1. This is an appeal by original accused Nos. 1 and 2 who are convicted under Section 302 read with Section 34 of the Indian Penal Code.
2. Originally five accused were prosecuted and the charges were under Section 148, Section 302 read with Section 149 and alternatively under Section 302 read with Section 34 of the Indian Penal Code was also framed against them.
3. The prosecution alleged that there was a long standing dispute between the deceased Khandu and accused No. 1 Nana and the members of his family. This dispute related to the ownership and user of survey Nos. 1369/1 and 1369/2. Admittedly, survey No. 1369/1 is a pasture land and is known as lenddara. Survey No. 1369/2 is a cultivable land and it is known as 'Pandiche Waver'. The deceased Khandu has two brothers Tukaram and Pandu. Accused No. 1 Nana Gangaram Dhore along with one Gopal Takalkar purchased both these lands from Pandurang alone some time in 1948. He claims to be in exclusive possession of these lands as a result of the sale-deed. The exclusive possession as well as title of accused No. 1 Nana was being challenged. Khandu alleged that this; was a transaction of a conditional sale-deed which was in fact a mortgage. So far as the lenddara the pasture land is concerned, it was alleged that Pandu had no right to sell it alone and it still continued to be a family land in joint possession of Khandu and his brothers.
4. This dispute took various shapes and forms. There was first an enquiry before the Revenue Officer for purposes of making entries in the record of rights as there was obstruction to the exclusive possession and user of Khandu. There were proceedings under Section 447, Indian Penal Code. 'Chapter Proceedings also took place. However, it appears that there was no incident of assault by and between the parties. In 1961 accused No. 1 Nana filed a civil suit for injunction against Khandu, and perhaps his brothers, for restraining them from obstructing accused No. 1 's possession and user of both the lands. Though accused No. 1 has denied it, evidence clearly showed that the said suit succeeded only in respect of survey No. 1369/2, i.e., the cultivable land, but no injunction was granted in respect of the pasture land.
5. The last event that took place before the present incident is the purchase of undivided interest of Gopal Takalkar from his heir by Khandu. Khandu had actually filed Civil Suit No. 38 of 1965 for partition and separate possession of the cultivable land. It appears that the purchase of the undivided interest of the co-owner and the filing of the suit by Khandu was not liked by the accused. Against the above back-ground the present incident took place on August 16, 1965. The prosecution witness Babu Pavalya Hilam (P.W. 10) was a servant of accused No. 1 Nana on yearly basis. On August 16, 1965, Babu Hilam was directed by accused No. 1 to go to the lenddara land for grazing- the cattle. Babu Pavalya said that he had not seen this land and could not take the cattle there unless the land was pointed out. Arrangements were made to point out the land to him. He accordingly went to the land and made the cattle graze there. He found that Khandu was also there sitting on the Khed-Wafgaon road. Khandu's cattle were grazing in the pasture land. According to Babu Pavalya, Khandu asked him to take the cattle of accused No. 1 away from his own cattle as the pasture land was fairly big land. In fact Khandu drove away the cattle of accused No. 1 to some other portion. After some time, the cattle in the process of grazing came near the road side. At that stage, accused Nos. 1 and 2 arrived at the scene of offence. Accused No. 5, who was grazing some cattle was at a fairly long distance and he was having a stick with him. We may point out that though accused No. 5 was involved in this case, there is hardly any evidence which brings him near the scene of offence or involves him into the crime. That being so, the acquittal of accused No. 5 was proper. The prosecution evidence, which mainly consists of P.W. 10 Babu, P.W. 11 Kasabai Tukaram Dhamale, P.W. 12 Sopana Tukaram Bhambure and P.W. 13 Dagadabai Pandurang Bhambure, involve principally accused Nos. 1 to 4 in the conflict. According to the prosecution, the four accused persons rushed at Khandu when all of them were armed with various weapons. Accused No. 1 Nana had a stick, accused No. 2 Popat had a spear, accused No. 3 Katan had an iron-bar and accused No. 4 Bhiku had an axe with him. Accused Nos. 1, 2 and 3 are brothers and accused No. 4 is a son of accused No. 1. While going towards Khandu, accused No. 1 hurled a stone at him which hit Khandu and he fell down. All the four accused then rushed at Khandu, they be laboured him with the various weapons that they carried. Khandu had gone to the land along with his daughter Kasabai. A few minutes before this incident, he asked Kasabai to go back to village for taking food. At the time Kasabai had hardly covered a distance of 100-202 paces. As a result of the beating given by the four accused with the weapons in their hands, Khandu lay prostrate on the ground with his face towards the earth. Seeing the assault Kasabai returned weeping towards her father. She went down to Khed.
