JUDGMENT GAJENDRAGADKAR, J.:—The appellants Fakir Chand and Pyarelal were charged before the learned First Class Magistrate at Jabalpur with having committed an offence under S. 326 of the Indian Penal Code in that on December 7, 1960 at Kantoora they had voluntarily caused grievous hurt to Komal Prasad by means of lathi which is a weapon of offence and the use of which is likely to cause death. This charge was denied by the appellants. Evidence was led by the prosecution to prove the assault and the appellants led evidence in support of their plea of alibi, The learned Magistrate who tried the case held that the charge framed against both the appellants had been proved beyond a reasonable doubt, and so he convicted them of the said offence and sentenced each one of them to six months rigorous imprisonment and to pay a fine of Rs. 100/-. The appellants then preferred an appeal before the Second Additional Sessions Judge at Jabalpur. The appellate court considered the evidence and came to the conclusion that the charge had not been established against the appellants. In the result the order of conviction and sentence was set aside and the appellants were ordered to be acquitted. 2. Against this order of acquittal Komal Prasad, the victim of the assault, preferred a revisional application before the Madhya Pradesh High Court. The learned single Judge of the said High Court who heard this revisional application examined the evidence elaborately and came to the conclusion that the order of acquittal passed by the learned Second Additional Sessions Judge was manifestly wrong. Accordingly he set aside the said order and sent the case back to be tried by some other Additional Judge at Jabalpur. It is against this order that the appellants have come to this Court by special leave. 3. Mr. Purshottam Trikamdas, for the appellants, contends that the order passed by the High Court is clearly unjustified, and he argues that the point which he seeks to raise in the present appeal is concluded by a recent decision of this Court in the case of Chinnaswamy Reddy v. State of Andhra Pradesh, AIR 1962 SC 1788 . 3. Mr. Purshottam Trikamdas, for the appellants, contends that the order passed by the High Court is clearly unjustified, and he argues that the point which he seeks to raise in the present appeal is concluded by a recent decision of this Court in the case of Chinnaswamy Reddy v. State of Andhra Pradesh, AIR 1962 SC 1788 . In that case this Court has held that the power of the High Court to set aside an order of acquittal at the instance of a private party can be exercised only in exceptional cases as for example where the trial court has wrongly shut out the evidence which the prosecution wished to produce, or where the appellate court has wrongly held evidence which was admitted by the trial court to be inadmissible, or where material evidence has been overlooked either by the trial Court or by the appellate Court, or where the acquittal is based on a compounding of the offence, which is invalid under the law. The result of this judgment is that it is only where the order of acquittal challenged before the High Court under S. 439 of the Code of Criminal Procedure suffers from an infirmity of the character illustrated in the judgment that the High Court can set aside the order of acquittal. Mr. Purshottam urges that in the present case none of such infirmities is even alleged to exist and plainly and clearly the High Court set aside the acquittal because it came to the conclusion that in its opinion the evidence adduced by the prosecution had not been properly appreciated by the trial court. We are satisfied that Mr. Purshottam is right. 4. The judgment delivered by the High Court plainly shows that the High Court considered the whole of the evidence for itself and reached the conclusion that on the merits the order of acquittal was not justified. It appears that the appellate court was not impressed by one piece of evidence which it rejected on the ground that it had no evidentiary value and the High Court thought differently about this evidence. This evidence consists of a report made by Balaprasad, compounder, on the telephone to the police station. This report is called the Sanha report. It refers to the incident of assault on Komal Prasad and mentions the names of the appellants as the assailants. This evidence consists of a report made by Balaprasad, compounder, on the telephone to the police station. This report is called the Sanha report. It refers to the incident of assault on Komal Prasad and mentions the names of the appellants as the assailants. When Balaprasad gave evidence he did not seriously support the contents of the said report, and the appellate Judge held that the report not being substantive evidence he was not prepared to act upon it in view of the evidence given by Balaprasad. It would be noticed that in coming to this conclusion the appellate court did not exclude the evidence in question but held that its evidentiary value was nil. That is not a type of error which would justify the interference of the High Court under S. 439. If the High Court thought that the said report and the evidence of Balaprasad should have been believed that is another matter but that is plainly outside the limits of the High Courts jurisdiction under S. 439. In our opinion therefore it is clear that the order passed by the High Court under S. 439 is based merely and solely on the conclusions which it reached on re-appreciating evidence for itself. The conclusion of the appellate court which led to the acquittal of the appellants does not suffer from any legal infirmity on the strength of which the High Courts jurisdiction under S. 439 could have been legitimately invoked. 5. The result is the order passed by the High Court is set aside and the order of acquittal passed in favour of the respondents (appellants, here) by the appellate court is restored. Appeal allowed. For citation: 1984(2) Cri. LJ 74