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PETITIONER: DAMODARPRASAD CHANDRIKAPRASAD & ORS.

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT29/11/1971

BENCH: RAY, A.N. BENCH: RAY, A.N. PALEKAR, D.G.

CITATION:  1972 AIR  622            1972 SCR  (2) 622  1972 SCC  (1) 107

ACT: Practice   and  Procedure--Appeal  against   acquittal--High Court’s power of interference. Evidence Act (1 of 1872), s. 157--F.I.R. not proved  through maker  If admissible.

HEADNOTE: The  High  Court  set aside an order  of  acquittal  of  the appellants  on various charges and convicted them.   One  of the items of evidence on which the High Court relied was the first information report.  Though it was not proved  through its maker when be gave evidence in the trial court. the High Court held it to be admissible under s. 157 of the  Evidence Act. in appeal to this Court, HELD  :  (1) The High Court was wrong in  holding  that  the First Information Report would be admissible under s. 157 of the Evidence Act.  Under that section. it could not be  used as  substantive evidence but only to corroborate its  maker. The  appellants were also denied the opportunity  of  cross- examination on the First Information Report. [627 A-D] (2)  The  High Court, however, was correct in setting  aside the order of acquittal and convicting the appellants on  the other evidence. [1639 D-G] In  dealing with an appeal against acquittal the High  Court can  go  into questions of law and fact and  reach  its  own conclusion  on evidence provided it pays due regard  to  the principles for such review.  These principles are giving due regard  to, the views of the trial Judge as to the  credibi- lity  of  the  witnesses, the presumption  of  innocence  in favour  of  the  accused, the right of the  accused  to  any benefit  of doubt and the slowness of an appellate court  in disturbing the finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.  The appellate  court ill  coming to its own conclusion should not  only  consider every  matter  oil record having a bearing on  questions  of fact and the reasons given by the trial court in support  of the  order of acquittal but should also express reasons  for holding  that  the  acquittal was  not  justified.   If  two conclusions  can be reached with a plausible  appearance  of reason  the court should lean in favour of that which  leads to acquittal and not to that which lead, to conviction.  But once  the appellate court comes to the conclusion  that  the

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view  of the trial court was unreasonable that itself  would provide a reason for interference. [629 H; 630 A-E. 631 B-D] In  the  present case, the High Court bid kept in  view  the rules and principles of appreciation of evidence in  setting aside  the  order of quitting.  In such a case.  this  Court would   not   ordinarily  interfere  with   the   order   of conviction by the High Court in an appeal against an acquittal, or review the evidence. [630 E; 631 B-D] Harbans  Singh and Anr. v. State of Punjab, [1962]  Supp.  1 S.C.R.  104,  Senwat  Singh & Ors. v.  State  of  Rajasthan, [1961] 3 S.C.R. 120. Nihal Singh & Ors. v. State of  Punjab, [1964]  4 S.C.R. 5, State of Bombay v. Rusy  Mistry,  A.T.R. 1960 S.C. 391 and Laxman Kalu Nikalje State of  Maharashtra. [1968] 3 S.C.R. 695, followed. 623 Khedu Mohton & Ors. v.  State of Bihar, A.I.R. 1971 S.C.  66 and Sheo Swarup v., King Emperor, 61 I.A. 398, referred to.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 138  of 1968. Appeal  by special leave from the judgment and  order  dated the  June  10, 1968, of the Bombay High  Court  in  Criminal Appeal No. 667 of 1967. V.   S.  Desai,  P. S. Nadkarni and Vineet  Kumar,  for  the appellants. S. K. Dholakia and B. D. Sharma, for the respondent. The Judgment of the Court was delivered by Ray,  J.  This is an appeal by special leave  from  judgment dated  10  June, 1968 of the High Court  at  Bombay  setting aside   the  order  of  acquittal  of  the  appellants   and convicting  them under section 325 read with section  34  of the  Indian  Penal  Code for having  assaulted  and  injured Choharjasing  and sentencing each of the appellants to  four years rigorous imprisonment and a fine of Rs. 1000 each  and six  months rigorous imprisonment in default of  payment  of fine and further convicting the appellants under section 323 read  with  section 34 of the Indian Penal Code  for  having assaulted and injured Ramkeshwarsing and sentencing each  of the appellant’s to three months rigorous imprisonment.   The sentences were to run concurrently. The  appellants and another accused were charged under  sec- tions  143,  147, 307 read with section 149  of  the  Indian Penal  Code.   The four appellants were also  charged  under section  148 of the Indian Penal Code.  In  the  alternative the  appellants  were charged under section  307  read  with section 34 of the Indian Penal Code.  The appellants and the other  accused were further charged under section  326  read with  section  149  of  the  Indian  Penal  Code.   In   the alternative  they were charged under section 324  read  with section 34 of the Indian Penal Code.  The appellants and the other  accused were further charged under section  324  read with  section 149 of the Indian Penal Code.  In  the  alter- native they were charged under section 324 read with section 34 of the Indian Penal Code. The complainant Choharjasing and Nandlal are brothers.  They resided in room No. 5 of Vidya Bhuvan Kurla along with their cousin  Ramkeshwarsing  and  Gayitrising  brother-in-law  of Choharjasing.   Chollarjasing.  Nandlal  and  Ramkeshwarsing were  employed  at  Premier  Automobiles  at  Kurla.    The, prosecution  witness  Awadh Narayan who resided  at  Moturam Chawl  was  also employed at Premier  Automobiles.   Another prosecution witness

