JUDGMENT 1. THIS is an appeal under section 417 (3) of the Criminal Procedure Code against the acquittal of respondents 1-6 in a case under section 427 of the Indian penal Code. The prosecution case shortly stated was that the opposite parties on the 4th of Chaitra 1370 B. S. demolished the complainant's shop and thereby caused mischief to him. The articles inside the shop are alleged to have been partly scattered and partly carried away by the accused persons in the case. 2. THE defence was a denial of the allegations made against the accused persons. It was the defence case that the shop of the complainant was blown off by a storm and that the accused were falsely implicated in the case due to grudge and enmity. The learned Magistrate on a. consideration of the evidence found that the accused in the case did cause mischief as alleged and on this finding he convicted them under section 427 of the Indian Penal Code and sentenced them to pay a fine of Rs. 51/- each in default to suffer rigorous imprisonment for 17 days each. The entire amount of fine, if realised, was directed to be paid to the complainant as compensation. 3. AN appeal against this conviction and sentence was taken to the Sessions Judge and the learned Additional sessions Judge who heard the appeal set aside the conviction and sentence of the appellants before him and acquitted them in the case. According to him the trial court had fallen into an error in coming to the finding that he arrived at, on four grounds, namely : (1) that a presumption under section 114 (g) of the Evidence Act should have been drawn against the prosecution for its failure to file and prove the general diary entry relating to the incident and also the petition of complaint filed before the Magistrate which had been forwarded to the Officer-in-charge of the police station under section 156 of the code with a direction to treat the same as a F. I. R. and to start investigation of the case ; (2) that the evidence of P. Ws. 2-4 could not be accepted without corroboration in material particulars by independent evidence in view of the fact that they are chance witnesses ; (3) that in view of the contradiction in the evidence it should have been held that P. Ws. 2-4 could not be accepted without corroboration in material particulars by independent evidence in view of the fact that they are chance witnesses ; (3) that in view of the contradiction in the evidence it should have been held that P. Ws. 5 and 6 could not have witnessed the occurrence ; and (4) that the judgment of the learned magistrate was defective in view of the fact that the evidence against the individual accused had not been discussed. 4. IT appears from the evidence that after the incident the complainant went to the Thana and gave information about the occurrence there. There is, however, nothing on record to indicate if a g. D. entry was at all made of that in - information. In any event, when nothing came out of the information to the police the complainant filed a petition of complaint before the magistrate which was sent to the police with direction to treat it as a first information report. The police after investigation submitted a final report. The complainant filed a naraji before the magistrate who took cognizance of the case and the present prosecution was started. The prosecution did not produce any G. D. entry relating to the occurrence nor was the petition of complaint that was sent to the police under section 156 of the Code produced in the case. It is the non-production of these documents which has led the learned additional Sessions Judge to hold that a presumption under section 114 (g) of the Evidence Act is liable to be drawn against the prosecution. Illustration (g)above refers to "evidence which could be and is not produced" and it is the non production of this evidence which could be and is not produced that would give rise to the presumption under section 114 that if produced it would be un-favourable to the person who 'withholds' it. The illustration, therefore, postulates two things ; first, that the evidence could be produced and secondly that that evidence is withheld. Obviously, the illustration refers to evidence which is under the control of the party concerned and if the evidence be not under his control there is no question of raising any presumption under section 114 of the Evidence Act. 5. Obviously, the illustration refers to evidence which is under the control of the party concerned and if the evidence be not under his control there is no question of raising any presumption under section 114 of the Evidence Act. 5. SO far as the present case is concerned there is no satisfactory evidence that any G. D. entry was at all made and even if an entry was made certainly this prosecution having been started on a petition of complaint, it cannot be said that the complainant was in possession of that police document and could, if he would, have produced it. So fan as the petition of complaint that was earlier filed is concerned, the same was with the police record and was also not under the control of the complainant. These two documents therefore not being documents under the control of the complainant and not being within his power to produce, there is no question of the complainant having had withheld the same. In my view the learned Additional sessions Judge fell into an error in finding that a presumption under section 114 (g) of the Evidence Act was liable to be drawn against the prosecution for non production of these two documents. 