Holding

Evidence of hostile witnesses is not automatically effaced and can be relied upon to the extent dependable; the appellant’s conviction under Section 302 IPC is upheld with the aid of Section 34 IPC despite the acquittal of co‑accused.

Summary

Khujji @ Surendra Tiwari was convicted of murder under Section 302 IPC and sentenced to life imprisonment. The prosecution relied on three eye‑witnesses, discovery of a blood‑stained weapon and the appellant's blood‑stained pant. Two witnesses (PW‑3 and PW‑4) were declared hostile because they could not identify the assailants, and PW‑1, while initially identifying the accused, expressed doubt in cross‑examination. The trial court discarded all eye‑witness testimony and convicted on the circumstantial evidence; the High Court upheld the conviction. The Supreme Court held that hostile witness testimony is not automatically effaced and may be relied upon if dependable, that PW‑1’s testimony is admissible, that the absence of witness names in a Section 174 inquest report does not invalidate their evidence, that a Panch witness’s testimony is not excluded merely because he is interested, and that blood‑stain evidence is admissible even without blood‑group identification. Moreover, the Court affirmed that an appellate court may re‑appraise evidence and convict under Section 34 IPC despite the acquittal of co‑accused, and therefore confirmed the appellant’s conviction under Section 302 IPC with the aid of Section 34.

Issues considered

The admissibility and weight of testimony from prosecution witnesses declared hostile.
The reliability of PW‑1’s identification after expressing doubt in cross‑examination.
Whether the omission of witness names in a Section 174 inquest report bars their evidence.
The effect of using the same Panch witnesses for multiple discoveries on their credibility.
The probative value of human blood found on a weapon and the appellant's clothing without blood‑group determination.
Whether conviction under Section 302 IPC can be sustained without proof of the fatal injury being caused by the appellant, and if conviction can be upheld using Sections 34 or 149 IPC despite acquittal of co‑accused and no State appeal.
The scope of appellate re‑appraisal of evidence under Section 386(1)(b) of the CrPC.

Legislation cited

Code of Criminal Procedure, 1973s. 174, s. 386(1)(b)
Indian Evidence Act, 1872s. 138
Indian Penal Code, 1860s. 149, s. 302, s. 34

Subjects

murderhostile witnessSection 34 IPCSection 149 IPCcircumstantial evidenceinquest reportPanch witnessre‑appraisal of evidenceappellate jurisdictionblood‑stain evidenceidentification of assailant

Judgment

KHUJJl@SURENDRA TJWARI
A
v. ·-
THE STATE OF MADHYA PRADESH

JULY 16, 1991

[A.M. AHMADI, V. RAMASWAMI AND K. RAMA SW AMY, JJ .] B

Evidence Act, 1872: Hostile witness-Evidence of-Whether to
be treated as wholly effaced from record or could be accepted to the
extent dependable-Prosecution witness expressing doubt in cross-
examination regarding indentity of some of the asssai/ants-Whether
evidence in examination-in-chief acceptable-Presence of same set of
Panch witnesses for all discoveries and attachments-Whether per- C
rnissible-Evidence of interested party-Whether could be overlooked.

Criminal Procedure Code, 1973: Section 174-0bject and scope
of-Inquest report-Whether should contain names of witnesses.
D
Section 386( l)(b )-Evidence of witnesses-Reappraisal by appel-
late court-Whether permissible.

Indian Penal Code, 1860: Sections 302, 34 and 149-0ffence of
murder-Several persons charged-Al/ accused except one acquitted-
No appeal by State against acquittal-Whether appellate court can E
reappreciate evidence to determine persons committing the offence and
record conviction notwithstanding acquittal of co-accused.

Practice and Procedure Per incuriam-Omission to refer deci-
sion of larger Bench in the Court's decision-Effect of.
F
The appellant was convicted by the courts below under Section
302 IPC and sentenced to life imprisonment for the murder of one G. It
was alleged that when the deceased and his companion, PW-4 were
proceeding in a rickshaw, pulled by PW-3, the appellant and his five
companions launched an attack on them. While PW-4 received an
injury hy a cycle chain, the deceased received stab injuries, to which the G
succumbed on the spot. On the First Information Report lodged by
PW-4, statements of three eye witnesses viz. PW-1, an on-looker and
PWs 3 and 4 recorded during the course of investigation, and the evi-
dence regarding discovery of incriminating articles and find of human
blood on them, the appellant and his five companions were chargeshee-
ted for the murder ot'the deceased.
2 SUPREME COURT REPORTS I 1991] 3 S.C.R. •
During the trial, two of the eye-witnesses, viz. PWs 3 and 4 were
A
declared hostile, since they expressed their inability to identify the
accused per;11ns as assailants of the deceased. Though PW I supported
the prosecution in examination-in ..chief, he expressed some doubt
regarding the identity of the appellant and one other assailant in the
cross-examinatiou. The trial court refused to place reliance on the evi-
B dence of the three eye-witnesses and acquitted all, except the appellant.
It convicted the appellant under Section 302 !PC and sentenced him to
life imprisonment on the evidence that the appellant was absconding,
that he had discovered the weapon which was found to be stained with
human blood and the factum of find of human blood on the pant worn
by him at the time of his arrest. The appellant's appeal was dismissed
by the High Court. While ignoring the evidence of PWs 3 and 4, the
c High Court relied on the evidence of PW-I holding that his subsequent
attempt to create a doubt regarding the identity of the appellant was of
no consequence, since there \\'as intrinsic material in his evidence to
establish the presence of the appellant amongst the assailants of
deceased. It also relied on the discovery evidence and find of human
D blood on the weapon and on the pant he was wearing at the time of his
arrest. The State did not prefer an appeal against the five companions
of the appellant who were acquitted by the trial court.

In the appeal before this Court on behalf of the appellant it was
contended that (I) the prosecution version regarding the incident,
E particularly, the involvement of the appellant was highly doubtful since
the correctness of the First Information Report, purported to have been
lodged by PW4 was itself doubtful since he had disowned it; (2) the
presence of PW I at the scene of offence and at the time of occurrence
was highly doubtful anti the High Court committed an error in placing
reliance on his testimony in examination-in-chief, while brushing aside
F his statement in cross-examination; (3) same set of Panch witnesses had
been employed for all the discovery panchnamas as well as the attach-
ment of clothes of the appellant and others and since PWS, Panch
witness was closely associated with the family and was a stock witness
for the prosecution, no reliance could he placed on the evidence of such
a highly interested and chosen witness, and consequently find of human
G blood on the weapon and the pant lost its probative value; (4) the two
circumstances, viz. that the appellant was not found for two days, and
human blood was present on the weapon and his pant constituted
extremely thin and weak evidence to record a finding of guilt, particu-
larly, when the trial court had discarded all the eye-witnesses' evidence
and doubted the contents of the FIR, and when the Serologist did not
H determine the blood group of the stains on the weapon and pant of the
.. KHUJJI v. STATE OF M.P. 3

appellant; (5) in the absence of positive evidence that the fatal injury
A
:'io. I was caused by the appellant only, his conviction substantively
under Section 302 !PC could not be sustained; (6) since appellant's
+ companion were acquitted, and the State had not preferred any appeal
against their acquittal, he could not be convicted with the aid of Section
34 or 149 !PC, since the acquittal of the co-accused created a legal bar
against his conviction, which could not be got over by reappreciation of B
evidence; and (7) the eye-witnesses' evidence could not be relied upon as
their names did not figure in the inquest report prepared at the earliest
time.

