iminal Appeal No413 of 1982
From the JUdgment and Order dated 1211982 of the Madhya Pradesh High Court in Criminal Appeal No 7 of 1979
UR Lalit Prithvi Raj SS Khanduja JP Dubey YP Dhingra BK Satija Uma Nath Singh section Karnail and SK Gambhir for the appearing parties
The Judgment of the Court was delivered by AHMADI J
This appeal by special leave is preferred by the appellant Khujji  Surender Tiwari who has been convicted by both the courts below under section 302 IPC for the murder of one Gulab
The facts leading to this appeal briefly stated are that on the evening of May 201978 the deceased Gulab and his companion PW4 Ramesh Chander hired a Rickshaw to go to the dispensary of Dr Mukherjee
PW 3 Kishan Lal pulled the Rickshaw and while he was passing 8 through Suji Mohalla near Panchsheel Talkies the appellant and his companions surrounded the Rickshaw and launched an attack on the deceased and his companion
PW 4 was the first to receive an injury by a cycle chain
Sensing trouble both Gulab and PW 4 jumped out of the Rickshaw and ran in differ ent directions
Gulab ran towards Suji Mohalla whereas PW 4 ran towards Panchsheel Talkies
They were chased by the assailants who formed themselves into two groups
PW 4 was fortunate enough to escape with not too serious an injury but his companion Gulab received stab wounds to which he succumbed on the spot
The evidence of PW 12 Dr Nagpal shows that the deceased had received three injuries namely i a penetrating stab wound with a second injury on the intercostal space on right side rib of the size of 3 cms x 5cms x Icm ii a piercing stab wound 8cms below the scapu lar bone and 8cms outside the vertibral column of the size of 25cms x 15cms x 3cms and iii an incised wound on the frontal auxiliary line 25cms x 1Scms x 2cms deep on the left hipocardium region
This witness who performed the post mortem deposed that injury No1 which had injured the heart was sufficient in the ordinary course of nature to cause death
He further stated that all the three injuries were collectively sufficient to cause death in ordinary course of nature
The three articles namely the knife the Chhuri and the Chhura which were attached in the course of investigation were shown to this witness and he stated that the three injuries were possible by the aforesaid articles
It is clear from this evidence that Gulab died a homicidal death
To bring home the guilt against the appellant the prose cution placed reliance on the evidence of three eye witness es namely PW 1 Komal Chand an on looker PW 3 Kishan Lal the Rickshaw Puller and PW 4 Ramesh the companion of the deceased besides the find of human blood on the weapon discovered at the instance of the appellant and on the lant which he was wearing at the time of his arrest
The First Information Report ExhP 3 was lodged by PW 4 Ramesh immediately after the incident and the same was recorded by the Investigating Officer PW 13 Ramji Singh at about 915 pm
In the said first information report PW 4 gave the details regarding the incident and furnished the names of all the six assailants
Soon after the first infor mation report was lodged the Investigating Officer visited the scene of occurrence and drew up the Panchnama on the basis of which a sketch plan ExhP 20A was prepared in due course
The appellant and some of his companions could not be traced till May 22 1978
After they were traced they were interrogated and on their expressing 9 willingness to discover the weapons used in the commission of the crime the Investigating Officer summoned two wit nesses namely PW 5 Panna Lal and Rajinder to act as Panch witnesses
The prosecution case is that in the presence of these witnesses the appellant and his companions made cer tain confessional statements under section 27 of Evidence Act which led to the discovery of the weapons used in the commission of the crime
According to the prosecution the appellant Khujji discovered a Chhura knife from his garage and the same was attached under the Panchnama Exh
Since this weapon had bloodlike stains it was sent to the Chemical Analyser and Serologist for examination and report
The report indicates that it was stained with human blood but the blood group could not be determined
The other two companions of the appellant namely Parsu and Guddu also discovered a knife ExhP 7 and a Chhura ExhP 13 which were attached under Panchnamas Exh P 6 and P 12 respec tively
As stated earlier the shirt and pant of Khujji were also attached as blood like stains were noticed thereon
Both these articles were sent to the Chemical Analyser and Serologist
So far as the shirt is concerned since the blood stains were disintegrated it was not possible to determine the origin thereof
But so far as the pant is concerned the report states that the stains were of human blood but the blood group could not be determined as the result of the test was inconclusive
On the basis of the first information report the statements of three witnesses recorded in the course of investigation as well as the evidence regarding discovery and the find of human blood on the incriminating articles the appellant and five others were charge sheeted for the murder of Gulab
The trial court acquitted all except the appellant
Before the trial court PW 4 Ramesh who had lodged the first information report tried to disown it
He was declared hostile as he expressed his inability to identify the accused persons as the assail ants of the deceased Gulab
PW 3 the Rickshaw Puller while narrating the incident expressed a similar inability and he too was treated as hostile and cross examined by the Public Prosecutor
The third eye witness PW 1 Komal chand however supported the prosecution case in his examination in chief but in his cross examination he expressed some doubt regard ing the identity of the appellant and Guddu stating that he had seen their backs only
The trial court came to the conclusion that not only was this witness a chance witness but his presence at the scene of occurrence was extremely doubtful as it was difficult to believe that he had come out at that hour to purchase vegetables
Thus the trial court refused to place reliance on the evidence of the three eye witnesses
The trial court however came to the conclusion that the appellant was absconding and that he had discovered the weapon 10 which was found to be stained with human blood
It also relied on the factum of find of human blood on the pant worn by the appellant at the time of his arrest
On the basis of this evidence the trial court convicted the appellant under section 302 IPC and sentenced him to life imprisonment
Khujji preferred an appeal against the said conviction
The High Court while ignoring the evidence of PW 3 Kishan Lal and PW 4 Ramesh relied on the evidence of PW 1 Komal Chand and came to the conclusion that his evidence clearly estab lished the presence of the appellant as one of the assail ants notwithstanding his effort in cross examination to wriggle out of his statement in examination inchief in regard to the identity of the appellant