6. THE learned Sessions Judge finds that P. Ws. 2-4 are chance witnesses. If so, necessarily their evidence would require corroboration by independent evidence. It was argued on behalf of the appellant that the finding that these three witnesses were chance witnesses is not borne out by the record. The evidence in support of the finding of the lower appellate court in this regard is the testimony of the complainant P. W. 1 to the effect that Chak Fuldubi mouza to which P. Ws. 2-4 belong is one/one half mile away from the place of occurrence. The evidence of P. Ws. 2-4 themselves on this point was not considered at all by the lower appellate court. P. W. 2's evidence is that his house is 2/3 roshis off from the place of occurrence and that P. Ws. 3 and 4 live near his house. This evidence was elicited on the cross-examination of this witness. The evidence of P. W. 4 is that there are no houses within 2/3 roshis off the shop of the complainant and this information was elicited in his cross-examination. P. W. 6 deposed to having had seen P. Ws. 3 and 4 live near his house. This evidence was elicited on the cross-examination of this witness. The evidence of P. W. 4 is that there are no houses within 2/3 roshis off the shop of the complainant and this information was elicited in his cross-examination. P. W. 6 deposed to having had seen P. Ws. 2 - 4 at the place of occurrence when he went there and this statement was also taken from him in his cross-examination. As against the evidence of the witnesses P. Ws. 2, 4 and 6 there is undoubtedly the evidence of these witnesses P. Ws. 2, 4 and 6 there is undoubtedly that evidence of p. W. 1 to the effect that the village to which P. Ws. 2 - 4 belong lies 1 to 11/2 mile away from the place of occurrence. P. W. 2 stated in his cross-examination moreover that he was attracted to the place of occurrence hearing cries and this evidence of his is in consonance with the evidence of P. Ws. 2, 4 and 6 that I have pointed out above and would be inconsistent with the evidence of the complainant P. W. 1. Considering the totality of the evidence which appears to have been ignored by the lower appellate court it would be very reasonable to hold that the evidence of the complainant regarding the distance of the village of P. Ws. 2-4 from the place of occurrence is not quite correct. If there are no houses within 2/3 roshis off the shop in question as we get from the evidence of P. W. 4 and if p. Ws. 2-4 live 2/3 roshis off from that shop it can hardly be said that they were chance witnesses at the time and place of occurrence. The lower appellate court came to its finding on the point without considering the entire evidence on record. I find no reasons to hold that p. Ws. 2 and 4 at any rate have deposed falsely in their evidence referred to above. I find that the testimony of P. Ws. 2-4 was entitled to be considered on its face value and was not liable to be relegated to the position of the evidence of chance witnesses which could not be accepted without corroboration in material particulars by independent evidence. 7. REGARDING the evidence of P. Ws. I find that the testimony of P. Ws. 2-4 was entitled to be considered on its face value and was not liable to be relegated to the position of the evidence of chance witnesses which could not be accepted without corroboration in material particulars by independent evidence. 7. REGARDING the evidence of P. Ws. 5 and 6 the learned Sessions Judge has discharged their evidence as unacceptable in view of certain discrepancies between their evidence and the evidence of some other witnesses in the case. That discrepancy relates to the sequence in which the witnesses had arrived at the place of occurrence. The incident must have taken quite some time. The evidence is that some of the accused persons got on the top of the roof of the hut and dismantled the same. The articles inside the shop were scattered and some of the building materials were removed by the accused persons. If in this context of things there is some discrepancy as to the sequence of arrival of the witnesses examined in the case the credibility of the witnesses should not depend on that discrepancy. The witnesses examined have not been proved to be under any obligation to the complainant and although the complainant might be in dispute with the accused persons there is nothing on record to indicate that any of the other witnesses examined are in terms of enmity with the accused persons. If the witnesses thus be probable witnesses and apart from the discrepancy as to the sequence of their arrival there is nothing intrinsic in their evidence which might put them out of court, I do not see why they should not be believed as truthful witnesses. 