On behalf of the State it was contended that (I) evidence of PWs 3
and 4 could not be treated as effaced from the record, merely because
the prosecution chose to treat them as hostile on the limited question of c
identity of assailants; (2) PW-I was neither a chance witness nor was he
faking his presence at the scene of occurrence at the material time; (3) it
was not necessary in law to mention names of witnesses in the inquest
report as the purpose of preparing the report was merely to make a note
of the physical condition of the body and the marks of injury thereon D
noticed at that point of time; (4) nothing was alleged against PW-5,
}·
Panch witness, nor the appellant had given any explanation regarding
existence of human blood on the weapon and his pant in his statement
recorded under section 313 of the Cr. P.C.; (5) even if the appellant
could not be substantively convicted under Section 302 IPC, he could
still be convicted with the aid of Section 34 or 149 IPC, if the Court E
came to the conclusion that more than one person launched the attack.
and notwithstanding the acquittal of others by the trial court, this
Court could reach its own conclusion as the higher court was not bound
by the appreciation of evidence by the trial court or even the High
Court.
F
Dismissing the appeal, this Court,

HELD: 1.1 The evidence of a prosecution Witness cannot be
rejected in toto merely because the prosecution chose to treat him as
hostile and cross-examined him. The evidence of such witnesses cannot
be treated as effaced or washed off the record altogether, but the same G
-1,-· can be accepted to the extent their version is found to be dependable on
a careful scrutiny thereof. [BC)

Bhagwan Singh v. State of Haryana, [1976) 2 S.C.R. 921; Rabin-
der Kumar Dey v, State of Orissa, [1976) 4 S.C.C. 233 and Syed Iqbal
v. State of Karnataka, [1980) I S.C.R. 95, relied on. H
4 SUPREME COURT REPORTS [1991] 3 S.C.R.

1.2 In the instant case the evidence of two eye-witnesses PW 3 and
-
A
.i challenged by the prosecution in cross-examination because they
refused to name the accused in the dock as the assailants of the
deceased. The trial court made no effort to scrutinise the evidence of +
these two witnesses even in regard to the factum of the incident. It
refused to look into their evidence treating it as non-est, on their being
B declared hostile by the prosecution. This approach of the trial court is
legally unacceptable. The High Court has not endeavoured to assess
their evidence since it thought that the conviction of the appellant could
be sustained on the evidence of PW-I. From the evidence of these two
witnesses the fact that the deceased and PW-4 came to the place of
occurrence in the rickshaw of PW-3 is established. So also the fact that
on their reaching the place of occurrence, they were surrounded by
c some persons and an assault was launched on them in which PW4
received an injury and the deceased died is also established. The only
area they have not supported the prosecution and resiled from their
earlier statements is regarding the identity of the assailants but the fact
remains that the deceased had received three injuries as narrated by
D PW-12, who conducted the post-mortem, and succumbed to the injuries
on the spot. Similarly, there is no doubt at all that PW-4 had gone to the
1
police station and had lodged the First Information Report. The detailed
narration about the incident in th• First Information Report goes to show
that the subsequent attempt of PW-4 to disown the document, while
admitting his signature, thereon, is a shift for reasons best known to
E him. Once the presence of PW-4 is accepted, the presence of PW-3 at
the scene of occurrence cannot be doubted. [13D, 14C, D-F, BJ

2. The Trial Court has not accepted PW-l's evidence on the
ground that he was not a natural witness, and was only a chance wit-
ness. However, on a reading of the entire evidence of PW-I it is clear
F that his statement in cross-examination on the question of identity of the
appellant and one of his companions is a clear attempt to wriggle out of
what he had stated earlier in his examination-in-chief. Since the inci-
dent occurred at·'a public place, it is reasonable to infer that the street
light illuminated the place sufficiently to enable this witness to identify
the assailants. During the one month period that elapsed since the
G . recording of examination-in-chief, something transpired which made
him shift his evidence on the question of identity to help the appellant.
In the circumstance there is no doubt that PW-11tad ample opportunity.
to identify the assailants of the deceased, his presence at the scene of
occurrence is not unnatural nor is his statement that he had come to
purchase vegetables unacceptable. There are no contradiction in his
H evidence to doubt his testimony. He is a totally independent wit-
KHUJJJ v. STATE OF ,\r.P. 5

ness, who had no cause to give false evidence against the appellant
A
and his companions. Therefore, his evide!'ce is ac.ceptable regarding
the time. place and manner of the incident as well as the identity of the
+ assailants. [14H-16C]

3.1 The evidence of eye-witnesses could not be rejected on the
ground that their names did not figure in the inquest report prepared at B
the earliest point of time. [160]

3.2 A pemsal of Section 174 of the Criminal Procedure Code
would clearly show that the object of the proceedings under this Section
is merely to ascertain whether a person has died under suspicious
circumstances or an unnatural death and if so what is the apparent
cause of the death. The question regarding the details as to how the c
de<;e.ased was assualted or who assaulted him or under what circums-
tances he was assaulted is foreign to the ambit and scope of the proceed-
ings under the section. In these circumstances, neither in practice nor in
law, was it necessary for the police to have mentioned these details in
the inquest report. [16E-F] D

Pedda Narain v. State of Andhra Pradesh, [1975) Supp. S.C.R.
84 relied on.

4.1 There was no injunction in law against the same set of witnes-
ses being present at the successive enquiries if notliing could be urged E
against them. Even in the case of an interested party, his evidence
cannot be overlooked on that ground. [17G. E]

Himachal Pradesh Administration v. Om Prakash. [19721 2
S.C.R. 765, relied on.
F
4.2 In the instant case, merely because the same set of Panch
witnesses were used for witnessing all the three discoveries as well as the
attachment of the clothes of the appellant and his companions, PW-S's
evidence could not be discarded since nothing had surfaced in cross-
examination to shake his evidence. Besides, except being a good neigh-
bour nothing more is shown against him. As regards recovery of G
--,., weapon, as well as the appellant's blood stained pant, there is hardly
any effective cross-examination, nor has the appellant offered any exp-
lanation in his statement recorded under Section 313 of the Criminal
Procedure Code. Hence PW S's evidence cannot be rejected on the
specious plea of being an interested witness. In the circumstances, his
evidence was rightly accepted by both theconrts below. [17A, C-D, F, ISA] H
6 SUPREME COURT REPORTS [1991] 3 S.C.R.

A 5.1 The factum of find of the incriminating weapon from the
appellant's garage, and his inability to explain the presence of human
blood thereon is a circumstance against him. Similarly, the existence of
human blood on the pant that he was wearin2 at the time of his arrest,
for which no explanation was offered by him, is also a circumstance
against him, particularly because no injury was noticed on him. [18B-D]
B
5.2 There is also direct testimony of PW-I, besides that of PWs 3
and 4. The find of human blood on the weapon and the pant, with no
explanation for the same lends corroboration to the testimony of PW-I.
When he states that he saw the appellant inflicting a knife blow on the
)'
deceased. In the circumstances, it cannot be accepted that in the
C absence of determination of blood group, the find of human blood is of
no consequence. [19B-C]

Kansa Behera v. State of Orissa, [1987] 3 S.C.C. 480 and Surin-
der Singh v. State of Punjab, [ 1989] Suppl. 2 S.C.C. 21, distinguished.
D
6.1 No doubt it is not possible from the ocular evidence to record
a definite finding of fact that the appellant had caused the fatal injury.
On the contrary the evidence of PW-I indicates that in all probability
the stab wound inflicted by the appellant resulted in injury No. 2, which
by itself was not sufficient in the ordinary course of nature to cause
death. Since the prosecution evidence does not disclose that the fatal
E
blow, which caused injury No. I was given by the appellant, it means
that the fatal blow was given by someone else, and this establishes the
fact that more than one person participated in the commission of the
crime. On an independent examination appreciation of the evidence of
the three eye-witnesses, viz. PWs I, 3 and 4 that several persons had v
participated in the commission of the crime. The failure on the part of
F
PWs 3 and 4 to identify the others does not alter the situation. On the
other hand, from the evidence of PW I, it is clear that some of the
accused participated in the commission of the crime. [19E, 25A-C]

