THOMAS, J.

1. A young man, 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 an appeal challenging the acquittal and the convicted persons filed another appeal. The High Court of Madhya Pradesh while confirming the conviction and sentence reversed the order of acquittal of the 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 the 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 Nanjis 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. The deceased tried to escape but was again attacked by the assailants with their cutting weapons. PW 1 and PW 5 cried for help and thus Nanuram (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) had 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 eyewitnesses 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 eyewitness was found to be not very reliable.

5. The 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.
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6. The 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 the 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 into "unlawful assembly". But if the Court enters upon a finding that any of the remaining persons who participated in the crime had shared common intention with the main perpetrators of 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 some extent overlapping (Barendra Kumar Ghosh v. King Emperor 1925 AIR(PC) 1 : 29 CWN 181 : 52 IA 40]).

8. Legal position on this aspect remained uncertain for a time after this Court rendered a decision in Nanak Chand v. State of Punjab. But the doubt was cleared by a Constitution Bench of this Court in Willie (William) Slaney v. State of M.P., where this Court observed at para 86, thus

"Sections 34, 114 and 149 of the Indian Penal Code provide for criminal liability viewed from different angles as regards actual participants, accessories and men actuated by a common object or a common intention; and the charge is a rolled-up one involving the direct liability and the constructive liability without specifying who are directly liable and who are sought to be made constructively liable. In such a situation, the absence of a charge under one or other of the various heads of criminal liability for the offence cannot be said to be fatal by itself, and before a conviction for the substantive offence, without a charge, can be set aside, prejudice will have to be made out. In most of the cases of this kind, evidence is normally given from the outset as to who was primarily responsible for the act which brought about the offence and such evidence is of course relevant." *

9. It is, therefore, open to the court to take recourse to Section 34 of IPC even if the said section was not specifically mentioned in the charge and instead Section 149 IPC has been included. Of course a finding that the assailant concerned had a common intention with the other accused is necessary for resorting to such a course. This view was followed by this Court in later decisions also. (Amar Singh v. State of Haryana, Bhoor Singh v. State of Punjab. The first submission of the learned counsel for the appellant has no merit.

10. While dealing with the case of appellant Dhanna, we may point out that the High Court chose to believe the evidence of PW 1 and PW 2 and found that their evidence supports the testimony of PW 6 who said that Dhanna was also a participant in the crime. In this context it is to be remembered that learned Sessions Judge was disinclined to convict Dhanna because PW 6 Nanuram did not mention anything about Dhanna in his statement recorded under Section 161 of the Code of Criminal Procedure (for short "the Code"). When cross-examined, PW 6 was asked about this omission and he had no explanation to offer. PW 14, the Investigating Officer who interrogated PW 6, had stated that Dhannas name was not mentioned by Nanuram (PW 6) when the latter was questioned during investigation. Learned Sessions Judge found it difficult to convict accused Dhanna on the above evidence of PW 6, but the High Court chose to act on the said evidence. The learned counsel for the appellant-Dhanna seriously assailed the aforesaid course adopted by the High Court and contended that it is not open to the appellate court to interfere with the finding made by the trial court in favour of an accused so lightly as that. Learned counsel further contended that in an appeal against acquittal there must be compelling reasons to disturb a fact-finding made by the trial court and that unless the view of the trial court is perverse or at least unreasonable no interference shall normally be made.

11. Though the Code does not make any distinction between an appeal from acquittal and an appeal from conviction so far as powers of the appellate court are concerned, certain unwritten rules of adjudication have consistently been followed by Judges while dealing with appeals against acquittal. No doubt, 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 acquittal the appellate court has to bear in mind : first, that there is a general presumption in favour of the innocence of the person accused in criminal cases and that presumption is only strengthened by the acquittal. The second is, every accused is entitled to the benefit of reasonable doubt regarding his guilt and when the trial court acquitted him, he would retain that benefit in the appellate court also. Thus, the appellate court in appeals against acquittals has to proceed more cautiously and only if there is absolute assurance of the guilt of the accused, upon the evidence on record, that the order of acquittal is liable to be interfered with or disturbed. (Durgacharan Naik v. State of Orissa, Caetano Piedade Fernandes v. Union Territory of Goa, Daman & Diu, Tota Singh v. State of Punjab, Awadhesh v. State of M.P. and Ashok Kumar v. State of Rajasthan.

12. The trial court which relied on the evidence of Nanuram (PW 6) pointed out that the witness did not refer to any role played by Dhanna when he gave statement to the police during investigation and hence a conviction for the offence of murder cannot be passed against Dhanna on the strength of improvement made a the trial. The said sound reasoning should not have been sidelined by the High Court without providing sufficient and convincing reasons. None has been given. We have scrutinised the evidence and we too are satisfied that PW 6 Nanuram has, in fact, omitted to mention anything about Dhanna when PW 6 was questioned by police and has later on tried to give an improved version.

13. We are, therefore, of the opinion that the order of acquittal passed by the trial court in favour of Dhanna should have been maintained by the High Court. So far as the case of Kanhaiyalal and Maniram is concerned, the appreciation of evidence by the courts below is sound and proper. We agree with the findings recorded by the courts below and are of the opinion that their conviction and sentence are well merited. There is no merit in their appeal.

14. In the result, we dismiss Criminal Appeal No. 252 of 1984 filed by Kanhaiyalal and Maniram, but we allow Criminal Appeal No. 170-A of 1984, filed by Dhanna. We set aside the conviction and sentence passed on Dhanna and restore the order of acquittal passed by the Sessions Court in his favour.