PETITIONER: SANWAT SINGH & OTHERS Vs. RESPONDENT: STATE OF RAJASTHAN DATE OF JUDGMENT: 09/12/1960 BENCH: <NAME>, K. BENCH: <NAME>, K. IMAM, SYED JAFFER DAYAL, <NAME> CITATION: 1961 AIR 715 1961 SCR (3) 120 CITATOR INFO : RF 1963 SC 200 (17) E 1965 SC 26 (4,6,14) R 1965 SC 257 (8) R 1966 SC1775 (4) RF 1967 SC1412 (5) R 1971 SC 460 (13) RF 1971 SC1977 (11) F 1972 SC 116 (22) RF 1972 SC 622 (28,32) R 1972 SC2020 (7) F 1972 SC2679 (8,9) R 1973 SC 55 (8) RF 1973 SC 399 (3) RF 1973 SC1204 (7) RF 1973 SC2241 (5,6) F 1973 SC2443 (19) RF 1973 SC2622 (7) R 1974 SC 286 (5) F 1974 SC 606 (7,9) R 1974 SC 902 (26) R 1979 SC 387 (9) R 1979 SC 391 (12) R 1986 SC 606 (15) R 1988 SC2154 (10) ACT: Appeal-Against acquittal-Principles to be followed-"Sub- stantial and compelling reason"--Meaning and scope of-Power of <ORG>-Constitution of India, Art. 136. HEADNOTE: There were two rival factions in a certain village one con- sisting of Rajputs and the other of cultivators. On a particular festival day both the groups went to a temple for worship and cultivators who reached the temple first occupied a place therein which was usually occupied by Rajputs. Subsequently Rajputs arrived and resented the occupation of the sitting place by the cultivators. They shifted to a short distance and after holding a brief conference came back to the temple and attacked the cultivators with guns, swords and lathis as a result of which several persons were injured and two were killed. 43 persons alleged to have taken part in the rioting were put up for trial before the <NAME> judge for having committed offences under s. 302 read with s. 149 and s. 148 of the Indian Penal Code. The <NAME> judge held that a common object on the part of the accused to kill the cultivators had not been established and that it had also not been proved beyond reasonable doubt that the accused were guilty of a particular offence. On these findings the <NAME> judge acquitted all the accused. On appeal <ORG> after examining the entire evidence found some of the accused guilty of culpable homicide not amounting to murder under S. 304 read with s. 149 and s. 148 of the Indian Penal Code and sentenced them to various terms of imprisonment. The appeal in respect of some other accused was dismissed as no case had been made out against them beyond any reasonable doubt On appeal by special leave against the conviction and sentence by <ORG>, <NAME>, that the words "substantial and compelling reasons" for setting aside an order of acquittal used by this <ORG> in its decisions were intended to convey the idea that an appellate court shall not only bear in mind the principles laid down by <ORG> in <NAME> case but must also give its clear reasons for coming to the conclusion that the order of acquittal was wrong. The following results emanate from a discussion of the case law on appeals against acquittal:- (1)an appellate court has full power to review the evidence upon which the order of acquittal is founded; (2) the principles 121 laid down in <NAME> case afford a correct guide for the appellate court's approach to a case disposing of such an appeal; (3) the different phraseology used in the judgments of this <ORG>, such as (1) "substantial and compelling reasons", (II) "good and sufficiently cogent reasons", and (III) "strong reasons", are not intended to curtail the undoubted power of an appellate <ORG> in an appeal against acquittal to review the entire evidence and to come to its own conclusion, but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the <ORG> below in support of its order of acquittal in arriving at a conclusion on those facts, but should express the reasons in its judgment, which led it to hold that the acquittal was not justified. <CITATION> , (1934) L. R. 61 I. A. 398, con- sidered and followed. <NAME> v. <NAME>, A.I.R. 1945 P.C. 151, <CITATION> ,  S.c.R. 193, <CITATION> ,  S.C.R` 418, <CITATION> , A.I.R. 1953 S.C. 459, <NAME> v. State of Travancore-Cochin, A.I.R. 1953 S.C. 478, <CITATION> , A.I.R. 1954 S.C. 1, <NAME> case, A.I.R. 1954 S.C. 637, <NAME> v. State of U. P., A.I.R. 1954 S.C. 15, <CITATION> , A.I.R. 1954 S.C. 322, <CITATION> , A.I. R. 1954 S.C. 645, <CITATION> ,  2 S.C.R. 1285, <CITATION> , A.I.R. 1957 S.C. 589 and <CITATION> , A.I.R. 1957 S.C. 216, discussed. The High <ORG> approached the instant case from a correct perspective and gave definite findings on a consideration of the entire evidence, and in so doing it did not depart from any of the principles laid down by <ORG> in <NAME> case and also gave reasons for holding that the acquittal was not justified. <CITATION> ., A.I.R. 1954 S.C. 31, referred to. Although the powers of this <ORG> under Art. 136 of the Constitution are very wide, interference is not permitted unless "by disregard to the forms of legal process or some violation of the principles of natural justice or otherwise, substantial and grave injustice has been done," on questions of fact the practice of this <ORG> is not to interfere except in exceptional cases when the finding is such that it shocks the conscience of this <ORG>, JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 119 of 1958.