6.2 No doubt in the absence of a State arpeal, the High Court
could not, nor can this Court interfere with the acquittal of the co-
G
accused, but this Court is not bound by the facts found proved on the
appreciation of evidence by the courts below, and is, in law, entitled to
reach its own conclusion different from the one recorded by the courts
below on a review of the evidence. The acquittal of the accused does not
create a legal bar against the conviction of the appellant with the aid of
H Section 34 or 149 IPC. [21C-F]
KHUJJI '· STATE 01' M.P. [AHMADI. J.] 7

Brathi v. State of Punjab, [1991] 1SCC519, affirmed.
A
Baikuntha Nath Chaudhury v. The State of Orissa, [1973] 2 SCC
432; Kasturi Lal v. State of Haryana, [1976] 3 SCC 570; Chandubhai
Shanabhai Parmdr v. State of Gujarat, [1981] Suppl. SCC 46; Sukh
Ram v. State of M. P., [1989] Suppl. 1 SCC 214 and Krishna Govind
Patil v. State of Maharashtra, [1964] 1 SCR 678, distinguished. B

6.3 In the circumstances, the conviction of the appellant can be
sustained with the aid of Section 34 or 149 as the case may be and it is
safe to confirm the appellant's conviction with the aid of section 34
I.P.C. [25D]

The conviction of the appellant is accordingly confirmed and sen- c
tence awarded to him is maintained. [25E]

7. The omission to refer to the decision of larger Bench rendered
in Krishna Govind Patil's case does not render the d~cision in Brathi's
case per incuriam. In any event that decision does not take a view o
inconsistent with the ratio laid down in Brathi's case. [24G]

Sukh Ram v. State of M.P., [1989] suppl. 1 SCC 214 and Brathi v.
State of Punjab, [1991] 1 SCC 519 referred to.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal E
No. 413 of 1982.

From the Judgment and Order dated 12.1.1982 of the Madhya
Pradesh High Court in Criminal Appeal No. 7 of 1979.

U.R. Lalit, Prithvi Raj, S.S. Khanduja, J.P. Dubey, Y.P. F
Dhingra, B.K. Satija, Uma Nath Singh, S. Karnail and S.K. Gambhir
for the appearing parties.

The Judgment of the Court was delivered by

AHMADI, J. This appeal by special leave is preferred by the G
appellant Khujji@Surender Tiwari who has been convicted by both the
courts below under section 302 !PC for the murder of one Guiab. The
facts leading to this appeal, briefly stated, are that on the evening of
May 20, 1978 the deceased Guiab and his companion PW4 Ramesh
' Chander hired a Rickshaw to go to the dispensary of Dr. Mukherjee.
PW 3 Kishan Lal pulled the Rickshaw and while he was passing H
8 SUPREME COURT REPORTS [1991] 3 S.C.R.

through Suji Mohalla near Panchsheel Talkies the appellant and his
A
companions surrounded the Rickshaw and launched an attack on the
deceased and his companion. PW 4 was the first to receive an injury by
a cycle chain. Sensing trouble both Guiab and PW 4 jumped out of the
Rickshaw and ran in different directions. Guiab ran towards Suji
Mohalla whereas PW 4 ran towards Panchsheel Talkies. They were
B chased by the assailants who formed themselves into two groups. PW 4
was fortunate enough to escape with not too serious an injury but his
companion Guiab received stab wounds to which he succumbed on the
spot. The evidence of PW 12 Dr. Nagpal shows that the deceased had
received three injuries, namely, (i) a penetrating stab wound with a y
second injury on the intercostal space on right side rib of the size of 3
ems x Scms x km, (ii) a piercing stab wound Scms below the scapular
c bone and Berns outside the vertibral column of the size of 2.5cms x
l.Scms x 3cms, and (iii) an incised wound on the frontal auxiliary line
2.5cms x l.5cms x 2cms deep on the left hipocardium region. This
witness, who performed the post-mortem, deposed that injury No. 1
which had injured the heart was sufficient in the ordinary course of
D nature to cause death. He further stated that all the three injuries were
collectively sufficient to cause death in ordinary course of nature. The
three articles, namely, the knife, the Chhuri and the Chhura which
were attached in the course of investigation were shown to this witness
and he stated that the three injuries were possible by the aforesaid
articles. It is clear from this evidence that Guiab died a homicidal
E death.

To bring home the guilt against the appellant the prosecution
placed reliance on the evidence of three eye-witnesses, namely, PW 1
Koma! Chand (an on-looker), PW 3 Kishan Lal (the Rickshaw Puller)
and PW 4 Ramesh (the companion of the deceased) besides the find of
F human blood on the weapon discovered at the instance of the appel-
lant and on the !ant which he was wearing at the time of his arrest.

The First Information Report, Exh. P-3, was lodged by PW 4
Ramesh immediately after the incident and the same was recorded by
the Investigating Officer PW 13 Ramji Singh at about 9.15 p.m. In the
G said first information report PW 4 gave the details regarding the inci-
dent and furnished the names of all the six assailants. Soon after the
first information report was lodged the Investigating Officer visited the
scene of occurrence and drew up the Panchnama on the basis of which
a sketch plan Exh. P-20A was prepared in due course. The appellant
and some of his companions could " 1t be traced till May 22, 1978.
H After they were traced, they were interwgated and on their expressing
KHUJJI v. STATE OF M.P. [AHMADI. J.] 9

willingness to discover the weapons used in the commission of the
crime, the Investigating Officer summoned two witnesses, namely, PW A
5 Panna Lal and Rajinder to act as Panch witnesses. The prosecution
case is that in the presence of these witnesses the appellant and his
companions made certain confessional statements under section 27 of
Evidence Act which led to the discovery of the weapons used in the
commission of the crime. According to the prosecution the appellant B
Khujji discovered a Chhura (knife) from his garage and the same was
attached under the Panchnama Exh. P-9. Since this weapon had blood-
like stains, it was sent to the Chemical Analyser and Serologist for
examination and report. The report indicates that it was stained with
human blood but the blood group could not be determined. The other
two companions of the appellant, namely, Parsu and Guddu, also
discovered a knife, Exh. P-7, and a Chhura, Exh. P-13, which were c
attached under Panchnamas Exh. P-6 and P-12, respectively. As stated
earlier the shirt and pant of Khujji were also attached as blood-like
stains were noticed thereon. Both these articles were sent to the
Chemical Analyser and Serologist. So far as the shirt is concerned,
since the blood stains were disintegrated it was not possible to D
determine the origin thereof. But so far as the pant is concerned, the
report states that the stains were of human blood but the blood group
could not be determined as the result of the test was inconclusive. On
the basis of the first information report, the statements of three witnes-
ses recorded in the course of investigation as well as the evidence
regarding discovery and the find of human blood on the incriminating E
articles, the appellant and five others were charge-sheeted for the
murder of Guiab. The trial court acquitted all except the appellant.
Before the trial court PW 4 Ramesh, who had lodged the first informa-
tion report, tried to disown it. He was declared hostile as he expressed
his inability to identify the accused persons as the assailants of the
deceased Guiab. PW 3, the Rickshaw Puller, while narrating the inci- F
dent expressed a similar inability and he too was treated as hostile and
cross-examined by the Public Prosecutor. The third eye-witness PW I
Koma! chand, however, supported the prosecution case in his
examination-in-chief but in his cro~s-examlnation he expressed some
doubt regarding the identity of the appellant and Guddu stating that
he had seen their backs only. The trial court came to the conclusion G
that not only was this witness a chance witness but his presence at the
scene of occurrence was extremely doubtful as it was difficult to
believe that he had come out at that hour to purchase vegetables. Thus
the trial court refused to place reliance on the evidence of the three
eye-witnesses. The trial court, however, came to the conclusion that
the appellant was absconding and that he had discovered the weapon H
10 SUPREME COURT REPORTS [1991] 3 S.C.R.

