IMPORTANT POINT
The High Court while reversing an order of acquittal must apply its mind to the reasons given by the Trial Court and if the High Court is satisfied that the reasons given by the Trial Court for acquittal are totally unsustainable and the appreciation of evidence made by the Trial Court is per se bad then there would be no limitation on the power of the High Court to set aside an order of acquittal.

Headnote:(i) CRIMINAL TRIAL-Appeal from conviction-Appeal against acquittal-Powers of Appellate Court in disposing of appeals are the same-Procedure for dealing with two kinds of appeal is identical-High Court has full powers while hearing an appeal against order of acquittal, to re-appreciate evidence-If on the evidence two views are possible, on supporting acquittal and other indicating conviction-High Court would not be justified in interfering with order of acquittal-High Court while reversing an order of acquittal must apply its mind to reasons given by Trial Court-Held, on facts, no infirmity in judgment of High Court convicting appellants u/s 302/149 IPC by setting aside their acquittal.
       Held that under the Criminal Procedure Code there is no difference so far as the power of the Appellate Court is concerned to deal with an appeal from a conviction and that from an appeal against an order of acquittal excepting that an appeal against a conviction is as of right and lies to Courts of different jurisdictions depending on the nature of sentence and kind of trial and the Court in which the trial was held, whereas an appeal against an order of acquittal can be made only to the High Court with the leave of the Court. The procedure for dealing with two kinds of appeals is identical and the powers of the Appellate Court in disposing of the appeals are in essence the same. The High Court, therefore, has full powers while hearing an appeal against an order of acquittal, to re-appreciate the evidence and to come to a conclusion whether the order of acquittal passed by the Sessions Judge was per se bad or not. If, however, on the evidence two views are reasonably possible, one supporting acquittal and the other indicating conviction then the High Court would not be justified in interfering with an order of acquittal merely because it takes the view that it would have taken the other view sitting as a trial Court. It would, therefore, be correct to state that the High Court while reversing an order of acquittal must apply its mind to the reasons given by the trial Court and find out whether such reasons are at all sustainable or not. But on examining the reasons advanced by the trial Court as well as on re-appreciating the evidence on record if the High Court is satisfied that the reasons given by the trial Court for acquittal are totally unsustainable and the appreciation of evidence made by the trial Court is per se bad then there would be no limitation on the power of the High Court to set aside an order of acquittal. If the impugned judgment of the High Court setting aside the acquittal of some of the accused persons by the learned Sessions Judge and convicting them under Section 302/149 IPC is examined from the aforesaid stand point we really do not find any infirmity with the same. The High Court has indicated the fallacy of the reasonings advanced by the learned Sessions Judge in acquitting some of the accused persons by holding that "the trial Court having held those accused persons were members of an unlawful assembly, they could not be exonerated under Sections 302/149 and 307/149." On analysis of the evidence the High Court has come to the conclusion that those accused persons became the members of an unlawful assembly and had seen some of the members of that assembly had equipped themselves with rifles and have been indiscriminately using them against the Army Jawans. Some of the accused persons in fact were injured which establishes the fact of their being present at the place of occurrence and their presence is also otherwise established through the oral testimony of more than two prosecution witnesses. Once it is held that they were also members of unlawful assembly they will be liable for the unlawful activities of the members of the said assembly, even if they might not have actually fired the guns. On the materials on record the High Court has come to the conclusion that not only the persons concerned were members of unlawful assembly but also their presence at the spot constituted sufficient encouragement for other members of the said assembly who indiscriminately started firing at the Army jawans. It is well settled that if offence is committed by some members of an unlawful assembly then the other members of the assembly are also liable for the offence under Section 149 of the Indian Penal Code. We have also carefully scrutinised the judgment of the learned Sessions Judge as well as that of the High Court and we are of the considered opinion that the High Court was wholly justified in reversing an order of acquittal passed by the learned Sessions Judge and we do not find any error of law therein. (Para 5)
       (ii) Indian Penal Code, 1860-Section 302/149-Conviction of three appellants by High Court allowing appeal against acquittal-Challenged on ground that no reasons having been indicated for setting aside order of acquittal-High Court has indicated fallacy of reasonings advanced by Sessions Judge in acquitting some of accused persons-Some of the accused persons were injured-It establishes fact of their being present at place of occurrence-They being members of unlawful assembly-They will be liable for unlawful activities of members of that assembly, even if they might not have actually fired-Judgment of conviction legally sustainable. (Para 5)
       (iii) Indian Penal Code, 1860-Section 302/149-U.P. Pradeshik Armed Constabulary Act-Section 7 (c)-Conviction for offences under-Appeal-Prosecution evidence establishes that accused persons belonging to Provincial Constabulary started indiscriminately firing at Army Jawans-12 persons belonging to Army died-Their dead bodies recovered from the spot itself-Necessary death certificates issued by Medical authority-Non holding of post mortem examination-Immaterial-High Court rightly convicted appellants u/s 302/149 IPC-Prosecution has proved charges against accused persons beyond reasonable doubt. (Paras 6, 7)
       (iv) CRIMINAL APPEAL-Scope -Normally this Court does not re-appreciate evidence where two Courts below have already appreciated and held the evidence reliable-In this case, there being peculiar situation-Large number of appellants involved-This Court scrutinised evidence and found it reliable and trustworthy-Conviction sustained. (Para 7)