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624 Dinanath  was a shopkeeper residing at Halav  Pool,  Kurla. The  first  appellant dealt in milk and resided  at  Maulana Chawl, Halav Pool, Kurla.  Appellant No. 2 is the brother of appellant No. 1 and resided at a nearby Chawl at Halav  Pool and was employed at Premier Automobiles at Kurla.  Appellant No.  3  also  resided at Halav Pool  Chawl,  Kurla  and  was employed  at  Premier Automobiles, Kurla.  Appellant  No.  4 resided  at another Chawl at Kurla and was also employed  at Premier  Automobiles,  Kurla.   Accused No. 5  worked  as  a Mehtaji of one Jairaj Pandye and resided at Bhagwat  Bhuvan, Halav Pool, Kurla. The  prosecution case was this.  The relation  between  Cho- harjasing  and  his  brother Nandlal on  the  one  hand  and appellants  No. 1 and 2 on the other were strained for  some time.  On the morning of 15 October, 1964 Nandlal brought  a truck  load of earth and spread the same in front  on  their room.   On that account there was some  altercation  between him  and  appellants No. 1, 2 and 3. On the  morning  of  16 October,  1964 Choharjasing left his room and went to  Podar Hospital  at Worli for undergoing an operation for  fistula. He  returned  to his room at about 11 or 12  noon.   On  his return he was told by his brother Nandlal about the  quarrel and  that  the appellants and another accused  had  given  a threat  and enquired as to where Choharjasing was.   Nandlal further told Choharjasing that the appellants and the  other accused had threatened that they would break  Choharjasing’s hands  .and feet.  Choharjasing went to the  Police  Station and  filed a non-cognizable complaint.  The police  directed Choharjasing   to approach  the  proper  criminal   court. Choharjasing  went to prosecution witness Dinanath and  told him about the threats. Choharjasing then returned to his room and launched with his brother  Nandlal, cousin Ramkeshwarsing  and  brother-in-law Gaitrising.  Choharjasing was not feeling comfortable  after the ,operation.  He sat on a charpoy (cot) outside his room. Nandlal  was with Choharjasing.  Ramkeshwarsing  was  inside the  room.   At  about 5 or 5.30 p.m.  the  appellants  came there.  Appellant No. 1 was armed with a lathi.   Appellants No. 2, 3 and 4 had also lathis or something like iron  bars. Accused No. 5 was standing at some distance.  Accused No.  5 instigated the appellants by shouting the words ’Dekhte  kya ho,  Mar  Dalo’  (what are you looking  at,  assault  them). Appellant  No.  1 also shouted to assault.   The  appellants surrounded  Choharjasing and Nandlal and started  assaulting them with weapons.  Appellants No. 1 and 4 hit Choharjasing. Appellants No. 2 and 3 hit Nandlal.  Choharjasing fell down. The assault continued.  Appellant No. 2 thrust his stick  in the  mouth  of Choharjasing and he lost four of  his  teeth. Choharjasing and Nandlal both fell unconscious.  Ramkeshwar- sing received a blow on left hand. 625 The Sub-Inspector of Police, on getting a telephone  message came  to  the  spot.   On  the  way  the  Sub-Inspector  met appellants  No. 1 and 4 each of whom had injuries  on  their person.  They were put in the police van.  The van was taken to  the place of incident.  Choharjasing and  Nandlal  were lying  unconscious.   Witnesses Awadh Narayan  and  Dinanath were  present there. Choharjsing. and Nandlal were put  into the van and removed to the hospital. At the time of admission to the hospital Choharjasing had 12 injuries.   Nandlal had 5 injuries.  Appellant No. 4  had  3 injuries.   Choharjasing  and Nandlal were detained  in  the hospital  as  indoor  patients from 16 October  1964  to  12 November, 1964.  Appellant No. 4 in spite of medical  advice