The High Court noticed that the examination in chief of this witness was recorded on November 16 1976 whereas his cross examination commenced on December 15 1976 ie after a month and in between he seemed to have been won over or had succumbed to threat
This inference was drawn on the basis of PW 3 s statement that he was severely beaten on the night previous to his appearance in court as a witness
The High Court therefore took the view that the subsequent attempt of PW 1 Komal Chand to create a doubt regarding the identity of the appellant was of no consequence since there was intrinsic material in his evidence to establish the presence of the appellant amongst the assailants of deceased Gulab
Relying further on the discovery evidence as well as the find of human blood on the weapon found from the garage of the appellant and on his pant which he was wearing at the time of his arrest the High Court came to the conclusion that his conviction was well founded and dismissed his appeal
It may here be mentioned that the State did not prefer an appeal against the five companions of the appellant who came to be acquitted by the trial court
It is in these circum stances that the appellant has invoked this Court s jurisdiction under Article 136 of the Constitution
Mr UR Lalit learned counsel for the appellant took us through the entire evidence and submitted that the prose cution version regarding the incident particularly the involvement of the appellant is highly doubtful since the correctness of the statement made in the first information report purporting to have been lodged by PW 4 Ramesh is itself doubtful because Ramesh himself has dis owned it
Since the prosecution had declared both PW 3 Kishan Lal and PW 4 Ramesh as hostile to the prosecution the trial court was justified in refusing to rely on their evidence
He further submitted that the presence of PW 1 Komal Chand at the place of occurrence at that hour was highly doubtful and this doubt was reinforced by his conduct in not raising a hue and cry or going to the help of the victim
The evidence 11 disclosed that this witness resides at a place almost two furlongs from the scene of occurrence and claims to have seen the incident from a distance of about 22 feet from a point wherefrom the incident could not have been witnessed by him as is evident from the physical condition of the locality described in this sketch ExhP 20A
He therefore submitted that the trial court was justified in describing this witness as a chance witness and in doubting his presence at the scene of occurrence at the relevant point of time
According to him the High Court committed an error in placing reliance on the testimony of this witness
He however submitted that the trial court was not justi fied in recording the conviction on the mere fact that the appellant could not be found for two days and there was human blood on his weapon and pant attached in the course of investigation
These two circumstances contended counsel constituted extremely thin and weak evidence to record a finding of guilt particularly when the trial Court had discarded the evidence of all the three eye witnesses and had doubted the contents of the first information report Exh
Lastly he submitted that the High Court committed an error in brushing aside the statement made by PW 1 Komal Chand in his cross examination which went to show that his evidence regarding identity of the appellant was highly suspect
Merely because there was a time gap between his examination in chief and his cross examination the High Court was not justified in jumping to the conclusion that the accused party had succeeded in winning him over by threat or otherwise
On this line of reasoning Mr Lalit contended that the High Court ought not to have interfered with the appreciation of his evidence by the trial court
Besides these submissions based on the evidence of the three eyewitnesses and the find of human blood on the weapon and pant of the appellant Mr Lalit further submitted that one set of Panch witnesses PW 5 Pannalal and Rajinder not examined had been employed for all the discovery panchna mas as well as the attachment of clothes of the appellant and others which went to show that PW 5 was a stock witness for the prosecution
He therefore submitted that no reli ance could be placed on the evidence of PW 5 and consequent ly the find of human blood on the weapon and the pant looses its probative value
In the end he submitted that the con viction of the appellant substantively under section 302 IPC was not well founded for the simple reason that not a single witness had deposed that the fatal injury was caused by the appellant
The evidence of PW 12 Dr Nagpal shows that the deceased had three injuries and out of them only injury No 1 was by itself sufficient in the ordinary course of nature to cause death
So far as injuries Nos 2 and 3 are concerned the medical evidnce does not show that each one of them separately was sufficient in the ordinary 12 course of nature to cause death
But the medical evidence is to the effect that all the three injuries taken collectively Were SuffiCient in the ordinary course of nature to cause death
In the absence of positive evidence that injury No 1 was caused by the appellant and none else his conviction substantively under section 302 cannot be sustained
In that case at best he can be convicted for hurt under Section 324 IPC further submitted that since his companions were acquitted and the State had not preferred any appeal against their acquittal he could not be convicted with the aid of sections 34 or 149 IPC
Mr Prithvi Singh the learned counsel for the State submitted that the trial court was wrong in rejecting the evidence of PWs 3 and 4 merely because they were declared hostile as if their evidence was totally against the prose cution on that account
He submitted that their evidence cannot be treated as effaced from the record merely because the prosecution chose to treat them as hostile on the limit ed question of identity of the assailants
Their evidence as to the occurrence and number of persons involved in the commis sion of the crime can be relied upon along with that of PW 1 as he was neither a chance witness nor was he faking his presence at the scene of occurrence at the material time
His evidence regarding identity of the assailants is equally acceptable and his subsequent statement made in crossexami nation after a time gap of almost one month was rightly brushed aside by the High Court whatever be the reason for his change of heart
With regard to the criticism regarding the absence of names of witnesses in the Inquest Report counsel urged that it was not necessary in law to mention the names of the witnesses in the inquest report as the purpose of preparing the inquest report was merely to make a note of the physical condition of the body and the marks of injury there of noticed at that point of time
