Full Judgment Text
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PETITIONER:
MANSOOR & ORS.
Vs.
RESPONDENT:
STATE OF MADHYA PRADESH
DATE OF JUDGMENT06/05/1971
BENCH:
DUA, I.D.
BENCH:
DUA, I.D.
BHARGAVA, VISHISHTHA
CITATION:
1971 AIR 1977 1971 SCR 731
1971 SCC (2) 369
ACT:
Code of Criminal Procedure, 1898, s. 4(1) (t), 492, 417(3)-
Presentation of appeal in High Court against acquittal of
accused-Additional Government Advocate when appointed Public
Prosecutor can present appeal-Such appeal is a ’case’ in
which the Public Prosecutor is entitled to act-Power of High
Court in hearing appeal against acquittal-Principles.
Constitution of India, Art. 136-Scope of arguments in appeal
by special leave.
HEADNOTE:
The appellants were charged along with five others for the
offences of murder and attempt to murder. Five accused
persons were acquitted by the trial court Four of the
appellants were convicted by the trial court, the conviction
being upheld by the High Court. The fifth appellant was
acquitted by the trial court but convicted by the High Court
in an appeal by the State. In appeal by special leave it
was contended before this Court; (i) that the conviction of
the appellants could not be sustained on the evidence; (ii)
that the High Court in reversing the judgment of acquittal
by the trial court against one of the appellants had not
followed the principles laid down by this Court; and (iii)
that the Additional Government Advocate was not authorised
to present the appeal against acquittal in the High Court
because such appeal was not a ’case.
HELD: (i) Under Art. 136 of the Constitution this Court
does not normally re-appraise the evidence for considering
the credibility of the witnesses. Unless the trial is
vitiated by some illegality or irregularity of procedures or
their is some violation of the rules of natural justice
resulting in unfair trial, or unless the judgment has
resulted in gross miscarriage of justice, this Court does
not as a rule proceed to evaluate the evidence for coming to
its own independent conclusion. No such infirmity had been
made out by the appellants’ counsel in the present case.
[736 F]
(ii) The appellants counsel was also unable to show that the
High Court in reversing the judgment of the trial court
against one of the appellants had failed to observe the
principles laid down by this Court. [737 H]
Samwat Singh & Ors. v State of Rajasthan, [1961] 3 S.C.R.
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120, Keshav Ganga Ram Navaga & Anr. v. State of Maharashtra,
Cr. A. No. 100/68 dt. 3-2-1971, Shea Swarup V. King Emperor
(1934) L.R. 61 I.A. 398 and Laxman Kalu v. State of
Maharashtra A.I.R. 1968 S.C. 1390, referred to.
(iii) The Additional Government Advocate who presented the
appeal againstacquittal in the High Court was notified as
Public Prosecutor for the HighCourt in respect of cases
arising in the State of Madhya Pradesh. The case resulting
inthe acquittal of the accused persons would clearly be a
case arising in the state and within the contemplation of
the notification. Reading s. 4(1)(t) Cr. P.C. which
defines ’public prosecutor’ together
732
with s. 492 Cr. P. C. under which the State Government is
empowered to appoint Public Prosecutors, the Additional
’Government Advocate when appointed’ as a Public Prosecutor
for the High Court in respect of cases arising in the State
of Madhya Pradesh must be held to be a Public Prosecutor
lawfully empowered to present appeals in the High Court
against’ orders of acquittal. [740 C]
Bhimappa Basappa Bhu Sannayar v. Laxman Shivrayappa
Samagouda & Ors. A.I.R. 1970 S.C. 1153 and Bhagwan Das v.
The King, A.I.R. 1949 P.C 263, referred to.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeals Nos. 30
and 31 of 1967.
Appeals by special leave from the judgment and order dated
April 21, 1966 of the Madhya Pradesh High Court, Indore
Bench in Criminal Appeals Nos. 248 and 313 of 1965.
Nur-ud-din Ahmed, C.L. Sareen, J. C. Talwar and R. L. Kohli
for the appellants (in Cr. A. No. 30 of 1967).
I. N. Shroff, for the appellant (in Cr. A. No. 31 of 1967).
Nur-ud-din Ahmed, C. L. Sareen, S. K. Mehta and K. L. Mehta,
for respondents Nos. 1 to 4 and 9 (in Cr. A. No. 31 of
1967).
