Criminal Appeal Nos
57888  72889
From the Judgment and Order dated 157
1986 of Patna High Court in Crl
A Nos
97  87 of 1983
A Sharan for the Appellants
D Goburdhan for the Respondent
These two appeals are directed against the judgment and order of the High Court of Patna dated 157
1986 upholding the conviction of Dr Harendra Narain Singh and Ram Nath Singh appellants for the offences under Section 30234 of the IPC Briefly the facts as disclosed by the prosecution are that Smt
Jagia Devi a widow having two sons was carrying four months pregnancy
She was taken to the dispensary of Dr Harendra Narain Singh the appellant who was a Homeo pathic doctor on the pretext of treatment of pain in her stomach though the real purpose for taking  57 her to the dispensary was for aborting foetus which she was carrying
She was murdered in the dispensary and her dead body was taken to Village Dibbi in an Ekka and placed in the courtyard of the house of Smt
Tileshwara Kuar
Teg Bahadur Singh PW 11 came to know from a young boy that a dead body was kept in the courtyard of Smt
fileshwara Kuar
He went to the house of Smt
Tileshwara Kuar and on interrogation she told him that some persons after committing murder of Jagia Devi had kept her dead body inside her house
The door of the house was locked
Tileshwara handed over the key to Teg Bahadur Singh who unlocked the door and entered the house and found the dead body of Jagia lying on the ground in the courtyard
He rushed to the Police Station and re ported the matter to the police which was reduced in writ ing
The police registered a case and proceeded to the spot
The Investigating Officer recovered the dead body from the house of Tileshwara Kuar and made inquest and sent the dead body for post mortem
On completion of investigation the police submitted  chargesheet against seven accused persons namely Tileshwara Kuar Ram Nath Singh Bishwanath Roy so Dip Roy Ishwar Shah Dr Harendra Narain Singh Smt
Jota Kuar wo Dip Roy and Bishwanath Singh alias Bissu
During the pendency of the case before the Trial Court Bishwanath Roy and Jota Kuar died therefore the trial proceeded only against the remaining five accused persons
Before the Trial Court the prosecution produced 14 witnesses in support of its case but there was no direct evidence or eye witness to support the charge of murder
Entire case of the prosecution is founded on circumstantial evidence
The Trial Court acquitted Smt
Tileshwara Kuar who had been charged for offences under Section 30234 and 201 of the IPC but it convicted the remaining accused Ram Nath Singh Ishwar Shah Harendra Narain Singh  Bishwanath Singh alias Bissu for the offences under Section 302 of the IPC read with Section 34 of the IPC and also under Section 3 1534 IPC
On appeal by the accused the High Court acquit ted Ishwar Shah Bishwanath Singh alias Bissu but it upheld the conviction of Dr Harendra Narain Singh and Ram Nath Singh for offences under Section 30234 of the IPC
Ag grieved Dr Harendra Narain Singh and Ram Nath Singh have preferred these two appeals
The entire case of the prosecution rests on the circum stantial evidence as no prosecution witness has given any direct testimony against the appellants for the commission of the offence for which they have been convicted
The Trial Court as well as he High Court both have relied on circum stantial evidence in convicting the appellants for 58 the offences under Section 30234 of the IPC
Since the entire case rests on circumstantial evidence it is necessary to refer to the principles which should guide the Court in considering the conviction of an accused resting on circum stantial evidence
It is a cardinal principle of criminal jurisprudence that circumstantial evidence must be fully established from which there should be inevitable conclusion of the guilt of the accused beyond any reasonable doubt and the facts so established should be consistent only with the hypothesis of the guilt of the accused ruling out any hypothesis of innocence of the accused
In Hanurnant vs The State of Madhya Pradesh this Court laid down fundamental and basic principles for appreciating the circumstantial evidence
Mahajan J speaking for the Court observed It is well to remember that in cases where the evidence is of a circumstantial nature the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the ac cused
Again the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved
In other words there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused
 These principles were reiterated by this Court in Shi vaji Saheb Rao Bobde  Anr
vs State of Maharashtra  wherein it was emphasised that where the prosecu tion rests merely on circumstantial evidence the facts established should be consistent only with the hypothesis of the guilt of the accused that is to say they should not be explainable on any other hypothesis except that the accused is guilty
The Court further observed that the circumstances should be of a conclusive nature and tendency and they should exclude every possible hypothesis except the one to be proved and the chain of evidence should be so complete as to rule out any reasonable ground for the conclusion con sistent with the innocence of the accused and the circum stances must show that in all human probability the act must have been done by the accused