On the ques tion of value to be attached to the evidence of the Panch witness PW 5 counsel submitted that nothing was alleged against this witness nor had the appellant given any expla nation regarding existence of human blood on the weapon and the pant attached from him in his statement recorded under section 313 of the Code
On the question regarding the offence committed by the appellant counsel submitted that once it is proved that more than one person had participated in the assault the appellant could be convicted for the murder of the deceased with the aid of section 34 or 149 IPC
He therefore submitted that the appeal is without merit and deserves to be dismissed
We have given our anxious consideration to the submis sions made by the learned counsel for the contesting parties
The fact that 13 an incident of the type alleged by the prosecution occurred on May 20 1978 at about 820 pm is not seriously disputed nor is the location of the incident doubted
The evidence of PW 3 Kishan Lal and PW 4 Ramesh came to be rejected by the trial court because they were declared hostile to the prose cution by the learned Public Prosecutor as they refused to identify the appellant and his companions in the dock as the assailants of the deceased
But counsel for the State is right when he submits that the evidence of a witness de clared hostile is not wholly effaced from the record and that part of evidence which is otherwise acceptable can be acted upon
It seems to be well settled by the decisions of this Court Bhagwan Singh vs State of Haryana   Rabinder Kumar Dey vs State of Orissa  and Syed lqbal vs State of Karnataka 1980 1 SCR 95 that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and crossexamined him
The evidence of such witness es cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof
In the present case the evidence of the aforesaid two eye witnesses was challenged by the prosecution in cross examination because they refused to name the accused in the dock as the assailants of the deceased
We are in agreement with the submission of the learned counsel for the State that the trial court made no effort to scrutinise the evidence of these two witnesses even in regard to the factum of the incident
On a careful consideration of their evi dence it becomes crystal clear that PW 4 had accompanied the deceased in PW 3 s rickshaw to the place of incident
In the incident that occurred at the location pointed out by the prosecution PW 4 sustained an injury
His presence in the company of the deceased at the place of occurrence there fore cannot be doubted
Immediately after the incident within less than an hour thereof PW 4 went to the police station and lodged the first information report
It is true that the first information report is not substantive evi dence but the fact remains that immediately after the inci dent and before there was any extraneous intervention PW 4 went to the police station and narrated the incident
The first information report is a detailed document and it is not possible to believe that the investigating officer imagined those details and prepared the document Exh
The detailed narration about the incident in the first information report goes to show that the subsequent attempt of PW 4 to dis own the document while admitting his signa ture thereon is a shift for reasons best known to PW 4
We are therefore not prepared to accept the criticism that the version regarding the incident is the result of some fertile thinking on the part 14 Of the investigating officer
We are satisfied beyond any manner of doubt that PW 4 had gone to the police station and had lodged the first information report
To the extent he has been contradicted with the facts stated in the first information report shows that he has tried to resile from his earlier version regarding the incident
So also the presence of PW 3 at the scene of occurrence cannot be doubt ed once the presence of PW 4 is accepted
The trial court did not go so far as to say that both these witnesses were not present at the scene of occurrence or that PW 4 was not injured in the incident but refused to look into their evidence treating their evidence as non est on their  being declared hostile by the prosecution
We think that the ap proach of the trial court insofar as the evidence of these two witnesses is concerned is legally unacceptable
The High Court has not endeavoured to assess their evidence since it thought that the conviction of the appellant could be sustained on the evidence of PW 1 Komal Chand
We are satisfied on a close scrutiny of the evidence of the afore said two eyewitnesses PWs 3 and 4 that the deceased and PW 4 came to the place of occurrence in the rickshaw pulled by PW 3
On reaching the spot where the incident occurred they were surrounded by certain persons who were lying in wait and a murderous assault was launched on them
The first to receive the injury was PW 4
When they gauged the intention of their assailants they jumped out of the rickshaw and both ran in different directions
The appellant first tried to chase PW 4 but later he turned to the deceased as he was informed by one of his companions Gopal that the person he was pursuing was not Gulab
Therefore from the evidence of these two eye witnesses the fact that the deceased and PW 4 came to the place of occurrence in the rickshaw of PW 3 is established
So also the fact that on their reaching the place of occUrrence they were surrounded by some persons and an assault was launched on them in which PW 4 received an injury and Gulab died is clearly established
The only area where they have not supported the prosecution and have resiled from their earlier statements is regarding the identity of the assailants
We will deal with that part of the evidence a little later but the fact remains that the deceased had received three injuries as narrated by PW 12 Dr Nagpal to which he succumbed on the spot
Once these facts are accepted as proved the only question which really survives for consideration is whether the appellant was an assailant of the deceased
That brings us to the evidence of PW 1 Komal Chand
Komal Chand s evidence was not accepted by the trial court on the ground that he was not a natural witness and was only a chance witness
PW 1 explained his presence by stating that he had gone to the market to 15 purchase vegetables and while he was returning therefrom on foot with his cycle in hand he heard a commotion and saw the incident from a short distance
Being a resident of Suji Mohalla the place of occurrence was clearly in the vicinity thereof and therefore his presence at the market place could not be considered to be unnatural
It is not unnatural for working people to purchase vegetables at that hour and therefore his explanation regarding his presence cannot be ruled out as false
The sketch map prepared by PW 11 Gaiser Prasad shows that he had seen the incident from a short distance of hardly 22 feet although PW 1 says he saw it from the square
Since the incident occurred at a public place with a lamp post nearby the possibility of his having identified the assailants could not be ruled out