The Judgment of the Court was delivered by
Dua, J.-These are two appeals by special leave. In one
appeal, Mansoor, Rashid, Ishaq, Yunus and Mehmood s/o
Bhondekhan are the appellants and in the other the State has
appealed against the acquittal of Ajimkhan, Hakimkhan, Mah-
moodkhan s/o Dilawarkhan, Gabbu and Mehmood s/o Bhondekhan.
All the ten accused, namely, Mansoor s/o Bhondekhan, Rashid
s/o Allabeli, Ishaq s/o Wali Mohammad, Yunus s/o Mohammed
Hussain, Ajimkhan s/o Wariskhan, Hakimkhan s/o Anaskhan,
Mahmoodkhan s/o Dilawarkhan, Gabbu s/o Mohammad Sharif,
Mahmood s/o Bhondekhan and Makku s/o Bhondekhan, were
charged and tried by Additional Sessions Judge, indore, for
offences under ss. 302/34, 302/149, 307/34 and 307/149
I.P.C. Out of them 8 accused persons, namely Mansoor,
Rashid, Ishaq, Yunus, Ajimkhan, Hakimkhan, Mahmoodkhan s / o
Dilawarkhan and Mehmood s / o Bhondekhan, were in addition
charged under ss. 302, 307 and 148 I.P.C. All these charges
relate to the murder of one Karamat Beg Pahalwan s/o Mirza
Karim Beg at Bombay Bazar Choraha on January 19, 1965, at
about 12-30 P.M. and to an attempt on the life of Ikbal Beg
s/o the deceased Karamat Beg Pahalwan at the same time and
place.
The Trial Court convicted Mansoor, Rashid, Ishaq and Yunus
and acquitted the rest giving them benefit of doubt. In
regard to Gabbu it was observed that he had not been shown
733
to be in possession of any Weapon of offence and that it
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could not be said that he had any. knowledge of the object
of the members of the party led by Mansoor. He was,
therefore, held not to be member of this assembly. ’No
other case was sought to be made out against him.
Each of the three injuries (Nos. 2, 3 & 9) inflicted on the
deceased Karamat Beg were held by the Trial Court to be
individually sufficient in the ordinary course of nature to
cause Karamat’s death. But as none of the accused persons
were proved beyond doubt to have inflicted any particular
fatal injury to the deceased, they were all convicted under
s. 302 read with s. 34 I.P.C For coming to the finding of
common intention, reliance was placed on Mathurala Adi Reddy
v. The State of Hyderabad. (1) The injury inflicted on lkbal
Beg was imputed to Mansoor, but this injury was held to
constitute an offence only under s. 324 I.P.C. As all the
four accused had joined in this assault with common
intention they were all convicted under s. 324 read with s.
34 I.P.C. Under s. 302 / 34 I.P.C. all the four accused were
sentenced to imprisonment for life and under s. 324/34
I.P.C. they were sentenced to 6 months rigorous im-
prisonment.
The convicted persons appealed to the High Court against
their conviction, and the State appealed against acquittal
of the others. The State also presented a revision petition
for enhancement of the sentences imposed on those convicted.
The High Court upheld the conviction of Mansoor, Rashid,
Ishaq and Yunus and dismissed their appeal. It allowed the
State appeal only against the acquittal of Mehmood s/o
Bhondekhan and convicted him along with four persons
convicted by the Trial Court. The result was that the
charges under s. 148 I.P.C. and s. 302/149 I.P.C. were also
held proved against all the five convicted accused persons.
This charge was held established in addition to the charge
under s. 302/34 I.P.C. Similarly with respect to the injury
inflicted on Ikbal Beg, the charge under s. 324/149 I.P.C.
was held proved. In the final result, Mehmood s/o
Bhondekhan along with the four accused persons convicted by
the Trial Court were all held guilty of offences under s.
302/34 I.P.C., s. 302/149 I.P.C. and s. 148 I.P.C. With
respect to the injuries inflicted on Ikbal Beg also all
these five persons were held guilty of offences under s. 324
read with ss. 34 and 149 I.P.C. The sentence for this
offence was maintained, but they were in addition sentenced
under s. 148 I.P.C. to one year’s rigorous imprisonment.