These principles have been consistently laid down by this Court in several decisions it is not necessary to refer to all these decisions
Howev er we would like to refer to the decision in Sharad B Chand vs Maharashtra 1985 1 SCR page 88 as 59 this case has been relied upon by the High Court in uphold ing the conviction of the appellants
In Sharad B Chand s case this Court while considering the absence of explanation or a false explanation of the accused for the circumstances and the facts proved against him struck a note of caution that before a false explanation is used as additional link against the accused the Court should satisfy itself that 1 Various links in the chain of evidence led by the prosecu tion have been satisfactorily proved
2 The circumstances point to the guilt of accused with reasonable definiteness and 3 The circumstances are in proximity to the time and situation where all these conditions are fulfilled only then a Court can use a false explanation or a false defence of an accused as an additional link to lend an assurance to the Court and not otherwise
There is yet another basic rule of criminal jurisprudence that if two views are possible on the evidence adduced in a case of circumstantial evidence one pointing to the guilt of the accused and the other to his innocence the Court should adopt the latter view favourable to the accused
We have reminded ourselves of these princi ples with a view to ascertain as to whether the High Court has correctly applied these principles in convicting and sentencing the appellants
The evidence produced by the prosecution relates to establish the circmustances that 1 Smt
Jagia Devi a widow brother s daughter of Smt
Tileshwara Kuar the accused died on 2291973
2 Death of Jagia Devi was caused due to throttling leading to asphyxia as deposed by Dr Anand Mohan PW 6
The Doctor who carried on the postmor tem of the dead body was of the opinion that Jagia Devi killed by strangulation in the neck
3 1n the night be tween 229
1973 and 2391973 a dead body was taken out of the dispensary of Dr Harendra Narain Singh by the accused Ram Nath Singh and Bish wanath Singh alias Bissu and placed on an ekka in the presence of Ishwar Shah and Dr Harendra Narain Singh
Jota Kuar mother of Ram Nath Singh the appellant was also present there
4 The dead body was placed on the ekka of Amanat Khan PW 10 and the same was carried to village Dibbi
Ram Nath Singh Bishwanath Singh and Jota Kuar also accompanied the dead body to village Dibbi
5 Recovery of the dead body of Jagia Devi from the courtyard of Smt
Tileshwara Kuar an accused
On the basis of these circumstances the High Court upheld the conviction of Ram Nath Singh and Dr Harendra Narain Singh the appellants as in its opinion Ram Nath Singh had motive to murder Jagia Devi as she being a widow was carrying pregnancy of four 60 months
The murder was committed in the dispensary of Dr Harendra Narain Singh where she had been taken for medical aid for pain in stomach
The Trial Court had acquitted Smt
Teleshwara Kuar from whose house dead body was recovered
In appeal the High Court acquitted Ishwar Shah and Bishwa nath Singh alias Bissu also
The prosecution evidence and the circumstances on the basis of which Ram Nath Singh and Dr Harendra Narain Singh have been convicted are the same as applicable to the case of Ishwar Shah and Bishwanath Singh alias Bissu but the High Court acquitted them and at the same time it upheld the conviction of Ram Nath Singh and Dr Harendra Narain Singh on the same set of the evidence and circumstances without  there being any distinction
The main circumstances which weighed with the High Court in upholding the conviction of Ram Nath Singh and Dr Harendra Narain Singh was that the dead body of Jagia Devi was taken out of the dispensary of Dr Harendra Narain Singh and placed on the ekka of Amanat Khan PW 10 by Ram Nath Singh
In view of this proved circumstance the High Court concluded that in all likelihood Jagia Devi was murdered in the dis pensary of Dr Harendra Narain Singh with his connivance and thereafter the dead  body was taken on ekka to village Dibbi and placed in the courtyard of Smt
Teleshwara Kuar
The presumption that Ram Nath Singh committed murder of Jagia Devi by strangulation in the dispensary of Dr Harendra Narain Singh with his connivance is based on conjecture without there being any conclusive circumstance justifying such presumption
The High Court has placed strong reliance on the evi dence of PW 10 Amanat Khan in holding the appellants Dr Harendra Narain Singh and Ram Nath Singh guilty of murder
PW 10 Amanat Khan was an ekkawala who plied passengers on hire he was resident of village Bagaura where the dispen sary of Dr Harendra Narain Singh was situate
Amanat Khan testified that at about 2 am in the night the appellants Ram Nath Singh Dr Harendra Narain Singh and Bishwanath Singh alias Bissu awakened him and requested him to carry a patient to village Dibbi
At first he refused to ply his ekka at that odd hour of the night but after some time they again returned and put pressure on him to take his ekka to the dispensary of Dr Harendra Narain Singh for transporting the patient to Village Dibbi
