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PETITIONER: KHUJJI @ SURENDRA TIWARI

       Vs.

RESPONDENT: THE STATE OF MADHYA PRADESH

DATE OF JUDGMENT16/07/1991

BENCH: AHMADI, A.M. (J) BENCH: AHMADI, A.M. (J) RAMASWAMI, V. (J) II RAMASWAMY, K.

CITATION:  1991 AIR 1853            1991 SCR  (3)   1  1991 SCC  (3) 627        JT 1991 (3)   151  1991 SCALE  (2)80

ACT:                   Evidence  Act,1872. Hostile witness-  evi- dence  of--Whether  to  be treated as  wholly  effaced  from record or could be accepted to the extent dependable--Prose- cution witness expressing doubt in crossexamination  regard- ing  indentity of some of the asssailants--Whether  evidence in examination-in-chief acceptable--Presence of same set  of Panch witnesses for all discoveries and attachments--Whether permissible-Evidence  of interested party--Whether could  be overlooked.     Criminal Procedure Code, 1973 : Section 174---Object and scope  of--Inquest report--Whether should contain  names  of witnesses.     Section 386(1)(b)--Evidence of witnesses--Reappraisal by appellate court--Whether permissible.     Indian   Penal   Code,  1860:  Sections  302,   34   and 149--Offence of murder--Several persons charged--All accused except   one   acquitted-No   appeal   by   State    against acquittal--Whether appellate court can reappreciate evidence to  determine  persons  committing the  offence  and  record conviction notwithstanding acquittal of co-accused.     Practice  and Procedure Per incuriam--Omission to  refer decision of larger Bench in the Court’s decision--Effect of.

HEADNOTE:     The  appellant was convicted by the courts  below  under Section  302 IPC and sentenced to life imprisonment for  the murder  of one G. It was alleged that when the deceased  and his companion, PW-4 were proceeding in a rickshaw, pulled by PW-3,  the  appellant and his five  companions  launched  an attack  on  them. While PW-4 received an injury by  a  cycle chain,  the  deceased received stab injuries, to  which  the succumbed  on  the  spot. On the  First  Information  Report lodged by PW-4, statements of three eye witnesses viz. PW-I, an  on-looker and PWs 3 and 4 recorded during the course  of investigation,  and  the  evidence  regarding  discovery  of incriminating articles and find of human blood on them,  the appellant and his five companions were chargesheeted for the murder of the deceased. 2

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   During the trial, two of the eye-witnesses,  viz. PWs  3 and  4  were declared hostile, since  they  expressed  their inability  to identify the accused persons as assailants  of the  deceased.  Though  PW 1 supported  the  prosecution  in examination-in-chief, he expressed some doubt regarding  the identity  of  the appellant and one other assailant  in  the cross-examination. The trial court refused to place reliance on  the  evidence of the three eye-witnesses  and  acquitted all, except the appellant. It convicted the appellant  under Section  302 IPC and sentenced him to life  imprisonment  on the evidence that the appellant was absconding, that he  had discovered  the  weapon which was found to be  stained  with human  blood  and the factum of find of human blood  on  the pant worn by him at the time of his arrest- The  appellant’s appeal  was dismissed by the High Court. While ignoring  the evidence  of PWs 3 and 4, the High Court relied on the  evi- dence of PW-1 holding that his subsequent attempt to  create a  doubt regarding the identity of the appellant was  of  no consequence,  since  there  was intrinsic  material  in  his evidence to establish the presence of the appellant  amongst the assailants of deceased. It also relied on the  discovery evidence  and find of human blood on the weapon and  on  the pant he was wearing at the time of his arrest. The State did not  prefer  an appeal against the five  companions  of  the appellant who were acquitted by the trial court.     In the appeal before this Court on behalf of the  appel- lant  it  was  contended that (1)  the  prosecution  version regarding the incident, particularly, the involvement of the appellant  was highly doubtful since the correctness of  the First  Information Report, purported to have been lodged  by PW4  was itself doubtful since he had disowned it;  (2)  the presence  of PW1 at the scene of offence and at the time  of occurrence was highly doubtful and the High Court  committed an  error in placing reliance on his testimony  in  examina- tion-in-chief, while brushing aside his statement in  cross- examination;  (3) same set of Panch witnesses had  been  em- ployed  for  all  the discovery panchnamas as  well  as  the attachment of clothes of the appellant and others and  since PW5,  Panch witness was closely associated with  the  family and  was  a stock witness for the prosecution,  no  reliance could be placed on the evidence of such a highly  interested and  chosen witness and consequently find of human blood  on the  weapon and the pant lost its probative value;  (4)  the two circumstances, viz. that the appellant was not found for two days, and human blood was present on the weapon and  his pant constituted extremely thin and weak evidence to  record a  finding of guilt, particularly, when the trial court  had discarded  all the eye-witnesses’ evidence and  doubted  the contents of the FIR, and when the Serologist did not  deter- mine the blood group of the stains on the weapon and pant of the 3 appellant; (5) in the absence of positive evidence that  the fatal  injury’ No. I was caused by the appellant  only,  his conviction substantively under Section 302 IPC could not  be sustained;  (6) since appellant’s companion were  acquitted, and  the  State had not preferred any appeal  against  their acquittal, he could not be convicted with the aid of Section 34 or 149 IPC, since the acquittal of the co-accused created a  legal bar against his conviction, which could not be  got over by reappreciation of evidence; and (7) the eye-witness- es’ evidence could not be relied upon as their names did not figure in the inquest report prepared at the earliest time.     On  behalf of the State it was contended that  (1)  evi- dence  of PWs 3 and 4 could not be treated as  effaced  from

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the  record, merely because the prosecution chose  to  treat them  as  hostile  on the limited question  of  identity  of assailants;(2) PW-I was neither a chance witness nor was  he faking his presence at the scene of occurrence at the  mate- rial time; (3) it was not necessary in law to mention  names of witnesses in the inquest report as the purpose of prepar- ing  the  report was merely to make a note of  the  physical condition  of the body and the marks of injury  thereon  no- ticed at that point of time; (4) nothing was alleged against PW-5. Panch witness, nor the appellant had given any  expla- nation regarding existence of human blood on the weapon  and his pant in his statement recorded under section 313 of  the Cr.  P.C.; (5) even if the appellant could not  be  substan- tively  convicted under Section 302 II’C, he could still  be convicted  with  the aid of Section 34 or 149 II’C,  if  the Court  came  to  the conclusion that more  than  one  person launched  the  attack and notwithstanding the  acquittal  of others  by the trial court, this Court could reach  its  own conclusion as the higher court was not bound by the appreci- ation of evidence by the trial court or even the High Court. Dismissing the appeal, this Court,     HELD:  1.1 The evidence of a prosecution witness  cannot be rejected in toto merely because the prosecution chose  to treat him as hostile and cross-examined him. The evidence of such  witnesses cannot be treated as effaced or  washed  off the  record altogether, but the same can be accepted to  the extent their version is found to be dependable on a  careful scrutiny thereof. [13C]     Bhagwan Singh v. State of Haryana, [1976] 2 S.C.R.  921: Rabinder  Kumar Dey v. State of Orissa, [1976] 4 S.C.C.  233 and  Syed  lqbal v.state of Karnataka, [1980] 1  S.C.R.  95, relied on. 4               SUPREME COURT REPORTS    [1991] 3 S.C.R.     1.2 In the instant case the evidence of two eye-witness- es PW 3 and 4 challenged by the prosecution in  cross-exami- nation because they refused to name the accused in the  dock as  the assailants of the deceased. The trial court made  no effort  to  scrutinise the evidence of these  two  witnesses even in regard to the factum of the incident. It refused  to look  into their evidence treating it as non-est,  on  their being declared hostile by the prosecution. This approach  of the trial court is legally unacceptable. The High Court  has not  endeavoured to assess their evidence since  it  thought that  the conviction of the appellant could be sustained  on the  evidence of PW-1. From the evidence of these  two  wit- nesses the fact that the deceased and PW-4 came to the place of  occurrence  in the rickshaw of PW-3 is  established.  So also  the  fact that on their reaching the place  of  occur- rence,  they were surrounded by some persons and an  assault was  launched on them in which PW 4 received an  injury  and the  deceased died is also established. The only  area  they have  not supported the prosecution and resiled  from  their earlier statements is regarding the identity of the  assail- ants  but  the fact remains that the deceased  had  received three  injuries  as  narrated by PW-12,  who  conducted  the post-mortem,  and  succumbed to the injuries  on  the  spot. Similarly,  there is no doubt at all that PW-4 had  gone  to the  police  station and had lodged  the  First  Information Report.  The  detailed narration about the incident  in  the First  Information Report goes to show that  the  subsequent attempt of PW-4 to disown the document, while admitting  his signature,  thereon,  is a shift for reasons best  known  to him. Once the presence of PW-4 is accepted, the presence  of PW-3  at  the scene of occurrence cannot be  doubted.  [13D, 14C, D-F, B]

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   2.  The Trial Court has not accepted PW-I’s evidence  on the ground that he was not a natural witness, and was only a chance witness. However, on a reading of the entire evidence of PW-I it is clear that his statement in  cross-examination on the question of identity of the appellant and one of  his companions is a clear attempt to wriggle out of what he  had stated earlier in his examination-in-chief. Since the  inci- dent  occurred at a public place, it is reasonable to  infer that the street light illuminated the place sufficiently  to enable  this witness to identify the assailants. During  the one month period that elapsed since the recording of  exami- nation-in-chief,  something transpired which made him  shift his evidence on the question of identity to help the  appel- lant.  In the circumstance there is no doubt that  PW-I  had ample  opportunity  to identify the assailants  of  the  de- ceased,  his  presence  at the scene of  occurrence  is  not unnatural nor is his statement that he had come to  purchase vegetables  unacceptable. There are no contradiction in  his evidence to doubt his testimony. He is a totally independent wit- 5 ness,  who had no cause to give false evidence  against  the appellant  and  his companions. Therefore, his  evidence  is acceptable  regarding  the  time, place and  manner  of  the incident  as well as the identity of the  assailants.  [14H- 16C]     3.1 The evidence of eye-witnesses could not be  rejected on the ground that their names did not figure in the inquest report prepared at the earliest point of time. [16D]     3.2  A perusal of Section 174 of the Criminal  Procedure Code  would clearly show that the object of the  proceedings under  this Section is merely to ascertain whether a  person has  died  under suspicious circumstances  or  an  unnatural death and if so what is the apparent cause of the death. The question  regarding the details as tO how the  deceased  was assaulted or who assaulteld him or under what  circumstances he  was assaulted is foreign to the ambit and scope  of  the proceedings  under  the  section.  In  these  circumstances, neither  in  practice nor in law, was it necessary  for  the police  to have mentioned these details in the  inquest  re- port. [16E-F]     Pedda  Narain v. State of Andhra Pradesh,  [1975]  Supp. S.C.R. 84 relied on.     4.1 There was no injunction in law against the same  set of  witnesses being present at the successive  enquiries  if nothing could be urged against them. Even in the case of  an interested party, his evidence cannot be overlooked on  that ground. [17G. E]     Himachal Pradesh Administration v. Omprakash,  [1972]  2 S.C.R. 765, relied on.     4.2 In the instant case, merely because the same set  of Panch  witnesses  were  used for Witnessing  all  the  three discoveries as well as the attachment of the clothes of  the appellant  and his companions, PW-5’s evidence could not  be discarded since nothing had surfaced in crossexamination  to shake  his evidence. Besides, except being a good  neighbour nothing  more is shown against him. As regards  recovery  of weapon, as well as the appellant’s blood stained pant, there is  hardly  any  effective cross-examination,  nor  has  the appellant offered any explanation in his statement  recorded under  Section 313 of the Criminal Procedure Code. Hence  PW 5’s  evidence  cannot be rejected on the  specious  plea  of being  an  interested  witness. In  the  circumstances,  hi, evidence was rightly accepted by both the courts below.  [17 A, C -D, F, 18 A]

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6      5.1 The factum of find of the incriminating weapon from the  appellant’s  garage, and his inability to  explain  the presence  of human blood thereon is a  circumstance  against him.  Similarly,  the existence of human blood on  the  pant that he was wearing at the time of his arrest, for which  no explanation  was  offered  by him, is  also  a  circumstance against  him, particularly because no injury was noticed  on him. [18B-D]     5.2 There is also direct testimony of PW-I, besides that of  PWs 3 and 4. The find of human blood on the  weapon  and the pant, with no explanation for the same lends  corrobora- tion  to the testimony of PW-1. When he states that  he  saw the  appellant inflicting a knife blow on the  deceased.  In the circumstances, it cannot be accepted that in the absence of determination of blood group, the find of human blood  is of no consequence. [19B-C]     Kansa Behera v. State of Orissa, [1987] 3 S.C.C. 480 and Surinder  Singh v. State of Punjab, [1989] Suppl.  2  S.C.C. 21, distinguished.     6.1   No doubt it is not possible from the  ocular  evi- dence  to record a definite finding of fact that the  appel- lant  had caused the fatal injury. On the contrary the  evi- dence  of  PW-1 indicates that in all probability  the  stab wound  inflicted by the appellant resulted in injury No.  2, which by itself was not sufficient in the ordinary course of nature to cause death. I Since the prosecution evidence does not disclose that the fatal blow, which caused injury No.  1 was given by the appellant, it means that the fatal blow was given  by someone else, and this establishes the  fact  that more  than one person participated in the commission of  the crime.  On  an independent examination appreciation  of  the evidence  of  the three eye-witnesses, viz. PWs 1, 3  and  4 that  several persons had participated in the commission  of the crime. The failure on the part of PWs 3 and 4 to identi- fy  the  others does not alter the situation. On  the  other hand,  from the evidence of PW 1, it is clear that  some  of the  accused  participated in the commission of  the  crime. [19E, 25A-C]     6.2 No doubt in the absence of a State appeal, the  High Court  could  not,  nor can this Court  interfere  with  the acquittal of the co-accused, but this Court is not bound  by the  facts found proved on the appreciation of  evidence  by the courts below, and is, in law, entitled to reach its  own conclusion  different  from the one recorded by  the  courts below  on  a review of the evidence. The  acquittal  of  the accused  does not create a legal bar against the  conviction of  the  appellant with the aid of Section 34  or  149  IPC. [21C-F] 7 Brathi v. State of Punjab, [1991] 1 SCC 519, affirmed.       Baikuntha  Nath  Chaudhury  v. The  State  of  Orissa, [1973] 2 SCC 432; Kasturi Lal v. State of Haryana, [1976]  3 SCC  570; Chandubhai Shanabhai Parmdr v. State  of  Gujarat, [1981]  Suppl.  SCC 46; Sukh Ram v. State  of  M.P.,  [1989] Suppl. 1 SCC 214 and Krishna Govind Patil v. State of  Maha- rashtra, [1964] 1 SCR 678, distinguished.       6.3  In the circumstances, the conviction of  the  ap- pellant  can be sustained with the aid of Section 34 or  149 as the case may be and it is safe to confirm the appellant’s conviction with the aid of section 34 I.P.C. [25D]       The  conviction of the appellant is  accordingly  con- firmed and sentence awarded to him is maintained. [25E]       7.  The  omission to refer to the decision  of  larger Bench  rendered Krishna Govind Patil’s case does not  render

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the  decision  in Brathi’s case per incuriam. In  any  event that  decision  does not take a view inconsistent  with  the ratio laid down in Brathi’s case. [24G] Sukh  Ram  v.  State of M.P., [1989] suppl. 1  SCC  214  and Brathi v. State of Punjab, [1991] 1 SCC 519 referred to.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No.413  of 1982.       From  the JUdgment and Order dated 12.1. 1982  of  the Madhya Pradesh High Court in Criminal Appeal No. 7 of 1979.        U.R.  Lalit, Prithvi Raj, S.S. Khanduja, J.P.  Dubey, Y.P.  Dhingra, B.K. Satija, Uma Nath Singh, S.  Karnail  and S.K. Gambhir for the appearing parties. The Judgment of the Court was delivered by        AHMADI, J. This appeal by special leave is  preferred by  the  appellant  Khujji @ Surender Tiwari  who  has  been convicted by both the courts below under section 302 IPC for the  murder of one Gulab. The facts leading to this  appeal, briefly  stated, are that on the evening of May 20,1978  the deceased Gulab and his companion PW4 Ramesh Chander hired  a Rickshaw  to  go to the dispensary of Dr.  Mukherjee.  PW  3 Kishan Lal pulled the Rickshaw and while he was passing 8 through  Suji Mohalla near Panchsheel Talkies the  appellant and  his companions surrounded the Rickshaw and launched  an attack on the deceased and his companion. PW 4 was the first to receive an injury by a cycle chain. Sensing trouble  both Gulab and PW 4 jumped out of the Rickshaw and ran in differ- ent directions. Gulab ran towards Suji Mohalla whereas PW  4 ran  towards  Panchsheel Talkies. They were  chased  by  the assailants  who formed themselves into two groups. PW 4  was fortunate  enough to escape with not too serious  an  injury but  his  companion Gulab received stab wounds to  which  he succumbed  on  the spot. The evidence of PW  12  Dr.  Nagpal shows that the deceased had received three injuries, namely, (i)  a  penetrating stab wound with a second injury  on  the intercostal  space on right side rib of the size of 3 cms  x 5cms x Icm, (ii) a piercing stab wound 8cms below the scapu- lar  bone and 8cms outside the vertibral column of the  size of 2.5cms x 1.5cms x 3cms, and (iii) an incised wound on the frontal  auxiliary line 2.5cms x 1.Scms x 2cms deep  on  the left  hipocardium  region. This witness, who  performed  the post-mortem, deposed that injury No.1 which had injured  the heart  was  sufficient in the ordinary course of  nature  to cause  death. He further stated that all the three  injuries were  collectively  sufficient to cause  death  in  ordinary course of nature. The three articles, namely, the knife, the Chhuri  and the Chhura which were attached in the course  of investigation were shown to this witness and he stated  that the three injuries were possible by the aforesaid  articles. It  is clear from this evidence that Gulab died a  homicidal death.     To bring home the guilt against the appellant the prose- cution placed reliance on the evidence of three eye-witness- es, namely, PW 1 Komal Chand (an on-looker), PW 3 Kishan Lal (the Rickshaw Puller) and PW 4 Ramesh (the companion of  the deceased)  besides  the find of human blood  on  the  weapon discovered at the instance of the appellant and on the  lant which he was wearing at the time of his arrest.     The First Information Report, Exh. P-3, was lodged by PW 4  Ramesh  immediately after the incident and the  same  was

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recorded  by the Investigating Officer PW 13 Ramji Singh  at about  9.15 p.m. In the said first information report  PW  4 gave  the details regarding the incident and  furnished  the names of all the six assailants. Soon after the first infor- mation  report was lodged the Investigating Officer  visited the  scene  of occurrence and drew up the Panchnama  on  the basis of which a sketch plan Exh. P-20A was prepared in  due course.  The appellant and some of his companions could  not be  traced till May 22, 1978. After they were  traced,  they were interrogated and on their expressing 9 willingness  to discover the weapons used in the  commission of  the crime, the Investigating Officer summoned  two  wit- nesses, namely, PW 5 Panna Lal and Rajinder to act as  Panch witnesses.  The prosecution case is that in the presence  of these  witnesses the appellant and his companions made  cer- tain  confessional statements under section 27  of  Evidence Act  which led to the discovery of the weapons used  in  the commission  of the crime. According to the  prosecution  the appellant Khujji discovered a Chhura (knife) from his garage and  the  same was attached under the  Panchnama  Exh.  P-9. Since  this weapon had bloodlike stains, it was sent to  the Chemical Analyser and Serologist for examination and report. The  report indicates that it was stained with  human  blood but  the blood group could not be determined. The other  two companions  of the appellant, namely, Parsu and Guddu,  also discovered a knife, Exh.[P-7, and a Chhura, Exh. P-13, which were  attached under Panchnamas Exh] P-6 and  P-12,  respec- tively. As stated earlier the shirt and pant of Khujji  were also  attached  as blood-like stains were  noticed  thereon. Both  these articles were sent to the Chemical Analyser  and Serologist.  So  far as the shirt is  concerned,  since  the blood  stains  were  disintegrated it was  not  possible  to determine  the  origin thereof. But so far as  the  pant  is concerned,  the report states that the stains were of  human blood  but  the blood group could not be determined  as  the result  of  the test was inconclusive. On the basis  of  the first information report, the statements of three  witnesses recorded  in  the  course of investigation as  well  as  the evidence regarding discovery and the find of human blood  on the  incriminating articles, the appellant and  five  others were charge-sheeted for the murder of Gulab. The trial court acquitted  all except the appellant. Before the trial  court PW  4 Ramesh, who had lodged the first  information  report, tried to disown it. He was declared hostile as he  expressed his inability to identify the accused persons as the assail- ants of the deceased Gulab. PW 3, the Rickshaw Puller, while narrating the incident expressed a similar inability and  he too was treated as hostile and cross-examined by the  Public Prosecutor. The third eye-witness PW 1 Komal chand, however, supported  the prosecution case in his  examination-in-chief but in his cross-examination he expressed some doubt regard- ing the identity of the appellant and Guddu stating that  he had  seen  their  backs only. The trial court  came  to  the conclusion  that not only was this witness a chance  witness but  his presence at the scene of occurrence  was  extremely doubtful as it was difficult to believe that he had come out at  that hour to purchase vegetables. Thus the  trial  court refused to place reliance on the evidence of the three  eye- witnesses. The trial court, however, came to the  conclusion that the appellant was absconding and that he had discovered the weapon 10 which  was  found to be stained with human  blood.  It  also relied on the factum of find of human blood on the pant worn

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by the appellant at the time of his arrest. On the basis  of this evidence the trial court convicted the appellant  under section  302  IPC and sentenced him  to  life  imprisonment. Khujji preferred an appeal against the said conviction.  The High  Court while ignoring the evidence of PW 3  Kishan  Lal and  PW 4 Ramesh relied on the evidence of PW 1 Komal  Chand and came to the conclusion that his evidence clearly  estab- lished  the presence of the appellant as one of the  assail- ants  notwithstanding  his effort  in  cross-examination  to wriggle  out  of  his statement  in  examination-inchief  in regard  to  the identity of the appellant.  The  High  Court noticed  that the examination-in-chief of this  witness  was recorded on November 16, 1976 whereas his  cross-examination commenced  on  December 15, 1976 i.e. after a month  and  in between he seemed to have been won over or had succumbed  to threat.  This  inference was drawn on the basis  of  PW  3’s statement that he was severely beaten on the night  previous to  his  appearance in court as a witness. The  High  Court, therefore, took the view that the subsequent attempt of PW 1 Komal Chand to create a doubt regarding the identity of  the appellant  was of no consequence since there  was  intrinsic material  in his evidence to establish the presence  of  the appellant amongst the assailants of deceased Gulab.  Relying further  on  the discovery evidence as well as the  find  of human  blood  on  the weapon found from the  garage  of  the appellant  and on his pant which he was wearing at the  time of  his arrest, the High Court came to the  conclusion  that his conviction was well founded and dismissed his appeal. It may  here  be  mentioned that the State did  not  prefer  an appeal against the five companions of the appellant who came to  be acquitted by the trial court. It is in these  circum- stances  that the appellant has invoked this Court’s  juris- diction under Article 136 of the Constitution.     Mr. U.R. Lalit, learned counsel for the appellant,  took us through the entire evidence and submitted that the prose- cution  version  regarding the  incident,  particularly  the involvement  of the appellant, is highly doubtful since  the correctness  of the statement made in the first  information report  purporting  to have been lodged by PW  4  Ramesh  is itself  doubtful  because Ramesh himself has  dis-owned  it. Since the prosecution had declared both PW 3 Kishan Lal  and PW  4 Ramesh as hostile to the prosecution the  trial  court was  justified  in refusing to rely on  their  evidence.  He further  submitted that the presence of PW 1 Komal Chand  at the place of occurrence at that hour was highly doubtful and this  doubt was reinforced by his conduct in not  raising  a hue and cry or going to the help of the victim. The evidence 11 disclosed  that this witness resides at a place  almost  two furlongs  from  the scene of occurrence and claims  to  have seen  the incident from a distance of about 22 feet  from  a point  wherefrom the incident could not have been  witnessed by  him  as is evident from the physical  condition  of  the locality   described   in  this  sketch  Exh.   P-20A.   He, therefore,/ submitted that the trial court was justified  in describing this witness as a chance witness and in  doubting his  presence  at the scene of occurrence  at  the  relevant point of time. According to him the High Court committed  an error in placing reliance on the testimony of this  witness. He,  however, submitted that the trial court was not  justi- fied  in recording the conviction on the mere fact that  the appellant  could  not be found for two days  and  there  was human blood on his weapon and pant attached in the course of investigation.  These two circumstances, contended  counsel, constituted  extremely  thin and weak evidence to  record  a

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finding  of  guilt  particularly when the  trial  Court  had discarded  the evidence of all the three  eye-witnesses  and had  doubted  the contents of the first  information  report Exh. P-3. Lastly he submitted that the High Court  committed an error in brushing aside the statement made by PW 1  Komal Chand  in his cross-examination which went to show that  his evidence  regarding  identity of the  appellant  was  highly suspect.  Merely  because there was a time gap  between  his examination-in-chief  and  his  cross-examination  the  High Court  was not justified in jumping to the  conclusion  that the  accused  party  had succeeded in winning  him  over  by threat  or  otherwise. On this line of reasoning  Mr.  Lalit contended  that the High Court ought not to have  interfered with  the appreciation of his evidence by the  trial  court. Besides these submissions based on the evidence of the three eyewitnesses  and the find of human blood on the weapon  and pant of the appellant, Mr. Lalit further submitted that  one set  of  Panch witnesses, PW 5 Pannalal  and  Rajinder  (not examined), had been employed for all the discovery  panchna- mas  as well as the attachment of clothes of  the  appellant and others which went to show that PW 5 was a stock  witness for the prosecution. He, therefore, submitted that no  reli- ance could be placed on the evidence of PW 5 and consequent- ly the find of human blood on the weapon and the pant looses its  probative value. In the end he submitted that the  con- viction of the appellant substantively under section 302 IPC was not well founded for the simple reason that not a single witness had deposed that the fatal injury was caused by  the appellant.  The evidence of PW 12 Dr. Nagpal shows that  the deceased had three injuries and out of them only injury  No. 1 was by itself sufficient in the ordinary course of  nature to  cause  death. So far as injuries Nos. 2 and 3  are  con- cerned,  the medical evidnce does not show that each one  of them separately was sufficient in the ordinary 12 course of nature to cause death. But the medical evidence is to the effect that all the three injuries taken collectively Were  SuffiCient in the ordinary course of nature  to  cause death. In the absence of positive evidence that injury No. 1 was  caused by the appellant and none else,  his  conviction substantively under section 302 cannot be sustained. In that case at best he can be convicted for hurt under Section 324, IPC.     further submitted that since his companions were acquit- ted and the State had not preferred any appeal against their acquittal he could not be convicted with the aid of sections 34 or 149 IPC.     Mr.  Prithvi Singh, the learned counsel for  the  State, submitted  that the trial court was wrong in  rejecting  the evidence  of PWs 3 and 4 merely because they  were  declared hostile as if their evidence was totally against the  prose- cution  on  that account. He submitted that  their  evidence cannot be treated as effaced from the record merely  because the prosecution chose to treat them as hostile on the limit- ed question of identity of the assailants. Their evidence as to the occurrence and number of persons involved in the commis- sion of the crime can be relied upon along with that of PW 1 as  he  was neither a chance witness nor was he  faking  his presence  at the scene of occurrence at the  material  time. His evidence regarding identity of the assailants is equally acceptable and his subsequent statement made in  crossexami- nation  after  a time gap of almost one  month  was  rightly brushed aside by the High Court, whatever be the reason  for his change of heart. With regard to the criticism  regarding

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the  absence  of names of witnesses in the  Inquest  Report, counsel  urged that it was not necessary in law  to  mention the  names  of the witnesses in the inquest  report  as  the purpose of preparing the inquest report was merely to make a note of the physical condition of the body and the marks  of injury there of noticed at that point of time. On the  ques- tion  of value to be attached to the evidence of  the  Panch witness  PW  5, counsel submitted that nothing  was  alleged against this witness nor had the appellant given any  expla- nation regarding existence of human blood on the weapon  and the  pant attached from him in his statement recorded  under section  313  of  the Code. On the  question  regarding  the offence  committed by the appellant, counsel submitted  that once it is proved that more than one person had participated in  the  assault, the appellant could be convicted  for  the murder  of  the deceased with the aid of section 34  or  149 IPC.  He,  therefore, submitted that the appeal  is  without merit and deserves to be dismissed.     We  have given our anxious consideration to the  submis- sions  made by the learned counsel for the  contesting  par- ties. The fact that 13 an incident of the type alleged by the prosecution  occurred on May 20, 1978 at about 8.20 p.m. is not seriously disputed nor is the location of the incident doubted. The evidence of PW  3 Kishan Lal and PW 4 Ramesh came to be rejected by  the trial court because they were declared hostile to the prose- cution  by the learned Public Prosecutor as they refused  to identify the appellant and his companions in the dock as the assailants  of  the deceased. But counsel for the  State  is right  when he submits that the evidence of a  witness,  de- clared  hostile, is not wholly effaced from the  record  and that  part of evidence which is otherwise acceptable can  be acted upon. It seems to be well settled by the decisions  of this  Court Bhagwan Singh v. State of Haryana, [1976] 2  SCR 921; Rabinder Kumar Dey v. State of Orissa, [1976] 4 SCC 233 and  Syed lqbal v. State of Karnataka, [1980] 1 SCR 95  that the evidence of a prosecution witness cannot be rejected  in toto  merely because the prosecution chose to treat  him  as hostile and crossexamined him. The evidence of such witness- es  cannot  be treated as effaced or washed off  the  record altogether but the same can be accepted to the extent  their version  is  found to be dependable on  a  careful  scrutiny thereof.  In the present case the evidence of the  aforesaid two  eye-witnesses  was  challenged by  the  prosecution  in cross-examination  because they refused to name the  accused in  the  dock as the assailants of the deceased. We  are  in agreement with the submission of the learned counsel for the State that the trial court made no effort to scrutinise  the evidence of these two witnesses even in regard to the factum of  the incident. On a careful consideration of  their  evi- dence it becomes crystal clear that PW 4 had accompanied the deceased in PW 3’s rickshaw to the place of incident. In the incident  that occurred at the location pointed out  by  the prosecution,  PW 4 sustained an injury. His presence in  the company  of the deceased at the place of occurrence,  there- fore,  cannot  be doubted. Immediately  after  the  incident within  less  than an hour thereof PW 4 went to  the  police station and lodged the first information report. It is  true that  the first information report is not  substantive  evi- dence but the fact remains that immediately after the  inci- dent  and before there was any extraneous intervention PW  4 went  to the police station and narrated the  incident.  The first  information report is a detailed document and  it  is not  possible  to  believe that  the  investigating  officer

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imagined  those details and prepared the document Exh. P  3. The  detailed  narration  about the incident  in  the  first information report goes to show that the subsequent  attempt of PW 4 to dis-own the document, while admitting his  signa- ture thereon, is a shift for reasons best known to PW 4.  We are,  therefore, not prepared to accept the  criticism  that the  version  regarding the incident is the result  of  some fertile thinking on the part 14 Of  the investigating officer. We are satisfied, beyond  any manner  of doubt, that PW 4 had gone to the  police  station and  had lodged the first information report. To the  extent he has been contradicted with the facts stated in the  first information  report shows that he has tried to  resile  from his  earlier  version regarding the incident.  So  also  the presence of PW 3 at the scene of occurrence cannot be doubt- ed  once the presence of PW 4 is accepted. The  trial  court did  not go so far as to say that both these witnesses  were not present at the scene of occurrence or that PW 4 was  not injured  in  the  incident but refused to  look  into  their evidence treating their evidence as non-est on their’  being declared  hostile by the prosecution. We think that the  ap- proach  of the trial court insofar as the evidence of  these two  witnesses  is concerned, is legally  unacceptable.  The High  Court  has not endeavoured to  assess  their  evidence since it thought that the conviction of the appellant  could be  sustained  on the evidence of PW 1 Komal Chand.  We  are satisfied on a close scrutiny of the evidence of the  afore- said two eyewitnesses, PWs 3 and 4, that the deceased and PW 4 came to the place of occurrence in the rickshaw pulled  by PW 3. On reaching the spot where the incident occurred  they were  surrounded by certain persons who were lying  in  wait and  a murderous assault was launched on them. The first  to receive the injury was PW 4. When they gauged the  intention of their assailants they jumped out of the rickshaw and both ran  in different directions. The appellant first  tried  to chase  PW  4 but later he turned to the deceased as  he  was informed  by one of his companions Gopal that the person  he was pursuing was not Gulab. Therefore, from the evidence  of these two eye-witnesses the fact that the deceased and PW  4 came  to the place of occurrence in the rickshaw of PW 3  is established.  So  also the fact that on their  reaching  the place of occUrrence they were surrounded by some persons and an  assault was launched on them in which PW 4  received  an injury and Gulab died is clearly established. The only  area where  they  have  not supported the  prosecution  and  have resiled  from  their  earlier statements  is  regarding  the identity  of the assailants. We will deal with that part  of the  evidence a little later but the fact remains  that  the deceased  had received three injuries as narrated by  PW  12 Dr.  Nagpal, to which he succumbed on the spot.  Once  these facts are accepted as proved, the only question which really survives  for consideration is whether the appellant was  an assailant of the deceased.     That  brings  us to the evidence of PW  1  Komal  Chand. Komal  Chand’s evidence was not accepted by the trial  court on the ground that he was not a natural witness and was only a  chance  witness. PW 1 explained his presence  by  stating that he had gone to the market to 15 purchase vegetables and while he was returning therefrom  on foot with his cycle in hand he heard a commotion and saw the incident  from  a short distance. Being a resident  of  Suji Mohalla, the place of occurrence was clearly in the vicinity thereof  and,  therefore, his presence at the  market  place

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could not be considered to be unnatural. It is not unnatural for working people to purchase vegetables at that hour  and, therefore, his explanation regarding his presence cannot  be ruled out as false. The sketch map prepared by PW 11  Gaiser Prasad  shows  that he had seen the incident  from  a  short distance of hardly 22 feet although PW 1 says he saw it from the  square. Since the incident occurred at a  public  place with  a  lamp-post  nearby, the possibility  of  his  having identified the assailants could not be ruled out. The exami- nation-i-nchief of this witness was recorded on November 16, 1976  when  he  identified all the assailants  by  name.  He stated  that  he knew the six accused persons in  court  and they  were the persons who had surrounded the  rickshaw  and launched an assault on PW 4 and the deceased Gulab. Of  them Gopal  struck  PW 4 with a chain. He also  stated  that  the appellant  Khujji  and his companions Gudda and  Parsu  were armed with knives and when Khujji tried to assault PW 4 with a knife, Gopal shouted Khujji that man is not Gulab". There- upon Khujji and his companions ran after the Gulab, overtook him and the appellant, Parsu and Gudda assaulted Gulab  with their  weapons.  Gudda struck Gulab from the  front  on  his chest,  Parsu stabbed him on the side of the  stomach  while Ram Kishan and Gopal held him and the appellant attacked him from behind with a knife whereupon Gulab staggered  shouting ’save-save’  and  fell  in front of the  house  of  Advocate Chintaman Sahu. Thereafter all the six persons ran away. His cross  examination commenced on 15th December, 1978. In  his crossexamination  he  stated that the appellant  Khujji  and Gudda had their backs towards him and hence he could not see their  faces  while  he could identify  the  remaining  four persons.  He stated that he had inferred that the other  two persons  were the appellant and Gudda. On the basis of  this statement Mr.Lalit submitted that the evidence regarding the identity of the appellant is rendered highly doubtful and it would  be hazardous to convict the appellant solely  on  the basis of identification by such a wavering witness. The High Court  came to the conclusion and, in our  opinion  rightly, that  during  the one month period that  elapsed  since  the recording  of his examination-in-chief something  transpired which made him shift his evidence on the question of identi- ty  to help the appellant. We are satisfied on a reading  of his entire evidence that his statement in  cross-examination on the question of identity of the appellant and his compan- ion is a clear attempt to wriggle out of what he had  stated earlier in his examination-in-chief. 16 Since the incident occurred at a public place, it is reason- able  to infer that the street lights illuminated the  place sufficiently to enable this witness to identify the  assail- ants.  We have, therefore, no hesitation in concluding  that he  had  ample  opportunity to identify  the  assailants  of Gulab, his presence at the scene of occurrence is not unnat- ural nor his statement that he had come to purchase  vegata- bles unacceptable:We do not find any material contradictions in  his  evidence to doubt his testimony. He  is  a  totally independent witness who had no cause to give false  evidence against the appellant and his companions. We are, therefore, not  impressed by the reasons which weighed that  the  trial court  for  rejecting his evidence. We agree with  the  High Court  that his evidence is acceptable regarding  the  time, place and manner of the incident as well as the identity  of the assailants.     It  was faintly submitted by counsel for  the  appellant that the evidence of eye-witnesses could not be relied  upon as their names did not figure in the inquest report prepared

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at  the  earliest  point’of time. We see no  force  in  this submission in view of the clear pronouncement of this  Court in Pedda Narain v. State of Andhra Pradesh, [1975] Supp. SCR 84. Referring to section 174 of the Code of Criminal  Proce- dure this Court observed at page 89 as under:               "A  perusal  of this provision  would  clearly               show that the object of the proceedings  under               section  174 is merely to ascertain whether  a               person has died under suspicious circumstances               or  an unnatural death and if so what  is  the               apparent  cause  of the  death.  The  question               regarding  the details as to how the  deceased               was  assaulted or who assaulted him  or  under               what circumstances he was assaulted appears to               us to be foreign to the ambit and scope of the               proceedings  under section 174. In these  cir-               cumstances, therefore, neither in practice nor               in law was it necessary for the police to have               mentioned   these  details  in   the   inquest               report". We,  respectfully agree and see no merit in this  submission made by the counsel for the appellant.     After  the  appellant and his two companions  Parsu  and Gudda  were arrested they were interrogated by the  investi- gating officer PW 13 Ramji Singh. In the course of  interro- gation they showed their willingness to point out the  weap- ons  of assault. thereupon the investigating officer  called two Panchas, one of them being PW 5 Panna Lal. The very same Panch witnesses were panchas to all the three discovery panchnamas as well as panchnamas regard- ing the attachment of the clothes worn by the appellant  and his companions. It was, therefore, contended by the  counsel for  the  appellant that PW 5 Panna Lal was a  stock  witnes whom  the  police had employed to act as  a  panch  witness. Pointing  out that it was Tulsi Ram the brother of  the  de- ceased who had chosen him because he was closely  associated with  the  family  of the deceased and  was  intimated  with Babulal another brother of the deceased, Mr. Lalit submitted that  no reliance can be placed on the evidence of  such  an highly interested and specially chosen witness. The  witness comes from the same locality and his house is situate within 100  yards  of the residence of the deceased. He  knows  the family  of the deceased quite well being a neighbour and  of the same ’biradari’. It is equally true that he had gone  to the hospital on learning about the assault on Gulab and  had stayed  back with Babulal since the latter was  not  feeling well.  But would it be proper to throw out his  evidence  on account of his neighbourly relations with the family of  the deceased, when nothing has been brought out in crossexamina- tion  to  shake the intrinsic value to be  attached  to  his evidence? Even in the cross-examination of the investigating officer  nothing  has  been brought out to  infer  that  the choice of PW 5 as a Panch witness was a deliberate one  made with  a  view to enlisting his support  to  the  prosecution case. The mere fact that he was a witness to all the  Panch- namas prepared by the investigating officer is by itself not sufficient  to discard his evidence. Even in the case of  an interested  witness,  it is settled law  that  his  evidence cannot  be overlooked merely on that ground but at the  most it must receive strict scrutiny. In the case of PW 5, except being  a good neighbour nothing more is shown. On the  ques- tion of recovery of the weapon as well as the blood  stained pant  of the appellant there is hardly any effective  crose- examination.  Nor has the appellant offered any  explanation in his statement recorded under section 3 13 of the Code. In

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these  circumstances we are not prepared to reject his  evi- dence  on the specious plea of his being an interested  wit- ness.  In ‘Himachal Pradesh Administration v.  Om  Prakash,’ [1972]  2  SCR 765 this Court observed at page 777  that  it could not be laid down as a matter of law and practice  that where  recoveries have ’been effected from different  places on the information furnished by the accused, different  sets of persons should be called in to witness them. There was no injunction  in law against the same set of  witnesses  being present  at  the successive enquiries if  nothing  could  be urged  against them. It is, therefore, clear from the  deci- sion of this Court that merely because the same set of Panch witnesses were used for witnessing all the three discoveries as well as the attachment of the 18 clothes of the appellant and his companions, PW5’s  evidence could not be discarded since nothing had surfaced in  cross- examination to shake his evidence. We are, therefore, satis- fied that the evidence of PW5 Pannalal was rightly  accepted by  both the courts below. We make limited use of this  evi- dence  in the sense that we do not use any part of the  evi- dence admissible under section 27. Evidence Act, against the appellant. We merely use the factum of find of the  incrimi- nating  weapon from his garage and his inability to  explain the  presence  of  human blood  thereon  as  a  circumstance against  the  appellant. The evidence of PW5  further  shows that  when the appellant was arrested his garments,  namely, shirt  and  pant  were attached as  blood-like  stains  were noticed  thereon. These articles were sent to  the  Chemical Analyser  and  Serologist  for examination  and  report.  As stated earlier these reports reveal that the blood stains on the  pant  worn by the appellant were of human  origin.  The appellant has not offered any plausible explanation for  the existence of human blood on his pant. This too is a  circum- stance against the appellant particularly because no  injury was noticed on the person of the appellant.     Mr. Lalit, however, argued that since the report of  the serologist does not determine the blood group of the  stains on  the weapon and the pant of the appellant, the mere  find of  human blood on these two articles is of no  consequence, whatsoever.  In support of this contention he placed  strong reliance  on the decisions of this Court in Kansa Behera  v. State  of  Orissa, [1987] 3 SCC 480 and  Surinder  Singh  v. State  of Punjab, [1989] Suppl. 2 SCC 21. In the first  men- tioned  case  the conviction was sought to be  sustained  on three  circumstances,  namely,  (i) the  appellant  and  the deceased were last seen together; (ii) a dhoti  and a  shirt recovered from the possession of the appellant were found to be  stained  with human blood; and (iii) the  appellant  had made  an  extra-judicial confession to  two  witnesses  when arrested.  There was no dispute in regard to the first  cir- cumstance and the third circumstance was held not  satisfac- torily proved. In this backdrop the question for  considera- tion was whether the first and the second circumstances were sufficient to convict the appellant. This Court,  therefore, observed that a few small bloodstains could be of the appel- lant himself and in the absence of evidence regarding  blood group  it cannot conclusively connect the  bloodstanis  with the blood of the deceased. In these circumstances this Court refused  to draw any inference of guilt on the basis of  the said  circumstance since it was not  ’conclusive’  evidence. This Court, however, did not go so far as to say that such a circumstance  does not even provide a link in the  chain  of circumstances  on which the prosecution can place  reliance. In the second case also this

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19 Court  did not consider the evidence regarding the  find  of human blood on the knife sufficient to convict the appellant in  the  absence of determination of blood group  since  the evidence  of PW 2 was found to be uninspiring and there  was no other circumstance to connect him with the crime. In this case  we  have  the direct testimony of PW  1  Komal  Chand, besides  the testimony of PWs 3 and 4 which we have  consid- ered earlier. The find of hunam blood on the weapon and  the pant of the appellant lends coroboration to the testimony of PW 1 Komal Chand when he states that he had seen the  appel- lant inflicting a knife blow on the deceased. The  appellant has  not explained the presence of human blood on these  two articles. We are, therefore, of the opinion that the  afore- said two decisions turned on the peculiar facts of each case and  they do not lay down a general proposition that in  the absence  of determination of blood group the find  of  human blood  on  the  weapon or garment of the accused  is  of  no consequence. We, therefore, see no substance in this conten- tion urged by Mr. Lalit.     That  brings us to the last contention whether the  con- viction  of  the appellant for the  substantive  offence  of murder can be sustained in the absence of a finding that the fatal  injury No. 1 was caused by the appellant. We must  at once  acceptt  the  fact that it is not  possible  from  the ocular evidence to record a definte of fact that the  appel- lant had caused that fatal injury. On the contrary the  evi- dence of PW 1 Komal Chand indicates that in all  probability the stab wound inflicted by the appellant resulted in injury No.  2.  that  injury by itself was not  sufficient  in  the oridinary  course of nature to cause death. If that  be  so, can  the  appellant  be convicted under  section  302,  IPC? Counsel for the appellant submits that the legal position is well-settled  by a chain of decisions of this Court that  if named  accused  are acquitted except one of  the  them,  the latter  cannot  be convicted with the aid of section  34  or 149,  IPC.  In  support of this contention  he  invited  our attention to a few decisions, namely, Baikuntha Nath  Chaud- hury  v. The State of Orissa, [1973] 2 SCC 432; Kasturi  Lal v.  The State of Haryana, [1976] 3 SCC 570; Chandubhai  Sha- nabhai Parmar v. State of Gujarat, [1981] Suppl. SCC 46  and Sukh Ram v. State of M.P., [1989] Suppl. 1 SCC 214.  Counsel for  the  state,  however, submitted that while  it  may  be correct that the appellant cannot be substantively convicted under  section 302, IPC, he can certainly be convicted  with the aid of section 34 or 149, IPC, if this Court on a  reap- preciation of the evidence comes to the conclusion that more than  one person, may be six or seven of them, had  launched an  attack on the deceased. In this connection he  submitted that  notwithstanding the acquittal of others by  the  Trial Court this Court can reach its own conclusion regarding  the number of 20 persons  who  attacked the deceased for the  obvious  reason that  the higher Court is not bound by the  appreciation  of evidence  by  the  Trial Court or even the  High  Court.  In support of this contention he placed strong reliance on this Court’s  recent decision in Brathi v. State of Punjab,  [199 1]  1 SCC 519. Counsel for the appellant on the  other  hand contended  that  the acquittal of the co-accused  creates  a legal  bar  against the conviction of the appellant  on  the ground  that  they were privy to the  crime  notwithstanding their  acquittal  and this legal bar cannot be got  over  by reappreciation of evidence. In support of this contention he invited  our  attention to a Five-Judge  Bench  decision  in