Appeal by special leave from the judgment and order dated July 29, 1957, of <ORG>, Jodhpur, in Criminal Appeal No. 42 of 1954.

<NAME> and <NAME>, for the appellants. <NAME> and <NAME>, for the respondent. 1960. December 9. The Judgment of the Court was delivered by <NAME> J.-This is an appeal by special leave against the conviction and sentence by <ORG> for Rajasthan at Jodhpur of the 9 appellants under s. 304 , read with s. 149 , and s. 148 of the Indian Penal Code. The 9 appellants, along with 34 other persons, were accused before the Sessions Judge, <NAME>. Briefly stated the case of the prosecution was as follows: There were two factions in village Harnawa-one consisting of Rajputs and other of the cultivators of the village. Admittedly there were disputes between these two factions in respect of certain fields. At about 3-30 p.m. on October 31, 1951, the day after Diwali, popularly known as Ram Ram day, both the groups went to a temple called Baiji-kathan. The cultivators went first to the temple and sat in the place which was usually occupied by the Rajputs. Subsequently when the Rajputs went there, they found their usual sitting place occupied by the cultivators and took that as an insult to them. Though they were invited by the pujari to sit in some other place, they refused to do so and went to a banyan tree which was at a short distance from the temple. There they held a brief conference and then returned to the temple armed with guns, swords and lathies. The Rajputs fired a few shots at the cultivators and also beat them with swords and lathies. As a result, 16 of the cultivators received injuries and of these 6 received gun-shot injuries, of which two persons, namely, <NAME> and <NAME>, succumbed to the injuries. Out of the remaining 14 injured persons, 3 received grievous injuries and the rest simple ones. Forty- three persons, alleged to have taken part in the rioting, were put up for trial before the Sessions Judge,, <NAME>, for having committed offences under s. 302 , read with s. 149 , and s. 148 of the Indian Penal Code. Five of the accused admitted their presence at the scene of occurrence but pleaded that after they had made their customary offerings at the temple and when they were returning they were attacked by the cultivators. Others pleaded alibi.

The learned Sessions Judge held that it had not been established that the accused had a common object to kill the cultivators and that it had also not been proved beyond any reasonable doubt that any of the accused was guilty of a particular offence. On these findings, he acquitted all the accused.

On appeal the learned Judges of <ORG> found that the accused were members of an unlawful assembly, that they were animated by a common object of beating the cultivators and that further out of the 43 accused it had been clearly established that the appellants, who are 9 in number, took part in the activities of the unlawful assembly. On that finding they held that the accused were guilty of culpable homicide not amounting to murder under s. 304 , read with s. 149 , Indian Penal Code ; they also held that appellants 1, 2, 3 and 4 were also guilty under s. 148 of the Indian Penal Code, as they were armed with deadly weapons, and the rest under s. 147 , Indian Penal Code . For the offence under s. 304 , read with s. 149 , the appellants were sentenced to ten years' rigorous imprisonment, and for the offence under s. 148 , appellants 1 to 4 were further sentenced to one year's rigorous imprisonment and the rest under s. 147 , to six months' rigorous imprisonment. Having examined the entire evidence, they agreed with the learned <NAME> Judge that no case had been made out against the other accused beyond any reasonable doubt. The appeal was, therefore, allowed in respect of the nine appellants and dismissed in respect of the others Learned counsel for the appellants contended that the <NAME> Judge came to a reasonable conclusion on the evidence and that the. <ORG> had no substantial and compelling reasons to take a different view. In recent years the words "compelling reasons" have become words of magic incantation in every appeal against acquittal. The words are so elastic that they are not capable of easy definition; with the result, their interpretation varied between two extreme views-one holding that if a trial court acquitted an accused, an appellate court shall not take a different view unless the finding is such that no reasonable person will come to that conclusion, and the other accepting only the conscience of the appellate court as the yardstick to ascertain whether there are reasons to compel its interference. In the circumstances we think it necessary to clarify the point. The scope of the powers of an appellate court in an appeal against acquittal has been elucidated by <ORG> in Sheo Swarup v. <NAME> There Lord <NAME> observed at p. 404 thus:

"........ <ORG> should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquit-

ted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses Adverting to the facts of the case, <ORG> proceeded to state, "........ They have no reason to think that <ORG> failed to take all proper matters into consideration in arriving at their conclusions of fact."

