Case: Khujji @ Surendra Tiwari Vs. The State Of Madhya Pradesh

case where the High Court had clearly departed from the appreciation of the evidence by the Trial Court and had reached its own Conclusion in regard to the proof of various facts and circumstances relied on by the prosecution. We are, therefore, in respectful agreement with the distinction drawn by this Court on the ground that in none of the cases cited oh 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. 15. Does the decision in Krishna Govind Patil (supra) take a different view? It is true that the attention of the Bench which disposed of Brathis 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 Brathis 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 302/34, 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 302/34, but not against the acquittal 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 302/34, IPC, it must record a definite finding that the said person had prior consultation with one or more other persons, named or unnamed, 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 participate 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 different 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 Brathis case. We are, therefore, of the opinion that the omission to refer to this decision does not render the decision in Brathis case per incuriam. We are, therefore, in respectful agreement with the law explained in Brathis case. 16. Coming now to the facts of this case the Trial Court acquitted the 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 participated 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 identify 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 Brathis case 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. 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 sentence awarded to him.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]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 companion is a clear attempt to wriggle out of what he had stated earlier in his examination-in-chief. Since the incident occurred at a public place, it is reasonable 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 unnatural norhis statement that he had come to purchase vegetablesdo 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 theis, therefore, clear from the decision 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 clothes of the appellant and his companions, PW5s evidence could not be discarded since nothing had surfaced in cross-examination to shake his evidence. We are, therefore, satisfied that the evidence of PW5 Pannalal was rightly accepted by both the courts below. We make limited use of this evidence in the sense that we do not use any part of the evidence admissible under27. Evidence Act, against the appellant. We merely use the factum of find of the incriminating 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 circumstance against the appellant particularly because no injury was noticed on the person of theappellant has not explained the presence of human blood on these two articles. We are, therefore, of the opinion that the aforesaid 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 contention urged by Mr.are of the opinion, for reasons which we will immediately state, that the contention urged bycounsel for theappellant is notall the aforesaid cases are clearly distinguishable from the facts of Brathis case where the High Court had clearly departed from the appreciation of the evidence by the Trial Court and had reachedn in regard to the proof of various facts and circumstances relied on by the prosecution. We are,in respectful agreement with the distinction drawn by this Court on the ground that in none of the cases citedbehalf 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 byCourt held that before a Court can convict a person under302/34, IPC, it must record a definite finding that the said person had prior consultation with one or more other persons, named or unnamed, 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 participate 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 of34. This again is not a case where the Appellate Court disagreed with the appreciation of evidence and reached a conclusion different 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 Brathis case. We are, therefore, of the opinion that the omission to refer to this decision does not render the decision in Brathis case per incuriam. We are, therefore, in respectful agreement with the law explained in Brathis case.Coming now to the facts of this case the Trial Court acquitted the co-accused but convicted the appellant under302, 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 participated 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 identify 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 aspointed in Brathis case 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. In that view of the matter we think that the conviction of the appellant can be sustained with the aid ofIPC, as the case may be. In the present case we feel it safe to confirm the conviction of the appellant with the aid of34, IPC. We, therefore, cannot agree with the submission of the learnedcounsel for theappellant that at best the conviction can be recorded under324, IPC. We confirm the conviction of the appellant under302, IPC, with the aid of34 and maintain the sentence awarded to him.