L.S. Mehta, J.
1. The deceased Ramdeen and the accused Nathu and others were closely related to one another. Ramdeen was the younger brother of the accused Nathu. The accused Bhagirath is Ramdeen's brother's son. Narain and Nanura, are nephews of Ramdeen. The accused Goda is the brother of Ramdeen and so also Sewa.
2. There was a dispute between Ramdeen and the accused Nathu and others in respect of a 'Dhora' (water channel). Both the parties had their agricultural land on the well, known as 'Navora'. The land had been partitioned some time before the occurrence. Ramdeen got some land, attached to the 'Navora' well, as his share. He has sunk another well, which was known as 'Ram Sagar'. He wanted to irrigate his land on the 'Navora' well by drawing water from 'Ram Sagar' well and for that purpose he had raised a 'Dhora' (water channel) passing through the land of the accused. This gave rise to serious controversy between Ramdeen and the accused persons. Ramdeen and his 'Siri' (partner) Hardeo, P.W. 9, had gone to the village 'Reshi' on january 19, 1967, to buy jaggery.They brought half a bag of jaggery therefrom and returned to their village Khokharia at about sun-set. Ramdeen then went towards the 'Navora' well to ease himself. Hardeo went to his house, taking jaggery with him, Mst. Sonkhi, P.W. 10 and Roopla son of Ramdeen, P.W. 11 were present in the house. The accused Nathu and 8 others, armed with 'Pharsi' axes, lathis and Gola chased Ramdeen. Having seen the accused, Hardeo suspected some foul play. He told Mst. Sonki, P.W. 10, and Roopla, 11, as to how Nathu and others were pursuing Ramdeen. All the 3 accused persons then hurriedly proceeded towards the 'Navora' well. Ramdeen's daughter Mst. Sayari, aged about 15 years, was working in a nearby carrot field at a distance of 30 or 35 paces away from her farther. All the 9 accused overtook Ramdeen. The accused struck a 'Pharsi' blow on his head. Bhagirath administered an axe blow on his jaw. The accused Sewa's axes landed on his neck Narain also caused an axe blow on his shoulder. Thereafter the rest of the accused administered beating to him with the weapons in their possession. Mst. Sayari dashed swiftly towards her father. She fell upon him in under to save his life. The accused Nanura then struck an axe blow on the head of Mst. Sayari. On seeing Hardeo, P.W. 9, Mst. Sonki, P.W. 10, and Roopla, P.W. 11, all the accused left together the place of the occurrence and went away to their respective homes Ramdeen died on the spot instantaneously. First information report of the occurrence was lodged on January 20, 1967, at 1 a. m., with the police station, Peelwa, by Mst. Sayari, accompanied by D W. 4 Kan Singh. The police registered a case under Sections 302 & 324, I.P.C, and carried out investigation. The police reached the spot before long. Autopsy of the dead body of Ramdeen was conducted by Dr. Umad Singh, P.W. 4. Medical Officer-In-charge Government Hospital, Parbatsar. Following injuries were found on the person of the deceased:
1. Incised wound 4 X 1' X 13/4' obliquely placed between right ear and eye-brow with broad and posteriorly and narrower and touching the zygomatic eminence of the face. The scalp hair skin right temporal and orbicularious oculi (orbital part) muscles, right temporal, sphenoid and zygomatic bone and branches of superficial temporal arteries are cut through underlying brain matter and membrance also cut.
2. Incised wound 3' X3/4' X1' spindle shaped, obliquely placed between outer end of right eye-brow and alinasi length wise. The orbicularies oculi (palpabral & orbital parts, levator labii superiours alaque nasi muscles of right side; right zygomatic and maxilla bones right facial transfer facial and deep temporal arteries and branches of right facial nerve cut through.
3. Incised wound 1' X ' ' X ' behind injury No. 2.
4. Incised wound 1' X ' X 1/8' right leg mid front just inner to the anterior border of tibia, which is obliquely placed.
5. Incised wound 21/3' X 1' X 1' base of neck behind the cutting through trapezius splenius and semi-spibalius muscles and vertically placed.
6. Incised wound 2' X ' X 1' obliquely placed 1' above injury No. 5 cutting through hair, skin, occipital muscle, nerve and artery and brain matter underneath.