These two passages indicate the principles to be followed by an appellate court in disposing of an appeal against acquittal and also the proper care it should take in re- evaluating the evidence. <ORG> explained its earlier observations in <CITATION> (2) thus at p. 152:

"Their Lordships do not think it necessary to read it all again, but would like to observe that there really is only one principle, in the strict use of the word, laid down there; that is that the High (1) (1934) L.R. 61 I.A. 398.

(2) A.I.R. 1945 P.C. 151.

Court has full power to review at large all the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed."

These two decisions establish that the power of an appellate court in an appeal against acquittal is not different from that it has in an appeal against conviction; the difference lies more in the manner of approach and perspective rather than in the content of the power. These decisions defining the scope of the power of an appellate court had been followed by all the courts in India till the year 1951 when, it is said, this <ORG> in <CITATION> (1) laid down a different principle. But a perusal of that judgment does not bear out the construction which is very often placed thereon. The passage relied upon is found at p. 201 and it reads thus:

"It is well-established that in an appeal under section 417 of the Criminal Procedure Code, <ORG> has full power to review the evidence upon which the order of acquittal was founded, but it is equally well settled that the presumption of innocence of the accused is further reinforced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons."

On the facts of that case this <ORG> held, "we are inclined to hold that the Sessions Judge had taken a reasonable view of the facts of the case, and in our opinion there were no good reasons for reversing that view". We think that these observations are nothing more than a restatement of the law laid down by <ORG> and the application of the same to the facts of the case before the <ORG>. Though in one paragraph the learned Judges used the words "substantial and compelling reasons" and in the next paragraph the words "good reasons", these observations were not intended to record any disagreement (1)[1952] S.C.R. 193.

with the observations of Lord <NAME> in <NAME> case (1) as to matters <ORG> would keep in view when exercising its power under s. 417 of the Criminal Procedure Code. If it had been so intended, this Court would have at least referred to <NAME> case (1), which it did not. The same words were again repeated by this Court in <CITATION> (2). In that case the appellate court set aside an order of acquittal on the ground that the accused had failed to explain the circumstances appearing against him. This court held that as the presumption of innocence of an accused is reinforced by the order of acquittal, the appellate court could have interfered only for substantial and compelling reasons. The observations made in respect of the earlier decisions applied to this case also. <NAME>, J., as he then was, delivering the judgment of the court in <CITATION> (3) again used the words "very substantial and compelling reasons", but immediately thereafter the learned Judge referred to the decision of <NAME> case(1) and narrated the circumstances which an appellate court should bear in mind in interfering with an order of acquittal. This juxtaposition of the so-called formula and the circumstances narrated in <NAME> case (1) indicate that the learned Judge used those words only to comprehend the statement of law made by <ORG>. <NAME>, J., as he then was, in <NAME> v.<ORG> (4) again referred to <ORG> decision and affirmed the wide powerof an appellate court and also the proper approach in an appeal against acquittal. The learned Judge did not introduce any further limitation on the power of the appellate court. But it was observed that <ORG> had not clearly kept before it the well settled principles and reversed the decision of the trial court 'without noticing or giving due weight and consideration to important matters relied upon by that court'. <CITATION> (5) this (1) (1934) L.R. 61 I.A. 398.

(2) [1953] S.C.R. 418.

(3) A I.R. 1933 S.C. 459.

(4) A.I.R. 1953 S.C. 478.

(5) A.I.R. 1954 8.C. I.

<ORG> used a different phraseology to describe the approach of an appellate court against an order of acquittal. There <ORG> expressed that there was clearly reasonable doubt in respect of the guilt of the accused on the evidence put before it. <NAME>, C. J., observed that it required good and sufficiently cogent reasons to overcome such reasonable doubt before the appellate court came to a different conclusion. This observation was made in connection with <ORG> judgment which had not taken into consideration the different detailed reasons given by the Sessions Judge. In <NAME> case (1), on appeal by special leave, this <ORG> said that <ORG> 'had not kept the rules and principles of administration of criminal justice clearly before it and that therefore the judgment was vitiated by non-advertence to and misapprehension of various material facts transpiring in evidence and the consequent failure to give true weight and consideration to the findings upon which the trial court based its decision'. In <NAME> v. State of M. P. (2) this <ORG> again cited the passage from the decision of <ORG> extracted above and applied it to the facts of that case. <CITATION> (1), <NAME>, J., speaking for the <ORG>, after referring to an earlier decision of this <ORG>, accepted the principle laid down by <ORG> and, indeed, restated the observations of <ORG> in four propositions. It may be noticed that the learned Judge did not use the words cc substantial and compelling reasons". <CITATION> (4), <NAME>, J., after referring to the earlier decisions, observed at p. 647 thus:

"While no doubt on such an appeal <ORG> was entitled to go into the facts and arrive at its own estimate of the evidence, it is also settled law that, where the case turns on oral evidence of witnesses, the estimate of such evidence by the trial court is not to be lightly set aside."