The High Court did not find any cogent ground for enhancing
the sentence of life imprisonment to that
(1) A.I.R. 1956 S.C. 177.
734
of death for the offence under S. 302 read with Ss. 34
and .149 I.P.C. The revision was accordingly dismissed.
In this Court again there are two appeals-one by the five
accused convicted by the High Court, and the other by the
State against the acquittal of the remaining five accused
persons. In the appeal by the State the sentence for life
imprisonment has been stated to be inadequate for the
gruesome murder in broad day-light. Both these appeals have
been presented in this Court by special leave under Art. 136
of the Constitution. They were first heard by us on August
27 & 28 and September 22, 1970. It appears from the record
that the accused persons had not filed any list of defence
witnesses in the Court of Committing Magistrate. A list of
13 witnesses was, however, filed in the Court of the
Additional Sessions Judge and summons were issued with res-
pect to those witnesses. On the day when the defence
witnesses were to be examined they were not present with the
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result that the Trial Court declined further adjournment for
their production. At the time of arguments in the Trial
Court the question of prejudice to the accused persons
because of the refusal to grant adjournment for the
production of the defence witnesses was raised, but the
Court did not consider that any prejudice had resulted to
the accused persons who wanted to examine them. From the
record we find that only Mansoor. Mehmood s/o Bhondekhan,
Mahmoodkhan s/o Dilawarkhan, Hakimkhan and Ajimkhan desired
to examine defence witnesses. The other accused persons had
declined to examine any witness in defence. Out of the list
of 13 witnesses Shri Bonge the hand-writing expert was given
up. The circumstances in which the defence witnesses were
disallowed by the Trial Court are that on June 10, 1965, the
accused persons were called upon to enter upon their
defence. It was found that none of the defence witnesses
were present in the Court on that day. It also appears that
the plea in support of which the witnesses, except witnesses
Nos. 9 & 13, were sought to be examined was one of alibi.
The Trial Court granted an adjournment only for one day to
enable the accused persons to secure the attendance of the
witnesses on June 11, 1965. On that day, two witnesses were
reported to be out of station and with respect to one
witness it was reported that there was no person of that
name at the address which had been taken from the list of
defence witnesses furnished by the accused. The summons to
Munshi had not been received back. The defence was, in the
circumstances, closed.
After Shri Nuruddin had addressed us on this grievance, we
asked him if he at this stage considered it necessary to
examine the witnesses in defence. The learned counsel,
after consulting his clients and considering the matter,
stated in the Court that
735
he was not interested in producing any defence evidence at
this late stage. Arguments were then continued and
practically at ;the close of the arguments Shri Nuruddin on
reconsideration of ’the matter expressed his desire to be
permitted to produce defence ,evidence. We accordingly made
an order on September 22, 1970 directing the Trial Court to
permit the accused persons to examine 10 witnesses. This
request, though belated, was allowed in the interests of
justice. In the Trial Court, however, only one witness
Munshi Khan s/o Kasam was examined in defence. According to th
is witness he had gone to the Trial Court on June 16,
1965 .but was informed by some clerk or peon that the case
had already been decided : thereupon he returned home.
According :to his evidence about 5 or 6 years ago during the
days when ,the incident in question took place his mother
was ill and had been admitted in the M.Y. Hospital. The
incident in question had, according to him, taken place in
Bombay Bazar near Agra Hotel. The witness used to visit
Mehrabkhan Patel who had a milk shop in Bombay Bazar and
indeed he used to steep at Mehrabkhan’s place. At about 12
noon on the date of the incident the witness and Chhotekhan
were talking to each other near Agra .Hotel when they saw
Karamat Pahalwan coming from Mochipura side uttering abuses
to Ishaq and Mansoor. Mansoor was also seen standing
opposite Agra Hotel. Karamat Pahalwan saying that Mansoor’s
servants had started thinking too much of them-selves
because of incitement from their master rushed at Mansoor
with a stick measuring 2 or 2-1/4 ft. in length and 1 or
11/2 inches thick. Karamat gave a blow to Mansoor with the
stick hitting him on the head. Mansoor started bleeding.