6. Kasabai went home to Bhamburwadi and informed her paternal uncle Tukaram. Tukaram started with the bullock-cart towards the scene of offence. Tukaram put his brother into the cart who was in a semi-conscious state. He was taken to Khed dispensary. The Medical Officer sent a report to the police station and the police machinery began moving. On the advice of the medical officer, an attempt was made to remove Khandu to Sassoon Hospital at Poona. However, by the time the truck carrying him reached the outskirts of Khed, Khandu died. He was brought back to the police station. An offence under Section 302 of the Indian Penal Code was registered and investigation started. All the five accused were arrested in. the evening of August 16, 1965. After collecting all the evidence and completing the formalities of inquest panchnama, panchnama of the scene of offence etc. the five accused came to be charge-sheeted as stated earlier.
7. At the trial before the Additional Sessions Judge, the prosecution mainly relied upon the testimony of the four eye-witnesses namely, Babu, Kasabai, Sopana Tukaram and Dagadabai w/o Pandurang. They gave out a story as summarised above.
8. The defence taken by accused Nos. 3, 4 and 5 was that they were not present at all at the scene of offence and never participated in the assault. We have already pointed out that even if the prosecution evidence were to be accepted literally, it does not involve accused No. 5 into the crime at all. We would hereinafter make no reference to accused No. 5, but would have to refer to accused Nos. 3 and 4 very often. The defence of accused Nos. 3 and 4 was that they were not present at the scene of offence. It was a false case against them.
9. The defence of accused Nos. 1 and 2 was that they alone were present at the scene of offence. Khandu always caused nuisance to the accused. On the date of the incident, he had driven his cattle into the ground-nut crop of the accused. Accused Nos. 1 and 2 along with Lasmibai, the wife of accused No. 2, were working in. their adjoining- field. They asked Khandu to take away the cattle. Khandu, however, spoke in threatening language and challenged the accused to drive away the cattle. As soon as accused No. 1 went near the cattle to drive them away, Khandu who was carrying a stick, gave stick-blows to accused No. 1. As many as 3 or 4 strokes were delivered. A struggle then ensued in which accused No. 1 succeeded in removing the stick from the hand of Khandu. Khandu immediately took out a knife from the pocket of his Bandi and rushed at accused No. 2. Accused No. 1 then felt that there was an apprehension of danger to the life of accused No. 2. Khandu's nephew Sopana who had arrived at the scene of offence for purposes of grazing his sheep, carried an axe with him for the purposes of cutting the branches of the trees. Accused No. 1 snatched that axe from the hand of Sopana Tukaram, and with a view to save the life of his brother, attacked Khandu. He does not quite recollect as to how many strokes he delivered. In short, his defence is that the deceased Khandu was the aggressor. He rushed at accused No. 2 with an open knife which legitimately created an apprehension in the mind of accused No. 1, that either grievous hurt would be caused to accused No. 2, or his life may be lost. It is because of this apprehension, that accused No. 1 acted in his right of private defence of person and is protected in law. They further pleaded that no offence was committed by either of them. Not only this is the defence taken by way of making a statement under Section 342 of the Code of Criminal Procedure, but accused No. 1 reiterated the same facts on oath by examining himself as a witness under Section 342-A of the 'Code of Criminal Procedure.
10. The learned Additional Sessions Judge rejected the defence theory of the right of private defence altogether. He held that on the proved facts and circumstances, there was no stick in the hand of Khandu nor any knife. In fact, Khandu was not wearing Bandi at all. He had banian and a shirt on his person. Neither of these two apparel had any pocket from which the knife could be taken out. He, therefore, held that the allegation of knife being taken out and the attempted assault with the knife, is a purely imaginary defence.