(1) A.I.R. 1954 S.C. 637. (2) A.I.R. 1954 S.C. 15. (3) A I.R. 1954 S.C. 322. (4) A.I.R. 1954 S.C. 645.

The learned Judge did not repeat the so-called formula but in effect accepted the approach of <ORG>. The question was again raised prominently in <ORG> in <CITATION> (1). <NAME>, J., expressing the majority view, stated at p. 1287 thus:

"It is, in our opinion, well settled that it is not enough for <ORG> to take a different view of the evidence; there must also be substantial and compelling reasons for holding that the trial court was wrong: <CITATION> (2); and if <ORG> takes a reasonable view of the facts of the case, interference under section 417 is not justifiable unless there are really strong reasons for reversing that view."

It may be noticed that the learned Judge equated "substantial and compelling reasons" with "strong reasons". <NAME>, J., in bhagwan <CITATION> (1) referred to the earlier decisions and observed that <ORG> should not set aside an acquittal unless there are " substantial and compelling reasons" for doing so. <CITATION> (4), this Court observed much to the same effect thus at p. 222:

"It is now well settled that though <ORG> has full power to review the evidence upon which an order of acquittal is founded, it is equally well settled that the presumption of innocence of the accused person is further reinforced by his acquittal by <ORG> and the views of the trial Judge as to the credibility of the witnesses must be given proper weight and consideration; and the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses must also be kept in mind and there must be substantial and compelling reasons for the appellate Court to come to a conclusion different from that of the trial Judge."

These observations only restate the principles laid down by this <ORG> in earlier decisions. There are (1) [1955] 2 S.C.R. 1285.

(2) [1953] S.C.P. 418, 423.

(3) A.I. R. 1957 S.C. 689.

(4) A.I.R. 1957 S.C. 216.

other decisions of this <ORG> where, without discussion, this <ORG> affirmed the judgments of <ORG> where they interfered with an order of acquittal without violating the principles laid down by <ORG>. There is no difficulty in applying the principles laid down by <ORG>, and accepted by this <ORG>, to the facts of each case. But appellate courts are finding considerable difficulty in understanding the scope of the words "substantial and compelling reasons" used by this <ORG> in the decisions cited above. This <ORG> obviously did not and could not add a condition to s. 417 of the Criminal Procedure Code. The words were intended to convey the idea that an appellate court not only shall bear in mind the principles laid down by <ORG> but also must give its clear reasons for coming to the conclusion that the order of acquittal was wrong.

The foregoing discussion yields the following results: (1) an appellate court has full power to review the evidence upon which the order of acquittal is founded; (2) the principles laid down in <NAME> case(1) afford a correct guide for the appellate court's approach to a case in disposing of such an appeal; and (3) the different phraseology used in the judgments of this <ORG>, such as,

(i) "substantial and compelling reasons", (ii) "good and sufficiently cogent reasons", and (iii) "strong reasons" are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts, but should also express those reasons in its judgment, which lead it to hold that the acquittal was not justified.

With this background we shall now look at the judgment of the Sessions Judge and that of the High (1) (1934) L.R. 61 I.A. 398.