which was found to be stained with human blood. It also relied on the
A
factum of find of human blood on the pant worn by the appellant at the
time of his arrest. On the basis of this evidence the trial court con-
victed the appellant under section 302 JPC and sentenced him to life
imprisonment. Khujji preferred an appeal against the said conviction.
The High Court while ignoring the evidence of PW 3 Kishan Lal and
B PW 4 Ramesh relied on the evidence of PW 1 Kamal Chand and came
to the conclusion that his evidence clearly established the presence of
the appellant as one of the assailants notwithstanding his effort in
cross-examination to wriggle out of his statement in examination-i-n-
ehief in regard to the identity of the appellant. The High Court noticed
that the examination-in-chief of this witness was recorded on Novem-
ber 16, 1976 whereas his cross-examination commenced on December
c 15, 1976 i.e. after a month and in between he seemed to have been
won over or had succumbed to threat. This inference was drawn on the
basis of PW 3's statement that he was severely beaten on the night
previous to his appearance in court as a witness. The High Court,
therefore, took the view that the subsequent attempt of PW 1 Koma!
D Chand to create a doubt regarding the identity of the appellant was of
no consequence since there was intrinsic material in his evidence to
establish the presence of the &ppellant amongst the assailants of
deceased Guiab. Relying further on the discovery evidence as well as
the find of human blood on the weapon found from the garage of the
appellant and on his pant which he was wearing at the time of his
E arrest, the High Court came to the conclusion that his convictio_n was
well founded and dismissed his appeal. It may here be mentioned that
the State did not prefer an appeal against the five companions of the
appellant who came to be acquitted by the trial court. It is in these
circumstances that the appellant has invoked this Court's jurisdiction
under Article 136 of the Constitution.
F
Mr. U.R. Lalit, learned counsel for the appellant, took us
through the entire evidence and submitted that the prosecution ver-
sion regarding the incident, particularly the involvement of the appel-
lant, is highly doubtful since the correctness of the statement made in
the first information report purporting to have been lodged by PW 4
G Ramesh is itself doubtful because Ramesh himself has dis-owned it.
Since the prosecution had declared both PW 3 Kishan Lal and PW 4
Ramesh as hostile to the prosecution the trial court was justified in
refusing to rely on their evidence. He further submitted that the pre-
sence of PW 1 Koma! Chand at the place of occurrence at that hour
was highly doubtful and this doubt was reinforced by his conduct in not
H raising a hue and cry or going to the help of the victim. The evidence
KHUJJI v. STATE OF M.P. [AHMADI, J.J 11

disclosed that this witness resides at a place almost two furlongs from
the scene of occurrence and claims to have seen the incident from a A
distance ot about 22 feet from a point wherefrom the incident could
not have been witnessed by him as is evident from the physical condi-
tion of the locality described in this sketch Exh. P-20A. He, therefore,
submitted that the trial court was justified in describing this witness as
a chance witness and in doubting his presence at the scene of occur- B
rence at the relevant point of time. According to him the High Court
committed an error in placing reliance on the testimony of this witness.
He, however, submitted that the trial court was not justified in record-
ing the conviction on the mere fact that the appellant could not be
found for two days and there was human blood on his weapon and pant
attached ih the course of investigation. These two circumstances, con-
tended counsel, constituted extremely thin and weak evidence to C
record a finding of guilt particularly when the trial Court had discarded
the evidence of all the three eye-witnesses and had doubted the con-
tents of the first information report Exh. P-3. Lastly he submitted that
the High Court committed an error in brushing aside the statement
made tiy PW 1 Koma! Chand in his cross-examination which went to D
show that his evidence regarding identity of the appellant was highly
suspect. Merely because there was a time gap between his examina-
tion-in-chief and his. cross-examination the High Court was not
justified in jumping to the conclusion that the accused party had
succeeded in winning him over by threat or otherwise. On this line of
reasoning Mr. Lalit contended that the High Court ought not to have E
interfered with the appreciation of his evidence by the trial court.
Besides these submissions based on the evidence of the three eye-
witnesses and the find of human blood on the weapon and pant of the
r appellant, Mr. Lalit further submitted that one set of Panch witnesses,
PW 5 Pannalal and.Rajinder (not examined), had been employed for
all the discovery panchnamas as well as the attachment of clothes of F
the appellant and others which went to show that PW 5 was a stock
witness for the prosecution. He, therefore, submitted that no reliance
could be placed on the evidence of PW Sand consequently the find of
human blood on the weapon and the pant looses its probative value. In
the end he submitted that the conviction of the appellant substantively
u·nder section 302 !PC was not well founded for the simple reason that G
not a single witness had deposed that the fatal injury was caused by the
appellant. The evidence of PW 12 Dr. Nagpal shows that the deceased
had three injuries and out of them only injury No. 1 was by itself
sufficient in the ordinary course of nature to cause death. So far as
injuries Nos. 2 and 3 are concerned, the medical evidrtce does not
show that each one of them separately was sufficient in the ordinary H
12 SUPREME COURT REPORTS [1991] 3 S.C.R.

course of nature to cause death. But the medical evidence is to the
A
effect that all the three in juries taken collectively were sufficient in the
ordinary course of nature to cause death. Jn the absence of positive
evidence that injury No. I was caused by the appellant and none else,
his conviction substantively under section 302 cannot be sustained. In
that case at best he can be convicted for hurt under Section 324, !PC.
B He further submitted that since his companions were acquitted and the
State had not preferred any appeal against their acquittal he could not
be convicted with the aid of sections 34 or 149 !PC.

Mr. Prithvi Singh, the learned counsel for the State, submitted
that the trial court was wrong in rejecting the evidence of PWs 3 and 4
merely because they were declared hostile as if their evidence was
c totally .against the prosecution on that account. He submitted that
their evidence cannot be treated as effaced from the record merely
because the prosecution chose to treat them as hostile on the limited
question of identity of the assailants. Their evidence as to the occur-
rence and number of persons involved in the commission of the crime
D can be relied upon along with that of PW 1 as he was neither a chance
witness nor was he faking his presence at the scene of occurrence at the
material time. His evidence regarding identity of the assailants is
equally acceptable and his subsequent statement made in cross-
examination after a time gap of almost one month was rightly brushed
aside by the High Court, whatever be the reason for his change of
E heart. With regard to the criticism regarding the absence of names of
witnesses in the Inquest Report, counsel urged that it was not neces-
sary in law to mention the names of the witnesses in the inquest report
as the purpose of preparing the inquest report was merely to make a
note of the physical condition of the body and the marks of injury
thereon noticed at that point of time. On the question of value to be
F attached to the evidence of the Panch witness PW 5, counsel submitted
that nothing was alleged against. this witness nor had the appellant
given any explanation regarding existence of human blood on the
weapon and the pant attached from him in his statement recorded
under section 313 of the Code. On the question regarding the offence
committed by the appellant, counsel submitted that once it is proved
G that more than one person had participated in the assault, the appel-
lant could be convicted for the murder of the deceased with the aid of
section 34 or 149 !PC. He, therefore, submitted that the appeal is
without merit and deserves to be dismissed.

