Vs. State of Madhya Pradesh  INSC 854 (25 July 1996)
K.T. (J) Thomas K.T. (J) Anand, A.S. (J) Thomas, J.
JT 1996 (6) 652 1996 SCALE (5)467
25TH DAY OF JULY, 1996 Present :
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
following Judgment of the Court was delivered:
V. State of Madhya Pradesh (With Criminal Appeal No. 252 of 1984)
J U D G
M E N T
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.
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.
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.
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.
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
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.
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.
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:
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.
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.
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).
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:
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
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.
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.
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.
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.
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).
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.
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.
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.
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