7. Incised wound 3' X ' X' horizontal 2' above injury No. 6.
8. Abrasion 1' X' right uoper scapuler region.
9. Abrasion 3/4' X 3/4' back left side at the level of 10th rib.
10. Abrasion 3' X 2/3' lumber region right side.
11. Abrasion 3/4' X' left arm outer side lower 4th.
In the opinion of the Doctor the cause of death of Ramdeen was coma and syncope due to haemorcharge and traums to brain and bonus resulting from the injuries inflicted to him. Injuries Nos,. 1, 2, 5 and 6 were grievous. Injuries Nos. 1, 2, 3, 4, 5, 6 and 7 were caused with a sharp-edged weapon. Injuries Nos. 8, 9, 10 and 11 were inflicted with a blunt object. The Doctor further opined that all the injuries were collectively sufficient in the ordinary course of nature to have caused the death. Injuries Nos. 1 and 2 were individually sufficient in the ordinary course of nature to have resulted in the death of Ramdeen. The Doctor also expressed opinion that injuries Nos. 1, 2 and 7 could have been caused with 'Pharsi' Ex. 27. Injuries Nos. 3, 4, 5, and 6 could have been inflicted with Kulhari Exs. 23 and 30.
3. The Doctor also examined Mst. Sayari. He found an incised Wound 1' x x' on her scalp left side on pariectal region parallel to sagital suture. The injury was simple and was caused with a sharp edged weapon.
4. The police , prepared description memo of the site Ex. P. 2, inquest report Ex. P. 4 and seizire memo of the blood stained clothes produced by Mst. Sayari Ex. P. 5. Information given by the accused Nathu about the availability of 'Pharsi' is Ex. P. 19. Recovery memo of the 'Pharsi' at the instance of the accused Nathu is Ex. P. 20. The police also prepared other necessary documents. After the investigation was concluded the police put up a challan against, all the 9 accused persons in the court of the, Munsiff-Magistrate, Parbatsar. That court conducted preliminary inquiry in accordance with Section 207-A., Cr. P.C., and committed all the 9 accused persons to the court of the Sessions Judge, Merta, to face trial under Section 302 and 147, I.P.C. Charges were re-framed by the trial court and the accused were charged under Sections 148, end 302 I.P.C, substantively or in the alternative under Section 302 or Section 149, I.P.C. They were also charged under Section 324 or in the alternative under Sections 324/34, or 149, I.P.C. The accused pleaded not guilty to the aforesaid charges and claimed to be tried. On behalf of the prosecution 12 witnesses were examined. As Mst. Sayari. daughter of Ramdeen, had been dead, her statement taken by the committing court on April 1, 1967, was placed on record in accordance with the provisions of Section 33, Evidence Act. In their statements recorded under Section 342, Cr. P. C, mostly the accused persons raised pleas of alibi. They examined 7 witnesses in their defence. The trial court convicted the accused Nathu. Narayan, Bagirath and Sewa for offence under Section 302 and Nanura for offence under Section 302, read with Section 149, I.P.C., and sentenced each of them to imprisonment for life. Narain was further found guilty under Section 324, I.P.C , and was sentenced to rigorous imprisonment for 3 months. Both the sentences imposed on him were directed to run concurrently. The accused, Goda, Pemla, Hemla and Umla were acquitted of the offences with which they were charged.
5. Aggrieved by the above verdict, the accused Nathu, Narain. Bhagirath, Sewa and Nanura have filed, the present appeal. The main contention of learned. Counsel for the appellants is that the trial court having rejected the testimony of the eye-witnesses, P.W. 9 Hardeo, P.W. 10 Mst. Sonki and P.W. 11 Roopla. has mistakenly relied on the sole testimony of Mst. Sayari (Ex. P. 33). recorded by the committing court on April 1, 1967, and admitted in evidence under Section 33 of the Evidence Act. The statement having so many infirmities should not have been pressed into service.
6. Doctor Umed Singh, P.W. 4, Medical Officer, In-charge, Government Hospital, Parbatsar, conducted the. post-mortem examination of the dead body of Ramdeen. The injuries which be noticed have already been detailed above. From the medical evidence it is established with unerring certainty that Ramdeen died of coma and syncope due to haemorrhage and trauma to brain, and bones, resulting from the various injuries inflicted to him. Injuries Nos. 1,2, 5 &6 were grievous and were caused with a sharp-edged weapon. All the injuries were collectively sufficient in the ordinary course of nature to have caused his death. Injuries Nos 1 and 2, according to the Doctor, were individually sufficient in the ordinary course of nature to have caused the death of the deceased. It is thuse apparent that the deceased Ramdeen died as a result of the homicidal violence. Learned Counsel for the appellants has not challenged this aspect of the matter.
7. Now the question that awaits consideration is whether and to what extent the appellants are connected with the crime.
8. In order to prove motive the prosecution has examined P.W. ,8 Arjunram Pradhan Panchayat Samiti, Parbatsar. He says that he knew Ramdeen. On January 16, 1967, he contacted him at Parbatsar. He told him that he had a dispute with Narain and others over a 'Dhora' and that he wanted to file a suit against them. The witness then told him that he would first try to bring about a compromise between the parties. The witness then personally went to Khokhria with Ramdeen. The accused Narain met him in the village. He asked him to settle the dispute amicably. He also went to the site and inspected the 'Dhora', which was the subject matter of dispute. The witness also saw the 'Navora' well, where Narain, Sewa, Bhagirath and others were present, He made frensied effort for mutual settlement of the dispute. But the accused did not agree to abide by the decision of an arbitrator The witness was told by some of the accused that they would settle the matter themselves. When all his efforts proved abortive, he returned from the village Khokhria to his residence. The statement of P.W. 8 Arjunram has not been smashed in the cross-examination. In the cross-examination be has said that Balu contested elections against him but he does not feel that he had formed a distinct group. Who this Balu is has not been clarified. Such a cross-examination does not at all wreck the value of the statement. The statement of P.W. 8 Arjunram in So far as motive is concerned gets substantial support from the testimony of 'Mst. Sonki, P.W. 10, widow of Ramdeen. She states:
Ramdeen wanted to carry 'Dhora' from Ramangar Bera to his lands under Navora Bera through the lands of Nathu, Narain, and Sewa and these did not permit that. My husband went to Parbatsar for filing a case.
The testimony of Arjunram,P.W 8 is further strengthened by the deposition of Mst. Sayari, recorded by the committing court on April 1, 1967. She stated that there was a dispute about the 'Dhore' between her father and the accused.
9. From the evidence discussed above, motive for the crime has fully been brought home by the prosacution in this case. Learned Counsel for the appellants submits that the dispute pertaining to a 'Dhora' is not of such a magnitude as to constitute an adequate motive. Solution of this argument is found in the observation of Lord Chief Justice Campbell in Reg v. Palmer. Shorthand Report at page 308, quoted at page 69 in wills on Circumatantial Evidence, Seventh edition. It runs like this:
We know from the experience of criminal courts that atrocious crimes of this sort have been committed from very slight motives, not merely from malice and revenge, but to gain a small, pecuniary advantage, and to drive off for a time pressing difficulties.
Therefore, there is not an improbability of the accused having committed the crime about which motive may not be adequate.
10. Mst Sayari was the eye witness of the whole incident. As she was injured at the time of the occurrence, her presence on the spot is ensured. Unfortunately, she died before the trial stage. Her statement was recorded by the committing court on April 1, 1967, and that statement was admitted in evidence by the trial court in accordance with the provisions of Section 33 of the Evidence Act. She made her statament in a judicial proceeding before a Magiatrate who was authorised by Law to record it. Therefore, there is no manner of doubt that under Section 33 of the Evidence Act the statement in question is admissible in evidenoe.
11. Mst. Sayari deposed before the committing court that all the 9 accused persons, armed with weapons like 'Pharai', axes and lathis over-took her father then he was going towards the 'Dhora' of the Navora well to ease himself. Nathu hit him with a 'Pharsi' on his head. Bhagirath struck an axe blow on his jaw. Similarly Narain caused an axe injury on his shoulder and Narura also delivered on axe blow on his head. The rest of the accused beat him with lathis and axes. She fell on her father in her anxiety to save him. The reupon Bhagirath shouted that she should also be beaten, else she might give evidence in the case. Nanura then struck an axe blow on her head. In the meantime, Hardeo, Sonki and Roopla came on the spot. They saw the accused beating the victims. They entrusted the accused not to hit Ramdeen. Thereafter the accused went away together. The witness was cross-examined at length. She did not point cut the names of all the 9 accused persons in the first information report Ex. P. 1, That document contained the names of only Nathu, Bhagirath, Sewa and Narain as the persons who assaulted her matter and the name of Nanura who assaulted her. Then the witness was confronted with this inconsistency, her explanation was that as her father had died and as she had herself sustained an injury and because she had to traverse some distance on foot upto the police station for sub-mitting a report, she got nervous and told the Station House Officer that she would tell the names of the other accused persons next morning. This explanation furnished by Mst. Sayari does not appear to be very satisfactory. At any rate, the trial court was right in not relying upon the complete testimony of Mst. Sayari, as there was danger of over-implication, and exonerated the accused Hemla, Ramla, Umla and Goda, whose names did not find place in Ex. P. 1, The contention of learned counsel for the appellants is that Mst. Savari falsely implicated 4 accused persons Hemla, Pemla, Umla and Goda and because of that the court should have rejected her testimony as against the appellants also. The well known maxim 'falsua in uno falsue in omnibus' is not applicable to India. This maxim has not received general acceptance in this country, nor has it come to occupy the status of a rule of law. It is merely a rule of caution. All that it amounts to is that in such cases the testimony may be disregarded and not that it must be disregarded. One American author has stated:
The maxim is in itself worthless; first in point of validity...and secondly, in point of utility because it merely tells the jury they may do in any event, not what they must do or must not do, and, therefore, it is a superfluous form of words. It is also in practice pernicious....
(Eigmore on Evidence Vol. 3 Para 1001).
The Doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances. Bose J. in Pandurang v. State of Hyderabad : 1955CriLJ572 made the following observation in headnote (b):
Held on facts that the fact that the first information report did not mention the name of any person as assaillant, though it was alleged that the names were known, was not of any consequence specially when their names were disclosed at the time of the inquest; that their absence did not indicate that the whole story was subsequently concocted and that the way in which the report was made and taken down indicated a rustic simplicity rather than clear and well planned deceit.
After discussing the evidence of the witnesses and the discrepancy pointed out by learned Counsel for the accused, the trial court held:
Her statement should not be doubtful for the remaining 5 accused. This only may mean that her statement could be scrutinised a bit strictly.
It was because of the above contention that we went through the entire evidence on the record bearing in mind the discrepancies in the statement of the witness and improbability of the case and we are satisfied that the trial court was justified in coming to the conclusion that the evidence of Mst. Sayari, in so far as the accused Nathu, Bhagirath and Narayan are concerned, can be relied upon. Her evidence can also be trusted in so far as the accused Nanura is concerned for his having inflicted an injury on the head of the witness Mst. Sayari.
12. The testimony of Mst. Sayari gets corroboration from Mst.Sonki, P. W. 10 and Roopla, P.W. 11. Mst. Sonki is the wife of the deceased Ramdeen, The place of the occurrence is near her residence. The time of the occurence is about 8 p. m. Mst. Sonki, therefore, was executed to be at her residence during the relavant time. It was but natural that she would come out of her house on hearing commotion. She relates the whole of the prosecution story. She, on doubt, entangles all the 9 accused parsons, but as there is a conflict between her statement and that of Mst. Sayari as mentioned above, an inference which is favourable to the accused, must be drawn and the trial court was right in not implicating all the accused. In her cross-examination she was confronted with her police statement Ex. D. 4, portion marked C to D, wherein she had stated:
Sayares was raising cries standing near by and Naruna hit her on the head with an axe.
She disowned that statement. But this contradiction is not very triatrial. Whether Sayari first fell upon her father or whether she first raised a cry will not detract from the value of her testimony. Her name does not appear in the first information report. It is no doubt true that if some witnesses are mentioned in the first information report and the names of some of them are not given therein and they are brought forward later on, a suspicious circumstance against the prosecution is created, specially when the informant was aware of the presence of these witnesses and also knew of their names. But when the names of the witnesses are not at all given in the first information report and the witnesses produced by the prosecution are independent and reliable, there is no reason to reject their testimony on the sole ground that their names are not found in the first information report. In the circumstances of the case we would not hesitate to make use of the testimony of Mst. Sonki, P.W. 10- for the purpose of corroborating the statement of Mst. Sayari.
13. Roopla, P.W. 11, is another natural witness of the occurrence. He being the son of Ramdeen was expected to be present at his house during the relevant time. It was further expected that he would come out his house at the turmoil. He also narrates the whole prosecution story. His evidence too can be taken advantage of for corroborating the testimony of of Mst. Sayari. An extra comment has been offered in regard to the statement of Roopla, P.W. 11, by counsel for the appellants and it is that had this witness been present on the spot, he would have himself gone to the police station, Peelwa and would not have sent him sister Sayari there at the odd hours of the night. This position has been made easier to under stand by Roopla in his statement. He says:
I sent Sayaree to the police and I went to call my cousins-sons of my Bhuva.
The witness was about 18 years of age at the time of the occurrence and when some untoward incident happened, it was natural for him to call near relations at his house. In this context it cannot be said that his sending Mst. Sayari to the police Station and his departure for the place where his cousins lived were improbable, or unnatural.
14. We are conscious of the fact that the view of the trial court regarding the credibility of the evidence is entitled to' the great weight and should not be lightly discarded but that does not mean that even in proper cases the appellate court cannot interfere with such appreciation, In the present case the reasonings on which the trial court rejected the evidence of P.W. 10 and 11 does not appear to us to be sound. In fact no serious effort was made by the trial court to assess the credibility of the evidence of the above-named 2 witnesses. We have fully and carefully examined the statements of the above named 2 witnesses and on a detailed consideration of their evidence we reach the conclusion that the assessement of the evidence made by the trial court is not correct.
15. We may also incidentally refer to the statament of P.W. 9 Hardeo. 'Siri,' of the deceased Ramdeen. Hardeo cultivated land at 'Ram Sagar' well jointly with Ramdeen. He also narrates the prosecution story. In the cross-examination he admits that his statament was recorded by the police on the 3rd or the 4th day of the occurrence. He stated before the police that when he returned from the village Roshi, it was dark. He disowned this statement. In his statement recorded under Section 164, Cr. P.C. He had said:
Nanura hit Sayari on the head with an axe and she fell down.
This statement was also disowned by him. He stated before the Police and the Magistrate who recorded his statement under Section 164, Cr. P.C, that Pemla bit Sayari on the arm. He denied to have made such a statement. He has not given any reasonable explanation as to why he did not go to the police and sent Mst. Sayari there during the odd hours of the night. This reflects unnatural conduct on his part. In these circumstances, we, like, the trial court, do not purpose to place any reliance upon his testimony, Nevertheless the statement of Mst. Sayari gets material corroboration, as has been stated above, from the testimony of Mst. Sonki, P. W. 10 and Roopla P.W. 11.
16. Now the question is whether all the 5 accused persons, who have been convicted by the trial court are involved in the case and if so, to what extent? Mst. Sayari in the first information report implicated Nathu, Bhagirat, Sewa and Narain in the murder of her father. She put responsibility on Nanura for inflicting an axe injury on her own head. In her statement recorded by the committing court, Nathu, Bhagirath, Narain and Nanura were implicated in the murder of her fater. She further involved Nanura in inflicting an axe injury on her head. Sewa has not been specifically named in her statement as having struck an axe blow on the head of her father. Sewa, therefore, is entitled to benefit of doubt. Likewise, Nanura has been declared by Mst. Sayari to be one of the assailants of her father. But he has not been so declared by her in the first information report. The benefit of this discrepany can also be given to the accused Nanura and it would be safer to convict him only for the minor offence under Section 324, I.P.C. In our opinion, taking into consideration all the facts and the circumstances of the case, the accused Nathu, Bhagirath and Narain are guilty under Section 302. read with Section 34, I.P.C, and Nanura is guilty under Section 324, Penal Code for having caused an axe injury on the head of Mst. Sayari.
17. We may incidentally state here that the accused persons have been charged under Sections 148 and 302, I.P.C, substantively or in the alternative Under Section 302, read with Section 34, or 149, I.P.C , as also under Sections 324 & 323 with Sections 34 and 149, I.P.C, In this case as only 3 accused persons, Nathu, Narain and Bhagirath, having common intention, are to be convicted for the major offence. Section 149, I.P.C. would not come into operation. The accused have already been charged for offence under Section 302/34, I.P.C. The evidence for Mst. Sayari, corroborated by Mst. Sonki and Roopla, is consistent with the medical evidence as to the cause of death and it justified the finding of the trial court that these three persons were guilty of murder. Section 34, I.P.C., is in these terms:
When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons, is liable for that act in the same manner as if it were done by him alone.