The exami nation i nchief of this witness was recorded on November 16 1976 when he identified all the assailants by name
He stated that he knew the six accused persons in court and they were the persons who had surrounded the rickshaw and launched an assault on PW 4 and the deceased Gulab
Of them Gopal struck PW 4 with a chain
He also stated that the appellant Khujji and his companions Gudda and Parsu were armed with knives and when Khujji tried to assault PW 4 with a knife Gopal shouted Khujji that man is not Gulab
There upon Khujji and his companions ran after the Gulab overtook him and the appellant Parsu and Gudda assaulted Gulab with their weapons
Gudda struck Gulab from the front on his chest Parsu stabbed him on the side of the stomach while Ram Kishan and Gopal held him and the appellant attacked him from behind with a knife whereupon Gulab staggered shouting save save  and fell in front of the house of Advocate Chintaman Sahu
Thereafter all the six persons ran away
His cross examination commenced on 15th December 1978
In his crossexamination he stated that the appellant Khujji and Gudda had their backs towards him and hence he could not see their faces while he could identify the remaining four persons
He stated that he had inferred that the other two persons were the appellant and Gudda
On the basis of this statement MrLalit submitted that the evidence regarding the identity of the appellant is rendered highly doubtful and it would be hazardous to convict the appellant solely on the basis of identification by such a wavering witness
The High Court came to the conclusion and in our opinion rightly that during the one month period that elapsed since the recording of his examination in chief something transpired which made him shift his evidence on the question of identi ty to help the appellant
We are satisfied on a reading of his entire evidence that his statement in cross examination on the question of identity of the appellant and his compan ion is a clear attempt to wriggle out of what he had stated earlier in his examination in chief
16 Since the incident occurred at a public place it is reason able to infer that the street lights illuminated the place sufficiently to enable this witness to identify the assailants
We have therefore no hesitation in concluding that he had ample opportunity to identify the assailants of Gulab his presence at the scene of occurrence is not unnat ural nor his statement that he had come to purchase vegata bles unacceptableWe do not find any material contradictions in his evidence to doubt his testimony
He is a totally independent witness who had no cause to give false evidence against the appellant and his companions
We are therefore not impressed by the reasons which weighed that the trial court for rejecting his evidence
We agree with the High Court that his evidence is acceptable regarding the time place and manner of the incident as well as the identity of the assailants
It was faintly submitted by counsel for the appellant that the evidence of eye witnesses could not be relied upon as their names did not figure in the inquest report prepared at the earliest point of time
We see no force in this submission in view of the clear pronouncement of this Court in Pedda Narain vs State of Andhra Pradesh 1975 SuppSCR 84
Referring to section 174 of the Code of Criminal Proce dure this Court observed at page 89 as under A perusal of this provision would clearly show that the object of the proceedings under section 174 is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so what is the apparent cause of the death
The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted appears to us to be foreign to the ambit and scope of the proceedings under section 174
In these circumstances therefore neither in practice nor in law was it necessary for the police to have mentioned these details in the inquest report
We respectfully agree and see no merit in this submission made by the counsel for the appellant
After the appellant and his two companions Parsu and Gudda were arrested they were interrogated by the investi gating officer PW 13 Ramji Singh
In the course of interro gation they showed their willingness to point out the weapons of assault
thereupon the investigating officer called two Panchas one of them being PW 5 Panna Lal
The very same Panch witnesses were panchas to all the three discovery panchnamas as well as panchnamas regard ing the attachment of the clothes worn by the appellant and his companions
It was therefore contended by the counsel for the appellant that PW 5 Panna Lal was a stock witnes whom the police had employed to act as a panch witness
Pointing out that it was Tulsi Ram the brother of the de ceased who had chosen him because he was closely associated with the family of the deceased and was intimated with Babulal another brother of the deceased Mr Lalit submitted that no reliance can be placed on the evidence of such an highly interested and specially chosen witness
The witness comes from the same locality and his house is situate within 100 yards of the residence of the deceased
He knows the family of the deceased quite well being a neighbour and of the same biradari 
It is equally true that he had gone to the hospital on learning about the assault on Gulab and had stayed back with Babulal since the latter was not feeling well
But would it be proper to throw out his evidence on account of his neighbourly relations with the family of the deceased when nothing has been brought out in crossexamina tion to shake the intrinsic value to be attached to his evidence Even in the cross examination of the investigating officer nothing has been brought out to infer that the choice of PW 5 as a Panch witness was a deliberate one made with a view to enlisting his support to the prosecution case
The mere fact that he was a witness to all the Panch namas prepared by the investigating officer is by itself not sufficient to discard his evidence
Even in the case of an interested witness it is settled law that his evidence cannot be overlooked merely on that ground but at the most it must receive strict scrutiny
In the case of PW 5 except being a good neighbour nothing more is shown
On the question of recovery of the weapon as well as the blood stained pant of the appellant there is hardly any effective crose examination
Nor has the appellant offered any explanation in his statement recorded under section 3 13 of the Code
In these circumstances we are not prepared to reject his evi dence on the specious plea of his being an interested witness
In Himachal Pradesh Administration vs Om Prakash   this Court observed at page 777 that it could not be laid down as a matter of law and practice that where recoveries have been effected from different places on the information furnished by the accused different sets of persons should be called in to witness them
There was no injunction in law against the same set of witnesses being present at the successive enquiries if nothing could be urged against them