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left the hospital on 17 October, 1964. The  trial  Court acquitted all the 5  accused.   The  trial Court gave these reasons.  Choharjasing and  Ramkeshwarsing, did not mention accused No. 5. Witness Award Narayan did not mention  accused  No.  5.  Ramkeshwarsing  did  not  mention accused  No.  2,  3 and 5. Witness  Awadh  Narayan  did  not mention  accused  No. 3. Choharjasing and Nandlal  were  all thin  and of weak build.  The accused were hefty  in  build. It  is difficult to say why so many persons would engage  in the   assault  on  two  weak  persons,   particularly   when Choharjasing  had  just returned after  operation  from  the hospital.   The injuries on appellants No. 1 and 4 were  not satisfactorily  explained.  The possibility of persons  from the crowd feeling enraged at the assault on accused No. 1 to 5  who were holding important offices in the local  Congress organisation   and  then  rushing  forward  and   inflicting injuries  on the assaulters of Choharjasing and Nandlal  two well  known persons of the locality cannot be ruled  out  as contended for by the defence.  Iron bars and sticks were not recovered.   Ramkeshwarsing had failed to go to  the  police station  of  his own accord.  He and  Choharjasing  did  not implicate  accused No. 5 in their earlier  statements.   The presence  of  accused No. 2 and 3 is not  free  from  doubt. Ramkeshwarsing and Awadh Narayan did not mention accused No. 2  in  their earlier statements.   Ramkeshwarsing  did  ;not mention  the  name of accused No. in his  statement  to  the police.   Choharjasing  and Nandlal could  not  explain  how accused  No. 1 and 4 came to receive the  injuries.   Though the  injuries  on  Choharjasing and  Nandlal  are  no  doubt serious, the evidence does not satisfactorily establish that they  were  caused by the accused in  furtherance  of  their common  intention and that they formed an unlawful  assembly and  used  force  or violence and they  rioted  with  deadly weapons  in  prosecution  of their  common  intention.   The defence that accused No. 1 was assaulted and seeing 626 this accused No. 4 came there and he was assaulted cannot in the  circumstances  be overlooked.  With these  reasons  the trial Court acquitted all the five accused. The  High Court set aside the order of acquittal.  The  High Court   arrived   at  these   conclusions.    The   evidence established   that   the  grievous   injury   inflicted   on Choharjasing and Nandlal and the simple injury inflicted  on Ramkeshwarsing  were  inflicted  by  the  appellants.    The trouble  arose  on account of dispute over  the  open  space adjoining  the room of Choharjasing.  The  appellants  could not be convicted under section 307 of the Indian Penal  Code The  appellants were guilty of causing grievous  hurt.   The High Court, therefore, convicted the appellants for injuries sustained by Choharjasing, Nandlal and Ramkeshwarsing. Counsel for the appellants made these submissions.  The High Court  interfered  with  the acquittal  without  giving  any reasons The first information report about the cognizance of the offence was wrongly admitted in evidence.  The  incident on the morning of 16 October, 1964 could not be believed and therefore the entire prosecution would fail. As  to the incident on the morning of 16 October,  1964  the trial Court said that the time of recording the complaint on 16  October, 1964 was 11.05 am. where-as  the  complainant’s version  in court was that he returned from the hospital  at about 11 a.m. or 12 noon, when he received information  from Nandlal.   Further  in the complaint  Choharjasing  did  not mention  about any of the accused and Nandlal also  did  not mention  accused No. 5. The land on which earth  was  spread belonged to one Khot and therefore appellant No. 1 could not