On their pursuasion he took his ekka to the dispensary of Dr Harendra Narain Singh where he found Ishwar Shah Jagannath and Smt
Jota Kuar mother of appellant Ram Nath present at the dispensary
According to him Ram Nath and Bishwanath deceased brought a dead body from the dispensary of the appellant Harendra Narain Singh and placed the 61 same on the ekka
Ram Nath Singh Bishwanath Singh alias Bissu and Smt
Jota Kuar also sat in the ekka
On their request he carried them to village Dibbi Where Ram Nath and Bishwanath alias Bissu unloaded the dead body from the ekka at the house of Smt
Teleshwara Kuar
Amanat Khan s testimo ny is supported by PW 3 Dukhan Majhi PW 4 Bisheshvar Chowkidar and PW 5 Shiv Dutt
Their testimony is merely to the fact that the appellants Ram Nath Singh and Bishwanath Singh were sitting on the ekka which was carrying a dead body from the dispensary of Dr Harendra Narain Singh
Placing reliance on the testimony of these witnesses the High Court and the Trial Court concluded that Smt
Jagia Devi the deceased was murdered in the dispensary of Dr Harendra Narain Singh and the dead body was carried by them on the ekka to village Dibbi and placed in the courtyard of Smt
Tileshwara Kuar
The High Court and the Trial Court both failed to notice that the prosecution produced no evidence to show that Smt
Jagia the deceased was brought to the dispensary of Dr Harendra Narain Singh while she was alive
There is further no evidence as to who brought her to the dispensary in what condition
The only evidence which the prosecution has produced in this respect is that a dead body was taken out from the dispensary of Dr Harendra Narain Singh and placed on the ekka by Ram Nath Singh and others and taken to village Dibbi
The High Court was conscious of the weakness of the prosecution case even then it upheld the conviction of the appellant perhaps on moral grounds
In para 3 of its judg ment the High Court observed although 14 witnesses have been examined on behalf of the prosecution there is no direct evidence or eye witness account of murder
The witnesses however are not all relevant even for proving the circumstances and other colat oral matters
After making the aforesaid observations ordinarily the High Court should have rejected the prosecution case which was based on circumstantial evidence but strangely enough the High Court inspite of the aforesaid observations upheld the conviction of the appellants
While dealing with the case of Dr Harendra Narain Singh the High Court observed that he was a man of shaky charac ter
This observation was made on the basis that even though he was a homeopathic doctor but allopathic medicines were recovered from his dispensary
In our opinion mere recovery of allopathic medicines from the dis 62 pensary of Dr Harendra Narain Singh does not necessarily show that he was a man of shaky character
It is a matter of common knowledge that even a homeopathic doctor sometimes refer the patients to allopathic treatment
The fact of recovery of allopathic medicines has no connection or rela tion to the commission of the offence for which Dr Harendra Narain Singh has been convicted
The High Court further observed that when the dead body of the deceased was taken out from the dispensary by Ram Nath Singh and other accused persons Dr Harendra Narain Singh was present at the spot therefore he was so closely connected with the affairs taking place at his house that none could without his as sistance do anything Apart from this there was no other evidence or circumstance against Dr Harendra Narain Singh It is significant to note that according to the prosecution when the dead body of the deceased was taken out of dispen sary and placed on ekka Ishwar Shah and Bishwanath Singh alias Bissu accused were also present at the dispensary along with Dr Harendra Narain Singh yet they have been acquitted by the High Court
The High Court failed to give any cogent reason for upholding the conviction of Dr Haren dra Narain Singh
We have carefully gone through the evidence on record and considered the various circumstances and the facts of the case
In our opinion there are two glaring circum stances which are fatal to the prosecution case
The prose cution has produced evidence only to the effect that a dead body was taken out of the dispensary of Dr Harendra Narain Singh by Ram Nath Singh and other accused persons and the same was carried on the ekka to village Dibbi
The prosecu tion witnesses have merely deposed that they had seen a dead body being placed on the ekka and taken to village Dibbi
None of the prosecution witness has however deposed that he had seen the face of the dead body or identified the same
In the absence of such evidence it would not be reasonable to assume that the dead body which was taken out from the dispensary and placed on the ekka was that of the deceased Jagia Devi
In the absence of identification of dead body by the witnes ses it is not legitimate to hold that the dead body which was taken out from the dispensary of Dr Harendra Narain Singh was that of Jagia Devi
There is another vital defect in the prosecution case The prosecution failed to produce any evidence that the deceased Jagia Devi was taken to the hospital for treatment by Ram Nath Singh and other accused persons while she was alive and that she was admit ted to the dispensary of Dr Harendra Narain Singh for treatment at a time when she was alive
In the absence of any Such evidence there are various possibilities and proba bilities one of them being that the 63 deceased may have been brought to the dispensary for medical assistance after she was found to be strangulated by some one
There is further no evidence of the fact that when the deceased was inside the dispensary no other person had access to her except the appellants
In the absence of any such evidence it would not be legitimate to assume that the deceased was strangulated in the dispensary by Ram Nath Singh with the connivance of Dr Harendra Narain Singh
Merely because the appellants failed to raise any such plea in their defence does not lend any support to the prosecu tion case
The prosecution has to succeed on the basis of its own evidence and it can not rely on the absence of defence to sustain the guilt as there is no justification for raising such assumption against the appellants
The circumstances established by the prosecution are not suffi cient to conclusively point to the appellants as the perpe trator of the crime or to rule out the hypothesis of their innocence
Since the prosecution failed to prove the neces sary facts showing that the deceased while alive was last seen in the company of the appellants or that the dead body which was carried on the ekka was that of the deceased Jagia Devi the High Court was not justified in drawing adverse inference for completing the chain of circumstances to uphold the appellant s conviction merely on the appellant s false explanation in defence
In view of the above discussion we are of the opinion that the High Court and the Trial Court both committed error in convicting the appellants
We accordingly allow the appeals and set aside the judgment and order of the High Court convicting the appellants
TNA Appeals allowed


Summary:
The appellant was convicted by the courts below under Section 302 IPC and sentenced to life imprisonment for the murder of one G
It was alleged that when the deceased and his companion PW 4 were proceeding in a rickshaw pulled by PW 3 the appellant and his five companions launched an attack on them
While PW 4 received an injury by a cycle chain the deceased received stab injuries to which the succumbed on the spot
On the First Information Report lodged by PW 4 statements of three eye witnesses viz PW I an on looker and PWs 3 and 4 recorded during the course of investigation and the evidence regarding discovery of incriminating articles and find of human blood on them the appellant and his five companions were chargesheeted for the murder of the deceased 2 During the trial two of the eye witnesses viz PWs 3 and 4 were declared hostile since they expressed their inability to identify the accused persons as assailants of the deceased
Though PW 1 supported the prosecution in examination in chief he expressed some doubt regarding the identity of the appellant and one other assailant in the cross examination
The trial court refused to place reliance on the evidence of the three eye witnesses and acquitted all except the appellant
It convicted the appellant under Section 302 IPC and sentenced him to life imprisonment on the evidence that the appellant was absconding that he had discovered the weapon which was found to be stained with human blood and the factum of find of human blood on the pant worn by him at the time of his arrest The appellant s appeal was dismissed by the High Court
While ignoring the evidence of PWs 3 and 4 the High Court relied on the evi dence of PW 1 holding that his subsequent attempt 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
It also relied on the discovery evidence and find of human blood on the weapon and on the pant he was wearing at the time of his arrest
The State did not prefer an appeal against the five companions of the appellant who were acquitted by the trial court
In the appeal before this Court on behalf of the appel lant it was contended that 1 the prosecution version regarding the incident particularly the involvement of the appellant was highly doubtful since the correctness of the First Information Report purported to have been lodged by PW4 was itself doubtful since he had disowned it 2 the presence of PW1 at the scene of offence and at the time of occurrence was highly doubtful and the High Court committed an error in placing reliance on his testimony in examina tion in chief while brushing aside his statement in cross examination 3 same set of Panch witnesses had been em ployed for all the discovery panchnamas as well as the attachment of clothes of the appellant and others and since PW5 Panch witness was closely associated with the family and was a stock witness for the prosecution no reliance could be placed on the evidence of such a highly interested and chosen witness and consequently find of human blood on the weapon and the pant lost its probative value 4 the two circumstances viz that the appellant was not found for two days and human blood was present on the weapon and his pant constituted extremely thin and weak evidence to record a finding of