S. Acharya, J.
1. This revision is against the appellate judgment of the Additional Sessions Judge, Cuttack in Criminal Appeal No. 22 C of 1965 confirming the convictions and sentences of the petitioners under Sections 379 and 426 I. P. C., while setting aside their conviction and sentence under Section 504 I. P. C. passed by a Magistrate 1st Class, Cuttack.
2. The prosecution case, in short, is that on 26-6-1964, at about 8 A. M. the petitioners cut the green fence standing on the eastern boundry of the complainant's plot No. 31 in Khata No. 1 of mouza Dhusal. Thereafter, they carried away some cowdung stored on the complainant's land and also removed some Alu and Olua from the said land.
3. The petitioners in pleading not guilty to the charges urged that there was no fence in between the complainant's land and the paddy land of the petitioner No. 1, and that on the date of oc-currence, the petitioner No. 1 was cutting the branch of a Chakunda tree standing on his own land, but as he did not cut the branches which extended towards the land of the complainant, there was an altercation between the parties, and out of grudge, the complainant filed this false case against them.
4. Mr. Rahenoma, the learned counsel for the petitioners contended, by drawing my attention to paragraph No. 4 of the judgment, that the appellate court made a wrong approach to the case in proceeding to decide the matter on the presumption that the accused (petitioners) persons were guilty of the offences alleged against them. Paragraph No. 4 is as follows:
'It is now to be seen how far the convictions and sentences awarded by the trial court are supported by evidence on record.'
On this, it was argued that the appellate Judge proceeded under the assumption that it was his duty only to see if the convictions and sentences passed against the petitioners could be supported on the evidence on record. In support of his above contention, he cited two decisions, namely. Emperor v. Nur Ahmad AIR 1934 All 842 and Abdul Gani v. Emperor, AIR 1943 Cal 465. It has been held by their Lordships of the Allahabad High Court that:
'The duty of the appellate Court is to review the entire evidence to make up its mind upon that evidence and to reverse the decision of the lower Court if it be satisfied upon a consideration of the evidence that the decision is unjustified. The presumption of innocence with which the accused starts continues right through until he is held to be guilty by the final Court of appeal. If he is acquitted by the Court of first instance the presumption of innocence of course remains. The presumption of innocence is absolute. It is not strengthened by an acquittal nor weakened by a conviction in the trial Court'.
Their Lordships of the Calcutta High Court in the above mentioned case held as follows:
'In a criminal appeal it is for theCrown to establish that the judgment of the trial Court is right. The appellate Court must remember that the presumption of the innocence of the accused still persists and that the appellate Court has to satisfy itself that the judgment of the Magistrate was right'.
The cardinal principle to be observed in the trial of a criminal case is that the accused should always be considered to be innocent person till the criminal acts alleged against him are affirmatively and satisfactorily proved. This presumption of innocence continues all throughout thetrial and till the disposal of the case In the final Court of appeal. The approach of the Court of appeal should therefore be to assess the entire evidence and the materials before him to see if the case against the accused has been affirmatively proved beyond all reasonable doubts, without being obsessed by the finding of conviction and the sentence passed by the trial Court. On such appreciation of evidence and materials he has to examine the propriety or otherwise of the conviction and the sentence passed by the trial Court.
5. As the learned counsel commented on the appellate Courts' judgment in the manner aforesaid, I considered it desirable to scan the evidence on record apart from going through the judgments of both the Courts below. The prosecution in this case examined only three witnesses, and the appellate Court while discussing the evidence of P. W. 3, committed a mistake in finding that the name of this witness was not mentioned in the complaint petition. P. W. 3, who is named as Tahal Naik in the heading of his deposition in the trial Court, has signed the deposition as 'Tahal Kumar Naik' and this name appears as witness No. 4 in the complaint petition filed in this case. He is a disinterested witness and nothing has been elicited from him to show why he should not be believed. The trial Court's opinion regarding this witness is that he 'is neither inimically disposed towards the accused nor friendly attached to the complainant' and at another place the trial Court has found that the prosecution witnesses are highly disinterested and defence has failed to impeach their credibility. The appellate Court likewise is of the opinion that the evidence of this witness (P. W. 3) inspires confidence and that he appears to be a disinterested witness. Against P. W. 2 it was alleged that he is a co-sharer but I find that he is just a co-sharer of the entire prooerty in Khata No. 1 without having any interest in the complainant's above-mentioned plot. Having made an independent assessment of the evidence on record, I am satisfied that the offences of mischief and theft alleged against the petitioners have been proved beyond all reasonable doubts. Mr. Rahenoma also has not been able to suggest anv satisfactory or compelling reasons for not accepting the evidence of the three prosecution witnesses. As such the convictions under both the sections, namely, Sections 379 and 426 I. P. C. being well-founded are to be maintained.
6. Mr. Rahenoma at last contended that in any view of the matter, the sentence passed against each of the petitioners has been extremely excessive.
7. I find that both the courts below have acted negligently in stating in theirjudgments the fine awarded under Section 426 I. P. C. Moreover, there is inconsistency between the statements in the judgment and in the order sheet of the trial Court regarding the imprisonment awarded in default of payment of fine under Section 379 I. P. C. This is an unfortunate state of affair. The Courts below, in the operative portion of their judgments, with regard to conviction or sentence against accused persons under different heads, should state the conviction and sentence in a specific and clear manner, and should bestow some amount of care and attention to see that no ambiguity creeps into their judgments in this regard.
From the order sheet of the trial Court it could be ascertained by me that each of the petitioners has been sentenced to pay a fine of Rs. 80 under Section 379 I. P. C., and Rs. 10 under Section 426 I. P. C. As alleged in paragraphs 3 and 4 of the complaint petition, the complainant in all, has sustained a wrongful loss to the tune of Rs. 50 on account of the removal of cowdung, Alu and Olua from his land, and Rs. 20 on account of the destruction of the eastern fence. Of course, the amount of damage caused to the complainant should not be the only consideration for the sentence to be passed against the accused persons. But in this case considering the facts and circumstances I am of the view that the ends of justice would be served by sentencing each of the petitioners to pay a fine of Rs. 30 (instead of Rs. 80) under Section 379 I. P. C., and in default of payment of this fine to undergo rigorous imprisonment for fifteen days. The sentence passed by the trial Court under Section 426 I. P. C. against each of the petitioners as mentioned above is maintained.
8. With this reduction in the sentenceof the petitioners as mentioned above, therevision is dismissed.