11. The learned Additional Sessions Judge believed the prosecution witnesses and more particularly Babu Pavalya who at the time of the incident as also at the time of giving evidence in Court was a servant in the employment of accused No. 1. By repeated reference in his judgment, the learned Judge called Babu as an independent disinterested witness. The other three eye-witnesses, Kasabai, Sopana and Dagadabai are found to be the relations of the deceased Khandu. One is a daughter, the other is a nephew and the third is his sister-in-law, i.e. the brother's wife. In the circumstances, the learned Additional Sessions Judge, felt that their evidence must be examined more carefully. Since he found that Babu Pavalya 's evidence was clear and cogent, he also believed the other three eye-witnesses. However, in accepting the testimony of these four witnesses, he has relied upon a part of their evidence and not the whole. He found that there was a particular infirmity in the evidence of all the four eye-witnesses, i.e. the infirmity was that a general statement of attack by all the four accused persons is made by them, but the individual role of each of the accused or the particular stroke delivered by a particular accused, has not been described by them. By a process of reasoning which we have not followed very clearly, he has eliminated accused Nos. 3 and 4 from the crime i.e. precisely because their individual role has not been stated, benefit of doubt is given to them and they are acquitted.
12. Having come to that conclusion the learned Judge proceeds to consider the statement of the two accused under Section 342 of the Code of Criminal Procedure as also the evidence given by accused No. 1 as a witness on his behalf. On that statement under Section 342, or a similar statement on oath, given by accused No. 1, the learned Judge holds, role of accused Nos. 1 and 2 proved in which strokes with axe are delivered by accused No. 1. Since he disbelieved the rest of the defence theory about the initial assault by Khandu and the subsequent so-called right of private defence, the learned Judge holds attack by accused Nos. 1 and 2 proved on the strength of their own statements under Section 342 of the Code of Criminal Procedure. In that manner, he holds that the axe injuries which are severe and which are sufficient in the ordinary course of nature to cause death, are accepted by accused No. 1. He also holds that accused Nos. 1 and 2 acted in concert and in furtherance of their common intention. The two accused, who are appellants here, are convicted in that manner under Section 302 read with Section 34 of the Indian Penal 'Code.
13. Shri V. B. Deshmukh, the learned Counsel for the appellants, opened his argument by saying that in view of the conclusion arrived at by the learned Judge, the present appellants who are accused Nos. 1 and 2, are entitled to acquittal. He says that the prosecution evidence of the eye-witnesses does not speak of an assault with an axe by accused No. I. That evidence alleged use of axe by accused No. 4. Accused Nos. 3 and 4 have been acquitted, and the effect of that acquittal will be that accused Nos. 3 and 4 would not be said to have remained present at the scene of offence and will be deemed to have committed no act at all which is an offence. The conviction in criminal trial could be based either upon the prosecution evidence or upon the confession or admission of the accused or on both. The prosecution evidence as led in the 'Court is completely inconsistent with the so-called admission or the statement made by accused persons under Section 342 of the Code of Criminal Procedure. If accused Nos. 3 and 4 are acquitted, then the prosecution evidence which does not attribute the use of axe to accused No. 1 cannot lead to the conviction of accused No. 1 for making use of an axe. The prosecution evidence, therefore, at its best will merely prove the presence of accused Nos. 1 and 2 but not the use of axe by accused No. 1. If the axe is in fact in possession of accused No. 4 and the use of axe by accused No. 4 is not held proved by the trial Court, then the conviction of the present two accused under Section 302, by making use of Section 34 of the Indian Penal Code, could not be obtained. On this short ground, he says, that on the footing of the finding given by the trial Court, both the appellants are entitled to an acquittal.
14. He also argued that the statement of the accused made under Section 342 of the Code of Criminal Procedure, may be considered by the Court, but if there is no prosecution evidence which proves the guilt of the accused persons, it is not open to the Court to fall back upon statement under Section 342 of the Code of Criminal Procedure made by the accused, for the purposes of obtaining conviction. If that statement is in the nature of confession, then the Court may act upon it and convict the accused. If, however, it is a statement in defence where the commission of the act is accepted only by way of defence on certain other footing, then according to him, the statement has to be accepted as a whole or rejected as a whole. In other words, if the statement consists partly of inculpatory portion and partly of exculpatory portion, the Court cannot pick and choose and select that part only where guilt is admitted. In either way, neither upon the evidence led in the Court as per finding' given by the trial Court nor upon the statement of: the accused persons, the conviction of either of these persons could be obtained. He also cited before us certain decisions, but we propose to refer to this legal position a little later.
15. Before we proceed to the important questions of law which arise in this case, we would consider the evidence as led against these two accused and find out whether there is enough evidence to obtain the conviction of these appellants. We will point out at this stage that this is an appeal by the two convicted persons only and there is no appeal by the State against the order of acquittal of accused Nos. 3 and 4. We are in agreement with the learned Counsel for the appellants that the Court can act only upon the prosecution evidence or the confession of accused or both; but it cannot act upon the statement made under Section 342, Code of Criminal Procedure which is partly inculpatory and partly exculpatory. The peculiar feature of the present case is that the prosecution evidence does not attribute use of the axe to accused No. 1. Even then the learned Judge has acted upon the statement of accused No. 1. It would not be open to base the conviction upon the statement of accused Nos. 1 and 2 which is partly exculpatory and partly inculpatory and this was clearly erroneous. The learned Judge has accepted the prosecution evidence only to the tune of holding the presence of accused Nos. 1 and 2 at the conflict. He has given benefit of doubt to accused Nos. 3 and 4, though the same evidence is otherwise found generally believable by him. If there is no prosecution evidence at all which shows that accused No. 1 caused any injuries with the axe, the finding about the use of axe by accused No. 1 could not be based upon the statement of accused No. 1 under Section 342 of the Code of Criminal Procedure which is not in the nature of a confession. The conclusion arrived at by the trial Judge is due to want of clear perception regarding the relative pieces of evidence on which the judgment of 'Criminal Court could be based. We would, therefore, reject the approach of the trial Court and hold that the conviction of accused Nos. 1 and 2 on their statement under Section 342, Code of Criminal Procedure ought not to have been obtained.
16. Since we will point out that there is no legal impediment in the way of this Court sitting as Appellate Court in the matter of examination of the entire evidence and giving findings of fact, we would proceed to examine evidence first, give our findings and then point out how in law those findings: can be utilised for the purpose of either acquitting- or convicting the accused.
17. [His Lordship then proceeded to examine the evidence.]
18. We are, therefore, satisfied that the learned trial Judge was in error in rejecting a part of the prosecution evidence and accepting only a part of the evidence. Non-mentioning of a particular stroke by a particular accused could not be said to be such an infirmity as to discard any part of the prosecution evidence. On the contrary, if the deceased received injuries when he was surrounded by various accused, evidence, as given by the witnesses, appears to be more truthful. Differing- from the learned Additional Sessions Judge, we would hold that original accused Nos. 1 to 4 acted in furtherance of their common intention which was to commit the murder of Khandu. Since the evidence does not help us to locate responsibility for the particular stroke leading to the death, we may have to conclude that all the four accused could be convicted under Section 302 read with Section 34 of the Indian Penal Code, provided there was no legal infirmity in coming to such a conclusion.
19. The learned Counsel for the accused Shri Deshmukh argued that it is not open to this Court to hold that accused Nos 3 and 4 were guilty by reappraising the evidence. The effect of that acquittal will be that this Court will have to proceed on the footing- that they were not participating in this crime at all. In order to substantiate this reasoning, lie relies upon the judgment of the Supreme Court in Krishna Govind v. State (1908) 65 Bom. L.R. 780 A.I.R.  S.C. 1418. In that case four accused persons were tried under a charge under Section 302 read with Section 34. All of them were also separately charged under Section 302, Indian Penal Code. Accused Nos. 1, 3 and 4 pleaded alibi and accused No. 2 pleaded a right of private defence. The learned Sessions Judge found that the prosecution witnesses were not speaking the truth and that the version given by accused No. 2 was the probable version. In the result, he acquitted all the accused. The State preferred an appeal against the order of acquittal under Section 302 read with Section 34. The High Court dismissed the appeal so far as accused Nos. 1, 3 and 4 were concerned, but allowed it in respect of accused No. 2. However, conviction of accused No. 2 was obtained under Section 302 read with Section 34 of the Indian Penal 'Code. The conclusion of the High Court in that judgment shows that the High Court was not in a position to conclude that the fatal blow was the blow delivered by accused No. 2 who was accompanying the other accused. However, some other person, besides the accused must have delivered the - fatal blow and on that footing conviction of accused No. 2 under Section 302 read with Section 34, Indian Penal Code, was obtained.
20. The Supreme Court in that case pointed out that the charge framed is specific against the four accused persons. There is neither charge nor proof that there were some other participants in the crime. In a case where the charge is specifically against the four persons and evidence is led against these four persons only, it is difficult to reconcile the finding of the High Court with the ultimate conclusion. The Supreme Court points out that in the event of accused Nos;. 1, 3 and 4 being held not guilty, there was none with whom remaining accused No. 2 could share the common intention. While illustrating the impact of Section 34 on different situations, the Supreme Court pointed out three possible cases (p. 79,1) :-
(1) A, B, C and D are charged under Section 302, read with Section 34, of the Indian Penal Code, for committing the murder of B, The evidence is directed to establish that the said four persons have taken part in the murder.