guilt particularly when the trial court had discarded all the eye witnesses  evidence and doubted the contents of the FIR and when the Serologist did not deter mine the blood group of the stains on the weapon and pant of the 3 appellant 5 in the absence of positive evidence that the fatal injury  No I was caused by the appellant only his conviction substantively under Section 302 IPC could not be sustained 6 since appellant s companion were acquitted and the State had not preferred any appeal against their acquittal he could not be convicted with the aid of Section 34 or 149 IPC since the acquittal of the co accused created a legal bar against his conviction which could not be got over by reappreciation of evidence and 7 the eye witness es  evidence could not be relied upon as their names did not figure in the inquest report prepared at the earliest time
On behalf of the State it was contended that 1 evi dence of PWs 3 and 4 could not be treated as effaced from the record merely because the prosecution chose to treat them as hostile on the limited question of identity of assailants2 PW I was neither a chance witness nor was he faking his presence at the scene of occurrence at the mate rial time 3 it was not necessary in law to mention names of witnesses in the inquest report as the purpose of prepar ing the report was merely to make a note of the physical condition of the body and the marks of injury thereon no ticed at that point of time 4 nothing was alleged against PW 5
Panch witness nor the appellant had given any expla nation regarding existence of human blood on the weapon and his pant in his statement recorded under section 313 of the Cr
PC 5 even if the appellant could not be substan tively convicted under Section 302 II C he could still be convicted with the aid of Section 34 or 149 II C if the Court came to the conclusion that more than one person launched the attack and notwithstanding the acquittal of others by the trial court this Court could reach its own conclusion as the higher court was not bound by the appreci ation of evidence by the trial court or even the High Court
Dismissing the appeal this Court HELD 11 The evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examined him
The evidence of such witnesses 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
13C Bhagwan Singh vs State of Haryana  Rabinder Kumar Dey vs State of Orissa  and Syed lqbal vstate of Karnataka 1980 1 SCR 95 relied on
4 SUPREME COURT REPORTS 1991 3 SCR 12 In the instant case the evidence of two eye witness es PW 3 and 4 challenged by the prosecution in cross exami nation because they refused to name the accused in the dock as the assailants of the deceased
The trial court made no effort to scrutinise the evidence of these two witnesses even in regard to the factum of the incident
It refused to look into their evidence treating it as non est on their being declared hostile by the prosecution
This approach of the trial court 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
From the evidence of these two wit nesses 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 occur rence they were surrounded by some persons and an assault was launched on them in which PW 4 received an injury and the deceased died is also established
The only area they have not supported the prosecution and resiled from their earlier statements is regarding the identity of the assail ants but the fact remains that the deceased had received three injuries as narrated by PW 12 who conducted the post mortem and succumbed to the injuries on the spot
Similarly there is no doubt at all that PW 4 had gone to the police station and had lodged the First Information Report
The detailed narration about the incident in the First Information Report goes to show that the subsequent attempt of PW 4 to disown the document while admitting his signature thereon is a shift for reasons best known to him
Once the presence of PW 4 is accepted the presence of PW 3 at the scene of occurrence cannot be doubted
13D 14C D F B 2
The Trial Court has not accepted PW I s evidence on the ground that he was not a natural witness and was only a chance witness
However on a reading of the entire evidence of PW I it is clear that his statement in cross examination on the question of identity of the appellant and one of his companions is a clear attempt to wriggle out of what he had stated earlier in his examination in chief
Since the inci dent occurred at a public place it is reasonable to infer that the street light illuminated the place sufficiently to enable this witness to identify the assailants
During the one month period that elapsed since the recording of exami nation in chief something transpired which made him shift his evidence on the question of identity to help the appel lant
In the circumstance there is no doubt that PW I had ample opportunity to identify the assailants of the de ceased his presence at the scene of occurrence is not unnatural nor is his statement that he had come to purchase vegetables unacceptable
There are no contradiction in his evidence to doubt his testimony
He is a totally independent wit 5 ness who had no cause to give false evidence against the appellant and his companions
