LexBRATHI ALIAS SUKHDEV SINGH versus STATE OF PUNJAB
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BRATH! ALIAS SUKHDEV SINGH v. STATE OF PUNJAB OCTOBER 31, 1990 [KULDIP SINGH AND M. FATHIMA BEEVI, JJ.] _Indian Penal Code-Sections 34 and 302-Criminal liability-- Primarily attaches to person who actually commits the offence-Several persons alleged to have commitied offence in furtherance of common intention-All except one acquitted-Open to appellate court /0 reappraise evidence. A B c The appellant and his uncle Teja Singh were tried for an offence under Section 302/34 I.P.C. for committing the murder of one Socha Singh. The case of the prosecution was that the appellant and Teja Singh in furtherance of their common intention attacked the deceased Socha Singh on 1st Jannary 1975 when he was returning home from his D field accompained by his daughter and son (PWs 8 and 9). It was alleged that the appellant attacked the deceased with Kirpan, which blow was Warded· off by the deceased and then Teja Singh delivered a blow witb Kirpan on the deceased's head whereupon he fell down and both the appellant and Teja Singh then dealt one blow each cansing injuries to the deceased. Socha Singh died at the hospital. The fatal injury was E attributed to Teja Singh and he was charged under section 302 I.P C., and the appellant who was alleged to have caused the minor injuries was charged under section 302/34 I.P.C. The trial court acqnitted Teja Singh and convicted the appellant for the offence under section 302, I.P.C. and sentenced him to nndergo imprisonment for life and to pay a fine of Rs.1,000. The State did not appeal against the order of acquittal F passed in respect of Teja Singh, with the result that order became final. The appellant appealed to the High Court contending that wben the Sessions Judge had rejected ,the prosecution evidence against Teja Singh, his conviction on the same evidence was not snstainable. It was further contended on behalf of the appellant that in view of the acquittal of Teja Singh, who was alleged to have delivered the fatal blow the G appellant conld not be convicted nuder S.302 IPC or with the aid of section 34 l.P.C. and that at best the offence fell under section 326 I.P.C. Tbe High Court while maintaining the sentence of life imprison- ment imposed on the appellant, altered his conviction to one under sec. 302 read with section 34, I.P.C. The High Court while assessing the credibility of the prosecution evidence incidentally considered the H 503 A B c 504 SUPREME COURT REPORTS [1990) Supp. 2 S.C.R. case against Teja Singh and after reviewing the evidence recorded a finding that the order acquitting Teja Singh was erroneous. The appel- lant has filed this appeal against the order of the High Court after obtaining special leave. Before this Court it has been inter alia contended that the High Court erred in recording the conviction under sec. 302/34 IPC, as with the acquittal of Teja Singh element of sharing common intention has disappeared, (ii) that the High Court misdirected itself in appreciating the evidence and (iii) that the individual acts of the appeUant could at best constitute only a minor offence, and in the absence of any indepen- dent evidence, the appeUant could not be convicted. Dismissing the appeal, this Court, HELD: The powers of. the appeUa.e Court in dealing with an appeal against an order of conviction are deimed under Sec. 386(l)(h) of the Code of Criminal Procedure 1973 corresponding to Section D 423(i)(h) of the Code of 1898. In the matter of appreciation of the evidence the powers of the appellate Court are as wide as that of the trial court. It has full power to review the whole evidence. It is entitled to go into the entire evidence and aU relevant circumstances to arrive at its own conclusion about the guilt or innocence of the accused. [509C-E] E The general principle of criminal liability is that it primarily attached to the person who actually commits an offence and it is only such person that can be held guilty and punished for the offence. [509H] When several persons are alleged to have committed an offence in furtherance of the commun intention and all except one are acquitted, it F is upen to the appellate court to find on appraisal of the evidence that some of the accused per5ons have been wrongly acquitted, although it could not interfere with such acquittal in the absence of an appeal by the State Government. [S09F-G] The effect of such a finding is not to reverse the orde
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