It is therefore clear from the deci sion of this Court that merely because the same set of Panch witnesses were used for witnessing all the three discoveries as well as the attachment of the 18 clothes of the appellant and his companions PW5 s evidence could not be discarded since nothing had surfaced in cross examination to shake his evidence
We are therefore satis fied that the evidence of PW5 Pannalal was rightly accepted by both the courts below
We make limited use of this evi dence in the sense that we do not use any part of the evi dence admissible under section 27 Evidence Act against the appellant
We merely use the factum of find of the incrimi nating weapon from his garage and his inability to explain the presence of human blood thereon as a circumstance against the appellant
The evidence of PW5 further shows that when the appellant was arrested his garments namely shirt and pant were attached as blood like stains were noticed thereon
These articles were sent to the Chemical Analyser and Serologist for examination and report
As stated earlier these reports reveal that the blood stains on the pant worn by the appellant were of human origin
The appellant has not offered any plausible explanation for the existence of human blood on his pant
This too is a circum stance against the appellant particularly because no injury was noticed on the person of the appellant
Mr Lalit however argued that since the report of the serologist does not determine the blood group of the stains on the weapon  and the pant of the appellant the mere find of human blood on these two articles is of no consequence whatsoever
In support of this contention he placed strong reliance on the decisions of this Court in Kansa Behera vs State of Orissa  and Surinder Singh vs State of Punjab 1989 Suppl 2 SCC 21
In the first men tioned case the conviction was sought to be sustained on three circumstances namely i the appellant and the deceased were last seen together ii a dhoti and a shirt recovered from the possession of the appellant were found to be stained with human blood and iii the appellant had made an extra judicial confession to two witnesses when arrested
There was no dispute in regard to the first cir cumstance and the third circumstance was held not satisfac torily proved
In this backdrop the question for considera tion was whether the first and the second circumstances were sufficient to convict the appellant
This Court therefore observed that a few small bloodstains could be of the appel lant himself and in the absence of evidence regarding blood group it cannot conclusively connect the bloodstanis with the blood of the deceased
In these circumstances this Court refused to draw any inference of guilt on the basis of the said circumstance since it was not conclusive  evidence
This Court however did not go so far as to say that such a circumstance does not even provide a link in the chain of circumstances on which the prosecution can place reliance
In the second case also this 19 Court did not consider the evidence regarding the find of human blood on the knife sufficient to convict the appellant in the absence of determination of blood group since the evidence of PW 2 was found to be uninspiring and there was no other circumstance to connect him with the crime
In this case we have the direct testimony of PW 1 Komal Chand besides the testimony of PWs 3 and 4 which we have consid ered earlier
The find of hunam blood on the weapon and the pant of the appellant lends coroboration to the testimony of PW 1 Komal Chand when he states that he had seen the appel lant inflicting a knife blow on the deceased
The appellant has not explained the presence of human blood on these two articles
We are therefore of the opinion that the afore said two decisions turned on the peculiar facts of each case and they do not lay down a general proposition that in the absence of determination of blood group the find of human blood on the weapon or garment of the accused is of no consequence
We therefore see no substance in this conten tion urged by Mr Lalit
That brings us to the last contention whether the con viction of the appellant for the substantive offence of murder can be sustained in the absence of a finding that the fatal injury No 1 was caused by the appellant
We must at once acceptt the fact that it is not possible from the ocular evidence to record a definte of fact that the appel lant had caused that fatal injury
On the contrary the evi dence of PW 1 Komal Chand indicates that in all probability the stab wound inflicted by the appellant resulted in injury No 2
that injury by itself was not sufficient in the oridinary course of nature to cause death
If that be so can the appellant be convicted under section 302 IPC
Counsel for the appellant submits that the legal position is well settled by a chain of decisions of this Court that if named accused are acquitted except one of the them the latter cannot be convicted with the aid of section 34 or 149 IPC
In support of this contention he invited our attention to a few decisions namely Baikuntha Nath Chaud hury vs The State of Orissa  Kasturi Lal vs The State of Haryana  Chandubhai Sha nabhai Parmar vs State of Gujarat and Sukh Ram vs State of MP 1989 Suppl1 SCC 214
Counsel for the state however submitted that while it may be correct that the appellant cannot be substantively convicted under section 302 IPC he can certainly be convicted with the aid of section 34 or 149 IPC if this Court on a reap preciation of the evidence comes to the conclusion that more than one person may be six or seven of them had launched an attack on the deceased
In this connection he submitted that notwithstanding the acquittal of others by the Trial Court this Court can reach its own conclusion regarding the number of 20 persons who attacked the deceased for the obvious reason that the higher Court is not bound by the appreciation of evidence by the Trial Court or even the High Court
In support of this contention he placed strong reliance on this Court s recent decision in Brathi vs State of Punjab 199 1 1 SCC 519
Counsel for the appellant on the other hand contended that the acquittal of the co accused creates a legal bar against the conviction of the appellant on the ground that they were privy to the crime notwithstanding their acquittal and this legal bar cannot be got over by reappreciation of evidence
In support of this contention he invited our attention to a Five Judge Bench decision in Krishna Govind Patil V State of Maharashtra  and contended that the said decision was binding on us being of a larger bench and the decision in Brathi s case must be taken to be per incuriam since it had failed to notice and runs counter to the said larger bench decision
We are of the opinion for reasons which we will immediately state that the contention urged by counsel for the appel lant is not well founded
The ratio of the decision of this Court in Brathi s case may be noticed at the outset to appreciate the contention urged by counsel for the appellant
In that case the appel lant and his uncle were tried under section 30234 IPC