Therefore his evidence is acceptable regarding the time place and manner of the incident as well as the identity of the assailants
14H 16C 31 The evidence of eye witnesses could not be rejected on the ground that their names did not figure in the inquest report prepared at the earliest point of time
16D 32 A perusal of Section 174 of the Criminal Procedure Code would clearly show that the object of the proceedings under this Section 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 assaulteld him or under what circumstances he was assaulted is foreign to the ambit and scope of the proceedings under the section
In these circumstances neither in practice nor in law was it necessary for the police to have mentioned these details in the inquest re port
16E F Pedda Narain vs State of Andhra Pradesh 1975 Supp
SCR 84 relied on
41 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
Even in the case of an interested party his evidence cannot be overlooked on that ground
17G E Himachal Pradesh Administration vs Omprakash   relied on
42 In the instant case merely because the same set of Panch witnesses were used for Witnessing all the three discoveries as well as the attachment of the clothes of the appellant and his companions PW 5 s evidence could not be discarded since nothing had surfaced in crossexamination to shake his evidence
Besides except being a good neighbour nothing more is shown against him
As regards recovery of weapon as well as the appellant s blood stained pant there is hardly any effective cross examination nor has the appellant offered any explanation in his statement recorded under Section 313 of the Criminal Procedure Code
Hence PW 5 s evidence cannot be rejected on the specious plea of being an interested witness
In the circumstances hi evidence was rightly accepted by both the courts below
17 A C D F 18 A 6 51 The factum of find of the incriminating weapon from the appellant s garage and his inability to explain the presence of human blood thereon is a circumstance against him
Similarly the existence of human blood on the pant that he was wearing at the time of his arrest for which no explanation was offered by him is also a circumstance against him particularly because no injury was noticed on him
18B D 52 There is also direct testimony of PW I besides that of PWs 3 and 4
The find of human blood on the weapon and the pant with no explanation for the same lends corrobora tion to the testimony of PW 1
When he states that he saw the appellant inflicting a knife blow on the deceased
In the circumstances it cannot be accepted that in the absence of determination of blood group the find of human blood is of no consequence
19B C Kansa Behera vs State of Orissa  and Surinder Singh vs State of Punjab 1989 Suppl
2 SCC 21 distinguished
61 No doubt it is not possible from the ocular evi dence to record a definite finding of fact that the appel lant had caused the fatal injury
On the contrary the evi dence of PW 1 indicates that in all probability the stab wound inflicted by the appellant resulted in injury No 2 which by itself was not sufficient in the ordinary course of nature to cause death
I Since the prosecution evidence does not disclose that the fatal blow which caused injury No 1 was given by the appellant it means that the fatal blow was given by someone else and this establishes the fact that more than one person participated in the commission of the crime
On an independent examination appreciation of the evidence of the three eye witnesses viz PWs 1 3 and 4 that several persons had participated in the commission of the crime
The failure on the part of PWs 3 and 4 to identi fy the others does not alter the situation
On the other hand from the evidence of PW 1 it is clear that some of the accused participated in the commission of the crime
19E 25A C 62 No doubt in the absence of a State appeal the High Court could not nor can this Court interfere with the acquittal of the co accused but this Court is not bound by the facts found proved on the appreciation of evidence by the courts below and is in law entitled to reach its own conclusion different from the one recorded by the courts below on a review of the evidence
The acquittal of the accused does not create a legal bar against the conviction of the appellant with the aid of Section 34 or 149 IPC
21C F 7 Brathi vs State of Punjab   affirmed
Baikuntha Nath Chaudhury vs The State of Orissa  Kasturi Lal vs State of Haryana  Chandubhai Shanabhai Parmdr vs State of Gujarat  Sukh Ram vs State of MP 1989 Suppl
1 SCC 214 and Krishna Govind Patil vs State of Maha rashtra   distinguished
63 In the circumstances the conviction of the ap pellant can be sustained with the aid of Section 34 or 149 as the case may be and it is safe to confirm the appellant s conviction with the aid of section 34 IPC 25D The conviction of the appellant is accordingly con firmed and sentence awarded to him is maintained
25E 7
The omission to refer to the decision of larger Bench rendered Krishna Govind Patil s case does not render the decision in Brathi s case per incuriam
In any event that decision does not take a view inconsistent with the ratio laid down in Brathi s case
24G Sukh Ram vs State of MP 1989 suppl
1 SCC 214 and Brathi vs State of Punjab  referred to