Court to ascertain whether <ORG> anywhere departed from the principles laid down by <ORG>. The framework of the judgment of the learned Sessions Judge may be shortly stated thus: The first question was whether the case of the prosecution that the Rajputs met. under a banyan tree, conspired to beat the Jats and came back to the temple armed with weapons was true. This fact was spoken to by several eve-witnesses, including <NAME> (P.W. 1), <NAME> (P.W. 2) and <NAME> (P.W. 21). This fact was also mentioned in the First Information Report lodged by <NAME> (P.W. 21). There were 20 eyewitnesses who spoke about the conspiracy; and, out of them, P.Ws. 5, 8, 9, 11, 12, 15, 16, 17, 18. 19. 24 and 25 received injuries during the riot. The learned Sessions Judge considered the evidence of P.Ws. 1 and 2 and rejected it on unsubstantial grounds and on the basis of insignificant discrepancies. Therefter, he noticed that all the other eye-witnesses, with slight and inconsequential variations, spoke to the fact of their returning from the banyan tree with lathies, swords and guns' but he did not give a definite finding whether he accepted that evidence or not, though at the fag end of the judgment he found that he could not hold that the assembly of Rajputs had any common object of killing anybody. Then the learned Sessions Judge proceeded to consider whether any of the Rajputs were recognized by any of the witnesses. He divided the accused into three groups, namely, (i) those accused who were amongst the Rajputs when they had come for darshan of <NAME>, (ii) those accused who were amongst the Rajputs when they returned from the banyan tree but for whom the evidence of taking part in the actual rioting is divided, and (iii) those accused for whom most of the eye- witnesses have stated that they had committed rioting and inflicted injuries on the assembly of cultivators. Taking the first group, the learned Sessions Judge, for the reasons given by him earlier, rejected the evidence of <NAME> and <NAME>, pointed out that 28 accused had not been named unanimously by all the eye-witnesses, noticed that there was long standing enmity between the Rajputs and the cultivators, and laid down a criterion that, for determining the presence of any particular accused, there should be an allegation against him about doing any overt act in the unlawful, assembly. By applying the said yardstick he held that none of the accused falling in the first group, which included appellants 7, 8 and 9, was guilty of the offences with which they were charged. Coming to the second category, with which we are not concerned in this appeal, the learned Sessions Judge again applied the test that an overt act should be proved against each of the accused and held that no case had been made out against them. Adverting to the third group, after noticing that 12 of the eye-witnesses were those who received injuries, the learned Sessions Judge applied another test for accepting their evidence. In effect and substance the test adopted by him was that an accused identified only by one witness and not proved to have done any overt act should be acquitted by giving him the benefit of doubt. Applying this test to the said witnesses he held that the said accused were not guilty. After considering the evidence in the aforesaid manner, he came to the following final conclusion:

"I cannot hold that the assembly of Rajputs had any common object of killing anybody. All happened at the spur of the moment. Those Rajputs who took part in the rioting have not been truthfully named. Innocent persons have been implicated and the cases of those persons who are alleged to have committed any overt acts are also full of doubts."

On appeal the learned Judges of <ORG>, as already stated, allowed the appeal in respect of the 9 appellants and dismissed it in regard to the others. The learned Judges of <ORG> observed that it had not the slightest hesitation in holding that the case put forward by the prosecution, by and large, represented the substantial truth and that the incidents at the banyan tree were true. They pointed out that the reasons given by the Sessions Judge for not believing the evidence of the main witnesses, <NAME> and <NAME>, who spoke as to what happened at the banyan tree, could not be sustained and that the alleged discrepancies and contradictions in their evidence were not such as to detract from truthfulness. We have also gone through the evidence of <NAME> and <NAME> and we entirely agree with the observations of the learned Judges of <ORG> that their evidence was natural and consistent and that the alleged discrepancies pointed out by the Ses- sions Judge were not either contradictions at all or, even if they were so, they were so trivial as to affect in any way their veracity. The learned Judges further pointed out that the evidence of <NAME> and <NAME> was supported by the evidence of <NAME> (P. W. 21), a police constable, who gave the First Information Report at the earliest point of time. The recitals in the First Information Report corroborate his evidence. The learned Judges then indicated that this version was practically supported by other eve- witnesses and that they did not see any reason why it should have been invented, if it was not true. Having regard to the said evidence, they found themselves entirely unable to accept the conclusion of the learned trial Judge that this was a case where a stray beating was given by some individuals on the side of the Rajputs to some individuals on the Bide of the Jats. They found that the Rajputs were members of an unlawful assembly and that they were all animated by a common object of beating the cultivators. Having held that the learned Sessions Judge was clearly wrong on the question of unlawful assembly, the learned Judges proceeded to consider the case of each accused. They adopted the following principle, based upon the decision of this Court in <CITATION> . (1):

"We quite recognise that in a case of rioting where two inimical factions are involved, exaggerations are bound to be made, and some innocent persons are likely to be falsely implicated; but all the same, it is the duty of the courts not to throw out the whole case by following the easy method of (1) A.I.R. 1954 S.C. 31.

relying on discrepancies, and, where the case for the prosecution is substantially true, to find out if any of the accused participated, in the offence, and if their presence is established beyond all reasonable doubt, punish them for the offences committed by them."

