IMPORTANT POINT
Appellate Court in appeals against acquittal has to proceed more cautiously and only if there is absolute assurance of the guilt of accused, upon the evidence on record, that the order of acquittal is liable to be interfered with.

JUDGMENT

Thomas, J.-A youngman, by name Nanji, was murdered on 23.8.1980, near Government Degree College, Dhar. The police arraigned five persons for the said murder and the Sessions Judge, after trial, convicted the first two among them (Kanhaiyalal - first accused and Maniram - second accused) of the offence under Section 302 IPC, and acquitted the remaining three persons. State filed persons another appeal. High Court of Madhya Pradesh while confirming the conviction and sentence reversed the order of acquittal of 5th accused (Dhanna) and convicted him also of the offence under Section 302 IPC. Sentence of imprisonment for life was awarded to all the convicts. We have before us two appeals by special leave, one jointly filed by Kanhaiyalal and Maniram and the other separately filed by Dhanna.

2. Prosecution set up the following case against five accused. Around 3.30 P.M. deceased Nanji, PW 1, Gopilal and PW-5 Narainlal were proceeding on bicycles along Dhar-Indore Road. Their destination was Nanji s house at Jetpura. As they reached near Government Degree College, all the five accused emerged from the roadside and made a blitz on Nanji. Kanhaiyalal and Maniram were armed with Dhariya, 3rd accused had a pistol and 4th and 5th accused (Dhanna) had sickles with them. Deceased tried to escape but was again attacked by the assailments with their cutting weapons. PW-1 and PW-5 cried for help and thus Nandram (PW-6) the Peon of the College rushed to their rescue. But by then Nanji had sustained a number of serious wounds on his head and he fell down dead at the spot itself.

3. Sessions court framed a charge against the accused for offences under Sections 302 and 148 read with Section 149 of the Indian Penal Code. The accused denied having participated in the occurrence. After trial learned sessions Judge concluded that prosecution has failed to prove that there was an unlawful assembly, but found that Kanhaiyalal (first accused) and Maniram (second accused) have inflicted cut injuries on the deceased with Dhariyas and convicted them under Section 302 IPC and sentenced them each to imprisonment for life.

4. Out of the four eye witnesses examined by the prosecution Jawarilal (PW-4) did not support the case and the other three witnesses spoke to the prosecution version. Learned sessions Judge found the evidence of Nanuram (PW-6) quite acceptable and hence the conviction was based on his testimony. Nonetheless the trial Judge was not inclined to convict Dhanna (5th accused) on the strength of the evidence of Nanuram (PW-6). Evidence of the other eye witnesses was found to be not very reliable.

5. High Court on a re-evaluation of the evidences felt that the trial court ought to have placed reliance on the testimony of Gopilal (PW-1) and Narainlal (PW-5) also. Learned Judges expressed the view that sessions Judge has given undue importance to certain discrepancies and contradictions noted in their evidence. This is what the High Court said about it :

"The discrepancies and contradictions are not in regard to the fact that the accused participated in the incident but in regard to the sequence of events and minor and inconsequential details of the occurrence and other collateral facts which do not make their testimony untrustworthy."

Thus relying on the evidence of PW-6 (Nanuram) as corroborated by PW-1 and PW-2 the High Court found Dhanna also guilty of murder and convicted him and sentenced him as aforesaid.

6. Learned counsel for the appellants contended that the High Court committed a basic error in seeking the aid of Section 34 IPC for confirming the conviction of the appellants for the offence under Section 302 IPC. So long as the charge framed against them did not mention Section 34 of IPC, the High Court was not justified in using and said provision for convicting the appellants, according to the learned counsel.

7. The High Court found that there was no unlawful assembly as the strength of the assembly was insufficient to constitute it in