Chhotekhan took Mansoor on his bicycle to the police
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station. A big crowd ,collected there but the witness went
away. This is all that this ,witness stated in his
examination-in-chief. In cross-examination he said that he
could not remember the date of the incident and :also that
he did not know whether Chhotekhan was alive or dead.
According to him none of the accused present in the Court
were present at the scene of the occurrence except Mansoor.
The witness remained in the M.Y. Hospital for about eight
days ’in connection with his mother’s treatment. He denied
that Ikbal s/o Karamat had any stick in his hand or that he
gave any blow to Mansoor. This evidence seems to us to be
wholly unimpressive ,and does not call for any serious
consideration or comment.
When these appeals came up for hearing before us with the
remand report of the Trial Court and the record of the
defence evidence, Shri C. L. Sareen the learned counsel
appearing in ,support of the appeal by the convicted
appellants again took us through the relevant record and
addressed arguments challenging :-the conviction of the
appellants. After reading the testimony of Munshikhan he
made a faint attempt to persuade us to accept
736
his evidence, but realising the futility of this venture he
soon gave up the attempt. His main and principal
contention, how-ever, was that the witnesses whose evidence
was not relied upon, by the Trial Court with respect to the
presence of the five accused persons, whose acquittal was
upheld by the High Court, should not have been believed for
convicting the present appellants. In support of this
contention he took us through the evidence of Iqbal Beg s /
o the deceased (P.W. 1) and submitted that he was an
interested witness and his evidence was unbelievable because
his testimony did not tally with the evidence of Narayan
singh P.W. 25 who had prepared the site plan. The counsel
also referred to certain portions of the statements of Ahmed
Khan P.W. 2, Mohammad Shafi P.W. 3, Ismail P.W. 6, Dr. B. N.
Chatterjee, P.W. 10, Shitlaprasad P.W. 24 and Abdulkadar
P.W. 29 for the purpose of persuading us to hold that their
evidence is not worthy of credance. His attack was also
directed to the First Information Report. According to him
the F.I.R. lodged by Ikbal Beg was not in reality the first
information in point of time, because the information with
regard to this incident had already been made by Mansoor.
We are wholly unable to agree with the counsel that the
information lodged by Ikbal Beg was. not the F.I.R. and that
Mansoor had made the report earlier. The case diary of the
police was also subjected to some criticism for the purpose
of discrediting the investigation.
All these arguments which the learned counsel has taken,
pains to advance are misconceived in this Court for the
simpler reason that under Art. 136 of the Constitution this
Court does not normally re-appraise the evidence for
considering the credibility of the witnesses as if it is a
court of first appeal. Unless the criminal trial is
vitiated by some illegality or irregularly of procedure or
there is some violation of the rules of natural justice
resulting in unfair trial, or unless the judgment has
resulted in gross miscarriage of justice, this Court does
not as a ruler proceed to evaluate the evidence for coming
to its own independent conclusion. No such infirmity has
been made out by the appellants’ learned counsel.
We may briefly state the broad essential features of the
prosecution story as narrated by the eye witnesses and as
accepted by the High Court. Mansoor has employed accused
Ishaq, Yunus and Gabbu. Rashid is a friend of Mansoor since
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childhood. Accused Mahmoodkhan s/o Dilawarkhan, Ajimkhan
and Hakimkhan are three Pathans who usually visited
Mansoor’s shop. They are stated to indulge together in the
nefarious trade of smuggling opium. Karamat Beg and his son
Ikbal Beg are opposed to Mansoor’s party. Indeed there
have been incessant quarrels between the two factions.
Mansoor’s servants often used to act
737
in offensive and provocative manner towards Karamat and his
son. As a result of fresh trouble about a couple of months
prior to the present occurrence, proceedings under S. 107
Cr. P.C. were also initiated between the parties. On
January 19, 1965, Karamat started from Taj Laundry at about
noon time for going to his house with some guava fruit and a
bottle. Those were Ramzan days. He was proceeding along
Jawahar Marg and as he turned towards Bombay Bazar he met’
Ishaq and Yunus Ishaq spot at Karamat which infuriated him.