The evidence of the eye-witnesses does not stand alone in this case. There is evidence on the record, which the trial court accepted, that the three appellants Narain, Bhagirath & Nathu had strong grounds for entertaining feelings of enmity against Ramdeen, grounds based on the dispute about the water channel. The three appellants were also armed with weapons like 'Pharsi' and axes. This is also a fact deposed to by the eye-witnesses that after the assault, the accused ran away together. These facts afford ample material upon which it can safely be held that the three appellants grappled with Ramdeen and this justifies the inference that the murder was committey in furtherance of their common intention. In this connection reliance is placed upon Mamand v. Emperor AIR 1946 PC 45.
18. There is a good deal of confusion worst confounded in the judgment of the Court below. In para 36 of the judgment the trial court has convicted 4 accused Nathu, Bhagirath, Sewa and Narain for their in individual acts under Section 302, I.P.C. Later on the trial court gave a finding:
In the circumstances it is difficult to doubt the case of the prosecution of prior concert between all the 5 accused persons to murder Ramdeen.
Then again in para 40 of the judgment, the Judge convicted the accused Nathu Narain Bhagirath and Sewa only under Section 302 I.P.C. and Nanura under Section 302 read with Section 149. I.P.C. In our opinion, the trial court ought to have convicted Nathu, Narain and Bhagirath under Section 302 read with Section 34, I.P.C., & Nanura under Section 324/34, I.P.C.
19. The next contention raised by learned Counsel for the appellants is that the accused persons were charged under Section 148 I.P.C , along with other sections of the Penal Code, and when they were not specifically convicted under Section 148, the presumption would be that the accusedby implication were acquitted of the offence under Section 302/142. I.P.C. In support of this propostion. he referred to Kishan Singh v. Emperor AIR 1928 P.C. 254 and Lakhan Mehta to v. State of Bihar ARI 1966 S.C. 1742. It was then pointed out that the State Government had not preferred an appeal against the acquittal of the accused on the charge under Section 148, I.P.C. It was, in the end, submitted that this court cannot, in the absence of a State appeal, convict the accused under Section 302/149, I.P.C. or Section 34, I.P.C.
20. The powers of the appellate court in disposing of an appeal are described in Section 423, Cr. P.C, which states:
(1) The appellate Court shall then send for the record of the case, if such record is not already in Court. After perusing such record, and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and, in case of an appeal under Section 411-A, Sub-section (2), or Section 417, the accused, if he appears, the Court, may if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may,
(a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be retried or committed for trial, as the case may be or find him guilty and pass sentence on him according to law.
(b) in an appeal from a conviction, (1) reverse the finding and sentence, and acquit or discharge the accused, or, order him to be retried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or (2) alter the finding, maintaining the sentence, or, with or without altering the finding, reduce the sentence, or (3) with or without such reduction and with or without altering the finding, alter the nature of the sentence, but subject to the provisions of Section 106, Sub-section (3) not so as to enhance the same.
(c) in an appeal from any other order, alter or reverse such order.
(d) make any amendment or any consequential or incidental order that may be just or proper.
(1-A) Where an appeal from a conviction lies to the High Court, it may erhance the sentence, notwithstanding anything inconsistent there with contained in clause (b) of Sub-section (1).
Provided that the sentence shall not be so enhanced, unless the accused has had an opportunity of showing cause against such enhancement.(2) Nothing herein contained shall authorise the Court to alter or reverse the verdit of a jury, unless it is of opinion that such verdict is arroneous owing to a misdirection by the Judge, or to a misurderstanling on the part of the jury of the law as laid down by him.
Section 423(1)(a) expressly deals with an order from acquittal. It empowers the appellate court to reverse the order of acquittal and direct that further inquiry be made or that the accused may be tried or committed for trial or it may find him guilty and pass appropriate sentence on him according to law. Section 423(1) (b) in terma deals with un appeal from conviction. It empowers the appellate court to reverse the finding of conviction and sentence and acquit or discharge the accused, or, order a retrial by a court of competent jurisdiction subordinate to the appellate court or to order the commitment of the accused for trial. There is no difficulty in holding that Section 423 (1)(b) postulates the presence of an order of sentence against the accused and it is in that context that it empowern the appellate court to reverse the finding of guilt and sentence and then to pass any one of the appropriate orders therein specified. It is thus apparent that Section 423(1)(b) is confined to cases of appeals preferred against an order of conviction and sentence and not to reverse an order of acquittal passed in favour of a party. The scheme of Section 423, Cr. P.C , clearly shows that when an appeal against conviction is brought before the appellate court by the convicted person, it is only with the order of conviction and matters incidental there to that fall to be decided by the appellate court. When an order of acquittal is passed in favour of an accused person, it can be challenged by an appeal as provided by Section 417, Cr. P.C Section 423(1)(a) Cr. P.C. expressly deals with the powers of this court in dealing with such appeals.
