25 July 1996
Supreme Court


Bench: THOMAS K.T. (J)
Case number: Crl.A. No.-000170-000170 / 1984
Diary number: 64480 / 1984






DATE OF JUDGMENT:       25/07/1996


CITATION:  JT 1996 (6)   652        1996 SCALE  (5)467



JUDGMENT:                  THE 25TH DAY OF JULY, 1996 Present :           Hon’ble Dr. Justice A.S. Ananad           Hon’ble Mr. Justice K.T. Thomas V.K. Jain and M.S. Ganesh, Adv. for the appellants. Uma Nath Singh, Adv. for the Respondent                       J U D G M E N T The following Judgment of the Court was delivered: Dhanna V. State of Madhya Pradesh            (With Criminal Appeal No. 252 of 1984)                        J U G M E N T THOMAS, J.      A youngman,  by name  Nanji, was murdered on 23.8.1980, near Government  Degree College  Dhar. The  police arraigned five persons  for the  said murder  and the  Sessions Judge, after  trial,   convicted   the   first   two   among   them (kannaiyalal-first accused  and Maniram-  second accused) of the  offence  under  Section  302  IPC,  and  acquitted  the remaining three  persons. State  filed an appeal challenging the  acquittal  and  the  convicted  persons  filed  another appeal. High  Court of  Madhya Pradesh  while confirming the conviction and  sentence reversed  the order of acquittal of 5th accused  (Dhannal and  convicted him also of the offence under Section 302 IPC. Sentence of imprisonment for life was awarded to  all the  convicts. We have before us two appeals by special  leave, one  jointly  filed  by  Kannaiyalal  and Maniram and the other separately filed by Dhanna.      Prosecution set  up the  following  case  against  five accused. Around  3.30 P.M.  deceased Nanji, PW-1 Gopilal and PW-5 Narainlal were proceeding on bicycles along Dhar-Indore Road. Their  cestination was  Nanji’s house  at Jetpura.  As they reached  near Government  Degree College,  all the five accused emerged from the roadside and made a blits on Nanji. Kannaiyalal and Maniram were armed with Dhariya. 3rd accused



had a  pistol and  4th and  5th accused (Dhanna) had sickles with them.  Deceased tried  to escape but was again attacked by the  assailants with their cutting weapons. PW-1 and PW-5 cried for  help and  thus Nanuram  (PW-6) the  Peon  of  the College rushed  to their  rescue.  But  by  then  Nanji  had sustained a number of serious wounds on his head and he fell down dead at the spot itself.      Sessions court  framed a charge against the accused for offences under Sections 302 and 148 read with Section 149 of the  Indian   Penal  Code.   The   accused   denied   having participated in the occurrence. After trial learned sessions Judge concluded  that prosecution  has failed  to prove that there was  an unlawful  assembly, but found that Kanhaiyalal (first accused)  and Maniram (second accused) have inflicted cut injuries  or the  deceased with  Dhariyas and  convicted them under  Section 302  IPC  and  sentenced  them  each  to imprisonment for life.      Out  of   the  four   eye  witnesses  examined  by  the prosecution Jawarilal  (PW-4) did  not support  the case and the other  three witnesses spoke to the prosecution version. Learned sessions  Judge found the evidence of Nanuram (PW-6) quits acceptable  and hence  the conviction was based on his testimony. Nonetheless  the trial  judge was not inclined to convict Dhanna (5th accused) on the strength of the evidence of Naruram  (PW-6). Evidence  of the other eye witnesses was found to be not very reliable.      High Court  on a  re-evaluation of  the evidences  felt that  the  trial  court  to  have  placed  reliance  on  the testimony of  Gopilal  (PW-1)  and  Narainlal  (PW-5)  also. Learned judges  expressed the  view that  sessions judge has given  undue   importance  to   certain  discrepancies   and contradictions noted  in their  evidence. This  is what  the High Court said about it:           "The     discrepancies     and      contradictions are not in regard to      the   fact    that   the    accused      participated in the incident put in      regard to  the sequence  of  events      and   minor   and   inconsequential      details of the occurrence and other      collateral facts  which do not make      their testimony untrustworthy."      Thus relying  on the  evidence  of  PW-6  (Naruram)  as corroborated by  PW-1 and  PW-2 the  High Court found Dhanna also guilty of murder and convicted him and sentenced him as aforesaid.      Learned counsel  for the  appellants contended that the High Court  committed a  basic error  in seeking  the aid of Section  34   IPC  for  confirming  the  conviction  of  the appellants for the offence under Section 302 IPC. So long as the charge framed against them did not mention Section 34 of IPC. the  High Court  was not  Justified in  using the  said provision for  convicting the  appellants, according  to the learned counsel.      The  High  Court  found  that  there  was  no  unlawful assembly as the strength of the assembly was insufficient to constitute it  into "unlawful  assembly". But  if the  court enters upon  a finding that any of the remaining persons who participated in  the crime  had shareo common intention with the main  perpetrators  of  the  crime,  the  court  is  not helpless in  seeking the  aid of Section 34 (IPC) to enter a conviction against  such persons  arraigned as accused. This is despite  the difference  between the  scops of Section 34 and Section 149, yet they have some resemblance between each other and  are to  some extent  overlapping (Barendra  Kumar