(2) A, B, C and D and unnamed others are charged under the said sections. But evidence is adduced to prove that the said persons, along with others, named or unnamed, participated jointly in the commission of that offence.
(3) A, B, C and D are charged under the said sections. But the evidence is directed to prove that A, B, C and D, along with 3 others, have jointly committed the offence.
21. By giving the above illustrations, it is pointed out that in the case of the first illustration since the charge as well as the evidence is led specifically against the four persons, if three of them are acquitted, the fourth cannot share the common intention with any one of them at all. The case is, however, different in the matter of 2nd and 3rd illustrations. If on the evidence led, a finding could be given that three of them may not have participated, but along with the fourth there were others named and unnamed, the conviction by the use of Section 34 could be obtained. A similar position would also be possible in the ease of the 3rd illustration where a finding could clearly be given on the evidence that along with any one of the accused, there were other participants whose presence is obviously found from the evidence led.
22. We do not see how this case could help the appellant. It deals with the situation where certain charges are framed and findings are given on the evidence led. So far as the present appeal is concerned, the matter is still being dealt with by a Court of facts and the powers of the Appellate Court, having been declared and regulated by the Code of Criminal Procedure, there is no prohibition to this Court in reappraising evidence and giving its own findings. We think that the presence or absence in this appeal of certain accused persons who were initially charged in the Trial Court cannot be a governing factor for limiting the appreciation of evidence to the appeal before this Court. Because of the appeal the entire the trial Court is before us and for the purposes of deciding the appeal of the appellant, we are entitled to appreciate the entire evidence led in the case and give our findings. It is true that an acquittal of accused cannot be converted into conviction unless there is appeal by the State before us. That does not mean that for the purposes of satisfying ourselves about the correctness of the conviction of the appellant, we are debarred from coming to the conclusion that the acquitted persons were wrongly acquitted and that the evidence against them was sufficient and also good and ought not to have been rejected.
23. The second judgment on which Mr. Deshmukh relies is the ease of Prabhu Babaji v. State of Bombay : 1956CriLJ147 . In that appeal, before the Supreme Court the appellants challenged the conviction on the ground that the four other accused persons along with whom he was charged under Section 302 read with Section 34 were acquitted. He could not, therefore, be convicted by use of Section 34 of the Indian Penal Code. Now, the Supreme Court allowed the appeal and set aside the conviction. But the ground on which this judgment proceeds to accept the appeal is that the whole gravamen of the charge as well as the evidence was that the appellant shared the common intention with the specific four persons who were mentioned in the charge. It this is so and if there is neither evidence nor charge that the appellant shared the common intention with some others, it is but logical that he should be acquitted. This case is decided practically on the same principles on which the earlier judgment in Krishna Govind y. State was decided. This would be a case governed by illustration (1) discussed by the Supreme Court in Krishna Govind's case.
24. The next judgment relied upon by Mr. Deshmukh is Pritam Singh v. State of Punjab A.I.R.  S.C. 415. In that case, Pritam Singh, the appellant was first tried and acquitted of an offence under Section 19(f) for possessing a revolver. Subsequently, he was also tried under Section 302 along with others and was convicted and sentenced to death. In the appeal before the Supreme Court, it was pointed out that the same evidence led to prove the possession of the revolver by Pritamsingh which was formerly led in his earlier trial under Section 19(f) of the Indian Arms Act. Since he was acquitted on that evidence, a contrary finding could not be given on the same evidence in the subsequent trial. A principle similar to res judicata, in criminal trial will operate and will be a bar to give a contrary finding on the same evidence. The Supreme Court accepted this reasoning and held that the finding arrived, at by a competent Court on the same evidence is binding in subsequent proceedings between the appellant and the State. In the subsequent case, the evidence against him would have to be considered regardless of the evidence of the recovery of revolver from him. In other words, the second trial has to proceed on the footing that Pritam Singh is not guilty of possessing the revolver as found in the earlier trial. The rest of the evidence may have to appreciated on this footing and conclusions drawn. Shri Deshmukh argued that this principle will be attracted in this appeal as accused Nos. 3 and 4 have already been acquitted. This finding will have to be accepted as good and on that footing the present appeal will have to be decided. We think that that is not the way in which that principle is to be operated. The present appeal is not a subsequent proceeding between the State and the acquitted person. The present appeal is not only not a subsequent proceeding, but it is not even a proceeding between the State and the acquitted person. It is the same proceeding between the State and some of the accused who are convicted. An entirely different approach has to be made in cases of this type which we shall presently point out.