We have given our anxious consideration to the submissions
H made by the learned counsel for the contesting parties. The fact that
KHUJJI v. STATE OF M.P. [AHMADI. J.i 13

an incident of tlie type alleged by the prosecution occurred on May 20,
A
1978 at about 8.20 p.m. is not seriously disputed nor is the location of
the incident doubted. The evidence of PW 3 Kishan Lal and PW 4
Ramesh came to be rejected by the trial court because they were
declared hostile to the prosecution by the learned Public Prosecutor as
they refused to identify the appellant and his companions in the dock
as the assailants of the deceased. But counsel for the State is right B
when he submits that the evidence of a witness, declared hostile, is not
wholly effaced from the record and that part of evidence which is
otherwise acceptable can be acted upon. It seems to be well settled by
the decisions of this Court Bhagwan Singh v. State of Haryana, [ 1976] 2
SCR 921; Rabinder Kumar Dey v. State of Orissa, [1976] 4 SCC 233
and Syed Iqbal v. State of Karnataka, [1980] 1 SCR 95 that the evi-
dence of a prosecution witness cannot be rejected in toto merely c
because the prosecution chose to treat him as hostile and cross-
examined him. The evidence of such witnesses cannot be treaied as
effaced or washed off the record altogether but the same can be
accepted to the extent their version is found to be dependable on a
careful scrutiny thereof. In the present case the evidence of the D
aforesaid two eye-witnesses was challenged by the prosecution in
cross-examination because they refused to name the accused in the
dock as the assailants of the deceased. We are in agreement with the
submission of the learned counsel for the State that the trial court
made no effort to scrutinise the evidence of these two witnesses even
in regard to the factum of the incident. On a careful consideration of E
their evidence it becomes crystal clear that PW 4 had accompanied the
deceased in PW 3's rickshaw to the place of incident. In the incident
that occurred at the location pointed out by the prosecution, PW 4
" sustained an injury. His presence in the company of the deceased at
the place of occurrence, therefore, cannot be doubted. Immediately
after the incident within less than an hour thereof PW 4 went to the F
police station and lodged the first information report. It is true that the
first information report is not substantive evidence but the fact
remains that immediately after the incident and before there was any
extraneous intervention PW 4 went to the police station and narrated
the incident. The first information report is a detailed document and it
is not possible to believe that the investigating officer imagined those G
details and prepared the document Exh. P 3. The detailed narration
about the incident in the first information report goes to show that the
subsequent attempt of PW 4 to dis-own the document, while admitting
his signature thereon, is a shift for reasons best known to PW 4. We
are, therefore, not prepared to accept the criticism that the version
regarding the incident is the result of some fertile thinking on the part H
14 SUPREME COURT REPORTS [1991] 3 S.C.R.

A of the investigating officer. We are satisfied, beyond any manner of
doubt, that PW 4 had gone to the police station and had lodged the
first information report. To the extent he has been contradicted with
the facts stated in the first information report shows that he has tried to
resile from his earlier version regarding the incident. So also the pre-
sence of PW 3 at the scene of occurrence cannot be doubted once the
B presence of PW 4 is accepted. The trial court did not go so far as to say
that both these witnesses were not present at the scene of occurrence
or that PW 4 was not injured in the incident but refused to look into
their evidence treating their evidence as non-est on their being
declared hostile by the prosecution. We think that the approach of the
trial court insofar as the evidence of these two witnesses is concerned,
is legally unacceptable. The High Court has not endeavoured to assess
c their evidence since it thought that the conviction of the appellant
could be sustained on the evidence of PW 1 Koma! Chand. We are
satisfied on a close scrutiny of the evidence of the aforesaid two eye-
witnesses, PWs 3 and 4, that the deceased and PW 4 came to the place
of occurrence in the rickshaw pulled by PW 3. On reaching the spot
D where the incident occurred they were surrounded by certain persons
-
who were lying in wait and a murderous assault was launched on them.
The first to receive the injury was PW 4. Wlwn they gauged the inten-
tion of their assailants they jumped out of the rickshaw and both ran in
different directions. The appellant first tried to chase PW 4 but later he
turned to the deceased as he was informed by one of his companions
E Gopal that the person he was pursuing was not Gulab. Therefore,
from the evidence of these two eye-witnesses the fact that the deceased
and PW 4 came to the place of occurrence in the rickshaw of PW 3 is
established. So also the fact that on their reaching the place of occur-
rence they were surrounded by some persons and an assault was
launched on them in which PW 4 received an injury and Gulab died is
F clearly established. The only area where they have not supported the
prosecution and have resiled from their earlier statements is regarding
the identity of the assailants. We will deal with that part of the evi-
dence a little later but the fact remains that the deceased had received
three injuries as narrated by PW 12 Dr. Nagpal, to which he
succumbed on the spot. Once these facts are accepted as proved, the
G only question which really survives for consideration is whether the
appellant was an assailant of the deceased.

That brings us to the evidence of PW 1 Komal Chand. Komal
Chand's evidence was not accepted by the trial court on the ground
that he was not a natural witness and was only a chance witness. PW 1
H explained his presence by stating that he had gone to the market to
KHUJJI v. STATE OF M.P. [AHMADI, J.J 15

purchase vegetables and while he was returning therefrom on foot with
his cycle in hand he heard a coqimotion and saw the incident from a A
short distance. Being a resident of Suji Mohalla, the place of occur-
~ rence was clearly in the vicinity thereof and, therefore, his presence at
the market place could not be considered to be unnatural. It is not
unnatural for working people to purchase vegetables at that hour and,
therefore, his explanation regarding his presence cannot be ruled out B
as false. The sketch map prepared by PW 11 Gaiser Prasad shows that
he had seen the incident from a short distance of hardly 22 feet although
PW 1 says he saw it from the square. Since the incident occurred at a
public place with a lamp-post nearby, the possibilit)' of his having
' identified the assailants could not be ruled out. The examination-in-
chief of this witness was recorded on November 16, 1976 when he
identified all the assailants by name. He stated that he knew the six c
accused persons in court and they were the persons who had sur-
rounded the rickshaw and launched an assault on PW 4 and the
.deceased Guiab. Of them Gopal struck PW 4 with a chain. He also
stated that the appellant Khujji <md his companions Gudda and Parsu
were armed with knives and when Khu jji tried to assault PW 4 with a D
knife,. Gopal shouted "Khujji that man is not Guiab''. Thereupon
Khujji and his companions ran after the Guiab, overtook him and the
appellant, Parsu and Gudda assaulted Guiab with their weapons.
Gudda struck Guiab from the front on his chest, Parsu stabbed him on
the side of the stomach while Ram Kishan and Gopal held him and the
appellant attacked him from behind with a knife whereupon Guiab E
staggered shouting 'save-save' and fell in front of the house of Advo-
cate Chintaman Sahu. Thereafter all the six persons ran away. His
cross examination commenced on 15th December, 1978. In his cross-
y examination he stated that the appellant Khujji and Gudda had their
backs towards him and hence he could not see their faces while he
could identify the remaining' four persons. He stated that he had infer- F
red that the other two persons were the appellant and Gudda. On the
.. basis of this siatement Mr. Lalit submitted that the evidence regarding
the identity of the appellant is rendered highly doubtful and it would
be hazardous to convict the appellant solely on tl)e basis of identifica-
tion by such a wavering witness. The High Court came to the conclu-
sion and, in our opinion rightly, that during the one month period that G
elapsed since the recording of his examination-in-chief something
~
transpired which made hi)n shift his evidence on the question of
identity to help the appellant. We are satisfied on a reading of his
entire evidence that his statement in cross-examination on the ques-
tion of identity of the appellant and his co· :panion is a clear attetnpt to
wriggle out of what he had stated earlier in his examination-in-chief. H
16 SUPREME COURT REPORTS [19911 3 S.C.R.