Ghosh vs. Emperor, 1925 PC 1).      Legal position  on this aspect remained uncertain for a time after  this court rendered a decision in Nanak Chand v. The State  of Punjab.  1955 (1)  SCR 1201. But the doubt was cleared by  a constitution  bench of  this court  in  Willie Slaney v.  State of  M.P., AIR 1956 SC 116. Where this court observed at para 86, thus:           "Sections 34,  114 and  149 of      the Indian  Penal Code  provide for      criminal  liability   viewed   from      different angles  as regards actual      participants, accessories  and  men      actuated by  a common  object or  a      common intention: and the charge is      a  rolled-up   one  involving   the      direct    liability     and     the      constructive   liability    without      specifying who  are directly liable      and  who  are  sought  to  be  made      constructively liable.           In  such   a  situation,   the      absence of  a charge  under one  or      other  of   the  various  heads  of      criminal liability  for the offence      cannot  be  said  to  be  fatal  by      itself, and before a conviction for      the substantive  offence, without a      charge, can be set aside, prejudice      will have  to be  made put. In most      of the cases of this kind, evidence      is normally  given from  the outset      as to who was primarily responsible      for the act which brought about the      offence and  such  evidence  is  of      course relevant."      It is, therefore, open to the court to take recourse to Section  34  of  IPC  even  if  the  said  section  was  not specifically mentioned in the charge and instead Section 149 IPC  has  been  included.  Of  course  a  finding  that  the assailant concerned  had a  common intention  with the other accused is  necessary for  resorting to  such a course. This view was  following by  this court  in later decisions also, (Amar Singh  v. State  of Haryana.  AIR 1973  SC 2221. Bhoor Singh and  Anr. v.  State or  Punjab, AIR 1974 SC 1256). The first submission  of the  learned counsel  for the appellant has no merit.      While dealing with the case of appellant Dhanna, we may point out  that High  Court chose to believe the evidence of PW-1 and  PW-2 and  found that  their evidence  supports the testimony  of   PW-6  who   said  that  Dhanna  was  also  a participant in  the crime.  In this  context  it  is  to  be remembered that  learned sessions  judge was  disinclined to convict Dhanna because PW-6 Naruram did not mention anything about Dhanna  in his statement recorded under Section 161 of the Code  of Criminal  Procedure for  short the  Code). When cross- examined,  PW-6 was asked this omission and he had no explanation to  offer. PW-14,  the Investigating Officer who interrogated PW-6,  had stated  that Dhanna’s  name was  not mentioned by  Nanuram (PW-6)  when the latter was questioned during  investigation.   Learned  sessions  Judge  found  it difficult to convict accused Dhanna on the above evidence of PW-6, but  the High Court chose to act on the said evidence. Learned counsel for the appellant -Dhanna seriously assailed the aforesaid course adopted by the High Court and contended that it is not open to the appellant court to interfere with



the finding  made by the trial court in favour of an accused so lightly  as that.  Learned counsel further contended that in an  appeal against  acquittal there  must  be  compelling reasons to  disturb a  fact finding  made by the trial court and that  unless the  view of the trial court is perverse or at least  unreasonable no  interference  shall  normally  be made.      Though the  Code does  not make any distinction between an appeal  from acquittal  and an  appeal from conviction so far as  powers of the appellate court are concerned, certain unwritten  rules  of  adjudication  have  consistently  been following by  Judges  while  dealing  with  appeals  against acquittal. No doubt, the High Court has full power to review the evidence and to arrive at its own independent conclusion whether the  appeal is  against conviction or acquittal. But while dealing with an appeal against acquittal the appellate court has  to bear  in mind:  first, that there is a general presumption in favour of the ignorance of the person accused in criminal  cases that  presumption is only strengthened by the acquittal.  The second  is, every accused is entitled to the benefit of reasonable doubt regarding his guilt and when the trial  court acquitted him. He would retain that benefit in the  appellate  court  also.  Thus,  appellate  court  in appeals against  acquittals has  to proceed  more cautiously and only  if there is absolute assurance of the guilt of the accused, upon  the evidence  on record,  that the  order  of acquittal is  liable to  the interfered  with or  disturbed. (Durgacharan Naik  and ors.  v. State of Orissa, AIR 1966 SC 1775, Caetand Piedade Fernandes & Anr. v. Union Terriroty of Goa, Daman  & Diu,  Panaji. Goa, AIR 1977 SC 135, Tota Singh and Anr.  v. State of Punjab, AIR 1987 SC 1083, Awadhesh and Anr. v.  State of  M.P. ,  AIR 1988  SC 1158, Ashok Kumar v. State of Rajasthan, AIR 1990 SC 2134).      Trial court  which relied  on the  evidence of  Nanuram (PW-6) pointed  out that  the witness  did not  refer to any role played  by Dhanna  when he gave statement to the police during investigation  and hence a conviction for the offence of murder cannot be passed against Dhanna on the strength of improvement made  at the  trial. The  said  sound  reasoning should not  have been  sidelined by  the High  Court without providing sufficient  and  convincing reasons. None has been given. We  have scrutinized  the evidence  and  we  too  are satisfied that PW-6 Nanuram has, in fact, omitted to mention anything about Dhanna when PW-6 was questioned by police and has later on tried to give an improved version.      We are,  therefore, of  the opinion  that the  order of acquittal passed  by the  trial court  in favour  of  Dhanna should have been maintained by the High Court. So far as the case  of   Kanhaiyalal  and   Maniram  is   concerned,   the appreciation of  evidence by  the courts  below is sound and proper. We  agree with  the findings  recorded by the courts below and  are of  the opinion  that  their  conviction  and sentence are  well merited.  There  is  no  merit  in  their appeal.      In the  result, we  dismiss Criminal  Appeal No. 252/84 filed by  Kanhaiyalal and  Maniram, but  we  allow  Criminal Appeal No.  170A/84, filed  by  Dhanna.  We  set  aside  the conviction and  sentence passed  on Dhanna  and restore  the order or  acquittal passed  by the  Sessions  Court  in  his favour.