R.S. SARKARIA, J.

(1) THE two appellants, Maula Bux and Abdul Rasheed, were tried (aloug with the convict Abdul Hameed) for the murder of one Ramjan. Abdul Hameed was convicted under Section 302, Indian Penal Code, while the appellants were convicted under S. 302 read with S. 34, Indian Penal Code, and each uf them was sentenced to imprisonment for life. The High court, on appeal, has upheld their convictions and sentences.

(2) THE prosecution story was that on 8/06/1978 these three appellants and several other persons were in a religious congregation known as Milad-e-Sharif at the house of Khuda Bux. Roshan Khan, father of the deceased was also present in that congregation. According to the prosecution, Rahim Bux informed Maula Bux that under the influence of drinks, the deceased was abusing and threatening him. The three accused persons followed by Roshan Khan (Public Witness 4) and Khuda Bux (Public Witness 6) proceeded to the place where the deceased was. The appellants, were carrying lathis while Abdul Hameed, who has not been granted leave under Article 136, had a knife. The appellants and Abdul Hameed chased and overtook the deceased. The appellants, it is alleged, gave lathi blows while Abdul Hameed gave two knife blow" to the deceased. The deceased was carried in an injured condition to the hospital where he died, the same night.

(3) THE sole question to be considered in this appeal is, whether the appellants can be held vicariously liable for the murder of the deceuscd by the operation of S. 34, Penal Code. Dr. Sati Punjabi, who conducted autopsy, found six injuries in all on the dead body of the deceased. Two of these injuries were penetrating wounds which could be caused with the knife. The remaining four injuries were mere abrasions which in the opinion of Dr. Sati Punjabi could have been the result of a fall. The trial court also expressed that these injuries were possibly the result of a fall, and not of lathi blows. It. therefore, held that it was doubtful whether the appellants had given any lathi blows to the deceased. The High Court has not agreed with tins finding of the trial court. In its opinion. Dr. Punjabi was an inexperienced medical officer and she. through inadvertence or by design had failed to notice some contusions which were noted by the Investigating Officer in Panchnama (F.x. P-3). The High court, therefore, preferred the Panchnama prepared during the inquest by the Investigating Officer, to the sworn testimony of the medical witness who had conducted the post-mortem examination. It may, however, be noted that about 22 days thereafter. the Investigating Officer addressed a query to Dr. Sati Punjabi as to whether she had found any alcohol in the stomach of the deceased. But no enquiry was made by him with regard to contusions or other injuries which did not find mention in the post-mortem report. It may be observed that Dr. Punjabi was thoroughly questioned with regard to this discrepancy. In cross-examination she agreed that if a violent blow is given with a lathi, one inch thick in diameter, it would not cause a mere abrasion. She asserted that no copy of the Inquest Panchnama (Ex. P-3) was sent to her. Dr. Sati Punjabi had found post-mortem staining marks on the back and both upper and lower limbs of the dead body. On the authority of Dr. Modis Medical Jurisprudence, 16th Edn., p. 233, Dr. Punjabi opined that the staining marks of post-mortem lividity are sometimes mistaken for bruises caused by violence during life.

(4) ON this basis the learned Trial Judge held that the bruise marks on scapular region and waist of the dead body noted in the Inquest Panchnuma by the Investigating Police Officer, "were nothing but the marks of post-mortem stainings". This view of the evidence taken by the trial court could not be said to be palpably wrong. Nor was the High court fair enough to the medical officer, Dr. Sati Punjabi, inasmuch as it held that she had failed to note s