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Krishna  Govind Patil V. State of Maharashtra, [1964] 1  SCR 678 and contended ’that the said decision was binding on  us being  of a larger bench and the decision in  Brathi’s  case must  be  taken to be per incuriam since it  had  failed  to notice  and runs counter to the said larger bench  decision. We are of the opinion, for reasons which we will immediately state,  that the contention urged by counsel for the  appel- lant is not well-founded.     The ratio of the decision of this Court in Brathi’s case may  be noticed at the outset to appreciate  the  contention urged by counsel for the appellant. In that case, the appel- lant and his uncle were tried under section 302/34, IPC. The Trial  Court acquitted the appellant’s uncle  but  convicted the appellant under section 302, IPC. The order of acquittal became  final because the State did not choose to  challenge it  in appeal. The appellant, however, preferred  an  appeal against his conviction to the High Court. The ‘High Court on a  reappreciation of the evidence held that the  fatal  blow was  given by the appellant’s uncle and since the  appellant was  charged  under  section 302/34, IPC, he  could  not  be convicted substantively under section 302, IPC. However, for assessing the credibility of the prosecution case, the  High Court incidentally considered the involvement of the  appel- lant’s  uncle  and held that the eye witnesses had  given  a truthful account of the occurrence and the appellant’s uncle had  actually  participated in the commission of  the  crime along  with  the appellant. In other words, the  High  Court came to the conclusion that the acquittal of the appellant’s uncle was erroneous but since there was no appeal  preferred by  the  State  it could not interfere with  that  order  of acquittal.  It,  however, came to the  conclusion  that  the crime  was committed by the appellant and his uncle in  fur- therance  of  their common intention and  accordingly  main- tained  the conviction of the appellant under  section  302, IPC, with the aid of section 34, IPC. Before this Court  the appellant  contended that on the acquittal of his uncle  the sharing  of common intention disappeared and the High  Court was not justified in invoking 21 section 34 for maintaining the conviction against him  under section 302, IPC. This Court while dealing with this submis- sion held that in the matter of appreciation of evidence the powers  of  the Appellate Court are as wide as that  of  the Trial  Court and the High Court was, therefore, entitled  in law  to review the entire evidence and to arrive at its  own conclusion about the facts and circumstances emerging there- from. To put it differently, this Court came to the  conclu- sion  that the High Court was not bound by the  appreciation of  the evidence made by the Trial Court and it was free  to reach  its own conclusions as to the proof or  otherwise  of the circumstances relied upon by the prosecution on a review of  the evidence of the prosecution witnesses.  This  Court, therefore,  held  that when several persons are  alleged  to have  committed  an offence in furtherance of  their  common intention  and all except one are acquitted, it is  open  to the Appellate Court under Sub-section (1)(b) of section  386 of the code to find out on a reappraisal of the evidence who were the persons involved in the commission of the crime and although it could not interfere with the order of  acquittal in  the absence of a State appeal it was entitled to  deter- mine  the actual offence committed by the convicted  person. Where  on the reappreciation of the evidence  the  Appellate Court  comes  to the conclusion that the appellant  and  the acquitted  accused were both involved in the  commission  of the crime, the Appellate Court can record a conviction  with

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the  the aid of section 34 notwithstanding the acquittal  of the co-accused the appellate Court cannot reverse the  order of acquittal in the absence of a State appeal, it cannot  at the same time be hedged by the appreciation of the  evidence by the lower court if that appreciation of evidence is found to be erroneous. This Court, therefore, pointed out that  in such  a fact-situation it is open to the Appellate Court  to record  a finding of guilt with the aid of section  34  not- withstanding  the  acquittal  of the  co-accused  since  the English doctrine of repugnancy on the face of record has  no application  in this country as we are governed by  our  own statutory  law. On this ratio this Court confirmed the  con- viction  of the appellant under section 302, IPC,  but  with the aid of section 34, IPC. The fact-situation before us  is more or less similar.      Several decisions were cited in support of the  conten- tion  that where two named persons are charged for the  com- mission  of an offence with the aid of section 34,  IPC  and one of them is acquitted the other cannot be convicted  with the  aid  of section 34, IPC. Dealing with  these  decisions this Court observed in Brathi’s case that all the  decisions relied on were distinguishable on the ground that in none of them  the Appellate Court was shown to have  disagreed  with the  Trial Court’s appreciation of evidence but on the  con- trary the Appellate 22 Court had proceeded on the footing that the appreciation  of evidence  by the Trial Court was correct. We think that  the cases  on  which Mr. Lalit has placed reliance can  also  be distinguished on the same ground.     In  Baikuntha Nath Chaudhury’s case the evidence of  two eye  witnesses PWs 9 and 10 was to the effect  that  accused Nos.  1 and 2 had killed their brother with the active  par- ticipation of accused No. 3, their mother. According to  the prosecution  accused  No. 2, the appellant, had  called  the deceased  tohis house and while he was there accused  No.  1 inflicted two lathi blows which proved fatal. The dead  body was  then  put m a gunny bag supplied by accused No.  3  and drowned  into a nearby tank. The three accused persons  were charged under sections 302/34, and 201, IPC. The Trial Court acquitted  accused No. 3 but found the other two guilty.  On appeal the High Court acquitted accused No. 1 rejecting  the prosecution  evidence in regard to his involvement but  con- firmed the conviction of accused No. 2 under section 302/34, IPC, though the fatal injuries were inflicted by the acquit- ted  accused No. 1. It will thus be noticed that on a  reap- preciation of evidence by the High Court accused No. 1  came to  be  acquitted although he was stated to have  given  the fatal  lathi  blows while his brother,  the  appellant,  was convicted  on  the  same evidence.  This  Court,  therefore, concluded that if the evidence of the two eye witnesses were to  be accepted, accused No. 1 could not be acquitted  since according  to them it was he who had given the  fatal  blows while  the  appellant had merely caught hold  of  him.  This Court,  therefore, observed in paragraph 12 of the  judgment that if the occurrence spoken to by PWs 9 and lois accepted, the appellant will be constructively liable for his involve- ment, though the fatal injuries were inflicted by his broth- er. In that case his brother will also be guilty of the said offence.  But since the High Court had acquitted  the  first accused  it  meant that the High Court did  not  accept  the evidence  of  PWs 9 and 10 in regard to the  incident.  This Court  did not come to the conclusion that the High  Court’s appreciation  of evidence in regard a accused No.1  was  not proper. In fact it did not examine the case from that  point

