonable doubts, without being obsessed by the finding of conviction and the sentence passed by the trial court.

S. ACHARYA, J.

( 1 ) THIS revision is against the appellate judgment of the Additional Sessions Judge, cuttack in Criminal Appeal No. 22 C of 1965 confirming the convictions and sentences of the petitioners under Sections 379 and 426 I. P. C. , while setting aside their conviction and sentence under Section 504 I. P. C. passed by a magistrate 1st Class, Cuttack.

( 2 ) THE prosecution case, in short, is that on 26-6-1964, at about 8 A. M. the petitioners cut the green fence standing on the eastern boundry of the complainant's plot No. 31 in Khata No. 1 of mouza Dhusal. Thereafter, they carried away some cowdung stored on the complainant's land and also removed some Alu and Olua from the said land.

( 3 ) THE petitioners in pleading not guilty to the charges urged that there was no fence in between the complainant's land and the paddy land of the petitioner No. 1, and that on the date of oc- currence, the petitioner No. 1 was cutting the branch of a Chakunda tree standing on his own land, but as he did not cut the branches which extended towards the land of the complainant, there was an altercation between the parties, and out of grudge, the complainant filed this false case against them.

( 4 ) MR. Rahenoma, the learned counsel for the petitioners contended, by drawing my attention to paragraph No. 4 of the judgment, that the appellate court made a wrong approach to the case in proceeding to decide the matter on the presumption that the accused (petitioners) persons were guilty of the offences alleged against them. Paragraph No. 4 is as follows:

"it is now to be seen how far the convictions and sentences awarded by the trial court are supported by evidence on record. " on this, it was argued that the appellate Judge proceeded under the assumption that it was his duty only to see if the convictions and sentences passed against the petitioners could be supported on the evidence on record. In support of his above contention, he cited two decisions, namely. Emperor v. Nur Ahmad AIR 1934 All 842 and Abdul Gani v. Emperor, AIR 1943 Cal 465. It has been held by their lordships of the Allahabad High Court that: "the duty of the appellate Court is to review the entire evidence to make up its mind upon that evidence and to reverse the decision of the lower court if it be satisfied upon a consideration of the evidence that the decision is unjustified. The presumption of innocence with which the accused starts continues right through until he is held to be guilty by the final Court of appeal. If he is acquitted by the Court of first instance the presumption of innocence of course remains. The presumption of innocence is absolute. It is not strengthened by an acquittal nor weakened by a conviction in the trial Court". Their Lordships of the Calcutta High Court in the above mentioned case held as follows: "in a criminal appeal it is for the Crown to establish that the judgment of the trial Court is right. The appellate Court must remember that the presumption of the innocence of the accused still persists and that the appellate Court has to satisfy itself that the judgment of the Magistrate was right".

The cardinal principle to be observed in the trial of a criminal case is that the accused should always be considered to be innocent person till the criminal acts alleged against him are affirmatively and satisfactorily proved. This presumption of innocence continues all throughout the trial and till the disposal of the case In the final Court of appeal. The approach of the Court of appeal should therefore be to assess the entire evidence and the materials before him to see if the case against the accused has been affirmatively proved beyond all reasonable doubts, without being obsessed by the finding of conviction and the sentence passed by the trial court. On such appreciation of evidence and materials he has to examine the propriety or otherwise of the conviction and the sentence passed by the trial court.

( 5 ) AS the learned counsel com