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have  interest  in that land.  Or these  grounds  the  trial Court  did  not  accept  the  version  that  there  was  any occurrence on the morning of 16 October, 1964. The High Court, however, accepted the version that there was an incident on the morning of 16 October, 1964 and said that Chohajasing would not have taken the trouble of going to the police  and  lodging a complaint.  The High Court  gave  two broad  reasons for accepting the prosecution  version  about the  incident  on the morning of 16 October,  1964.   First, there   was  the  complaint  by   Choharjasing.    Secondly, Choharjasing  had gone to the hospital on the morning of  16 October, 1964 and on his return from the hospital he went to lodge  the complaint.  Choharjasing would not have done  so, if there had been no incident in the morning. The  High  Court referred to the  first  information  report about  the commission of the offence and said that once  the statement was admitted in evidence it afforded a very strong corroboration 627 to the testimony of Choharjasing so far as the complicity of accused No. 1 to 4 in the crime was concerned and the  first information  report was admissible under section 157 of  the Evidence   Act.   The  first  information  report   is   not substantive evidence.  It can be used for one of the limited purposes  of  corroborating  or  contradicting  the   makers thereof.   Another purpose for which the  first  information report can be used is to show the implication of the accused to be not an afterthought or that the information is a piece of evidence res gestao.  In certain cases, the first  infor- mation  report  can  be  used under  section  32(1)  of  the Evidence  Act or under section 8 of the Evidence Act  as  to the  cause  of  the  informant’s death or  as  part  of  the informer’s  conduct.   The High Court was wrong  in  holding that the first information report would be admissible  under section  157  of the Evidence Act.  When the  maker  of  the first  information report was examined in court  the  report was  not tendered by the prosecution in accordance with  the provisions of the Evidence Act.  The appellants were  denied the   opportunity   of  cross-examination   on   the   first information  report.   The  first  information  report   was therefore  wrongly relied upon in evidence for the  purposes suggested by the High Court. It  is therefore to @ seen as to whether the High Court  was justified  in convicting the appellants on the evidence  and the grounds mentioned in the judgment. The evidence of the complainant is that in the afternoon  of 16  October, 1964 all the appellants came armed with  lathis or  something  like iron bars and all  the  four  appellants assaulted Choharjasing and Nandlal with what the  appellants had in their hands.  The further evidence is that  appellant No. 2 thrust the lathi into Choharjasing’s mouth and be lost four of his teeth as a result of that. Nandlal  in his evidence stated that appellant No. 2 gave  a blow  with  a stick on his head.  Nandlal  and  Choharjasing were  attempting to run away when appellant No. 3  assaulted Nandlal  on his head with what looked like an iron  bar  and appellant ,No. 4 also assaulted him with what he was holding and  which  also looked like an iron bar.   Nandlal  further said that appellant No. 2 assaulted him before he fell  down and  after he bad fallen down all the  appellants  assaulted him. Witness  Ramkeshwarsing said that he saw all the  appellants and  when Choharjasing and Nandlal had fallen on the  ground they  were assaulted by all the appellants with  sticks  and iron   bars.   Ramkeshwarsing  further  said  that  in   the