In his younger days Karamat used to be known as a renowned
wrestler. Ishaq ran away followed by Karamat who was
shouting at Ishaq. When they reached near the Grand
National Bakery they saw Mansoor there. On Karamat’s
complaint about misbehaviour of Mansoor’s servants, Mansoor
retorted that the matter should be settled once for all
right then. lkbal hearing his father’s shouts also followed
him. In response to Karamat’s enquiry as to what was to be
settled, Mansoor directed his servants to start the job.
Rashid than assaulted Karamat with a knife. Mansoor also
suggested that Karamat’s veins should be cut off. Ikbal who
had also reached there snatched a stick from a faqir who
happened to be closely and tried to save his father. But
before he could intervene Mansoor had given one knife blow
to Karamat on his neck and another on his chest. Yunus and
Ishaq also started grappling with Karamat. lkbal gave stick
blows to them. On this Mansoor asked Rashid to cut off
lkbal’s veins and he himself also aimed a knife blow at
lkbal but the blow missed the mark. lkbal in the meantime
slipped away but not before Ishaq had caused him an injury
on his left hand. Mehmood also gave a blow on lkbal’s left
arm. Karamat who was given further blows by the party of
Mansoor became unconscious. lkbal straight went to the
police station and lodged the report. These broad features.
of the prosecution version as given by the eye witnesses
were, accepted by the High Court and since it was a case of
party factions the evidance was sifted by both the Courts to
see that if there was some element of doubt with respect to
any individual accused person he should be given its
benefit.
Mr. Sarin next submitted that the High Court had not
followed the standard laid down by this Court for dealing
with the appeals against acquittal and in support of this
submission he relied on the decisions of this Court in
Sanwat Singh & others v. State of Rajasthan(’) and on an
unreported judgment of this Court in Keshav Ganga Rain Navge
& Anr v. State of Maharashtra(2). In our opinion, this
submission is wholly unfounded. The High Court did not
ignore the standard laid down by this
(1) [1961] 3 S.C.R. 120.
(2) Cr. A. No. 100 of 1968 decided on February 3, 1971.
47-1 S.C. India/71
738
Court in Sanwat Singh’s case(1). According to that decision
the words "substantial and compelling reasons" for setting
aside an order of acquittal used in this Court’s earlier
decisions are intended to convey the idea that an appellate
court shall not only bear in mind the principles laid down
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by the Privy Council in Sheo Swarup v. King Emperor,(2) but
must also give its clear reasons for coming to the
conclusion that the order of acquittal was wrong. In the
case before us the High Court has kept these observations in
view when dealing with the acquittal appeal. In Keshav Ganga
Ram Navge’s case(3) the Additional Sessions Judge had
disbelieved the evidence of the eye witnesses, who according
to him, had spoken about the incident in a parrot-like
manner. The three dying declarations were also rejected by
the Trial Court and the other evidence was also held untrust
worthy. The High Court on appeal against the acquittal
relied on two out of the three dying declarations and while
dealing with the evidence of the eye witnesses did not
consider the discrepancies and improbabilities of the
version given by those witnesses as pointed out by the Trial
Court. The Court quoted with approval some observations
made in Laxman Kalu v. State of Maharashtra(4) in which it
was said that the powers of the High Court in an appeal
against acquittal are not different from the powers of the
same Court in hearing an appeal against conviction, but the
High Court in reversing the judgment of the Sessions Judge
must pay due regard to all the reasons given by the Sessions
Judge for disbelieving a particular witness and must attempt
to dispel those reasons effectively before taking a contrary
view of the matter. The High Court in the case before us,
in our opinion did not go against these observations.
Indeed the appellants’ learned counsel was unable to show
how the High Court had ignored the principles laid down by
this Court in the decisions cited while dealing with appeals
against acquittal. In Sanwat Singh’s case(1), it is worth-
noting, this Court had dismissed the appeal and had made the
following observations with regard to the exercise of power
of this Court under Art. 136 of the Constitution. It was
said there :
"Article 136 of the Constitution confers a
wide discretionary power on this Court 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
(I) [1961] 3 S. C. R. 120.
(2) (1934) L.R. 61 I.A. 398.
(3) Cr. A. No. 130 of 1968 decided. on Feb.
3, 1961.
(4) A.I.R. 1968 S.C. 1390.
