JUDGMENT - JAHAGIRDAR R.A., J.: - In Sessions Case No. 80 of 1979, the appellants, hereinafter referred to as "the accused", were prosecuted before the learned Additional Sessions Judge of the Pune for various offences mentioned in the charge. The first offence alleged against them was that they, pursuant to their common intention, caused the death of one Suresh Baban Tapase and thus committed an offence punishable under section 302 read with section 34 of the Indian Penal Code. The second offence with which they were charged was one punishable under section 201 or section 201 read with section 34 of the India Penal Code on the ground that they caused the evidence relating to the said murder to disappear by drowning the body of the said deceased in a well. They were also charged with the offence punishable under section 323 or section 323 read with section 34 of the Indian Penal Code on the ground that during the course of the same transaction they intentionally caused hurt to one Satish Kashinath Gaikwad. 2. Details of the prosecution have been mentioned in the judgment of the learned Sessions Judge and have been recapitulated in great details in the judgments of Kotwal, J., and Kolse-Patil, J., who have heard this appeal earlier and have given differing judgments. The evidence with had been led in the Court below has also been recapitulated in sufficient details in the three judgments referred to above. I do not, therefore, find it necessary to re-state the same in this judgment, which is being given in a reference made under section 392 of the Code of Criminal Procedure. 3. The learned Additional Sessions Judge, by his judgment and order dated 26th of September, 1979, convicted both the accused of the offence punishable under section 325 read with section 34 of the Indian Penal Code and awarded to each of them a sentence of rigorous imprisonment for four years. He also convicted both the accused of the offence punishable under section 201 read with section 34 and of the offence punishable under section 323 read with section 34 of the Indian Penal Code. For each of these two convictions, the learned Sessions Judge awarded to each of the accused a sentence of rigorous imprisonment for one year. All the substantive sentences were directed to run concurrently. The accused, therefore, preferred this appeal. 4. For each of these two convictions, the learned Sessions Judge awarded to each of the accused a sentence of rigorous imprisonment for one year. All the substantive sentences were directed to run concurrently. The accused, therefore, preferred this appeal. 4. At the time of admission, the Bench admitted the appeal, but issued notice to show cause why the sentence should not be enhanced. Consistent with the practice which is followed in this Court, this notice for enhancement of sentence issued suo motu by the Division Bench while admitting the appeal has been treated as revision application and has been given number 819 of 1979. Hence this appeal was heard and is being heard along with Criminal Revision Application No. 819 of 1979. It must be stated at this stage that the state itself has not preferred any revision application against what is alleged to be the inadequate sentence awarded by the learned trial Judge. This is so because if the state was aggrieved by the lenient sentence awarded by the learned Sessions Judge, it could have preferred an appeal for which there is a provision in section 377 of the Code of Criminal Procedure. It must also be stated that the state has not preferred an appeal against the order of the learned Sessions Judge acquitting the accused of the offence punishable under section 302 read with section 34 of the Indian Penal Code. Therefore the order of acquittal itself in these proceedings cannot be interfered with. 5. The appeal was heard, as mentioned above, by Kotwal and Kolse-Patil, JJ., Kotwal, J., in a detailed judgment, reviewed the entire material on record and found it impossible to sustain the conviction of the accused on what he regarded as the unsatisfactory prosecution evidence. Therefore he set aside the order of conviction. The question, therefore, of enhancing the sentence did not arise. Kolse-Patil, J., however, thought that the prosecution evidence was satisfactory. However, instead of merely confirming the conviction or enhancing the sentence for the offence for which the conviction was to be confirmed, Kolse-Patil, J., altered the conviction from one under section 325 read with section 34 of the Indian Penal Code to one under section 302 read with section 34 of the Indian Penal Code. There is thus a clear-cut and difference of opinion between the two learned Judges and hence this reference under section 392 of the Code. 6. There is thus a clear-cut and difference of opinion between the two learned