21. In the present case the implied order of acquittal under Section 148, I.P.C. has not. been challenged by an appeal, as contemplated by Section 417, Cr. P.C, nor has any action to be taken by this court under Section 439, Cr. P.C, and therefore, the said order of acquittal becomes final. What has been challenged is the order of conviction by the convicted persons and as such this is only the order thatfalls to be considered by this Court under Section 425(1)(b), Cr. P.C. This court, therefore, is empowered to pass an appropriate order under Section 423 (1)(b). Criminal Procedure Code.
22. In the Privy Council authority (3), referred to above, an accused was charged with the offences of unrder Section 302, I.P.C., in the court of sessions. He was, however, convicted under Section 304, and sentenced to a term of imprisonment. The accused applied to the High Court in revision. The The High Court having considered the evidence arrived at the conclusion that there has been miscarriage of justice in the court. It accepted the application and directed that the conviction should be already to one under Section 302 I.P.C., and it sentenced the accused to death. The matter went up in appeal to the Judicial Committee of the Privy Council. Sir Lancebet Sanderson observed:
That the accused must be deemed to be acquitted in the sessions court of the charge of murder, that the order of the High Court resulted in altering a finding of acquittal into one of conviction and was, therefore, without jurisdiction.
In this case the accused were charged with the offences of murder along with the offence under Section 148, I.P.C. Their acquittal under Section 148, I.P.C., does not necessarily mean that they were acquitted for the major offence. There is, therefore, no question of altering the finding of acquittal into one of conviction. The finding of conviction for the major offence is already there. In this view of the matter, the Privy Council authority is not applicable to the facts of the present case. Similarly, in Lakhan Mabto's (quoted supra) the accused L was specifically charged under Section 302, I.P.C. He was acquitted of that offence but was convicted under Section 302, read with Section 149, and was sentenced to imprisonment for life. He was also convicted under Section 326/149, I. P. C, but no separate sentence was passed against him. Appealed against his conviction, but the Government did not file any appeal against his acquittal under Section 302, I.P.C: The High Court in that appeal altered the conviction of L. from Section 302/149 to one under Section 326, I.P.C, maintaining the sentence of imprisonment for life. It was held by their Lordships of the Supreme Court that the High Court acted without jurisdiction in altering the finding of acquittal of L from the charge under Section 302, I.P.C., and convicting him under Section 326, I.P.C. In exercising the powers conferred by Section 423(1)(b), Cr. P. C, which clearly confined to appeals against conviction, the High Court could not, in the absence of appeal by the State against the acquittal, convert the order of acquittal into one of conviction. That result could be achieved only by adopting the procedure prescribed by Section 439, Cr. P.C. This authority has clearly laid down in para No. 7 that if an order of conviction is challenged by the convicted person then it is only the order of Conviction that falls to be considereded by the appellate court and not the order of acquittal. In this case the accused have been convicted under Section 302 and they have challenged this conviction. We fail to appreciate the argument of learned Counsel for the appellant as to how, in the circumstances of the case, this Court is not in a position to exercise its powers under Section 423(1)(b). Cr. P. C. Similarly because the accused have been acquitted by implication for the offence of rioting, armed with a deadly weapon, does not mean that they have also been acpuitted of the murder with which they have been charged.
23. In result, we, for the foregoing reasons, accept the appeal of the accused Sewa and acquit him of the offence under Section 302, I.P.C. He should be released forthwith, if not required in any other case. We also partially accept the appeal of the accused Nanura and acquit him of the offence under Section 302, read with Section 149, I.P.C. We, however, maintain his conviction uner Section 324, I.P.C., He has already undergone the sentence of three month's rigorous imprisonment. He shall, therefore, be released forthwith, if not required in any other case. We convict the accused Naraian, Nathu and Bhagirath of the offence under Section 302/34, I.P.C. and sentence each of them to imprisonment for life.