Brathi Alias Sukhdev Singh vs State Of Punjab on 31 October, 1990

Supreme Court of India
Brathi Alias Sukhdev Singh vs State Of Punjab on 31 October, 1990
Equivalent citations: 1991 AIR 318, 1990 SCR Supl. (2) 503
Author: K Singh
Bench: Kuldip Singh (J)





 1991 AIR  318		  1990 SCR  Supl. (2) 503
 1991 SCC  (1) 519	  JT 1991 (5)	217
 1990 SCALE  (2)918
 F	    1991 SC1853	 (16)

    Indian Penal Code--Sections 34 and 302--Criminal liabil-
ity-Primarily  attaches to person who actually	commits	 the
offence--Several  persons alleged to have committed  offence
in  furtherance of common intention--All except one  acquit-
ted--Open to appellate court to reappraise evidence.

    The appellant and his uncle Teja Singh were tried for an
offence	 under	Section	 302/34 I.P.C.	for  committing	 the
murder	of one Sucha Singh. The case of the prosecution	 was
that  the appellant and Teja Singh in furtherance  of  their
common	intention attacked the deceased Sucha Singh  on	 1st
January	 1975  when  he was returning home  from  his  field
accompanied  by his daughter and son (PWs 8 and 9).  It	 was
alleged	 that the appellant attacked the deceased with	Kir-
pan, which blow was warded off by the deceased and then Teja
Singh  delivered a blow with Kirpan on the  deceased's	head
whereupon he fell down and both the appellant and Teja Singh
then  dealt one blow each causing injuries to the  deceased.
Sucha  Singh  died  at the hospital. The  fatal	 injury	 was
attributed  to Teja Singh and he was charged  under  section
302 I.P C., and the appellant who was alleged to have caused
the  minor injuries was charged under section 302/34  I.P.C.
The  trial  court  acquitted Teja Singh	 and  convicted	 the
appellant  for	the offence under section  302.	 I.P.C.	 and
sentenced him to undergo imprisonment for life and to pay  a
fine  of  Rs. 1,000. The State did not	appeal	against	 the
order of acquittal passed in respect of Teja Singh, with the
result	that order became final. The appellant	appealed  to
the  High Court contending that when the Sessions Judge	 had
rejected  the prosecution evidence against Teja	 Singh,	 his
conviction on the same evidence was not sustainable. It	 was
further contended on behalf of the appellant that in view of
the acquittal of Teja Singh, who was alleged to have  deliv-
ered  the  fatal blow the appellant could not  be  convicted
under  S.302  IPC or with the aid of section 34	 I.P.C.	 and
that  at best the offence fell under section 326 I.P.C.	 The
High Court while maintaining the sentence of life  imprison-
ment imposed on the appellant, altered his conviction to one
under  sec. 302 read with section 34, I.P.C. The High  Court
while assessing the credibility of the prosecution  evidence
incidentally considered the
case  against  Teja Singh and after reviewing  the  evidence
recorded a finding that the order acquitting Teja Singh	 was
erroneous.  The appellant has filed this appeal against	 the
order of the High Court after obtaining special leave.
    Before this Court it has been inter alia contended	that
the High Court erred in recording the conviction under	sec.
302/34	IPC, as with the acquittal of Teja Singh element  of
sharing common intention has disappeared, (ii) that the High
Court  misdirected itself in appreciating the  evidence	 and
(iii)  that  the individual acts of the appellant  could  at
best constitute only a minor offence, and in the absence  of
any  independent evidence, the appellant could not  be	con-
Dismissing the appeal, this Court,
    HELD: The powers of the appellate Court in dealing	with
an  appeal against an order of conviction are defined  under
Sec. 386(1)(b) of the Code of Criminal Procedure 1973 corre-
sponding  to Section 423(i)(b) of the Code of 1898.  In	 the
matter	of  appreciation of the evidence the powers  of	 the
appellate  Court are as wide as that of the trial court.  It
has full power to review the whole evidence. It is  entitled
to  go	into the entire evidence and  all  relevant  circum-
stances	 to arrive at its own conclusion about the guilt  or
innocence of the accused. [509C-E]
    The	 general principle of criminal liability is that  it
primarily  attached  to the person who actually	 commits  an
offence	 and it is only such person that can be held  guilty
and punished for the offence. [509H]
    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 on appraisal of the evidence that some of  the	 ac-
cused persons have been wrongly acquitted, although it could
not  interfere	with  such acquittal in the  absence  of  an
appeal by the State Government. [509F-G]
    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. [509G]
    Where  the	evidence  examined by  the  appellate  court
unmistakably  proves  that the appellant  was  guilty  under
section	 34 having shared a common intention with the  other
accused who were acquitted and that
the  acquittal	was  bad, there is nothing  to	prevent	 the
appellate  court  from expressing that view and	 giving	 the
finding and determining the guilt of the appellant before it
on the basis of that finding. [515H; 516A]
    The appeal before the High Court against the  conviction
is not a subsequent proceeding against the acquitted person,
    Sunder  Singh and Ors. v. State of Punjab, AIR  1962  SC
1211; Harshad Singh v. State of Gujarat, AIR 1977 SC 710; 1.
G. Singhleton v. King Emperor, AIR 1925 Cal. 501;  Bimbadhar
Pradhan	 v.  The State of Orissa, [1956] SCR  206;  Kapildeo
Singh  v. The King, AIR 1950 FC 80; Dalip Singh and Ors.  v.
State  of Punjab, [1954] SCR 145; Marachalil Pakku v.  State
of  Madras,  AIR  1954 SC 648; Sukh Ram v.  State  Of  U.P.,
[1974]	2 SCR 518; Karan Singh v. State of  Madhya  Pradesh,
[1965] 2 SCR 1, referred to
    Prabhu Babaji Navle v. State of Bombay, AIR 1956 SC	 51;
Krishna	 Govind Patii v. State of Madras, [1964] 1 SCR	678;
Baul  v.  State of U.P., [1968] 2 SCR 454;  Maina  Singh  v.
State of Rajasthan, [1976] 3 SCR 651; Karnail Singh v. State
of  Punjab,  AIR  1977 SC 893 and Piara Singh  v.  State  of
Punjab, [1980] 2 SCC 401, distinguished.


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