Judges and hence this reference under section 392 of the Code. 6. I have heard Mrs. Agarwal in support of the appeal and Mrs. Rao for the state. I have with their assistance gone through all the relevant evidence on record and also the judgments of the two brother judges. From what has been stated in the judgment of the learned Additional Sessions Judge and also from what has been stated in the judgments of the two brother judges, it is clear that the prosecution case must stand or fall by the acceptability or otherwise of the testimony of Satish Kashinath Gaikwad, examined as P.W. 6. He claims to be the sole eye witness. His testimony is incident because he claims to be injured in the same incident in which Suresh was assaulted leading, according to the prosecution, to the death of Suresh. In law, there is no rule that any particular number of witnesses is necessary in a criminal case. If the testimony of a witness inspires confidence in the mind of a Court, then conviction can be based on his sole testimony. This is so especially when the witness himself is injured in the same transaction. The testimony of such a witness carries sufficient weight, provided, of course, he comes out with a plausible case. The main frame-work of the prosecution case is that on 22nd January, 1979 P.W. 6 Satish went to a place called Theur along with deceased Suresh. Suresh was having a prolonged liaison with one Vijaya, who is the sister of accused No. 1. The object of this trip from Pune to Theur, presembly, was to meet the said Vijaya. However, the deceased Suresh and P.W. 6 Satish met accused Nos. 1 and 2. Accused No. 2 is the maternal uncle of accused No. 1. According to the story which P.W. 6 Satish tried to unfold in the Court, all these four persons from place to place intoxicating themselves with liquor at various places. According to P.W. 6 Satish, at one stage both the accused suddenly started assaulting him and deceased Suresh. P.W. 6 Satish took to his heels and came to Pune where, according to one account, he informed the uncle of Suresh about the incident, the uncle being examined as P.W. 10, namely Shankar Baburao Tapase. According to P.W. 6 Satish, at one stage both the accused suddenly started assaulting him and deceased Suresh. P.W. 6 Satish took to his heels and came to Pune where, according to one account, he informed the uncle of Suresh about the incident, the uncle being examined as P.W. 10, namely Shankar Baburao Tapase. Both P.W. 6 Satish and P.W. 10 Shankar thereafter are alleged to have gone to Theur in search of Suresh. In the said search they met accused Nos. 1 and 2 who disowned any knowledge about the whereabouts of Suresh. A complaint of the alleged beating was ultimately filed by P.W. 6 Satish at the Loni Kalbhor Police Station at noon time on 23rd January, 1979. For all practical purposes the said complaint has been treated as the first information repot and has been tendered as Exhibit 26 in evidence. 7. If one notices this complaint filed by P.W. 6 Satish, it is seen that he gives an account which is considerably different from the one given by him in his testimony before the Court. In Exhibit 26 he has only stated that Vijaya having gone to the house of her brother, accused No. 1, at Theur, he and Suresh went to Theur at about 3.30 p.m. He has specifically stated in this complaint that he and Suresh went to the house of the brother of Vijaya, namely accused No. 1. He has again specifically stated that accused No. 1 met them in front of his house whereafter they went to a hotel for taking tea. The company proceeded to a liquor den near a Vasti of Bhillas. In the account given in Exhibit 26, no mention of accused No. 2 is made till these two persons, namely P.W. 6 Satish and Suresh went to a place near the Vasti of Bhillas for taking liquor. The name of the uncle of accused No. 1 is introduced at this stage and it is stated that he and accused No. 1 started beating P.W. 6 Satish and deceased Suresh by means of sticks. He says that because of that assault he sustained bleeding injuries. Suresh also was beaten, but Suresh ran away somewhere in the dark. At the end of the penultimate paragraph of this complaint he has stated as follows : - "Then any how I escaped and reached my house at 12 in the night. He says that because of that assault he sustained bleeding injuries. Suresh also was beaten, but Suresh ran away somewhere in the dark. At the end of the penultimate paragraph of this complaint he has stated as follows : - "Then any how I escaped and reached my house at 12 in the night. My friend Suresh did not come to his house. I confirmed it and slept. I narrated this information to his uncle." It should be noted that despite the fact that he had received such serious beating and despite the fact that he had seen Suresh being beaten in his presence, he sleeps after returning to his house without making any further inquiries. The maximum that he has stated is that he gave this information to the uncle of Suresh. In the last paragraph of his complaint he fixes the place of what he calls the maramari in the field of Kunjirwadi of Theur. It had not been mentioned by him in this complaint at Exhibit 26 that he along with the uncle of deceased Suresh, namely P.W. 10 Shankar, made any search for Suresh either in the night of 22nd or in the early morning of 23rd of January, 1979. This needs to be emphasised because in the testimony before the Court P.W. 6 Satish has given a very elaborate and detailed account of his movements on the night of 22nd and 23rd January, 1979. This account embraces the movements of himself and the uncle of Suresh, which included the visit to the house of accused No. 1 and some talk with the latter. Necessarily, what he has stated in the Court is a variation to a considerable degree from the account which he has given in his complaint at Exhibit 26. It should also be noted at this stage that the next statement of this witness was recorded on 27th of January, 1979 after the discovery of the dead body of Suresh in a well. 8. I am not unware of the fact that Exhibit 26 was recorded by the Head Constable of Loni Kalbhor Police Station as a complaint about a non-cognizable offence. Nor am I unware of the fact that even a first information report given under section 154 of the Code of Criminal Procedure cannot be a compendium of the entire prosecution case. I am not unware of the fact that Exhibit 26 was recorded by the Head Constable of Loni Kalbhor Police Station as a complaint about a non-cognizable offence. Nor am I unware of the fact that even a first information report given under section 154 of the Code of Criminal Procedure cannot be a compendium of the entire prosecution case. But in the instant case the first information report which has been given by P.W. 6 Satish is not a very cryptic report. It gives the motive for the alleged offence; it gives the manner in which accused Nos. 1 and 2 assaulted him and deceased Suresh. But the other particulars, such as the time of the offence and the place of the offence, are kept vague. Reading Exhibit 26 one is left with an impression that the assault, if at all, took place immediately after 5.30 p.m. In his testimony before the Court P.W. 6 Satish creates an impression that the assault took place several hours thereafter, especially after several bouts of drinking liquor. Since Exhibit 26 was given under his own signature, it was necessarily meant to put the machinery of investigation into motion. Obviously, therefore, P.W. 6 Satish intended to give all the information that was necessary to persuade the police to start some investigation. Since, however, the account given by P.W. Satish in Exhibit 26 only mentioned beating by sticks the Officer, naturally, recorded this complaint treating it as one relating to the commission of a non-cognizable offence. Nevertheless, Exhibit 26 must provide some sort of standard with reference to which the testimony of P.W. 6 Satish given in the Court has to be assessed. 9. After reading the testimony of P.W. 6 Satish, one can notice that there are several variations and omissions amounting to contradictions in it. In the first place it is noticed that in Exhibit 26 he calls deceased Suresh as his relative twice, though in the Court he insists that Suresh was not his relative. This, of course, would not be a very strong ground to suspect the testimony if this witness, but looking to the other answers which he has given, there is detectable an attempt on his part to offer himself as an independent aggrieved party. This, of course, would not be a very strong ground to suspect the testimony if this witness, but looking to the other answers which he has given, there is detectable an attempt on his part to offer himself as an independent aggrieved party. In the first information report there is no mention of accused No. 2 being present before the party went to a place near the Bhil Vasti, but his presence is introduced in it suddenly only for the purpose of beating P.W. 6 Satish and deceased Suresh. Though there is a variation in the amount of liquor consumed as mentioned in the first information report and in the testimony before the Court, that itself may not be totally destructive of the testimony of this witness. But the information given about the consumption of four bottles of toddy in the testimony is of some importance and it had remained to be mentioned in the first information report at Exhibit 26. 