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statement  to the police he mentioned that he saw  appellant No. 1, 2 and two others. 628 Witness  Awadh Narayan said that he knew all the  appellants and he saw sticks in their hands.  He corroborated Nandlal’s evidence  that  appellant  No.  2  assaulted  with  a  stick Choharjasing  on  the  mouth.  He also  said  that  all  the appellants  continued assaulting Choharjasing  and  Nandlal. He said that in his statement to the police he mentioned the names of appellants No. 1 and 2. Witness Dinanath said that he knew Choharjasing and  Nandlal for  a few years and he also know the appellants.   He  said that  appellant No. 2 had a stick in his hand and  appellant No.  2 assaulted Nandlal on his head.  His further  evidence was  that appellant No. 2 gave a straight and  perpendicular blow with a stick on the mouth of Choharjasing. The Sessions Court was wrong in holding that  Ramkeshwarsing did  not  mention the name of appellant No. 2. He  not  only stated  in his oral evidence that he had mentioned the  name of  appellant  No.  2 to the police but this  was  also  not challenged   in  cross-examination.   The  other   witnesses Choharjasing, Nandlal, Awadh Narayan and Dinanath all  spoke about the appellants who assaulted Choharjasing and Nandlal. As to appellant No. 3 Choharjasing said that appellants  No. 3 and 4 carried something like iron bars of a black colour. As  far  as  appellant  No.  3  is  concerned  there  is  no contradictory police statement on the part of  Choharjasing. The oral evidence of Nandlal in relation to appellant No.  3 was that he assaulted Nandlal.  Nandlal in his statement  to the police also mentioned about appellant No. 3. There is no contradictory police statement on the part of Nandlal as far as  appellant  No.  3  was  concerned.   Nor  was  any  such contradiction put to Nandlal. The medical evidence about the injuries to Choharjasing  was that  the  injuries  could  be  caused  by  hard  and  blunt substance like iron bars and lathis and were likely to cause death  if not medically attended to.  The  medical  evidence about the injuries to Nandlal was that those injuries  could be  caused  by  coining  in  contact  with  hard  and  blunt substance such as lathi, bamboo, stones, iron bars etc.  and were serious injuries and were likely to cause death if  not medically attended to. Ramkeshwarsing   ’in  his  oral  evidence  said   that   the appellants assaulted Choharjasing and Nandlal, He said  that he  did  not mention appellants No. 3 and 4  in  the  police statement  because  he  did  not know  them.   There  is  no contradictory   police   statement   as   far   as   witness Ramkeshwarsing is concerned in relation to appellant No.  3. In his police statement he mentioned appellants No., 1 and 2 and  he  said  that two others  assaulted  Choharjasing  and Nandlal.  Ramakeshwarsing thus spoke of four persons 629 assaulting Chohajasing and Nandlal.  That was not challenged in cross-examination.  Witness Awadh Narayan spoke of appel- lant  No. 3. There is no contradictory police  statement  of Awadh Narayan in relation to appellant No. 3. Witness  Dinanath  spoke about appellant  No.  3  assaulting Choharjasing and Nandlal.  There is no cross-examination  of Dinanath  that appellant No. 3 gave a blow with a  stick  to Nandlal. On   behalf  of  the  appellants  it  was   contended   that appellants,  No.  2 and 3 did not receive any  injuries  and therefore  it was improbable that they would be involved  in the assault.  That contention is unacceptable because of the clear  and  convincing evidence of several  witnesses  about

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appellants No. 2 and 3 assaulting Choharjasing and  Nandlal. The  trial  Court  was wrong in holding that  the  names  of appellants  No. 2 and 3 were not mentioned by the  witnesses to  the  police.  The names of appellants No. 2 and  3  were mentioned by the witnesses to the police.  The oral evidence of the witnesses was to that effect.  That evidence was  not challenged. The High Court was therefore justified in coming to the con- clusion that the acquittal of appellants No. 2 and 3 by  the trial  Court  was  to be set aside.   The  evidence  of  the several  witnesses  that appellants No. 2  and  3  assaulted Choharjasing   and  Nandlal  cannot  be  discarded  on   the statement  that the appellants No. 2 and 3 did  not  receive injuries.   It does not follow that appellants ,No. 2 and  3 were  not at the scene of occurrence and did not commit  the acts  of assault just because there was no injury  on  them. As  far  as appellants No. 1 and 4 are  concerned  the  High Court  was  correct  in  holding  that  they  were   wrongly acquitted  by the trial Court. 12 injuries  on  Choharjasing and  5 injuries on Nandlal were all serious in nature.   The oral  evidence was rightly accepted by the High  Court  that all  the appellants were guilty of assaulting  Choharjasing, Nandlal and Ramkeshwarsing. Counsel  for the appellants relied on the decisions of  this Court  in  Harbans  Singh  and  Anr.  v.  State  of   Punjab [1962]Suppl.  (1)  S.C.R. 1041 and Khedu Mohton  &  Ors.  v. State  of  Bihar  A.I.R.. 1971 S.C. 66  in  support  of  the proposition  that the High Court should not have  interfered with  the acquittal by the trial Court and if on the  ruling of  this  Court  in Khedu Mohton & Ors. v.  State  of  Bihar (supra)  two  reasonable conclusions can be reached  on  the basis  of the evidence on record then the acquittal  of  the accused  should  be preferred.  The  observations  in  Khedu Mohton’s  case mean this: If two conclusions can be  reached with  a plausible appearance of reason the court should  can in favour of that which leads to acquittal and not to that 630 which  leads  to t conviction.  Two  views  and  conclusions cannot  both  be right and one must be  preferred  over  the other  because  our criminal jurisdiction demands  that  the benefit of doubt must prevail. As  to  powers of the appellate court this Court  in  Sanwat Singh & Ors. v. State of Rajasthan (1961) 3. S.C.R. 120 laid down three principles.  First, the appellate court had power to review the evidence upon which the order of acquittal  is founded.   Second, the principles laid down by the  Judicial Committee  in Sheo Swarup v. King Emperor 61 I.A. 398 are  a correct guide for the approach by an appellate court.  These principles  are that the views of the trial Judge as to  the credibility  of the witnesses, the presumption of  innocence in  favour of the accused, the right of the accused  to  the benefit of doubt and the slowness ,of an appellate court  in disturbing the finding of fact arrived at by a Judge who had the  advantage, of seeing the witnesses are the  ’rules  and principles’ in the administration of justice.  Thirdly,  the appellate  court in coming to its own conclusion should  not only consider every matter on record having a hearing on the questions  of fact and the reasons given by the trial  court in  support  of  the order of  acquittal,  but  should  also express   reasons  to  hold  that  the  acquittal  was   not justified. in the light of the rulings of this Court to which reference -has been made, we are satisfied that the High Court kept in view  the rules and principles of appreciation of  evidence and  the  right of the accused to the benefit of  doubt  and