25. We may point out one more judgment in the case of Manipur Administration v. Bira Singh A.I.R. 1905 S.C. 87 cited by Shri Deshmukh at the Bar, considering the same principle which is discussed in Pritam Singh's case. The finding given by a competent Court in one criminal trial is no bar to the second prosecution if the same facts constitute another offence. But the earlier judgment on the finding operated as estoppel or res judicata against the prosecution precluding the reception of evidence to disturb that finding of fact. For the same reasons mentioned earlier this judgment also cannot help the appellant.
26. According to us, the correct legal position is that in an appeal by some of the convicted persons, it is open to the High Court as an appellate Court to examine the entire evidence. The powers of the appellate Court under Section 423 of the Code of Criminal Procedure are the same ass of the trial Court. It is true that the trial Court being a primary Court of fact has the advantage of observing the witnesses. The appreciation of evidence made by such a Court, is entitled to be considered with respect. However, that will be an approach to examine the evidence, but that is not a limitation upon the powers of this Court. If after examining the evidence, the High Court is in a position to say that the findings arrived at arc erroneous, contrary to evidence and must be set aside, not only there is no legal prohibition to do so, but in the interest of justice, that must be done.
27. Having indicated the nature of the approach and the powers of this Court as an Appellate Court, we would point out that in this appeal we have come to a definite conclusion that the learned Additional Sessions Judge clearly fell in error in rejecting the eye-witnesses' evidence against accused Nos. 3 and 4 and originally accused Nos 3 and 4 have been wrongly acquitted. The evidence clearly indicates that the commission of the crime in this case was a joint act of four persons who were none else than the two appellants before us and the two acquitted accused persons. The only question is whether such a finding can be given and should be given in the absence of accused Nos. 3 and 4 before us. If it could be given, what is the effect of it? According to us, there is no statutory bar in arriving at such a finding. It is true that the effect of the present judgment will be to hold that the two acquitted persons were, in fact, guilty. It might rather appear repugnant on record that those who are acquitted are being held guilty. However, the principle of repugnancy on the record which is prevalent in England has no application in this country where the proceedings are controlled by statutory provisions. Since there is no statutory provision to convert an acquittal into conviction in the absence of an appropriate appeal, the effect of our finding will not result in the conviction of original accused Nos. 3 and 4. The effect will only be to confirm the conviction of the appellants before us on the footing that they shared the common intention with the two acquitted persons.
28. We may point out a few judgments of the Supreme Court where this question arose and has been decided. The first judgment to which we shall refer is the case of Marachalil Pakku v. State of Madras : AIR1954SC648 . Seven persons were tried under Section 302 read with Section 149. The Sessions Judge convicted all of them. He had proposed a sentence of hanging against accused Nos. 1 and 2 and imprisonment for life against accused Nos. 3 to 7. In the confirmation ease which was heard along with the appeal by the accused persons, the High Court confirmed the conviction as well as execution of accused Nos. 1 and 2, but acquitted accused Nos. 3 to 7 by giving them benefit of doubt. It was contended before the Supreme Court that the conviction of accused Nos. 1 and 2 under Section 302 read with Section 149 of the Indian Penal Code was bad in view of the acquittal of accused Nos. 3 to 7. The judgment of the Supreme Court discusses the evidence and points out that the finding of the High 'Court regarding accused Nos. 3 to 7 was difficult to understand. There was ample and cogent evidence establishing the identity of accused Nos: 3 to 7. Having come to those findings, it was pointed out that there was no scope left for introducing- into the ease the theory of the benefit of doubt. They, therefore, held that accused Nos. 3 to 7 were wrongly acquitted. A further conclusion drawn is that though their acquittal stands, that circumstance cannot affect the conviction of the appellant under Section 302 read with Section 149 of the Indian Penal Code.