10. The testimony of P.W. 6 Satish given in the Court gives a plethora of details, none of which is to be found in the first information report. There is, for instance, the story relating to the purchase of cigarettes - a fact probably promoted by the discovery of a packet of cigarettes near about the place of the offence after the body of the deceased was found in the well. In the first information report at one stage it has been stated that he and Suresh were taken to a place near the Bhil Vasti and especially a place near a babul tree. But, in the last paragraph of Exhibit 26 he fixes the place of offence in the field of Kunjirwadi of Theur. The prosecution has not proved on evidence that the maramari as described by P.W. 6 Satish in fact took place in the field of Kunjirwadi. It should also be noted that in the first information report at Exhibit 26 P.W. 6 Satish states that Suresh ran away in some direction. One also fails to understand between the two accounts given by him as to the manner in which he and Suresh met accused No. 1. In the first information report at Exhibit 26 he clearly states that he went to the house of accused No. 1 and the presence of accused No. 2 at that place has not been mentioned at all. In the first information report at Exhibit 26 he clearly states that he went to the house of accused No. 1 and the presence of accused No. 2 at that place has not been mentioned at all. In his testimony before the Court he makes out a case that he accidentally met both the accused near the but stop. In a given case one could have ignored these variations as minor ones, but looking to the nature of the recitals in Exhibit 26 and the large details given by this witness in the Court, one is left with an indelible impression that the witness in the Court has been making an attempt to give flesh and blood to a skeleton story which was hardly convincing. That the incident as deposed to by him in the Court could not have taken place would be clearer when I proceed to consider some other evidence in this case. 11. It has already been noticed by me that in the first information report there is no mention at all of P.W. 6 Satish having taken the uncle of Suresh to Theur after he returned to Pune. P.W. 6 Satish came to Pune on foot escaping from the clutches of the accused. The time was 1 a.m. He confirmed that Suresh had not returned to his house. It is significant to note that despite the fact that an incident so serious has taken place, this witness went to his house and slept. There is no mention at all of this witness and the uncle of Suresh having been alarmed by the assault that had been made by the accused on Suresh and having gone to Theur in search of Suresh. This account is totally absent in the first information report. 12. P.W. 10 Shankar Baburao is the uncle of Suresh. He has, however, in his testimony stated that P.W. 6 Satish came to his house in the midnight of 22nd and 23rd of January, 1979. He mentions the time as at about 1.00 to 1.30 a.m. on 23rd January, 1979. According to him, Satish had bleeding injury on his head and his clothes were stained with blood. He was able to persuade Satish to tell him in detail what had happened. He mentions the time as at about 1.00 to 1.30 a.m. on 23rd January, 1979. According to him, Satish had bleeding injury on his head and his clothes were stained with blood. He was able to persuade Satish to tell him in detail what had happened. Thereafter P.W. 10 Shankar says that Satish gave him an account which indicated that he, namely Satish, and Suresh had taken drinks along with the accused and they were taken to a land and beaten with sticks. P.W. 10 Shankar says that thereafter he awakened his neighbour by name Sadaba Jadhav and all three of them went in a rickshaw to Theur. The time given by him is at about 5 a.m. on 23rd January, 1979. He has stated that both the accused were sitting in front of their house when this witness asked the accused why they had beaten Satish and Suresh. According to him, both the accused denied having done any such thing. He insists that P.W. 6 Satish himself told him in the presence of the accused that the accused had beaten him and Suresh. 13. Turning now to the testimony of P.W. 6 Satish, it is seen that he has not made such a bold statement. The account of the visit of these three persons to the house of the accused is given in the following words by P.W. 6 Satish : - "Both the accused were warming themselves around the camp-fire outside the house of accused No. 1. Suresh was not present there. Shankarrao (P.W. 10) asked accused No. 1 whether Suresh had come there. Accused No. 1 said that nobody had come there. Hence myself, Shankarrao and Sadba returned to Pune by the very rickshaw." It is, therefore, clear that it is not the case of P.W. 6 Satish in whose presence, according to the prosecution, Suresh had been beaten by both the accused, that the accused were asked by him in the presence of P.W. 10 Shankar as to why they had beaten