1990 Supreme(SC) 651

SUPREME COURT OF INDIA
KULDIP SINGH AND M. FATHIMA BEEVI, JJ.
Brathi alias Sukhdev Singh, Appellant
Versus
State of Punjab, Respondent.
Criminal Appeal No. 332 of 1979
Decided on 31-10-1990.

Headnote:Criminal Procedure Code 1973 – Section 386 (1) (b) - Indian Penal Code, 1860 - Section 302/34 - Appellant and his uncle T were tried for the offence under - Acquittal of the accused T - Conviction of appellant u/s 302 State not filing any appeal against acquittal Appeal against conviction - High Court altered the conviction of appellant to one u/s 302 r/ws 34 - After reviewing the evidence, the High Court recorded the finding that the order acquitting the accused T was erroneously arrived at - Whether the approach made by the High Court in judging the guilt of the appellant on the premise that the acquitted person also participated in the offence has introduced any error? - (No, wrong and erroneous order of acquittal though irreversible in the absence of an appeal by the State would not operate as a bar in recording constructive liability of the co-accused when concerted action with common intention stands proved).

       Held: When several persons are alleged to have committed an offence in furtherance of the common intention and all except one are acquitted, it is open to the appellate court to find out on a reappraisal of the evidence that some of the accused persons have been wrongly acquitted, although it could not interfere with such acquittal in the absence of an appeal by the State Government. The effect of such a finding is not to reverse the order of acquittal into one of conviction or visit the acquitted person with criminal liability. The finding is relevant only in invoking against the convicted person his constructive criminality. (Para 8)

       Further held: The evidence examined as a whole may show that the appellant is guilty under section 34 of the Indian Penal Code having shared a common intention with the other accused who are acquitted and the acquittal of these persons was bad. There is nothing in law to prevent the appellate court from expressing that view and recording that finding. The conviction of the appellant in such a case could be maintained on the basis of that finding. This is the correct legal approach to prevent miscarriage of justice. A wrong and erroneous order of acquittal though irreversible in the absence of an appeal by the State would not operate as a bar in recording constructive liability of the co-accused when concerted action with common intention stands proved. (para 9)

       It would be a travesty of justice if no conviction can be founded with the aid of section 34 notwithstanding the finding that the acquitted person was in fact one of the participants in the offence. It may well be remembered that the English rule of repugnancy on the face of record for annulling the conviction of co-conspirator on the other conspirator being acquitted is not applicable in this country, since such cases are governed by statutory law which does not recognise any such rule. (para 10)

       (ii) Indian Penal Code, 1860 -Sections 34 & 149 - Liability for constructive criminality - The principle of vicarious liability does not depend upon the necessity to convict a requisite number of persons-It depends upon proof of facts beyond reasonable doubt which makes such a principle applicable - The essential constituent of the vicarious criminal liability prescribed by section 34 is the existence of common intention - If on the evidence, the High Court can. unmistakably arrive at the conclusion that the appellant and acquitted person -bad acted in furtherance of their common intention, the conviction of the appellant with the aid of section 34 is legal. (Paras 10, 12, & 13).

       (iii) Criminal Procedure Code, 1973 APPEAL AGAINST CONVICTION - Section 386 (1) (b) - Powers of the appellate court - It has full power to review the whole evidence - It is entitled to go into the entire evidence and all relevant circumstances to arrive at its own conclusion about the guilt or innocence of the accused - (Para 8)

       (iv) CRIMINAL TRIAL EVIDENCE Appreciation of; - Murder case - Eye-witnesses being the near relations of the deceased - When the criminal has to appreciate evidence given by such witnesses, it has to be very careful, in evaluating such evidence - However, the mechanical rejection of the evidence on the sole ground that it is interested would invariably lead to failure of justice. (Para 7)