29. In another case Sunder Singh v. State of Punjab : AIR1962SC1211 similar argument was addressed to the Supreme Court, That was a case against four accused named Sunder Singh and his sons Lal Singh and Gurmukh Singh along with Rachhpal Singh. It was alleged that they committed murder of Malook Singh, Barbara Singh and Anup Singh at about 11 a.m. in the Abadi of village Ilabri on January 13, 1960, It was alleged that Sundersingh and Gurmukhsingh were armed with lathis and Lal Singh and Rachhpal Singh were armed with guns. According to the charge framed against accused persons, Lalsingh fired upon Malook Singh and Darbar Singh and thereby killed him, while Rachhpal Singh fired upon Anup Singh and killed, him. This firing took place in pursuance of the common intention of all the accused persons. That is how Lal Singh and Rachhpal Singh were charged under Section 302 read with Section 34 of the Indian Penal Code. The learned trial Judge took the view that the evidence adduced against Rachhpal Singh left room for doubt and so, having given Rachhpal Singh the benefit of doubt, he acquitted him. In the appeal by the remaining three accused, the Punjab High Court maintained the conviction of the three appellants. In the matter of sentence, the High Court confirmed the sentence of death imposed on Sunder Singh and' Lal Singh, but reduced the sentence of Gurmukh Singh to one of life imprisonment. Before the Supreme 'Court, the argument was raised, that Rachhpal Singh having been acquitted, the offence of murder of Anup Singh could not be brought home to the accused by use of Section 34, that is, because Rachhpal Singh has been acquitted and there being no appeal by the State Government against him. Reliance was placed upon the provisions of Section 423(a) of the Code of Criminal Procedure for pointing out that this acquittal could not be converted into conviction in the absence of an appeal. Rejecting this argument, it is pointed out that when the High Court was dealing with the appeal of the three appellants, it had inevitably to examine the comment made by the counsel against the reliability of the witnesses on the ground that their evidence against Rachhpal Singh had not been accepted by the trial Court and that necessarily meant that the High Court had to apply its mind to that problem as well. The manner in which the High Court has to proceed to examine the evidence in an appeal where some of the original accused persons are only before it, the Supreme Court point out is this (p. 1215) :.If in dealing with the case presented before it on behalf of the appellants it became necessary for the High Court to deal indirectly or incidentally with the case against Rachhpal Singh, there is no legal bar at all. It may be that in considering the evidence as a whole, the High Court may have come to the conclusion that the evidence against Rachhpal Singh was unsatisfactory and if it had come to such a conclusion, it would have examined the said evidence in the light of this infirmity. On the other hand, after considering the evidence, the High Court may well have come to the conclusion, as it has, in fact, done in the present case, that the evidence against Rachhpal Singh is also good and need not have been discarded. In our opinion, there is no doubt that if in appreciating the points made by the appellants before it the High Court had to consider the whole of the evidence in respect of the accused persons, it was free to come to one conclusion or the other in respect of the said evidence, so far as it related to Rachhpal Singh. That is why we think ' point made by Mr. Sethi that Section 423(1)(a) precluded the High Court from considering merits of the order of acquittal even incidentally or indirectly cannot be upheld.
It was then argued before the Supreme Court that the ratio of Pritam Singh's case regarding the effect of verdict of acquittal could be utilised by the appellant for restricting the approach of the High Court towards the appreciation of evidence. The Supreme Court points out that the real ratio of that judgment is that the verdict of acquittal by a Court of competent jurisdiction is conclusive between the said person and the prosecution and it can be challenged or reopened only by an appeal against the said acquittal but not otherwise. Having pointed out that that proposition has no relevance to the appreciation made by the High Court of the evidence as a whole, the Supreme Court also explains what is 'indirectly and incidentally' considering the evidence against the acquitted accused. The Supreme Court observed as follows (p. 1216) :.Indeed, as an appellate Court, the High Court has to consider indirectly and incidentally the evidence adduced against an accused person who had been acquitted by a trial Court in several cases where it is dealing with the appeals before it by the co-accused persons who had been convicted at the same trial and in doing so, the High Court-and even this Court sometimes records its indirect conclusion that the evidence against the acquitted persons was not weak or unsatisfactory and that the acquittal may in that sense be regarded as unjustified.
The only implication of indirectly and incidentally considering the evidence is that the conclusion arrived at in such examination of evidence even if it goes against the acquitted person, cannot have the effect of affecting the acquittal of those persons unless there was substantive appeal against the acquittal. It is only in that sense that the appreciation of evidence as a whole is done indirectly or incidentally, but the evidence can be examined for considering the correctness or otherwise of the conviction of the co-accused who are appellants before this Court.
