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PETITIONER:

DHANNA ETC.

Vs.

RESPONDENT:

STATE OF MADHYA PRADESH

DATE OF JUDGMENT: 25/07/1996

BENCH:

THOMAS K.T. (J)

BENCH:

THOMAS K.T. (J)

ANAND, A.S. (J)

CITATION:

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

ACT:

HEADNOTE:

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

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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

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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

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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.