Since the incident occurred at a public place, it is reasonable to irtfer
A
that the street lights illuminated the place sufficiently to enable this
witness to identify the assailants. We have, therefore, no besitation in
concluding that he had ample opportunity to identify the assailants of
Guiab, his presence at the scene of occurrence is not unnatural nor is
h.is statement that he had come to purchase vegatables unacceptable.
B We do not find any material contradictions in his evidence to doubt his
testimony. He is a totally independent witness who had no cause to
give false evidence against the appellant and his companions. We are,
therefore, not impressed by the reasons which weighed that the trial
court for rejecting his evidence. We agree with the High Court that his
evidence is acceptable regarding the time, place and manner of the
incident as well as the identity of the assailants.
c
it was faintly submitted by counsel for the appellant that the
evidence of eye-witnesses could not be relied upon as their names did
not figure in the inquest report prepared at the earliest poinfof time.
We see no force in this submission in view of the clear pronouncement
D of this Court in Pedda Narain v. State of Andhra Pradesh, [19751 Supp.
SCR 84. Referring to section 174 of the Code of Criminal Procedure
this Court observed at page 89 as under:

"A perusal of this provision would clearly show that the
object of the proceedings under section 174 is merely to
E ascertain whether a person has died under suspicious cir-
cumstances or an unnatural death and if so what is the
apparent cause of the death. The question regarding the
details as to how the deceased was assaulted or who
assaulted him or under what circumstances he was assaul-
ted appears to us to be foreign to the ambit and scope of the
F proceedings under section 174. In these circumstances,
therefore, neither in practice nor in law was it necessary for
the police to have mentioned these details in the inquest
report".

We, respectfully agree and see no merit in this submission made by the
G counsel for the appellant.

After the appellant and his two companions Parsu and Gudda
were arrested they were interrogated by the investigating officer PW
13 Ramji Singh. In the course of interrogation they showed their
willingness to point out the weapons of assault. thereupon the
H investingating officer called two Panchas, one of them being PW 5
KHUJJI v. STATE OF M.P. [AHMAD!, J.J 17

Panna Lal. The very same Panch witnesses were panchas to all the
three discovery panchnamas as well as panchnamas regarding the A
attachment of the clothes worn by the appellant and his companions. It
was, therefore, contended by the counsel for the appellant that PW 5
Panna Lal was a stock witness whom the police had employed to act as
a panch witness. Pointing out that it was Tulsi Ram the brother of the
deceased who had chosen him because he was closely associated with B
the family of the deceased and was intimated with Babula! another
brother of the deceased, Mr. Lalit submitted that no reliance can be
placed on the evidence of such an highly interested and specially
chosen witness. The witness comes from the same locality and his
house is situate within 100 yards of the residence of the deceased. He
knows the family of the deceased quite well being a neighbour and of
the same 'biradari '. It is equally true that he had gone to the hospital C
on learning about t.he assault on Guiab and had stayed back with

- Babula! since the latter was not feeling well. But would it be proper to
throw out his evidence on account of his neighbourly relations with the
family of the deceased, when nothing has been brought out in cross-
examination to shake the intrinsic value to be attached to his evi- D
dence? Even in the cross-examination of the investigating officer
nothing has been brought out to infer that the choice of PW 5 as a
Panch witness was a deliberate one made with a view to enlisting his
support to the prosecution case. The mere fact that he was a witness to
all the Panchnamas prepared by the investigating officer is by itself not
sufficient to discard his evidence. Even in the case of an interested E
witness, it is settled law that his evidence cannot be overlooked merely
on that ground but at the most it must receive strict scrutiny. In the
case of PW 5, except being a good neighbour nothing more is shown.
On the question of recovery of the weapon as well as the blood stained
pant of the appellant there is hardly any effective crose-examinatioli.
Nor. has the appellant offered any explanation in his statement F
recorded under section 313 of the Code. In these circumstances we are
not prepared to reject his evidence on the specious plea of his being an
interested witness. In Himachal Pradesh Administration v. Om
Prakash, [1972] .2 SCR 765 this Court observed at page 777 that it
could hot be laid down as a matter of law and practice that where
recoveries have been effected from different places on the information G
furnished by the accused, different sets of persons should be called in
to witness them. There was no injunction in law against the same set of
witnesses being present at the successive enquiries if nothing could be
urged against them. It is, therefore, clear from the decision of this
Court that merely because the .same set of Panch witnesses were used
for witnessing all the three discoveries as weU as the attachment of the H

(
18 SUPREME COURT REPORTS' [1991] 3 S.C.R.

clothes of the appellant and his companions, PW S's evidence could not
A
be discarded since nothing had surfaced in cross-examination to shake
his evidence. We are, therefore, satisfied that the evidence of PWS
Pannalal was rightly accepted by both the courts below. We make
limited use of this evidence in the sense that we do not use any part of
the evidence admissible under section 27. Evidence Act, against the
appellant. We merely use the factum of find of the incriminating
weapon from his garage and his inability to explain the presence of human·
blood thereon as a circumstance against the appellant. The evidence of
PWS further shows that when the appellant was arrested his garments,
namely, shirt and pant were attached as blood-like stains were noticed
thereon. These articles were sent to the Chemical Analyser and
Serologist for examination and report. As stated earlier these reports
c reveal that the blood stains on the pant worn by the appellant were of
human otigiti. The appellant has not offered any plausible explanation
for· the e.x'istence pf human blood on his pant. This too is a circums-
tance against .the appellant particularly because no injury was noticed
on the person of the appellant.
D
Mr. Lalit, however, argued that since the report of the serologist
does not determine the blood group of the stains on the weapon and
the pant of the appellant, the mere find of human blood on these two
arlicles is of no consequence, whatsoever. Jn support of this conten-
tion he placed strong reliance on the decisions of this Court in Kansa
E Behera v. State ofOrissa, [1987] 3 SCC 480 and Surinder Singh v. State
of Punjab, [1989] Suppl. 2 SCC 21. In the first mentioned case the
conviction was sought to be sustained on three circumstances, namely,
(i) the appellant and the deceased were last seen together; (ii) a dhoti
and a shirt recovered from the possession of the appellant were found
to be stained with human blood; and (iii) the appellant had made an
F extra-judicial confession to two witnesses when arrested. There was no
dispute in regard to the first circumstance and the third circumstance
was held not satisfactorily proved. In this backdrop the question for
consideration was whether the first and the second circumstances were
sufficient to convict the appellant. This Court, therefore, observed
that a few small bloodstains could be of the appellant himself and in
G the absence of evidence regarding blood group it cannot conclusively
connect the bloodstanis with the blood of the deceased. In these
circumstances this Court refused to draw any inference of guilt on the
basis of the said circumstance since it was not 'conclusive' evidence.
This Court, however, did not go so far as to say that such a circums-
fance does not even provide a link in the chain of circumstances on
H which the prosecution can place reliance. In the second case also this
KHUJJI v. STATE .OF M.P. (AHMADI, J.( 19

Court did not consider the evidence regarding the find of human blood
A
on the knife sufficient to convici the appellant in the absence of
determination of blood group since the evidence of PW 2 was found to
be uninspiring and there was no other circumstance to connect him with
the crime. In this case we have the direct testimony of PW 1 Kamal
Chand, besides the testimony of PWs 3 and 4 which we have con-
sidered earlier. The find of hunam blood on the weapon and the pant B
of the appellant lends coroboration to the testimony of PW 1 Kamal
Chand when he states that he had seen the appellant inflicting a knife
blow on the deceased. The appellant has not explained the presence of
human blood on these two articles. We are, therefore, of the opinion
tha~ the aforesaid two decisions turned on the peculiar facts of each
case and they do not lay down a general proposition that in the absence
of determination of blood group the find of human blood on the c
weapon or garment of the accused is of no consequence. We, there-
fore, see no substance in this contention urged by Mr. Lalit.