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the, High Court gave reasons as to why the occurrence on the morning  of  16 October, 1964 was proved and  also  why  the appellants were found on the evidence on record to be guilty of  having committed an offence.  Benefit of doubt  was  not sustainable in the present case inasmuch as the materials on record. did not exclude the guilt of the appellants. This Court in Khedu Mohton & Ors. v. State of Bihar  (supra) set  aside the judgment of the High Court and restored  that of  the Sessions Judge by acquitting the appellants  because the  High  ,Court  did not deal with finding  of  the  first appellate court that it was unsafe to place reliance on  the evidence  of four prosecution witnesses who were  interested witnesses.  Another feature which vitiated the approach  of the High Court in that case was that there was a delay of  8 days in filing the complaint and the first appellate,  court said that it threw a great deal of doubt on the  prosecution story.   The High Court made reference to  some  information lead  before  the Police and did not  properly  assess the delay  in  the filing of the complaint.   This  Court  found there  that the information before the police prior  to  the complaint was 631 an  application that there was an apprehension of breach  of peace.  It is in this context of facts that this Court  said that  the  High  Court  was  wrong  in  setting  aside   the acquittal. Once  the  appellate court came to the conclusion  that  the view  of the trial court was unreasonable that itself  would provide  a reason for interference.  Again if it  was  found that  the  High  Court applied  the  correct  principles  in setting  aside the order of acquittal this Court  would  not ordinarily interfere with the order of conviction passed  by the High Court in an appeal against acquittal or review  the entire  evidence where the High Court was right in its  view of evidence.  Therefore, if the High Court has kept in  view the  rules  and  principles of appreciation  of  the  entire evidence  and has given reasons for setting aside the  order of  acquittal this Court would not interfere with the  order of  the  High Court [See Harbans Singh v.  State  of  Punjab (supra). This Court in Nihal Singh & Ors. v. State of Punjab (1964) 4 S.C.R.  5 said that there were two ways of dealing  with  an appeal  by  this Court from an order of  conviction  setting aside an acquittal.  One of the modes was to go through  the evidence  and find out whether the High Court had  infringed the  principles  laid  down  in Sanwat  Singh  v.  State  of Rajasthan  (supra) or whether the appeal was an  exceptional one  within the ruling of this Court in State of  Bombay  v. Rusy Mistry A.I.R. 1960 S.C. 391 where the finding was  such that  ’it  shocks  the conscience of the court  or  that  it disregarded  the forms of legal process or  substantial  and grave injustice had been done. In  dealing  with an appeal against an  acquittal  the  High Court  can go into the questions of law and fact  and  reach its  own conclusion on evidence provided it pays due  regard to  the  fact that the matter had been before the  Court  of Sessions   and  the  Sessions  Judge  had  the  chance   and opportunity of seeing the witnesses depose to the facts  See Laxman  Kalu  Nikalie v. The State of Maharashtra  (1968)  3 S.C.R. [685]. The  High  Court was correct in setting aside the  order  of acquittal   and  convicting  the  appellants.   The   appeal therefore fails and is dismissed.  If the appellants are  on bail their bail bonds are cancelled.  They will surrender and serve out  the

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sentence. V.P.S.                Appeal dismissed. 632