They found, on the evidence, that appellant 1, <NAME>, who was present on the spot was a member of the unlawful assembly and had actually struck <NAME> with his sword as a result of which his three fingers were cut; that appellant 2, <NAME>, was one of the persons who took a leading part in the beating; that appellant 3, <NAME>, was undoubtedly one of the participants in the unlawful assembly; that appellant 4, <NAME>, was armed with a sword and attacked the Jats and that his version that he had been first attacked by the Jats was not true; that appellant 5, <NAME>, was one of the members of the unlawful assembly and that he had given beatings to P.W. 25; that appellant 6, <NAME>, struck <NAME> with lathies; and that appellant 7, <NAME>, appellant 8, <NAME>, and appellant 9, <NAME>, who admitted their presence at the spot but stated that they were attacked by the Jats, were clearly participators in the beating. As regards the other accused, the learned Judges, having examined the entire evidence, agreed with the Sessions Judge in holding that no case had been made out against those accused beyond all reasonable doubt. So far as these accused are concerned there is no evidence to show that any of them had a weapon or that they had taken any active part in assaulting one or other of the Jats. In the result, the learned Judges of <ORG> found that the appellants formed an unlawful assembly to beat the Jats and that they must have known that murders were likely to be committed in prosecution of that common object. On that finding, they convicted and senten- ced the appellants as stated earlier in the judgment. Now, can it be said that, as learned counsel for the appellants argues, the Judges of <ORG> had ignored any of the principles laid down by <ORG> and subsequently accepted by this Court? We think not.

The foregoing analysis of the findings of the two courts discloses the following facts: The Sessions judge, on the general case of the prosecution that the Rajputs, chagrined by the attitude of the Jats in occupying their usual place in the temple, went to the banyan tree, conferred for a short time and came back to the temple to attack the Jats, rejected the evidence of the main witnesses for the prosecution, namely, <NAME>, <NAME> and <NAME>, on grounds which do not stand a moment's scrutiny and ignored the voluminous evidence, which corroborated the evidence of the said three witnesses, without giving valid or acceptable reasons for the same. The learned Sessions Judge did not even give a definite finding on this version of the prosecution case, though impliedly he must be deemed to have rejected it. In regard to the individual cases he divided the witnesses into three categories, and, applying mechanical tests, refused to act upon their evidence. <ORG> rightly pointed out that there was no reason why the voluminous evidence in support of the general case and why the evidence of the three witnesses, <NAME>, <NAME> and <NAME>, should be rejected. The learned Judges of <ORG> accepted their evidence, which conclusively established that the general case was true and that the appellants actually took active part in attacking the Jats with swords and lathies. In doing so, the learned Judges did not depart from any of the principles laid down by <ORG>. Indeed, they interfered with the judgment of the Sessions Judge, as they came to the conclusion that, the said judgment, in so far as the appellants were concerned, was clearly wrong and contrary to the overwhelming and reliable evidence adduced in the case. The learned Judges of <ORG>, in our opinion, approached the case from a correct perspective and gave definite findings on a consideration of the entire evidence.

The question now is, whether the appellants have made out any case for interference with the judgment of <ORG> under Art. 136 of the Constitution.

Article 136 of the Constitution confers a wide discretionary power on this <ORG> to entertain appeals in suitable cases not otherwise provided for by the Constitution. It is implicit in the reserve power that it cannot be exhaustively defined, but decided cases-, do not permit interference unless "by disregard to the forms of legal process or some violation of the principles of natural justice or otherwise, substantial and grave injustice has been done". Though Art. 136 is couched in widest terms, the practice of this <ORG> is not to interfere on questions of fact except in excep- tional cases when the finding is such that it shocks the conscience of the court. In the present case, the High <ORG> has not contravened any of the principles laid down in <NAME> case (1) and has also given reasons which led it to hold that the acquittal was not justified. In the circumstances, no case has been made out for our not accepting the said findings.

In the result, the appeal fails and is dismissed. Appeal dismissed.


JUDGMENT <NAME>, J.

1. Mr. <NAME>, the learned counsel for the sales tax department, was asked to put in appearance on behalf of non-petitioners Nos. 2 and 3. Non-petitioner No. 1, <ORG> ("<ORG>"), has been impleaded as a non-petitioner as the order dated 16th October, 1984, was passed by a Division Bench of <ORG> which is under challenge in revision.

2. Mr. <NAME>, the learned counsel for the petitioner, states that this revision is squarely covered by the decision rendered in <CITATION> . 60 of 1980 decided on 30th July, 1985)  61 STC 83 and submits that the revision may finally be disposed of at the admission stage. We have heard Mr. <NAME>, the learned counsel for the petitioner, and Mr. <NAME>, the learned counsel for non-petitioners Nos. 2 and 3.

