DHANNA ETC. versus STATE OF MADHYA PRADESH

DHANNA ETC.

STATE OF MADHYA PRADESH

JULY 7, 1996

[DR. A.S. ANAND AND KT. THOMAS, JJ.J

India11 Pe11a/ Code, 1860:

Section. 302:-Murde1~Prosecutim1 wit11ess did 11ot refer to a11y role played by one of the accused ivhcn he gave slaten1ent to the police dtoing investigation-Accused cannot be convicted for n1urder on basis of in111rove·-111ent nzade by said ivitncss at llial.

Sectio11s 34 a11d 149-0imi11a/ liabilit)~Abse11ce of charge under sec-tion 34--Cowt ca11 take recourse to Sec. 34 i11stcad of Sec. 149, even if the said Section was not specifically 111entioned h1 the charge.

Oimi11a/ Procedure code, 1973-Sectio11s 368, 378-Appea/ against acqaittal or conviction-ApjJellate Cotut has to be 111ore cautious while i11te1fering with orders against acquittals.

According to the prosecution, the deceased N while proceeding towards his house with PW-1 and PW-5 was attacked by the accused. The accused K and M were armed "ith Dhariya, 3rd accused has pistol, 4th and 5th accused, the appellants had sickles with them. PW-1 and PW-2 cried for help, on which PW·2 rushed to rescue them, but by then N had sustained nuinber of serious wounds on his head and fell down on the spot itself.

Session Court framed charge under section 302 and 148 read with Section 149 of!PC against the accused. After the trial, the Court held that the prosecution failed to prove the case of unlawful assembly, but relying on the testimony of eye-mtness (PW-6), it convicted the accused Kand M for the otTence u/s 302 IPC and sentenced each to imprisonment for life. Evidence of the other eye witnesses \Vere not find very reliable and on these evidence trial court was not inclined to convict the appellant.

High Court on re-evaluation and re-appreciation of the evidence felt that the trial court had given undue importance to certain discrepancies

and contradictions noted in the evidence and on relying on the evidence of PW-6 which was also corroborated by PW-1 and PW-2, held that the appellant was also guilty for murder. Hence, this appeal by the appellant. The accused Kand M also filed an appeal against their conviction.

The appellant contended that the High Court made basic error in seeking the aid of section 34 !PC for confirming the conviction of the appellant when the charge framed against them did not mention Sec. 34 !PC. It was further contended that in an appeal against acquittal there must be compelling reason to disturb the fact-finding made by the trial court and that unless the view of the trial court is perverse or at least unreasonable no interference would normally be made.

Dis1iosing of the appeals, this Court

HELD : 1. Though there was no unlawful assembly, but if the court enters upon finding that any of the remaining persons who participated in the ci-ime had shared common intention with the main perpetrators of the crime, the court is not helpless in seeking the aid of Section 34 IPC to enter conviction against such persons arraigned as the accused. This is despite the difference between the scope of Section 34 and Section 149. Yet they have some resemblance between each other and are to son:ie extent overlapping. So, it is open to the court to take recourse to Section 34 IPC even if the said section was not specifically mentioned in the charge and instead Section 149 IPC has been included. [32-E-G; 33-D]

Willie (William) Slaney v. State of M.P., AIR (1956) SC 116= [1955] 2SCR1140;Amar Singh v. State of Hwyana, [1974] 3 SCC 81 = [1973] SCC (Cri) 789= AIR (1973) SC 2221 and Blwor Singh v. State of Punjab, [1974] 4 SCC 754= [1974] SCC (Cri) 664=AIR (1974) SC 1256, relied on.

Barendra Kumar Ghosh v. King Emperor, AIR (1925) PC 1 = 29 CWN 181 = 52 IA 40 and Nana_k Chand v. State of Punjab, [1955] 1 SCR 120 = AlR (1955) SC 274, referred to.

2.1. 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 ac11uittal the appellate court has to bear in mind : (1) That there is general presumption in favour of the innocence of the person accused in criminal

cases and that presumption is only strengthened by the acquittal. (2) 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 appellate court also. Thus, the appellate court in appeals against acquit-tals 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 be interfered with or disturbed.