The Trial Court acquitted the appellant s uncle but convicted the appellant under section 302 IPC
The order of acquittal became final because the State did not choose to challenge it in appeal
The appellant however preferred an appeal against his conviction to the High Court
The High Court on a reappreciation of the evidence held that the fatal blow was given by the appellant s uncle and since the appellant was charged under section 30234 IPC he could not be convicted substantively under section 302 IPC
However for assessing the credibility of the prosecution case the High Court incidentally considered the involvement of the appel lant s uncle and held that the eye witnesses had given a truthful account of the occurrence and the appellant s uncle had actually participated in the commission of the crime along with the appellant
In other words the High Court came to the conclusion that the acquittal of the appellant s uncle was erroneous but since there was no appeal preferred by the State it could not interfere with that order of acquittal
It however came to the conclusion that the crime was committed by the appellant and his uncle in fur therance of their common intention and accordingly main tained the conviction of the appellant under section 302 IPC with the aid of section 34 IPC
Before this Court the appellant contended that on the acquittal  of his uncle the sharing of common intention disappeared and the High Court was not justified in invoking 21 section 34 for maintaining the conviction against him under section 302 IPC
This Court while dealing with this submis sion held that in the matter of appreciation of evidence the powers of the Appellate Court are as wide as that of the Trial Court and the High Court was therefore entitled in law to review the entire evidence and to arrive at its own conclusion about the facts and circumstances emerging there from
To put it differently this Court came to the conclu sion that the High Court was not bound by the appreciation of the evidence made by the Trial Court and it was free to reach its own conclusions as to the proof or otherwise of the circumstances relied upon by the prosecution on a review of the evidence of the prosecution witnesses
This Court therefore held that when several persons are alleged to have committed an offence in furtherance of their common intention and all except one are acquitted it is open to the Appellate Court under Sub section 1b of section 386 of the code to find out on a reappraisal of the evidence who were the persons involved in the commission of the crime and although it could not interfere with the order of acquittal in the absence of a State appeal it was entitled to deter mine the actual offence committed by the convicted person
Where on the reappreciation of the evidence the Appellate Court comes to the conclusion that the appellant and the acquitted accused were both involved in the commission of the crime the Appellate Court can record a conviction with the the aid of section 34 notwithstanding the acquittal of the co accused the appellate Court cannot reverse the order of acquittal in the absence of a State appeal it cannot at the same time be hedged by the appreciation of the evidence by the lower court if that appreciation of evidence is found to be erroneous
This Court therefore pointed out that in such a fact situation it is open to the Appellate Court to record a finding of guilt with the aid of section 34 not withstanding the acquittal of the co accused since the English doctrine of repugnancy on the face of record has no application in this country as we are governed by our own statutory law
On this ratio this Court confirmed the con viction of the appellant under section 302 IPC but with the aid of section 34 IPC
The fact situation before us is more or less similar
Several decisions were cited in support of the contention that where two named persons are charged for the com mission of an offence with the aid of section 34 IPC and one of them is acquitted the other cannot be convicted with the aid of section 34 IPC
Dealing with these decisions this Court observed in Brathi s case that all the decisions relied on were distinguishable on the ground that in none of them the Appellate Court was shown to have disagreed with the Trial Court s appreciation of evidence but on the con trary the Appellate 22 Court had proceeded on the footing that the appreciation of evidence by the Trial Court was correct
We think that the cases on which Mr Lalit has placed reliance can also be distinguished on the same ground
In Baikuntha Nath Chaudhury s case the evidence of two eye witnesses PWs 9 and 10 was to the effect that accused Nos 1 and 2 had killed their brother with the active par ticipation of accused No 3 their mother
According to the prosecution accused No 2 the appellant had called the deceased tohis house and while he was there accused No 1 inflicted two lathi blows which proved fatal
The dead body was then put m a gunny bag supplied by accused No 3 and drowned into a nearby tank
The three accused persons were charged under sections 30234 and 201 IPC
The Trial Court acquitted accused No 3 but found the other two guilty
On appeal the High Court acquitted accused No 1 rejecting the prosecution evidence in regard to his involvement but con firmed the conviction of accused No 2 under section 30234 IPC though the fatal injuries were inflicted by the acquit ted accused No 1
It will thus be noticed that on a reap preciation of evidence by the High Court accused No 1 came to be acquitted although he was stated to have given the fatal lathi blows while his brother the appellant was convicted on the same evidence
This Court therefore concluded that if the evidence of the two eye witnesses were to be accepted accused No 1 could not be acquitted since according to them it was he who had given the fatal blows while the appellant had merely caught hold of him
This Court therefore observed in paragraph 12 of the judgment that if the occurrence spoken to by PWs 9 and lois accepted the appellant will be constructively liable for his involve ment though the fatal injuries were inflicted by his brother
In that case his brother will also be guilty of the said offence
But since the High Court had acquitted the first accused it meant that the High Court did not accept the evidence of PWs 9 and 10 in regard to the incident
This Court did not come to the conclusion that the High Court s appreciation of evidence in regard a accused No1 was not proper
In fact it did not examine the case from that point of view but held that since the High Court had not accepted the evidence of PWs 9 and 10 in regard to the part played by the acquitted accused the appellant could not have been convicted on of the same appreciation of evidence
This becomes clear on a close reading of paragraphs 12 and 13 of the judgment
Similarly in the case of Kasturi Lal this Court came to the conclusion that the reasons given by the High Court for distinguishing the case of Kasturi Lal from that of Khazan Singh and Gurdial Singh were not correct and therefore  it was not justified in convicting Kasturi Lal