Suresh. The inquiry which was allegedly made by P.W. 10 Shankar, according to the testimony of Satish, was a simple one, namely whether Suresh, who had apparently spent some time in the company of the accused and P.W. 6 Satish, had come to their house. The inquiry which was allegedly made by P.W. 10 Shankar, according to the testimony of Satish, was a simple one, namely whether Suresh, who had apparently spent some time in the company of the accused and P.W. 6 Satish, had come to their house. It is inconceivable that if Suresh had been beaten by the accused few hours before this alleged visit to the house of the accused P.W. 6 Satish would not have asked the accused more vehemently as to the whereabouts of Suresh. One would expect that he would protect to the accused as to why they had beaten him and Suresh the previous night and would have insisted that they, namely, the accused, take him and P.W. 10 Shankar, the uncle of Suresh, to the place where Suresh was beaten. Both P.W. 6 Satish and P.W. 10 Shankar would have been indignant about the denial by the accused of their involvement in the assault on Suresh. But according to P.W. 6 Satish, the only inquiry which was made was such a lame inquiry regarding the whereabouts of Suresh. This conduct on the part of Satish (P.W. 6) is totally destructive of the account given by him of the assault made by the accused on him and Suresh the previous night. Indeed, even when these two witnesses went to the house of the accused they do not even protest to the accused as to why P.W. 6 was assaulted. The testimony of P.W. 10 Shankar was to cover up this great lacuna in the testimony of P.W. 6 Satish and cannot be accepted. It is impossible to reconcile the testimonies of P.W. 6 Satish and P.W. 10 Shankar relating to what happened when both of them went to the house of the accused in the early hours of 23rd January, 1979. The conduct of P.W. 6 Satish when he went to the house of the accused at about 5 a.m. on 23rd January, 1979 is so unnatural that it makes the story of assault on him and Suresh by the accused hopelessly improbable. 14. In paragraphs 9 and 10 of the deposition of P.W. Satish, the search made by him and P.W. 10 Shankar for Suresh has been given in some details. According to P.W. 6 Satish, they went to Theur on two occasions. 14. In paragraphs 9 and 10 of the deposition of P.W. Satish, the search made by him and P.W. 10 Shankar for Suresh has been given in some details. According to P.W. 6 Satish, they went to Theur on two occasions. One was at about 2 or 2.30 a.m. on 23rd January, 1979 when they found that neither Suresh nor any of the accused was at the place where, according to him, the incident had taken place. All of them then went to the house of accused No. 1 where they saw both the accused warming themselves around the camp-fire outside the house and the conversation, on which I have already made sufficient comment, took place. According to P.W. 6 Satish, they returned to Pune but within a short time, on the suggestion of P.W. 10 Shankar, himself, Shankar and Sadaba went again to Theur in the very rickshaw. P.W. 6 Satish claims that they made a search of the various places which had been visited by this drunken party on the previous night. It should be noted that P.W. 10 Shankar who met P.W. 6 Satish immediately after the latter's return from Theur around midnight, does not speak at all about the two visits made by this party to Theur. With these glaring gaps in the prosecution evidence and with so many internal inconsistencies to be found in the depositions of these two witnesses, namely P.W. 6 Satish and P.W. 10 Shankar, it is impossible to proceed with any degree of assurance on the testimony of P.W. 6 Satish who, alas, is the only witness who counts in this case. If P.W. 6 Satish had come out with the truth and nothing but the truth, instead of introducing too many imponderable and impossible things in his testimony in the Court, probably the truth could have been found by the Court. His conduct immediately after his return from Theur, his conduct at the time he and P.W. 10 Shankar visited the place of the accused and his subsequent conduct - all these are not calculated to help the Court to find out the truth about the incident in which P.W. 6 Satish has, probably, suffered the injuries. The genesis of the incident in which P.W. 6 Satish suffered injuries and in which, if at all, Suresh was belaboured, whether by accused Nos. The genesis of the incident in which P.W. 6 Satish suffered injuries and in which, if at all, Suresh was belaboured, whether by accused Nos. 1 and 2 or by any other party, has been undiscoverable by the testimony of P.W. 6 Satish. There are too many omissions, too many variations and too many contradictions in it. There is an attempt to improve whatever case P.W. 