739
justice or otherwise, substantial and grave
injustice has been done". Though Art. 136 is
couched in widest terms, the practice of this
Court is not to interfere on questions of fact
except in exceptional cases when the finding
is such that it shocks the conscience of the
court. In the present case, the High Court
has not contravened any of the principles laid
down in Sheo Swarup’s 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 present case we further find that Mahmood, who was
convicted on appeal against acquittal has since served out
his sentence and is no longer in jail. The counsel
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contended that if Mahmood’s conviction were to be set aside
then there would be no justification for applying ss. 148
and 149 I.P.C. We are ,not persuaded to hold that the
judgment of the High Court suffers from any such grave or
serious error as would justify our interference with the
order convicting Mahmood. The High Court considered the
evidence and came to its own conclusion. No legal error
suggesting miscarriage of justice has been pointed ,out by
the learned counsel. The conviction of the present
appellants, it may be pointed out, is also under s. 302 read
with S. 34 I.P.C. and this conviction would, in any event,
be unassailable even though s. 148 I.P.C. is not attracted.
We, however, do not accept the contention that Mahmood was
wrongly convicted and S. 148 I.P.C. is not attracted.
Finally the counsel laid stress on the submission that the
,appeal in the High Court was incompetent because the
Additional Government Advocate who had presented the appeal
was not ,the Public Prosecutor. The Gazette Notification to
which our attention has been drawn shows that Mr. Dubey, the
Additional Government Advocate, was notified as Public
Prosecutor for the High Court in respect of the cases
arising in the State of Madhya Pradesh. The counsel raised
an ingenious argument, namely, that Mr. Dubey could not be
considered to be a Public Prosecutor for presenting appeals
in the High Court against orders of acquittal, because the
appeal could not be described as a case, which arose in the
High Court in which eventuality alone, he would act as a
Public Prosecutor. The argument has merely to be stated to
be rejected. The counsel tried to seek support from a
decision of this Court reported as Bhiniappa Bassappa Bhu
Sannavat v. Laxman Shivrayappa Samagouda and others.(1) In
this decision it was said that the word "case" which is not
(1) (1934) L. R. 61 I.A. 398. (2) A.I.R. 1970 S.C. 1153.
740
defined by the Code of Criminal Procedure is well understood
in legal circles and it ordinarily means a proceeding for
the prosecution of a person alleged to have committed an
offence. It was added that in other contexts this word may
represent other kinds of proceedings. ]But in the context of
S. 417(3) the Court said) it must mean a proceeding which at
the end results either in discharge, conviction, or
acquittal of an accused person. If anything, this decision
goes against the appellants’ contention. The case resulting
in the acquittal of the accused persons would clearly be a
case arising in the State and within the contemplation of
the notification, and the Additional Government Advocate.
who is the Public Prosecutor for the High Court would be
entitled to present the appeal in such a case. Reading s.
4(1)(i) Cr. P.C., which defines "Public Prosecutor"
together with s. 492 Cr. P.C. under which the State
Government is empowered to appoint Public Prosecutors, the
Additional Government Advocate when appointed as a Public
Prosecutor for the High Court in respect of the cases
arising in the State of Madhya Pradesh must, in our opinion,
be held to be a Public Prosecutor lawfully empowered to
present the appeals in the High Court against orders of
acquittal. The Privy Council decision reported as Bhagwan
Das v. The King(’) cited by Shri Sarin also goes against his
contention. It is further note-worthy that this objection
was not raised in the High Court. We are, therefore, unable
to sustain the submission that the appeal against the order
of acquittal was filed in the High Court by an unauthorised
person.
The appeal on behalf of the accused persons must,
therefore., fail.
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Mr. Shroff rightly did not press the appeal against
acquittal of the five accused persons, which was based on
the concurrent order by both the courts below. In regard to
Mahmood also, who having served out his sentence has already
been released, he did not seriously press his appeal for
enhancement of sentences. Otherwise too, in regard to the
prayer for enhancement of the sentences, we do not find any
cogent grounds for differing with the order of the High
Court.
In-the final result, both the appeals fail and are
dismissed.
G. C. Appeals dismissed.
(1) A.I.R. 1949 P.C. 263.
741