JUDGMENT

Pattanaik, J.-These two appeals arise out of the same Sessions Trial being Sessions Trial No. 332 of 1973 in the Court of Vth Additional and District Judge, Varanasi. The appellants are the members of Pradeshik Armed Constabulary belonging to the 5th batallion and their Headquarter was at Ramnagar. An unfortunate and unsavoury incident occurred on account of the decision of the State Government that the Army should take over charge of the armoury and magzines of the Provincial Pradeshik Armed Constabulary throughout Uttar Pradesh. It is on account of the aforesaid direction the forces belonging to the Pradeshik Armed Constabulary revolted and resisted the Army personnel from taking charge of the armoury and in furtherance of which 12 persons belonging to the Army were killed and 32 were injured. On account of the firing from the Army 4 persons belonging to the Pradeshik Armed Constabulary were killed and some were injured. Ultimately, however, the direction of the State was implemented and the Army took charge of the armoury and other weapons. The incident occurred during the night of 21.5.1973 and continued for a fairly long period till 4.30 p.m. of 22.5.1973. On the basis of First Information Report given on 22nd May, 1973, at 7.30 p.m. a criminal case was instituted and a chargesheet was submitted against 44 accused persons including the appellants in these two appeals under Sections 147, 148, 302/149, 307/149, 324/149, 326/149,395/397, 120B and 427/149 IPC and Rule 43 (5) of the Defence of Indian Rules as well as under Sections 6(b) and 7(c) U.P. Pradeshik Armed Constabulary Act. Accused Banwari Ram, Ram Kirat Yadav, Hira Shanker Singh, Sheo Bahadur Yadav, Lal Babu Singh, Ramayan Singh, Indradeo Ram, Ramashanker Singh, Ram Nath Sharma, Lok Nath Singh and Tara Prasad Tewari were also charge sheeted under Section 409 IPC. The case was committed to the Court of Sessions Judge by the Chief Judicial Magistrate, Varanasi and ultimately the accused persons were tried by the Vth Additional and District Judge, Varanasi.

2. The prosecution case in nutshell is that the members of the Armed Constabulary formed an Association which was not recognised by the State of U.P. The forces belonging to the Armed Constabulary who had been posted in the Lucknow University Campus became indisciplined and some untoward incidents happened there which compelled the State Government to take a decision to disarm the Armed Constabulary and give charge of the armoury and magzines hitherto under the charge of the Armed Constabulary to the Army in the entire State. When this decision was communicated by the I.G. of Police to the DIG of Police Varanasi range the said DIG had a telephonic talk with the Commissioner Shri A.K. Mustaf as the situation was going out of control and in accordance with the decision taken by the State Government to hand over the arms and ammunitions belonging to the Armed Constabulary to Army the local Administration at Varanasi requested the Army Commandant Lt. Col. S.K. Verma to provide Military assistance to take over the charge of the Armed Constabulary Quarter Guard and the Magzine at Ramnagar. The Army personnel discussed the matter with the civillian authorities chalked out a scheme of action and finally a contingent of army was sent to the Armed Constabulary Headquarter at Ramnagar under the leadership of Major C.S. Chima accompanied by a Magistrate First Class. They started the operation at 2.15 a.m. on 22nd May, 1973, and reached at the Try Junction of the road at Rambagh. The Magistrate then proceeded towards the Quarter Guard Building accompanied by the Company Commanders of the Armed Constabulary leaving their vehicles away on the road at a distance of 50 to 60 yards from Quarter Guard Building. Reaching near the Quarter Guard they found that apart from the Guards on duty there were 40 to 50 persons belonging to the Armed Constabulary and when the Commanders directed those people to hand over charge of the armou

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