6 Satish had originally, so that it would fit in with the result of the investigation which was taken up after the discovery of the body of Suresh on 26th January, 1979. As I have already mentioned, I am not unware of the fact that P.W. 6 Satish is injured. But the question is how was he injured. Was he injured by accused Nos. 1 and 2 on the night of 22nd and 23rd January, 1979? If he was so injured by the accused, how is it that he did not protest to the accused on the morning of 23rd January, 1979 when he visited their place along with P.W. 10 Shankar? He just makes a bare inquiry regarding the whereabouts of Suresh when, according to him, Suresh, and he had been belaboured by these two accused on the previous night. This part of the prosecution case was sought to be improved by the testimony of P.W. 10 Shankar. This witness also cannot be believed on this aspect of the prosecution case. His only function, if at all, was to corroborate P.W. 6 Satish, but Satish himself gives a totally innocuous account of his visit to the house of the accused on 23rd January, 1979. 15. It is, therefore, impossible to base a conviction of the accused on the testimony of a witness like P.W. 6 Satish. The learned Sessions Judge was impressed by the fact that P.W. 6 Satish had sustained injuries and therefore he ought to be believed. Normally this would be the case, but in the light of the various accounts given by this witness, considered in juxtaposition of the other prosecution evidence, especially the testimony of P.W. 10 Shankar, it would be hazardous to act upon such testimony. 16. The find of sticks near the alleged place of offence is practically innocuous because in the first place the prosecution has not proved that these are the sticks which could have caused injuries on the body of either Satish or Suresh. 16. The find of sticks near the alleged place of offence is practically innocuous because in the first place the prosecution has not proved that these are the sticks which could have caused injuries on the body of either Satish or Suresh. In any case, if I had found the testimony of P.W. 6 Satish acceptable, then I would not have insisted even upon the prosecution producing the weapon of offence. This would be so if the testimony of the injured witness relating to the use of sticks had commended itself to me. 17. The learned Sessions Judge has not given much importance to the find of human blood of 'B' group on the clothes of accused Nos. 1 and 2 when they were arrested. I am of the opinion that the learned Sessions Judge was right on this aspect of the prosecution evidence. The learned Sessions Judge has accepted the explanation given by the accused reply to the question under section 313 of the Code of Criminal Procedure. Kotwal, J., has also concurred with this part of the judgment of the learned Sessions Judge. Kolse-Patil J. has, a cock and bull story. Ultimately, the question has to be answered on the basis of probability. If the accused had assaulted Suresh on the night of 22nd and 23rd of January, 1979 is it possible that they will be wearing the clothes which had been blood stained in that transaction continuously for four days after the incident took place? It is a the prosecution case that these clothes were taken from the persons of accused Nos. 1 and 2, which necessarily means that four days after the incident accused Nos. 1 and 2 were wearing the same clothes openly with the incriminating blood-stains on those clothes. This looks improbable. On the other hand, if the blood-stains were not regarded as incriminating by the accused, then they would not hesitate to wear the said clothes. They have given an explanation in reply to questions under section 313 of the Code. That explanation is more constant with the probable conduct of a person than the prosecution case that the accused were wearing the incriminating clothes only to be arrested by the police four days after the incident had taken place. They have given an explanation in reply to questions under section 313 of the Code. That explanation is more constant with the probable conduct of a person than the prosecution case that the accused were wearing the incriminating clothes only to be arrested by the police four days after the incident had taken place. I am, therefore, of the opinion that the find of human blood of 'B" group, which was the group to which the blood of deceased Suresh belonged, is of no consequence on the facts of this case. 18. I am, therefore, of the opinion that the order of conviction and sentence recorded by the learned Sessions Judge is not sustainable and ought to be set aside. The question of enhancing the sentence pursuant to the notice given by this Court, therefore, does not arise. 