8. THE power of this court in deciding appeals against acquittals have been discussed in the case of (1) Sanwait singh and others v. State of Rajasthan, 1960 SCR 120 : (1961) 2 SCA 342 referred to on behalf of the appellants. The appellate court as was held in the case has full power to review the evidence upon which the order of acquittal is founded and to come to its own conclusion. The appellate court as was held in the case has full power to review the evidence upon which the order of acquittal is founded and to come to its own conclusion. But in so doing it should not only consider every matter on record having a bearing on the question of fact and the reasons given by the court below in support of its order of acquittal in arriving at a conclusion on those facts, but should also express its reasons in its judgment which leads it to hold that the acquittal was not justified. The acquittal of the respondents by the lower appellate court in the present case was mainly based on the two primary considerations that the evidence of P. Ws. 2 to 4 requires corroboration by independent evidence which is wanting and that P. Ws. 5 and 6 would not be believed as their evidence belies their testimony that they are eye witnesses. If on a review of the evidence it is found that the learned Additional Sessions Judge was not justified in finding that the P. Ws. 2 and 4 are chance witnesses and if it is further found that P. Ws. 5 and 6 were not liable to be disbelieved because of the discrepancy in their evidence relating only to the sequence of arrival of the witnesses in the case, I think I shall be justified in interfering with the order of acquittal that was passed by the lower appellate court. I have referred to the non production of the alleged g. D. entry and the earlier petition of complaint filed by the present appellant. The only other point that remains to be considered is the failure of the learned Magistrate to consider the evidence against individual accused separately. The evidence in the case being that all the accused persons demolished the hut and scattered the articles therein and this demolition and scattering of the articles being the foundation of the charge under section 427, I. P. C., there is no separate evidence against the individual accused on record and as such there is no question of separately considering the evidence against the individual accused in the present case. The failure of the learned Magistrate to do so cannot thus be said to constitute any defect in the judgment passed by him. 9. The failure of the learned Magistrate to do so cannot thus be said to constitute any defect in the judgment passed by him. 9. MY attention is drawn by the learned advocate on behalf of the respondent to the contradiction between the evidence of P. W. 1 and P. W. 3 on the one hand and that of P. W. 4 on the other, on the question as to whether the roof of the shop was blown away by storm. P. Ws. 1 and 3 stated that the roof was never blown away, but the evidence of P. W. 4 is that it was once blown away by storm and it was repaired. This blowing away of the roof as denied by P. Ws. 1 and 3 and as admitted by P. W. 4 has nothing to do with the blowing off of the roof by storm which is the foundation of the defence case. The P. Ws. 5-6 above were obviously asked about blowing off of the roof on some previous occasion. The discrepancy in this regard would not render the entire evidence of the witnesses concerned liable to be rejected. 10. ON a consideration of the evidence on record I find that the evidence of P. Ws. 2 to 6 who have deposed to the occurrence was not liable to be rejected. All these witnesses did not see the entire occurrence. But the part of the occurrence that they had seen corroborates the evidence of the witnesses who have deposed to the entire incident. P. W. 2 saw the roof being cut by two of the accused persons while the other accused were carrying articles. P. W. 3 came to the place of occurrence when the shop had already been demolished. P. W. 4 saw the accused persons demolishing the hut and throwing away the articles of the shop and takeaway some. That is also the evidence of P. W. 5 ; when P. W. 6 came to the place of occurrence the hut had already been demolished. The evidence of these witnesses amply corroborates the testimony of the complainant P. W. 1 and there is no reason whatsoever on the basis of the totality of the evidence not to accept the prosecution case regarding the allegation of mischief. I find that the charge has been amply proved in the case. The appeal is accordingly allowed. The evidence of these witnesses amply corroborates the testimony of the complainant P. W. 1 and there is no reason whatsoever on the basis of the totality of the evidence not to accept the prosecution case regarding the allegation of mischief. I find that the charge has been amply proved in the case. The appeal is accordingly allowed. The acquittal of the opposite party in the case is set aside. They are convicted under section 427 of the Penal Code and are sentenced to pay a fine of Rs. 51/- each in default to suffer rigorous imprisonment for 17 days each. The fine, if realised, will be paid to the complainant as compensation.