So when the case of 23 Kasturi Lal was not distinguishable from that of the above two this Court felt that the High Court erred in con victing Kasturi Lal
It will thus be seen that this Court came to the conclusion that the reasons Which weighed with the High Court for the distinction drawn were not correct and hence the conviction of Kasturi Lal had to be set aside This decision also does not help the appellant
In Chandub hai s case the prosecution relied on the testimony of PWs 1 5 and 6 Both the courts below found their testimony to be unreliable in several particulars and acquired the co accused of the appellant in two stages
This Court concluded that the appellant s case could not be distinguished from that of his two acquitted companions insofar as the reli ability of the ocular evidence of three eye witnesses was concerned
It was in the said circumstances that this Court thought that the conviction of the appellant under section 30234 IPC was not justified particularly after the evidence of the three witnesses was found to be unreliable
this also therefore is not a case where the Appellate Court disagreed with the appreciation of the evidence by the Trial Court and came to a different conclusion regarding the participation of others in the commission of the crime
In Sukh Ram s case to which one of us AhmadiJ was a party this Court interferred with the conviction of the appellant recorded with the aid of section 34 by the High Court because on the facts found proved on evidence the conviction of the appellant could not be sustained on the acquittal of the co accused on the same set of established facts
This Court on its own did not come to the conclusion that the acquittal of Gokul was not well founded as High Court s appreciation of evidence was not correct
Had it come to that conclusion it could have recorded a conviction of the appellant under section 30234 IPC notwithstanding the acquittal of Gokul
Therefore all the aforesaid cases are clearly distinguishable from the facts of Brathi s case where the High Court had clearly departed from the apprecia tion of the evidence by the Trial Court and had reached own conclusion in regard to the proof of various facts and circumstances relied on by the prosecution
We are there fore in respectful agreement with the distinction drawn by this Court on the ground that in none of the cases cited on behalf of the appellant it was shown that the Appellate Court had disagreed with the appreciation of evidence by the Trial Court and the conclusion of facts and circumstances recorded by it
Does the decision in Krishna Govind Patii supra take a different view
It is true that the attention of the Bench which disposed of Brathi s case was not invited to this decision
But in our opinion this decision does not take a view inconsistent with the ratio laid down in 24 Brathi s case
The facts reveal that Krishna Govind Patil and three others were put up for trial for the murder of one Vishwanath
They were charged under section 30234 IPC and were also separately charged under section 302 IPC
Accused Nos 1 3 and 4 pleaded an alibi while accused No 2 raised the plea of private defence
The Trial Court acquitted all the accused on the ground that the prosecution witnesses were not speaking the truth and the version of accused No 2 was a probable one
The State appealed against the order of acquittal under section 30234 but not against the acquit tal under section 302 IPC
The High Court confirmed the acquittal of accused Nos 1 3 and 4 on the ground that the evidence regarding their participation in the commission of the crime was doubtful but convicted accused No 2 on the ground that one or more of them might have participated in the commission of the offence
Accused No 2 therefore preferred an appeal to this Court and contended that when three of the four named persons were acquitted the High Court was not justified in convicting him on the basis of constructive liability
This Court held that before a Court can convict a person under section 30234 IPC it must record a definite finding that the said person had prior consultation with one or more other persons named or un named for committing the offence
When three of the accused came to be acquitted on the ground that the evidence was not acceptable or on the ground that they were entitled to benefit of doubt in law it meant that they did not partici pate in the offence
It was further held that the effect of the acquittal of the three co accused is that they did not co jointly and with the appellant commit the murder
These observations have to be read in the context of the facts stated above
The High Court on an appreciation of the evidence came to a definite conclusion that accused Nos 1 3 and 4 had not participated in the commission of the crime
On that appreciation of the evidence the High Court could not have come to the conclusion that any of those acquitted accused was privy to the crime even for the limited purpose of convicting the appellant with the aid of section 34
This again is not a case where the Appellate Court disagreed with the appreciation of evidence and reached a conclusion dif ferent from the conclusion recorded by the Trial Court in regard to the participation of the other co accused
This decision is also distinguishable on the same ground as this Court distinguished the other decisions in Brathi s case
We are therefore of the opinion that the omission to refer to this decision does not render the decision in Brathi s case per incuriam
We are therefore in respectful agreement with the law explained in Brathi s case
Coming now to the facts of this case the Trial Court acquit ted the 25 co accused but convicted the appellant under section 302 IPC
The High Court has confirmed that conviction
Mr Lalit is right when he says that the prosecution evidence does not disclose that the fatal blow which caused injury No 1 was given by the appellant
Inherent of this submission is the assumption that the fatal blow was given by someone else
That establishes the fact that more that one person partici pated in the commission of the crime
We have also on an independent appreciation of the evidence of the three eye witnesses namely PW 1 Komal Chand PW 3 Kishan Lal and PW 4 Ramesh come to the conclusion that several persons had participated in the commission of the crime
The failure on the part of the prosecution witnesses PWs 3 and 4 to identi fy the others does not alter the situation
We are on the other hand convinced from the evidence of PW 1 Komal Chand that some of the co accused particularly Gunda Parsu and Gopal had participated in the commission of the crime
It is another matter that in the absence of a State appeal the High Court could not nor can we interfere with their acquittal but as rightly pointed in Brathi s case this Court is not bound by the facts found proved on the appreci ation of evidence by the courts below and is in law enti tled to reach its own conclusion different from the one recorded by the court s below on a review of the evidence