19. Before parting with this judgment, it is necessary to recapitulate some of the features of these proceedings. The learned Sessions Judge who tried the accused for an offence punishable under section 302 read with section 34 of the Indian Penal Code was not persuaded that the action of accused Nos. 1 and 2 was such as to bring the offence under section 302 read with section 34 of the Indian Penal Code. He thought that at best the accused could be convicted under section 325 read with section 34 of the Indian Penal Code, which the learned Sessions Judge did. The State itself did not prefer an appeal against the order of acquittal passed by the learned Sessions Judge in respect of the offence under section 302 read with section 34 of the Indian Penal Code. No revision application was filed against the said order of acquittal by the party of the complainant. Against the sentence awarded by the learned Sessions Judge for the offence under section 325 read with section 34 of the Indian Penal Code also, the State has not preferred an appeal, which could have been done under section 377 of the Code. In view of this it is not possible to agree with the course adopted by Kolse-Patil, J., Kolse- Patil, J., has altered the conviction recorded by the learned Sessions Judge under section 325 read with section 34 of the Indian Penal Code to one under section 302 read with section 34 of Indian Penal Code. In view of this it is not possible to agree with the course adopted by Kolse-Patil, J., Kolse- Patil, J., has altered the conviction recorded by the learned Sessions Judge under section 325 read with section 34 of the Indian Penal Code to one under section 302 read with section 34 of Indian Penal Code. While doing so, Kolse-Patil, J., thought that he was allowing the revision application filed by the State when in fact there was no revision application at all by the State, as I have already mentioned above. What has been described, as criminal revision application is only a notice issued by the Division Bench while admitting the appeal for enhancement of sentence. It is only for the purpose of making entries in the register of this Court that such notices for enhancement of sentence are called criminal revision applications. 20. That apart, even if there were a criminal revision application by the State against the order of acquittal, which could not in law be done, this Court cannot, in exercise of its revisional jurisdiction, convert an order of acquittal into one of conviction. Section 401 of the Code of Criminal Procedure is in the following term:- “401. (1) In case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 386, 389, 390 and 391 or on a Court of Session by section 307 and when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 392. (2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence. (3) Nothing in this section shall be deemed to authorize a High Court to convert a finding of acquittal into one of conviction. (4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. (3) Nothing in this section shall be deemed to authorize a High Court to convert a finding of acquittal into one of conviction. (4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. (5) Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto an that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly.” It is clear from what is stated in sub-section (3) of section 401 of the Code that in exercise of the power of revision the High Court cannot convert a finding of acquittal into one of conviction. This is so even where not the State but a private party prefers a revision application against an order of acquittal. 21. As I have already mentioned above, what was before the Division Bench of Kotwal and Kolse-Patil, JJ., was a notice for enhancement of the sentence. Even if an appeal had been preferred by the State against what it would regard as an inadequate sentence, that appeal would be under section 377 of the Code of Criminal Procedure. The State would not after the year 1973 prefer a revision application against what it would regard as lenient sentence. It would necessarily prefer an appeal under section 377 of the Code. Even in such an appeal preferred by the State against what it would regard as inadequate sentence awarded by the trial Court, an order of acquittal cannot be converted into an order of conviction. Under section 386 of the Code of Criminal Procedure, in an appeal for enhancement of the sentence, the appellate Court may reverse the finding and sentence and acquit or discharge the accused or order him to be re-tried by a Court competent to try the offence, or alter the finding maintaining the sentence, or with or without altering the finding, alter the nature or the extent or the nature and extent, of the sentence, so as to enhance or reduce the same. The power to alter the finding is only for the purpose of disposing of an appeal for enhancement of the sentence; not for the purpose of convicting the accused for a higher offence than the one for which he had been convicted in the Court below. Section 386 of the Code does not empower the appellate Court to convert an order of acquittal into one of conviction. 