Thac brings us to the last contention whether the conviction of
the appellant for the substantive offence of murder can be sustained in D
the absence of a finding that the fatal injury No. 1 was caused by the
appellant. We must at once accept the fact that it is not possible from
the ocular evidence to record a definte finding of fact that the appel-
lant had caused that fatal injury. On the contrary the evidence of PW 1
Koma! Chand indicates that in all probability the stab wound inflicted
by the appellant resulted in injury No. 2. that injury by itself was not E
sufficient in the orid.inary course of nature to cause death. If that be so,
can the appellant be convicted under section 302, IPC? Counsel for the
appellant submits that the legal position is well-settled by a chain of
decisions of this Court that if named accused are acquitted except one
of the them, the latter cannot be convicted with the aid of section 34 or
149, IPC. In support of this contention he invited our attention to a F
few decisions, namely, Baikuntha Nath Chaudhury v. The State of
Orissa, [1973) 2 SCC 432; Kasturi Lal v. The State of Haryana, [1976) 3
SCC 570; Chandubhai Shanabhai Parmar v. State of Guiarat, [1981]
Suppl. SCC 46 and_Sukh Rq_m v, State of M.P., [1989) Suppl. i SCC
2J4. Counsel for the state, however, submitted ihat while fr may be
correct that the appellant cannot be substantively convicted under G
section 302, !PC, he can certainly be convicted with the aid of section
34 or 149, !PC, if this Court on a reappreciation of the evidence comes
to the conclusion that more than one person, may be six or seven of
them, had launched an attack on the deceased. In this connection he
submitted that notwithstanding the acquittal of others by the Trial
Court this Court can reach its own conclusion regarding the number of H
20 SUPREME COURT REPORTS [1991] 3 S.C.R.

p~rsons who attacked the deceased for the obvfous reason that the
A
higher Court is not bound by the appreciation of evidence by the Trial
Court or even the.High Court. In support of this contention he placed
strong reliance on this Court's recent decision in Brathi v. State of
Punjab, [1991] 1 SCC 519. Counsel for the appellant ort the other hand
contended that the acquittal of the co-accused creates a legal bar
B against the conviction of the appellant on the ground that they were
privy to the crime notwithstanding their acquittal and this legal bar
cannot be got over by reappreciation of evidence. In support of this
contention he invited our attention to a Five-Judge Bench decision in
Krishna Govind Patil \/•.State of Maharashtra, [1964] 1 SCR 678 and
contended that the said decision was binding on us being of a larger
bench and the decision in Brathi's case must be taken to be per '
c incuriam since it had failed to notice and runs counter to the said larger
bench decision. We are of the opinion, for reasons which we will
immediately state, that the contention urged by counsel for the appel-
lant is n61 well-founded.

D The ratio of the decision of this Court in Brathi's case may be
noticed at the outset to appreciate the contention urged by counsel for
the appellant. Jn that case; the appellant and his uncle were tried
under section 302/34, JPC. The Trial. Court acquitted the appellant's
uncle but convicted the appeliant under section 302, IPC. The order of
acquittal became final because the State did not choose to challenge it
E in appeaf. The appellant, however, preferred an appeal against his
conviction to the High Court. The High Court on a reappreciation of
the evidence held that the fatal blow was given by the appellant's uncle
and since the appellant was charged under section 302/34, !PC, he
could not be convicted substantively under section 302, IPC. How-
ever, for assessing the credibility of the prosecution case, the High
F Court incidentally considered the involvement of the appellant's uncle
and held that the eye witnesses had given a truthful account of the
occurrence and the appellant's uncle had actually participated in the
commission of the crime along with the appellant. In other.words, the
High Court came to the conclusion that the acquittal of the appellant's
uncle was erroneous but since there was no appeal preferred by the
G State it could not interfere with that order of acquittal. It, however,
came. to the conclusion that the crime was committed by the appellant
and his uncle in furtherance of their common intention a]l_d accord- 'ti
ingly maintained the conviction of the appellant under section 302,
!PC, with the aid of section 34, !PC. Before this Court the appellant
contended that on the acquittal of his uncle the sharing of common
H intention disappeared and' the High Court was not justified in invoking
KHUJJJ v. STATE OF M.P. [AHMADI, J.] 21

section 34 for maintaining the conviction against him under section A
302, IPC. This Court while dealing with this submission held that in
the matter of appreciation of evidence the powers of the Appellate
Court are as wide as that of the Trial Court and the High Court was,
therefore, entitled in law to review the entire evidence and to arrive at
its own conclusion about the facts and circumstances emerging there-
from. To put it differently, this Court came to the conclusion that the B
High Court was not bound by the appreciation of the evidence made
by the Trial Court and it was free to reach its own conclusions as t.o the
proof or otherwise of the circumstances relied upon by the prosecution
on a review of the evidence of the prosecution witnesses. This Court,
therefore, held that when several persons are alleged to have commit-
ted an offence in furtherance of their common intention and all except
one are acquitted, it is open to the Appellate Court under Sub-section ( l)(b)
c
of sectiqn 386 of the code to find out on a reappraisal of the evidence
who were the persons involved in the commission of the crime and
although it could not interfere with the order of acquittal in the
absence of a State appeal it was entitled to determine the actual offence
committed by the convicted person: Where on the reappreciation of D
the evidence the Appellate Court comes to the conclusion that the
appellant and the acquitted accused were both involved in the commis-
sion of the crime, the Appellate Court can record a conviction with the
the aid of section 34 notwithstanding the acquittal of the co-accused.
While the appellate Court cannot reverse the order of acquittal in the
absence of a State appeal, it cannot at the same time be hedged by the E
appreciation of the evidence by the lower court if that appreciation of
evidence is found to be erroneous. This Court, therefore, pointed out
that in such a fact-situation it is open to the Appellate Court to record
a finding of guilt with the aid of section 34 notwithstanding the acquit-
tal of the co-accused since the English doctrine of repugnancy on the
face of record has no application in this country as we are governed by F
our own statutory law. On this ratio this Court confirmed the convic-
tion of the appellant under section 302, IPC, but with the aid of section
34, IPC. The fact-situation before us is more or less similar.

Several decisions were cited in support of the contention that

,
where two named persons are charged for the commission of an G
offence with the aid of section 34, IPC and one of them is acquitted the
other cannot be convicted with the aid of section 34, JPC. Dealing with
these decisions this Court observed in Brathi's case that all the deci-
sions relied on were distinguishable on the ground th.at in none of them
the Appellate Court was shown to have disagreed with the Trial
Court's appreciation of evidence but on the contrary the Appellate H
22 s·uPREME COURT REPORTS [1991) 3 ~.C.R.

A'
Court had proceeded on the footing that the appreciation of evidence
by the Trial Court was correct. We think that the cases on which Mr.
Lalit has placed reliance can also be distinguished on the same ground.

. lri Baikuntha Nath Chaudhury's case the evidence of two eye '
., witnesses PWs 9 and 10 was to the effect that accused Nos. 1 and 2 had
B killed their brother with the active participation of accused No. 3, their
mother. According to the prosecution accused No. 2, the appellant, had
called the deceased to his house and while he was there accused No. 1
inflicted two lathi blows which proved fatal. The dead body was then
put in a gunny bag supplied by accused No. 3 and drowned into a
nearby tank. The three accused persons were charged under sections
302/34, and 201, !PC. The Trial Court acquitted accused No. 3 but
fou,nd the other two guilty. On appeal the High Court acquitted
accused No. 1 rejecting the prosecution evidence in regard to his
involvement but confirmed the conviction of accused No. 2 under
section 302/34, !PC, though the fatal injuries were inflicted by the
acquitted accused No. 1. It will thus be noticed that on a reapprecia-
b tion of evidence by the High Court accused No. 1 came to be acquitted
although he was stated to have given the fatal lathi blows while his
brother, the appellant, was convicted on the same evidence. This
Court, therefore, concluded that if the evidence of the two eye witnes-
ses were to be accepted, accused No. I could not be acquitted since
according to them it was he who had given the fatal blows while the
E appellant had merely caught hold of him. This Court, therefore,
observed in paragraph 12 of the judgment that if the occurrence
spoken to by PWs 9 and JO is accepted, the appellant will be construc-
tively liable for his involvement, though the fatal injuries were
inflicted by his brother. In that case his brother will also be guilty of
the said offence. But since the High Court had acquitted the first
F accused it meant that the High Court did not accept the evidence of
PWs 9 and 10 in regard to the incident. This Court did not come to the
conclusion that the High Court's appreciation of evidence in regard a
accused No. 1 was not proper. In fact it did not examine the case from
that point of view but held that since the High Court had not accepted
the evidence of PWs 9 and 10 in regard to the part played by the
G acquitted accused. the appellant could not have been convicted on of
the same appreciation of evidence. This becomes clear on a close
reading of paragraphs 12 and 13 of the judgment. Similarly in the case
of Kasturi Lal this Court came to the conclusion that the reasons given
by the High Court for distinguishing the case of Kasturi Lal from that
of KhazanSingh and Gurdial Singh were not correct and, therefore, it
H was not justified in convicting Kasturi Lal. So, when the case of
KHUJJI v. STATE OF M.P. [AHMADI, J.l :ti

