LexDHANNA ETC. versus STATE OF MADHYA PRADESH
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A DHANNA ETC. v. STATE OF MADHYA PRADESH JULY 7, 1996 B [DR. A.S. ANAND AND KT. THOMAS, JJ.J India11 Pe11a/ Code, 1860: Section. 302:-Murde1~Prosecutim1 wit11ess did 11ot refer to a11y role C played by one of the accused ivhcn he gave slaten1ent to the police dtoing investigation-Accused cannot be convicted for n1urder on basis of in111rove·- 111ent nzade by said ivitncss at llial. Sectio11s 34 a11d 149-0imi11a/ liabilit)~Abse11ce of charge under sec- tion 34--Cowt ca11 take recourse to Sec. 34 i11stcad of Sec. 149, even if the D said Section was not specifically 111entioned h1 the charge. Oimi11a/ Procedure code, 1973-Sectio11s 368, 378-Appea/ against acqaittal or conviction-ApjJellate Cotut has to be 111ore cautious while i11te1fering with orders against acquittals. E According to the prosecution, the deceased N while proceeding F G towards his house with PW-1 and PW-5 was attacked by the accused. The accused K and M were armed "ith Dhariya, 3rd accused has a pistol, 4th and 5th accused, the appellants had sickles with them. PW-1 and PW-2 cried for help, on which PW·2 rushed to rescue them, but by then N had sustained nuinber of serious wounds on his head and fell down on the spot itself. Session Court framed a charge under section 302 and 148 read with Section 149 of!PC against the accused. After the trial, the Court held that the prosecution failed to prove the case of unlawful assembly, but relying on the testimony of eye-mtness (PW-6), it convicted the accused Kand M for the otTence u/s 302 IPC and sentenced each to imprisonment for life. Evidence of the other eye witnesses \Vere not find very reliable and on these evidence trial court was not inclined to convict the appellant. High Court on re-evaluation and re-appreciation of the evidence felt H that the trial court had given undue importance to certain discrepancies 28 • -~ DHANNA v. STATE 29 and contradictions noted in the evidence and on relying on the evidence of A PW-6 which was also corroborated by PW-1 and PW-2, held that the appellant was also guilty for murder. Hence, this appeal by the appellant. The accused Kand M also filed an appeal against their conviction. The appellant contended that the High Court made a basic error in seeking the aid of section 34 !PC for confirming the conviction of the appellant when the charge framed against them did not mention Sec. 34 !PC. It was further contended that in an appeal against acquittal there must be compelling reason to disturb the fact-finding made by the trial court and that unless the view of the trial court is perverse or at least unreasonable no interference would normally be made. Dis1iosing of the appeals, this Court HELD : 1. Though there was no unlawful assembly, but if the court enters upon a finding that any of the remaining persons who participated B c in the ci-ime had shared common intention with the main perpetrators of D the crime, the court is not helpless in seeking the aid of Section 34 IPC to enter a conviction against such persons arraigned as the accused. This is despite the difference between the scope of Section 34 and Section 149. Yet they have some resemblance between each other and are to son:ie extent overlapping. So, it is open to the court to take recourse to Section 34 IPC E even if the said section was not specifically mentioned in the charge and instead Section 149 IPC has been included. [32-E-G; 33-D] Willie (William) Slaney v. State of M.P., AIR (1956) SC 116= [1955] 2SCR1140;Amar Singh v. State of Hwyana, [1974] 3 SCC 81 = [1973] SCC (Cri) 789= AIR (1973) SC 2221 and Blwor Singh v. State of Punjab, [1974] F 4 SCC 754= [1974] SCC (Cri) 664=AIR (1974) SC 1256, relied on. Barendra Kumar Ghosh v. King Emperor, AIR (1925) PC 1 = 29 CWN 181 = 52 IA 40 and Nana_k Chand v. State of Punjab, [1955] 1 SCR 120 = AlR (1955) SC 274, referred to. 2.1. The High Court has full power to review the evidence and to arrive at its own independent conclusion whether the appeal is against conviction or acquittal. But while dealing with. an appeal against ac11uittal G the appellate court has to bear in mind : (1) That there is a general presumption in favour of the innocence of the person accused in criminal H 30 SUPREME COURT REPORTS [1996] SUPP.4 S.C.R. A cases and that presumption is only strengthened by the acquittal. (2) Every accused is entitled to the benefit of reasonable doubt regarding his guilt and when
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