In that view of the matter we think that the conviction of the appellant can be sustained with the aid of section 34 or 149 IPC as the case may be
In the present case we feel it safe to confirm the conviction of the appellant with the aid of section 34 IPC
We therefore cannot agree with the submission of the learned counsel for the appellant that at best the conviction can be recorded under section 324 IPC
We confirm the conviction of the appellant under section 302 IPC with the aid of section 34 and maintain the sen tence awarded to him
For the above reasons we see no merit in this appeal and dismiss the same
NPV Appeal dismissed


Summary:
One Govind Rao Harshe mortgaged some agricultural land and a house to Lakshmi Chand and Duli Chand Modi
The mortgagees filed a suit and obtained a preliminary decree and later a final decree for sale of the property for realisation of Rs 5001136 on 2631938 and applied for execution of the said decree which was stayed  because the mortgagor applied for relief under the CP and Berar Relief of Indebtedness Act 1939 to save the property from being sold at auction
Consequent upon his failure to comply with the conditions of the order passed in those proceedings the decree holders alleging default again applied for the revival of the execution proceedings and prayed for sale of the house property in dispute
The judgment debtor did not appear before the Executing Court and the said Court held that the decree holders were entitled to execute the decree for the recovery of the debt
Thereupon the judgment debtor submitted an application for setting aside the ex parte order which was dismissed and an appeal filed against the said order was also dismissed by the District Judge
In the meantime the house was put to auction and the highest bid of Rs 6905 was knocked down in favour of one Gopal Rao Mutatkar on 2081942 and the sale was confirmed vide order dt
1041943
Applications filed by the judgment debtor and his adult sons seeking to set aside sale were dismissed and the appeals failed even upto the High Court
In the meantime the appellant a registered educational institution through its Secretary moved an application for granting a sale certificate stating that the house in question was auctioned by the Court and was purchased by Gopal Rao Mutatkar a member of the appellant institution on 2081942 for Mahila Vidyalaya which sale was confirmed on 10443
The appellant prayed that the certificate be granted in its favour
A stamp requisite for the purpose was also supplied
The execution court on 2621944 ordered that the sale certificate will issue in the name of Mahila Vidyalaya Sagar through Secretary GR Wakhle and 907 accordingly the sale certificate was issued in favour of the appellant on 841944
The four sons of the mortgagor filed a suit impleading the auction purchaser GR Wakhle Secretary mortgagees and their father mortgagor as defendants praying that the execution sale was not binding on their interest
The auction purchaser and the former Secretary of the appellant institution objected to their being impleaded as parties to the suit as according to them they had ceased to be the functionaries of the appellant and the suit should have been filed against the appellant itself and not against its office bearers
Thereafter the plaintiffs impleaded the appellant as party
This suit by the sons of the mortgagor was dismissed
The appellant thereupon as auction purchaser applied for the delivery of possession which was granted
Some portion of the property was in occupation of the widowed sister Radhabai of the original mortgagor and other portions were in the possession of tenants
The Secretary of the appellant agreed to the request of the tenants that they will not be ousted as they were willing to execute rent notes
The appellant later required the premises and moved the Rent Controller for permission to serve notices on the tenants to vacate the premises
All the tenants except Radhabai and the original mortgagor who had also started living with his sister vacated the premises
The appellant then instituted a suit against them
The trial court dismissed the suit for ejectment but passed a decree for arrears of rent
The appeal filed by the appellant against that order was allowed by the District Judge
The original mortgagor s appeal failed before the High Court whereupon the appellant filed a execution application for ejectment of the occupants which is still pending as a result of stay order passed in a subsequent suit filed by Govind Rao Harshe original mortgagor against the appellant for a declaration possession and permanent injunction
This suit giving rise to the present appeal was dismissed by the Trial Court
An appeal preferred against that order by the legal representatives of the deceased plaintiff was allowed by the District Judge granting the declaration delivery of possession of the house together with a mandatory injunction directing demolition of some new constructions made by the appellant
The appellant filed a second appeal before the High Court which was dismissed by the impugned special leave
The High Court held that as Goapl Rao Mutatkar was the auction purchaser no sale certificate could be issued by the executing court in favour of the appellant his bid being in his personal capacity and not one for and on behalf of the appellant
It was also held by High Court that Gopal Rao Mutatkar could transfer his proprietary right by sale or a gift which he did not do
According to the High Court the act of the executing court was clearly without jurisdic 908 tion and the sale certificate being void and inoperative conferred no right or title upon the appellant over the suit property
Allowing the appeal this Court HELD Once an order is made under Order XXI rule 92 confirming the sale the title of the auction purchaser related back to the date of sale as provided under Section 65 CPC The title in the property thereafter vests in the auction purchaser and not in the judgment debtor
The issue of sale certificate under order XXI rule 94 CPC in favour of the auction purchaser though mandatory but the granting of certificate is a ministerial act and not judicial
917H 918B The sale of the property in question was perfectly valid and as soon as the sale was confirmed in favour of Gopal Rao Mutatkar under Order XXI Rule 92 CPC Govind Rao Harshe had no right or title in the property and Gopal Rao Mutatkar became the owner of the property
918G The High Court did not consider the case in a proper perspective and took a wholly erroneous view in holding that the appellant was a trespasser and Govind Rao Harshe could have filed a suit for possession
The plaintiff Govind Rao Harshe himself had come forward with a plea that the execution proceedings and the sale was null and void and unless he was able to succeed in this regard which he did not in the present case no decree for possession could at all have been passed in his favour
919C D