Dwgacharan Naik v. State of Orissa, AIR (1966) SC 1775 = (1966) Cri1. 1J 1491; Caetano Piedade Femandes v. Union Tenit01y of Goa, Daman & Diu, [19771 1 sec 707 = [19771 sec (Cri) 154 =AIR (1977) sc 135; Tota Singh v. State of Punjab, [1987] 2 SCC.529: [1987] SCC (Cri) 381=AIR (1987) SC 1083; Awadhesh v. State of M.P., [1988] 2 SCC 557 = [1988] SCC (Cri) 361 =AIR (1988) SC 1158 and As/wk Kumar v. State of Rajasthan,, [1991] 1SCC166= (1991) SSC (Cri) 126=AIR (1990) SC 2134, referred to. [34-C-E]

2.2. Trial Court which relied on the evidence of PW-6, pointed out that. he did not refer anything about the appellant in his statement during police investigation and hence, conviction for the offence of murder cannot be passed against the appellant on the strength of improvement made at the trial. The sound reasoning of the trial court should not have been sidelined by the High Court without providing sufficient and convincing reasons. As such the order of acquittal passed by the trial court in favour of the appellant should have been maintained. So far as the appeal of accused K and Mis concerned, there is no merit in it. [34-G-H; 35-A-B]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 170A of 1984 Etc.

From the Judgment and Order dated 3.2.84 of the Madhya Pradesh High Court in Crl.A. No. 377 of 1981.

V .K. Jain and M.S. Ganesh for the Appellants.

Uma Nath Singh for the Respondent.

The Judgment of the Court was delivered by

THOMAS, J. 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, con-

victed the first two among them (Kannaiyalal - first accused and Maniram - second accused) of the offence under Section 302 !PC, 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 acquit -tal of 5th accused (Dhanna) and convicted him also of the offence under Section 302 !PC. 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 destination was Nanji's house at Jetpura. As they reached near Government Degree Col-lege, all the five accused emerged from the roadside and made blitz on Nanji. Kanniyalal and Maniram were armed with Dhariya, 3rd accused had 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 number of serious wounds on his head and he fell down dead at the spot itself.

Sessions court framed 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 Kannaiyalal (first accused) and Maniram (second accused) have inflicted cut injuries on the deceased with Dhariyas and convicted them under Section 302 !PC 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) quite 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 Nanuram (PW-6). Evidence of the other eye witnesses was found to be not very reliable.

High Court on re-evaluation of the evidences felt that the trial court ought 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 contradic-tions 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 but in regard to the sequence of events and minor and inconsequential details of the occurrence and other collateral facts which do not make thei1r testimony untrustworthy."

Thus relying on the evidence of PW-6 (Nanuram) as corroborated by PW-1 and PW-2 the High Court found Dhanna also guilty of murder and con-victed him and sentenced him as aforesaid.

Learned counsel, for the appellants contended the the High Court committed basic error in seeking the aid of Section 34 !PC for confirming the conviction of the appellants for the offence under Section 302 !PC. So long as the charge framed against them did not mention Section 34 of !PC, 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 finding that any of the remaining persons who participated in the crime had shared common intention with the main perpetrators of the crime, the court is not helpless in seeking the aid of Section 34 (!PC) to enter conviction against such persons arraigned as accused. This is despite the difference between the scope of Section 34 and Section 149. Yet they have some resemblance between each other and are to some extent overlapping (Barendra Kumar Ghosh v. Emperor, (1925)

Legal position on this aspect remained uncertain for time after this court rendered decision in Nanak Chand v. The State of Punjab, [1955] 1 SCR 120. But the doubt was cleared by 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 common object or common intention; and the charge is rolled-up one involving the direct liability and the constructive liability without specifying who are directly liable and who are sought to be made construc-B tively liable.

In such situation, the absence of 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 conviction for the substantive offence, without charge, can be set aside. prejudice will have to be made out. In most of the ca,es 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.11

It is, therefore, open to the court to take recourse to Section 34 of !PC even if the said section was not specifically mentioned in the charge and instead Section 149 !PC has been included. Of course finding that the assailant concerned had common intention with the other accused is necessary for resorting to such course. This view was followed by this court in later decisions also. Amar Si11gh v. State of Haryana, AIR (1973) SC 2221, Bhoor Si11gh and Anr. v. State of 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 participant in the crime. In this context it is to be remembered that learned sessions judge was disinclined to convict Dhanna because PW-6 Nanuram 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 about 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 appellate 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 com-pelling reasons to disturb 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 followed 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 general presumption in favour of the innocence of the person accused in criminal cases and 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 a~ainst 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 be interfered with or disturbed. (Durgacharan Naik and Or.1·. v. State of Olissa, AIR (1966) SC 1775, Caetano Piedade emandes & 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 Am: v. State of M.P., AIR (1988) SC 1158, As/wk Kumar v. State of Rajasthan, AIR (1990) SC 2134 .

. Trial court which relied on the evidence ofNanuram (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 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 convicting reasons. None has been given. We have scrutinised 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 Kan-haiyalal 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 of acquittal passed by the Sessions Court in his favour.

Appeal dismissed.