22. Even under section 401 of the Code of Criminal Procedure, which empowers the High Court to exercise the powers conferred on a Court of appeal while exercising its revisional jurisdiction, the High Court, by virtue of sub-section (3) of section 401, cannot alter a finding of acquittal into one of conviction. Though there is provision for an appeal for enhancement of the sentence under section 377 of the Code, the High Court can act suo motu for enhancement of the sentence. It has been stated by the Supreme Court in (Nadir Khan v. State)1, A.I.R. 1976 S.C. 2205, that the existence of section 377 of the Code does not exclude the revisional jurisdiction of the High Court to act suo motu for enhancement of the sentence in appropriate cases. It is in exercise of this jurisdiction that the Division Bench while admitting this appeal issued the notice for enhancement of the sentence. This power of the High Court to issue notice for enhancement of the sentence despite the insertion of a provision for an appeal against the sentence has, again, been recognized by the Supreme Court in (Eknath v. State of Maharashtra)2, A.I.R. 1977 S.C. 1177. 23. This, however, does not mean that the High Court can, in exercise of its revisional jurisdiction to issue notice for enhancement of sentence, alter an order of acquittal into one of conviction. The High Court is still exercising only powers of revision and the powers of revision have been spelt out, apart from the express provisions in the Code itself, in a series of decisions of the various High Courts and of the Supreme Court. One only of such decisions needs to be referred here. The High Court is still exercising only powers of revision and the powers of revision have been spelt out, apart from the express provisions in the Code itself, in a series of decisions of the various High Courts and of the Supreme Court. One only of such decisions needs to be referred here. In (Chinnaswamy v. State of Andhra Pradesh)3, A.I.R. 1962 S.C. 1788, to which several other subsequent judgments have made repeated reference, it has been pointed out that the revisional jurisdiction vested in the High Court to set aside an order of acquittal even at the instance of private parties can be exercised only in exceptional cases. This is so especially because sub-section (4) of section 439 of the Code of Criminal Procedure, 1898, corresponding to sub-section (3) of section 401 of the present Code, specifically prohibits the High Court from converting a finding of acquittal into one of conviction. The maximum that could be done by the High Court while reversing an order of acquittal is to order a re-trial which itself, if at all, is rarely done. In my opinion, therefore, the order of Kolse-Patil, J., converting the order of acquittal into one of conviction in exercise of the revisional jurisdiction commencing with the issuance of the notice for enhancement of the sentence by the Division Bench is not authorized by law. 24. I would, however, suggest that the office of the High Court should use a different nomenclature for the notices issued suo motu for enhancement of the sentence. If a party prefers a criminal revision application, there is a regular application. It can, therefore, be legitimately called a revision application. But when a Court issues a notice suo motu there is no application at all. Therefore to call it a criminal revision application would be a misnomer and would be misleading, as it has happened in this case. I, therefore, suggest that the Registrar should take up this issue immediately with the learned Chief Justice for obtaining necessary directions to maintain a separate register for the notices issued for enhancement of the sentence as distinguished from criminal revision applications preferred either by the State or by private parties. 25. In the result, I allow this appeal and set aside the order of conviction and sentence recorded by the learned Additional Sessions Judge of Pune against the appellants-accused in Sessions Case No. 80 of 1979. 25. In the result, I allow this appeal and set aside the order of conviction and sentence recorded by the learned Additional Sessions Judge of Pune against the appellants-accused in Sessions Case No. 80 of 1979. The bail bonds of the accused stand cancelled. 26. The appeal shall now be placed before the Division Bench of Kotwal and Kolse-Patil, JJ. For pronouncement of final order in accordance with Rule 6 of Chapter I of the Bombay High Court (Appellate Side) Rules, 1960. Appeal allowed. -----