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of view but held that since the High Court had not  accepted the evidence of PWs 9 and 10 in regard to the part played by the  acquitted  accused, the appellant could not  have  been convicted  on  of the same appreciation  of  evidence.  This becomes clear on a close reading of paragraphs 12 and 13  of the judgment. Similarly in the case     of Kasturi Lal  this Court  came to the conclusion that the reasons given by  the High  Court for distinguishing the case of Kasturi Lal  from that of Khazan Singh and Gurdial Singh were not correct and, therefore’, it was not justified in convicting Kasturi  Lal. So, when the case of 23 Kasturi  Lal was not distinguishable from that of the  above two,  this    Court felt that the High Court erred  in  con- victing  Kasturi Lal. It will thus be seen that  this  Court came  to the conclusion that the reasons Which weighed  with the  High Court for the distinction drawn were  not  correct and hence the conviction of Kasturi Lal ’had to be set aside This decision also does not help the appellant. In  Chandub- hai’s case the prosecution relied on the testimony of PWs 1, 5  and 6 ’Both the courts below found their testimony to  be unreliable  in  several  particulars and  acquired  the  co- accused of the appellant in two stages. This Court concluded that  the appellant’s case could not be  distinguished  from that  of his two acquitted companions insofar as  the  reli- ability  of the ocular evidence of three eye  witnesses  was concerned. It was in the said circumstances that this  Court thought  that the conviction of the appellant under  section 302/34,  IPC  was  not justified,  particularly,  after  the evidence of the three witnesses was found to be  unreliable. this  also,  therefore, is not a case  where  the  Appellate Court disagreed with the appreciation of the evidence by the Trial Court and came to a different conclusion regarding the participation  of others in the commission of the crime.  In Sukh  Ram’s  case  to which one of us (Ahmadi.   J.)  was  a party,  this  Court interferred with the conviction  of  the appellant  recorded with the aid of section 34 by  the  High Court  because  on the facts found proved  on  evidence  the conviction  of the appellant could not be sustained  on  the acquittal  of the co-accused on the same set of  established facts. This Court on its own did not come to the  conclusion that  the  acquittal of Gokul was not well-founded  as  High Court’s  appreciation  of evidence was not correct.  Had  it come to that conclusion it could have recorded a  conviction of the appellant under section 302/34, IPC,  notwithstanding the  acquittal of Gokul. Therefore, all the aforesaid  cases are clearly distinguishable from the facts of Brathi’s  case where the High Court had clearly departed from the apprecia- tion of the evidence by the Trial Court and had reached  own conclusion  in  regard  to the proof of  various  facts  and circumstances  relied on by the prosecution. We are,  there- fore. in respectful agreement with the distinction drawn  by this Court on the ground that in none of the cases cited  on behalf  of  the appellant it was shown  that  the  Appellate Court had disagreed with the appreciation of evidence by the Trial  Court and the conclusion of facts  and  circumstances recorded by it.      Does the decision in Krishna Govind Patii (supra)- take a different view? It is true that the attention of the Bench which  disposed  of Brathi’s case was not  invited  to  this decision. But, in our opinion, this decision does not take a view inconsistent with the ratio laid down in 24 Brathi’s  case. The facts reveal that Krishna  Govind  Patil and three others were put up for trial for the murder of one

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Vishwanath. They were charged under section 302/34, IPC  and were also separately charged under section 302, IPC. Accused Nos. 1, 3 and 4 pleaded an alibi while accused No. 2  raised the  plea of private defence. The Trial Court acquitted  all the  accused  on the ground that the  prosecution  witnesses were not speaking the truth and the version of accused No. 2 was a probable one. The State appealed against the order  of acquittal under section 302/34, but not against the  acquit- tal  under  section 302, IPC. The High Court  confirmed  the acquittal of accused Nos. 1, 3 and 4 on the ground that  the evidence regarding their participation in the commission  of the  crime was doubtful but convicted accused No. 2  on  the ground  that one or more of them might have participated  in the  commission  of the offence. Accused No.  2,  therefore, preferred  an appeal to this Court and contended  that  when three  of  the four named persons were  acquitted  the  High Court  was not justified in convicting him on the  basis  of constructive liability. This Court held that before a  Court can  convict  a person under section 302/34,  IPC,  it  must record  a  definite finding that the said person  had  prior consultation  with one or more other persons, named  or  un- named, for committing the offence. When three of the accused came to be acquitted on the ground that the evidence was not acceptable  or  on  the ground that they  were  entitled  to benefit of doubt, in law it meant that they did not partici- pate in the offence. It was further held that the effect  of the acquittal of the three  co-accused is that they did  not co-jointly  and with the appellant commit the murder.  These observations  have  to be read in the context of  the  facts stated  above.  The  High Court on an  appreciation  of  the evidence, came to a definite conclusion that accused Nos. 1, 3 and 4 had not participated in the commission of the crime. On  that appreciation of the evidence the High  Court  could not have come to the conclusion that any of those  acquitted accused was privy to the crime even for the limited  purpose of convicting the appellant with the aid of section 34. This again is not a case where the Appellate Court disagreed with the  appreciation of evidence and reached a conclusion  dif- ferent  from the conclusion recorded by the Trial  Court  in regard  to the participation of the other  co-accused.  This decision is also distinguishable on the same ground as  this Court distinguished the other decisions in Brathi’s case. We are, therefore, of the opinion that the omission to refer to this decision does not render the decision in Brathi’s  case per  incuriam.  We are, therefore, in  respectful  agreement with the law explained in Brathi’s case. Coming now to the facts of this case the Trial Court acquit- ted the 25 co-accused  but convicted the appellant under  section  302, IPC. The High Court has confirmed that conviction. Mr. Lalit is right when he says that the prosecution evidence does not disclose  that the fatal blow which caused injury No. 1  was given  by the appellant. Inherent of this submission is  the assumption  that the fatal blow was given by  someone  else. That establishes the fact that more that one person partici- pated  in  the commission of the crime. We have also  on  an independent  appreciation of the evidence of the  three  eye witnesses, namely, PW 1 Komal Chand, PW 3 Kishan Lal and  PW 4  Ramesh, come to the conclusion that several  persons  had participated in the commission of the crime. The failure  on the part of the prosecution witnesses PWs 3 and 4 to identi- fy  the others does not alter the situation. We are, on  the other hand, convinced from the evidence of PW 1 Komal  Chand that some of the co-accused, particularly, Gunda, Parsu  and

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Gopal had participated in the commission of the crime. It is another  matter  that in the absence of a State  appeal  the High  Court  could  not, nor can we,  interfere  with  their acquittal,  but  as rightly’pointed in  Brathi’s  case  this Court is not bound by the facts found proved on the appreci- ation of evidence by the courts below and is, in law,  enti- tled  to  reach its own conclusion different  from  the  one recorded  by the court’s below on a review of the  evidence. In  that view of the matter we think that the conviction  of the appellant can be sustained with the aid of section 34 or 149, IPC, as the case may be. In the present case we feel it safe to confirm the conviction of the appellant with the aid of  section  34, IPC. We, therefore, cannot agree  with  the submission of the learned counsel for the appellant that  at best the conviction can be recorded under section 324,  IPC. We  confirm  the conviction of the appellant  under  section 302,  IPC, with the aid of section 34 and maintain the  sen- tence awarded to him.     For the above reasons we see no merit in this appeal and dismiss the same. N.P.V.                                         Appeal   dis- missed. 26