kasturi Lal was not distinguishable from that of the above two, this A
Court felt that the High Court erred in convicting Kasturi Lal. It will
thus be seen that this Court came to the conclusion that the reasons·
...,, which weighed with the Hign Court for the distinction drawn w~re .not
correc.t ·and hence the conviction of Kasturi Lal had to be se.t aside.
This decisio:a also does not hel)l the appellant. in Chandubhai's case.
the prosecution reHed tm the tesrimony of PWs l, S and 6 ·Both the. ff
courts below founcHheir testimony to be un·reliable in several particu-
iars an<! acguitted the co-accused of the appellant in two stages. This
Court concluc:fed that the appellant'S case could not. be·distinguished
from that of hi's tw-0 acquitted companions insofar as the reliability of
·• the ocufar evidence of tl\ree. eye witnesses was concerned. It was in the
said circumstances that this Court thought t.hat the conviction of the·
appellant under. section 302/34, !PC was not justified, particularly, ·. C
after the evidence of the three witnesses was found to· be unrehable.
fhis also, therefore, is not a case where the Appellate Court disagreed
with the appreciation of the evidence by the Trial Court arld came to a.
different conclusion regarding the participation of others.in the com-
mission of the crime. In Sukh Ram's case to which one of.us (Ah1nadi, · O
J.) was a party, this Court interfcrred with the conviction of, the appel-·
!ant recorded with the aid of section 34 by the High Court because on
the facts found proved on evidence the conviction of the appellant
could not be sustained on the acquittal of the co-accused on the same
s'et of established facts. This Court on its own did. not come to the
conclusion that the acquittal of Gokul was not well-founded as High·, E;
Court's appreciation of evidence was n·ot .corre'ct. Had it com.e. to that
conclusion it could have recorded a conviction of the appellant under
section 302/34, !PC, notwithstanding the acquittal of Gokuf. There~
fore, all the aforesaid cases are clearly distinguishable from the facts of
Brathi's case where the High Court had clearly departed from the
appreciation of the evidence by the Trial Court and had reached its · F
own conclusion in regard to the proof of various facts and circums"
tances relied on by the prosecution. We are, therefore, in respectful
agreement with the distinction drawn by this Court on the ground that
in none of the cases cited on behalf of the appellant it was shown .that
file Appellate Court had disagreed with the appreciation of evidence
Hy the Trial Court and the conclusion of facts and circumstances (j
recorded by it.

Does the decision iri Krishna Govind Patil (supra). fake a diffe~
reni view? It is true that the attention df the Bench wh'ich disptlsed of
Brathi's case was not invited lli ittis dedsion. Bue in our opinion, riii•
decision does not take a view inconsistetH wirfi·rke ta!id laid down iil ·.· H
24 SUPREME COURT REPORTS [1991] 3 S.C.R.

Brathi's case. The facts reveal that Krishna Govind Patil and. three
A
others were put up for trial for the murder of one Vishwanath. They
were charged under section 302/34, !PC and were also separately
charged under section 302, !PC. Accused Nos. 1, 3 and 4 pleaded an
alibi while accused No. 2 raised the plea of private defence. The Trial
Court acquitted all the accused on the ground that the prosecution
B witnesses were not speaking the truth and the version of accused No. 2
was a probable one. The State appealed against the order of acquittal
under section 302/34, but not against the acquittal under section 302,
!PC. The High Court confirmed the acquittal of accused l\os. 1, 3 and
4 on the ground that the evidence regarding their participation in the
commission of the crime was doubtful but convicted accused No. 2 on
the ground that one or more of them might have participated in the
c commission of the offence. Accused No. 2, therefore, preferred an
appeal to this Court and contended that when three of the four named
persons were acquitted the High Court was not justified in convicting
him on the basis of constructive liability. This Court held that before ?
Court can convict a person under section 302/34, !PC, it must record a
D definite finding that the said person had prior consultation with one or
more other persons, named or unnamed, for committing the offence.
When three of the accused came to be acquitted on the ground thanhe
evidence was not acceptable or on the ground that they were entitled
to benefit of doubt, in law it meant that they did not participate in the
offence. It was further held that the effect of the acquittal of the three
E co-accused is that they did not co-jointly and with the appellant com-
mit the murder. These observations have to be read in the context of
the facts stated above. The High Court on an appreciation of the
evidence, came to a definite conclusion that accused Nos. 1, 3 and 4
had not participated in the commission of the crime. On that apprecia-
tion of the evidence the High Court could not have come to the conclu-
F sion that any of those acquitted accused was privy to the crime even for
the limited purpose of convicting the appellant with the aid of section
34. This again is not a case where the Appellate Court disagreed with
the appreciation of evidence and reached a conclusion different from
the conclusion recorded by the Trial Court in regard to the participa-
tion of the other co-accused. This decision is also distinguishable on
G the same ground as this Court distinguished the other decisions in
Brathi's case. We are, therefore, of the opinion that the omission to
refer to this decision does not render the decision in Brathi's case per
incuriam. We are, therefore, in respectful agreement with the law
explained in Brathi's case.

H Coming now to the facts of this case the Trial Court acquitted the
KHUJJI v. STATE OF M.P. [AHMADI, J.] 25

co-accused but convicted the appellant under section 302, !PC. The A
High Court has confirmed that conviction. Mr. Lalit is right when he
says that the prosecution evidence does not disclose that the fatal blow
--< which caused injury No. 1 was given by the appellant. Inherent of this
•
submission is the assumption that the fatal blow was given by someone
else. That establishes the fact that more that one person participated in
the commission of the crime. We have also on an independent appreci- B
ation of the evidence of the three eye witnesses, namely, PW 1 Koma!
Chand, PW 3 Kishan Lal and PW 4 Ramesh, come to the conclusion
that several persons had participated in the commission of the crime.
The failure on the part of the prosecution witnesses PWs 3 and 4 to
identify the others does not alter the situation. We are, on the other
hand, convinced from the evidence of PW 1 Koma! Chand that some of C
the co-accused, particularly, Gunda, Parsu and Gopal had participated
in the commission of the crime. It is another matter that in the absence
of a State appeal the High Court could not, nor can we, interfere with
their acquittal, but as rightly-pointed in Brathi's case this Court is not
bound by the facts found proved on the appreciation of evidence by
the courts below and is, in law, entitled to reach its own conclusion D
different from the one recorded by the court's below on a review of the
evidence. In that view of the matter we think that the conviCtion of the
appellant can be sustained with the aid of section 34 or 149, !PC, as the
case may be. In the present case we feel.it safe to confirm the convic-
tion of the appellant with the aid.of section 34, !PC. We, therefore.
cannot agree with the submission of the iearned counsel for the appel- E
lant that at best the conviction can be recorded under section 324, !PC.
We confirm the conviction of the appellant under section 302, !PC,
with the aid of section 34 and maintain the sentence awarded to him.

For the above reasons we see no merit in this appeal and dismiss
the same. F

N.P.V. Appeal dismissed.