3. <ORG> of the <ORG> by its order dated 16th October, 1984, held that gowar churi or korma is not exempt under entry 9 of the Schedule appended to the Rajasthan Sales Tax Act, 1954 (No. 29 of 1954) (for short "the Act" herein), from payment of tax. In this view of the matter, the revision filed by the petitioner was dismissed. In Commercial Taxes Officer's case (D.B. Civil Sales Tax Case No. 60 of 1980 decided on 30th July, 1985) [1986] 61 STC 83 a question arose whether gowar churi is not included in gowar as mentioned in entry 9 of the Schedule appended to the Act, for, it is a cattle feed. After noticing <CITATION> .  37 STC 378 ( <CITATION>  46 STC 256 ( <CITATION>  47 STC 359 ( <CITATION>  19 STC 469 ( <CITATION>  25 STC 458, <CITATION>  28 STC 37, <CITATION>  33 STC 343 and <CITATION> v. Oil Mills (1985) 12 STL 108, it was held that the <ORG> was right when it held that gowar churi being a cattle feed is exempt from payment of tax according to entry 9 of the Schedule under Section 4(1) of the Act. While assailing the order dated 16th October, 1984, of the <ORG>, Mr. <NAME>, the learned counsel for the dealer-assessee, submitted that in view of entry 9 of the Schedule under Section 4(1) of the Act, the <ORG> erred in law in holding that gowar churi or korma is not exempt under entry 9 of the Schedule. In other words, it was urged that gowar as mentioned in entry 9 does not include gowar churi or korma. The pith and substance of the submission of the learned counsel for the assessee is that when gowar has been excluded from cattle feeds which are exempt from payment of tax, gowar churi and korma are also exempt. The exemption under entry 9 is, therefore, available in the case of gowar churi and korma. Mr. <NAME>, the learned counsel for the sales tax department, supported the order of the <ORG> on the grounds stated by it in its order under revision and contended that as gowar is not exempt in view of entry 9 of the Schedule and since Notification No. F. 5(24) FD/CT/72-14 dated 19th May, 1972, makes mention of gowar and that too in all its forms, tax is payable at the rate mentioned in the notification on gowar churi and korma. In exercise of the powers conferred by Section 5 of the Act, <ORG> notified in the aforesaid notification that with immediate effect the rate of tax payable by a dealer in respect of goods specified in column 2 of the list annexed thereto shall be as shown against them. The notification has been considered by the <ORG> in coming to the conclusion to which it did. The material part of it is as under :

1. Pulses (excluding moth but including 'gowar') in all their forms including 'dal', 'besan' and 'bran' thereof.

4. Item No. 1 mentioned in this notification is the basis of the view taken by the <ORG> that tax is payable on gowar churi or korma and that it is not exempt under entry 9 of the Schedule annexed to the Act. We may at once point out that this notification was issued under Section 6 of the Act which deals with rate of tax. Section 3 is a charging section and tax is leviable on the commodities covered by the taxable turnover in accordance with the rate of tax as may be prescribed and levied in accordance with Section 5 of the Act. So notification which has been relied upon by the <ORG> and on the basis of which the learned counsel for <ORG> has supported the order under revision, to our mind, is applicable for the purpose of the payment of tax on gowar as such and for that purpose as has been stated in the notification "gowar in its all forms". Section 4 of the Act says that the Act will not apply to certain sales. According to Sub-section (1) of Section 4 tax is not payable under the Act on the sale or purchase of the goods specified in column 3 of the Schedule on the fulfilment of the conditions mentioned therein. In front of entry 9 no condition or exception has been specified. Cattle feeds exclusive of gowar, cotton-seeds and oil-cakes are exempt from payment of sales tax. Entry No. 9 of the Schedule appended to the Act was examined by us in Commercial Taxes Officer's case (D.B. Civil Sales Tax Case No. 60 of 1980 decided on 30th July, 1986) [1986] 61 STC 83. After noticing the aforesaid authorities and also the ordinary the common parlance meaning or commercial meaning of gowar and gowar churi, we came to the conclusion that gowar churi is not included in gowar as mentioned in entry 9 of the Schedule. We held that though there is no exemption of gowar but exemption from payment of tax would be available in view of entry 9 to gowar churi as it is a cattle feed. Therefore, so far as entry No. 9 is concerned in view of Commercial Taxes Officer's case (D. B. Civil Sales Tax Case No. 60 of 1980 decided on 30th July, 1986) [1986] 61 STC 83 for its purpose gowar churi or korma is not the same thing as gowar. In this case the ground which has been given by the <ORG> on the basis of the aforesaid notification requires to be considered. The question that calls for our determination is whether in view of the interpretation that we have given to entry 9 of the Schedule qua the word "gowar", the notification that has been issued under Section 6 of the Act and which has been relied on by the <ORG> will prevail for the purpose of interpreting the word "gowar" in connection with the question of exemption. Our attention was drawn by the learned counsel for the dealer- <CITATION>  49 STC 295, <CITATION>  49 STC 297 and <CITATION>  52 STC 110. In Commissioner of Sales Tax's case  49 STC 295 the scope of Sections 3-A and 4 of U.P. Sales Tax Act, 1948, was considered. The State Government in exercise of the powers under Sub-section (2) of Section 3-A of the U.P. Sales Tax Act declared that the turnover in respect of the goods mentioned in the Schedule shall be liable to tax at all points of sale at the rate specified against each in column III of the Schedule. In the Schedule S. No. 17 was in question in view of that notification, the goods were made taxable when such goods were served to the customers. Section 4 of the U.P. Act deals with exemptions. In that case the question arose whether the specifications of the goods for the purpose of Section 3-A(2) will override the exemption of the goods under Section 4 of the Act. The learned single Judge of <ORG> observed as under:

The operating fields of the two sections, namely, Sections 3-A and 4 , are distinct and separate. Section 3-A by itself cannot override the power under Section 4 . On the other hand, if certain goods have been classified for purposes of Section 3-A and the point of tax has also been declared by <ORG>, if such goods had been exempted from sale, the department cannot contend that the exemption should not be construed in favour of the assessee.

5. In Commissioner of Sales Tax's case [1982] 49 STC 297 ice-cream and lassi were made taxable items by issuance of a notification, while on the basis of the judicial opinion ice-cream and lassi were included in the milk products which were exempted by other notifications. The question arose whether in face of these two notifications covering different fields ice-cream and lassi continued to be exempt from payment of sales tax. The very same Sections 3-A and 4 of the U.P. Act were examined. It was held that even though ice-cream and lassi have been made taxable by notification issued under Section 3-A of the U.P. Act, on account of the notification issued under Section 4 of the Act exempting milk products, which on judicial opinion include ice-cream and lassi, the turnover of ice-cream and lassi cannot be included in the net taxable turnover. <CITATION> .  49 STC 294 was referred to.

6. Commissioner of Sales Tax's case [1982] 49 STC 297 was noticed in <NAME> case [1983] 52 STC 110. Cattle fodder including cotton-seed was exempt under the U.P. Act from 1956. An amendment was made to the Central Act including cotton-seed and oil-seeds in 1973. A notification was issued under the U.P. Act levying purchase tax on oil-seeds. Another notification withdrawing exemption to cotton-seeds was issued in 1975. The question arose whether cotton-seeds were exempt for assessment years 1973-74 to 1977-78. In that connection, the court was called upon to decide whether cotton-seeds were included in cattle fodder and what is the effect of exemption or non-liability to tax. It was observed as under :

It is thus settled that transactions or sales which enjoy exemption have to be included in the gross turnover but they are exempted when the net turnover is calculated and as for non-liability to tax, the turnover in respect of such transactions or sales is not included in the gross or the net turnover.

7. From the aforesaid three decisions of <ORG>, it is clear that the fields of operation of Sections 4 and 6 of the Act are distinct and separate. The question before the <ORG> and which has been canvassed before us is whether the word "gowar" in entry 9 includes gowar churi or korma or not. The notification issued under Section 5 of the Act prescribing the rate of tax on gowar will not have overriding effect on entry 9 of the Schedule appended to the Act which deals with exemption. The notification on which reliance has been placed by the <ORG> will not nullify entry 9 of the Schedule so far as the exclusion of gowar from cattle feeds is concerned. As stated above the fields of operation of Sections 4 and 5 of the Act are altogether different. We agree with the reasons given in the aforesaid three decisions of <ORG> and adopt them for resolving the question before us. We are of the opinion that the view taken by the <ORG> in its order dated 16th October, 1984, on the basis of the notification dated 19th May, 1972, that gowar churi or korma is not exempt from payment of tax is erroneous in law. For the reasons mentioned in the Commercial Taxes Officer's case (D.B. Civil Sales Tax Case No. 60 of 1980 decided on 30th July, 1985)  61 STC 83 we are of the opinion that gowar churi or korma is not included in gowar when gowar has been excluded from cattle feeds which are exempt from payment of sales tax.

8. For the reasons mentioned above, we allow this revision and set aside the order dated 16th October, 1984, passed by the <ORG> and hold that gowar churi or korma is exempt from payment of tax in respect of the year under consideration under entry 9 of the Schedule to the Act.

9. There will be no order as to costs of this revision.