30. We may now refer to the facts and circumstances of two other cases decided by the Supreme Court where the factual aspect is slightly different but the approach on principle is the same. In Ajendranath v. State of M. P. : 3SCR289 there was a prosecution of several persons tinder Section 414 of Indian Penal Code. All of them were acquitted on the ground that the property before the Court was not proved to be stolen property. The State Government appealed only against the acquittal of one of the accused persons. The High Court came to the conclusion that the property before the Court was stolen property and the respondent accused against whom the appeal was filed came to be convicted. In an appeal by the convicted accused before the Supreme Court it was contended that it was not open to the High Court to record the findings about the recovered property to be stolen property when the State Government had not appealed against the other co-accused who had been acquitted on the basis of the finding that the property recovered was not proved to be stolen property. The Supreme Court rejects this argument and points out that the mere fact that the learned Sessions Judge acquitted the other co-accused, on the ground that the property recovered was not proved to be stolen property, did not preclude the State from appealing against the acquittal of the appellant against whom there is better evidence for establishing that he was in possession of the stolen property than the evidence was against the other co-accused. The State could challenge the correctness of the finding of the learned Additional Sessions Judge about the property being stolen property and, consequently, the High Court can record its own findings on that question. This case illustrates that who appeals is not the governing factor which limits the powers of appreciation of evidence of the Appellate Court under Section 423 of the Code of Criminal Procedure. Where some of the convicted persons appeal in a case where the others are acquitted, or the State appeals against only one of the original accused and does not challenge the acquittal of the other persons, the approach of the Appellate Court in examining the evidence is going to be the same. In order to find out of the culpability or otherwise of those persons who are before it, the High Court in appeal has to examine the evidence as a whole and come to its conclusion. It may be that only some of the guilty persons are before it. The effect of this finding will be adverse to those who are before it and may not affect the acquittal of other persons.
31. The last case which we would like to refer to is the judgment of the Supreme Court in Karam Singh v. State of Madh. Pra. : 2SCR1 . The facts of this case are rather peculiar. It was alleged that the appellant Karan Singh, one Ramhans and 6 others jointly committed the crime, Ramhans was absconding when the appellant along with six others were put up before the Sessions Court for trial. The Sessions Court convicted the appellant of the offences under Sections 302, 307 read with Sections 148 and 149 of the Indian Penal Code. However, he gave the six others benefit of doubt and acquitted them. The convicted accused Karan Singh preferred an appeal to the High Court of Madhya Pradesh which was still pending' when the absconding accused Ramhans was traced and put up for trial. Before the appeal of Karan Singh came to be heard and decided by the Madhya Pradesh High Court, the trial of Ramhans, the absconding- accused, was concluded. He was acquitted. An argument was, therefore, raised before the Madhya Pradesh High Court that in view of the acquittal of Ramhans, the offence of murder by making use of the provisions of Section 149 of the Code of Criminal Procedure, could not be brought home to Karan Singh. This argument was rejected by the Madhya Pradesh High Court by pointing- out that the evidence in the trial led against Karan Singh, when examined by the High Court, clearly pointed out that the appellant and Ramhans had committed the offence in furtherance of the common intention. The fact that this fact could not be established against Ramhans in a separate trial, which was held subsequently, cannot affect the appreciation of evidence which the High Court is bound to do on the evidence before it. Karan Singh appealed to the Supreme 'Court and reliance was placed on his behalf on the judgments in Krishna Govind v. State. Rejecting this argument, the Supreme Court observed as follows (p. 1039) :-.On the other hand we think that the judgments earlier referred to on which the High Court relied, clearly justify the view that inspite of the acquittal of a person in one case it is open to the Court in another ease to proceed on the basis-of course if the evidence warrants it-that the acquitted person was guilty of the offence of which he had been tried in the other case and to find in the later case that the person tried in it was guilty of an offence under S. 34 by virtue of having committed the offence along with the acquitted person. There is nothing in principle to prevent this being done.
32. The last two cases: which we have cited deal with situation of facts which are slightly different from the one before us. However, the examination of all the judgments above-stated, itself leads to the conclusion that there is no bar in this country to the appellate Court acting under Section 423 of the Code of Criminal Procedure to appreciate the whole evidence in a given case for the purpose of accepting or rejecting the appeal before it. If for that purpose, the evidence examined as a whole shows that the appellants are guilty under Section 34 of the Indian Penal Code having shared a common intention with the other accused who are acquitted, and that the acquittal of these persons was bad, there is nothing to prevent the appellate Court from expressing that view and giving that finding. Such findings if they could be given in a given case would be a proper basis for maintaining the conviction of the appellants before the appellate Court. This being the correct, legal approach, we think that on the findings given by us, the conviction of the two appellants under Section 302 read with Section 34. is correct and must be upheld.
33. The appeal, thus, fails and is dismissed.