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PETITIONER: BRATHI ALIAS SUKHDEV SINGH

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT31/10/1990

BENCH: KULDIP SINGH (J) BENCH: KULDIP SINGH (J) FATHIMA BEEVI, M. (J)

CITATION:  1991 AIR  318            1990 SCR  Supl. (2) 503  1991 SCC  (1) 519        JT 1991 (5)   217  1990 SCALE  (2)918  CITATOR INFO :  F          1991 SC1853  (16)

ACT:     Indian Penal Code--Sections 34 and 302--Criminal liabil- ity-Primarily  attaches to person who actually  commits  the offence--Several  persons alleged to have committed  offence in  furtherance of common intention--All except one  acquit- ted--Open to appellate court to reappraise evidence.

HEADNOTE:     The appellant and his uncle Teja Singh were tried for an offence  under  Section  302/34 I.P.C.  for  committing  the murder  of one Sucha Singh. The case of the prosecution  was that  the appellant and Teja Singh in furtherance  of  their common  intention attacked the deceased Sucha Singh  on  1st January  1975  when  he was returning home  from  his  field accompanied  by his daughter and son (PWs 8 and 9).  It  was alleged  that the appellant attacked the deceased with  Kir- pan, which blow was warded off by the deceased and then Teja Singh  delivered a blow with Kirpan on the  deceased’s  head whereupon he fell down and both the appellant and Teja Singh then  dealt one blow each causing injuries to the  deceased. Sucha  Singh  died  at the hospital. The  fatal  injury  was attributed  to Teja Singh and he was charged  under  section 302 I.P C., and the appellant who was alleged to have caused the  minor injuries was charged under section 302/34  I.P.C. The  trial  court  acquitted Teja Singh  and  convicted  the appellant  for  the offence under section  302.  I.P.C.  and sentenced him to undergo imprisonment for life and to pay  a fine  of  Rs. 1,000. The State did not  appeal  against  the order of acquittal passed in respect of Teja Singh, with the result  that order became final. The appellant  appealed  to the  High Court contending that when the Sessions Judge  had rejected  the prosecution evidence against Teja  Singh,  his conviction on the same evidence was not sustainable. It  was further contended on behalf of the appellant that in view of the acquittal of Teja Singh, who was alleged to have  deliv- ered  the  fatal blow the appellant could not  be  convicted under  S.302  IPC or with the aid of section 34  I.P.C.  and that  at best the offence fell under section 326 I.P.C.  The High Court while maintaining the sentence of life  imprison-

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ment imposed on the appellant, altered his conviction to one under  sec. 302 read with section 34, I.P.C. The High  Court while assessing the credibility of the prosecution  evidence incidentally considered the 504 case  against  Teja Singh and after reviewing  the  evidence recorded a finding that the order acquitting Teja Singh  was erroneous.  The appellant has filed this appeal against  the order of the High Court after obtaining special leave.     Before this Court it has been inter alia contended  that the High Court erred in recording the conviction under  sec. 302/34  IPC, as with the acquittal of Teja Singh element  of sharing common intention has disappeared, (ii) that the High Court  misdirected itself in appreciating the  evidence  and (iii)  that  the individual acts of the appellant  could  at best constitute only a minor offence, and in the absence  of any  independent evidence, the appellant could not  be  con- victed. Dismissing the appeal, this Court,     HELD: The powers of the appellate Court in dealing  with an  appeal against an order of conviction are defined  under Sec. 386(1)(b) of the Code of Criminal Procedure 1973 corre- sponding  to Section 423(i)(b) of the Code of 1898.  In  the matter  of  appreciation of the evidence the powers  of  the appellate  Court are as wide as that of the trial court.  It has full power to review the whole evidence. It is  entitled to  go  into the entire evidence and  all  relevant  circum- stances  to arrive at its own conclusion about the guilt  or innocence of the accused. [509C-E]     The  general principle of criminal liability is that  it primarily  attached  to the person who actually  commits  an offence  and it is only such person that can be held  guilty and punished for the offence. [509H]     When  several persons are alleged to have  committed  an offence  in  furtherance  of the common  intention  and  all except one are acquitted, it is open to the appellate  court to  find on appraisal of the evidence that some of  the  ac- cused persons have been wrongly acquitted, although it could not  interfere  with  such acquittal in the  absence  of  an appeal by the State Government. [509F-G]     The effect of such a finding is not to reverse the order of  acquittal into one of conviction or visit the  acquitted person with criminal liability. The finding is relevant only in  invoking against the convicted person  his  constructive criminality. [509G]     Where  the  evidence  examined by  the  appellate  court unmistakably  proves  that the appellant  was  guilty  under section  34 having shared a common intention with the  other accused who were acquitted and that 505 the  acquittal  was  bad, there is nothing  to  prevent  the appellate  court  from expressing that view and  giving  the finding and determining the guilt of the appellant before it on the basis of that finding. [515H; 516A]     The appeal before the High Court against the  conviction is not a subsequent proceeding against the acquitted person, [516E]     Sunder  Singh and Ors. v. State of Punjab, AIR  1962  SC 1211; Harshad Singh v. State of Gujarat, AIR 1977 SC 710; 1. G. Singhleton v. King Emperor, AIR 1925 Cal. 501;  Bimbadhar Pradhan  v.  The State of Orissa, [1956] SCR  206;  Kapildeo Singh  v. The King, AIR 1950 FC 80; Dalip Singh and Ors.  v. State  of Punjab, [1954] SCR 145; Marachalil Pakku v.  State of  Madras,  AIR  1954 SC 648; Sukh Ram v.  State  Of  U.P., [1974]  2 SCR 518; Karan Singh v. State of  Madhya  Pradesh,

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[1965] 2 SCR 1, referred to     Prabhu Babaji Navle v. State of Bombay, AIR 1956 SC  51; Krishna  Govind Patii v. State of Madras, [1964] 1 SCR  678; Baul  v.  State of U.P., [1968] 2 SCR 454;  Maina  Singh  v. State of Rajasthan, [1976] 3 SCR 651; Karnail Singh v. State of  Punjab,  AIR  1977 SC 893 and Piara Singh  v.  State  of Punjab, [1980] 2 SCC 401, distinguished.

JUDGMENT: