Holding

The conviction of Dhanna under Section 34 IPC was unsustainable; the acquittal must be maintained as the evidence did not establish common intention and the improvement in testimony was insufficient.

Summary

The case involved the murder of Nanji, for which five persons were charged. The Sessions Court convicted two accused (K and M) under Section 302 IPC and acquitted the remaining three, including Dhanna, due to insufficient evidence linking Dhanna to the crime. The Madhya Pradesh High Court reversed Dhanna's acquittal, invoking Section 34 IPC despite the charge not specifically mentioning it, and relied on an improved testimony of a witness (PW‑6) corroborated by other witnesses. The Supreme Court held that the High Court erred in using Section 34 to convict Dhanna, as the witness’s improvement was not adequately explained and there was no proof of common intention; appellate courts must exercise great caution in appeals against acquittal. Consequently, the Supreme Court restored Dhanna’s acquittal while upholding the convictions of K and M.

Issues considered

Whether an appellate court can rely on Section 34 IPC to convict an accused when the charge does not expressly include that provision.
Whether an improvement in a witness's testimony, without sufficient justification, can overturn a trial court's acquittal.
Whether the High Court correctly applied the doctrine of common intention in convicting Dhanna.
What standard of review applies to appeals against acquittal under the Criminal Procedure Code.

Legislation cited

Code of Criminal Procedure, 1973s. 161, s. 368, s. 378
Indian Penal Code, 1860s. 148, s. 149, s. 302, s. 34

Subjects

murderSection 34 IPCappeal against acquittalimprovement of testimonycommon intentionappellate reviewpresumption of innocencecriminal liability

Judgment

A DHANNA ETC.
v.
STATE OF MADHYA PRADESH

JULY 7, 1996

B [DR. A.S. ANAND AND KT. THOMAS, JJ.J

India11 Pe11a/ Code, 1860:

Section. 302:-Murde1~Prosecutim1 wit11ess did 11ot refer to a11y role
C played by one of the accused ivhcn he gave slaten1ent to the police dtoing •
investigation-Accused cannot be convicted for n1urder on basis of in111rove·-
111ent nzade by said ivitncss at llial.

Sectio11s 34 a11d 149-0imi11a/ liabilit)~Abse11ce of charge under sec-
tion 34--Cowt ca11 take recourse to Sec. 34 i11stcad of Sec. 149, even if the
D said Section was not specifically 111entioned h1 the charge.

Oimi11a/ Procedure code, 1973-Sectio11s 368, 378-Appea/ against
acqaittal or conviction-ApjJellate Cotut has to be 111ore cautious while
i11te1fering with orders against acquittals.

E According to the prosecution, the deceased N while proceeding
towards his house with PW-1 and PW-5 was attacked by the accused. The
accused K and M were armed "ith Dhariya, 3rd accused has a pistol, 4th
and 5th accused, the appellants had sickles with them. PW-1 and PW-2
cried for help, on which PW·2 rushed to rescue them, but by then N had
sustained nuinber of serious wounds on his head and fell down on the spot
F itself.

Session Court framed a charge under section 302 and 148 read with
Section 149 of!PC against the accused. After the trial, the Court held that
the prosecution failed to prove the case of unlawful assembly, but relying

G on the testimony of eye-mtness (PW-6), it convicted the accused Kand M
for the otTence u/s 302 IPC and sentenced each to imprisonment for life.
Evidence of the other eye witnesses \Vere not find very reliable and on these
evidence trial court was not inclined to convict the appellant.

High Court on re-evaluation and re-appreciation of the evidence felt
H that the trial court had given undue importance to certain discrepancies
28
DHANNA v. STATE 29

and contradictions noted in the evidence and on relying on the evidence of A
PW-6 which was also corroborated by PW-1 and PW-2, held that the
appellant was also guilty for murder. Hence, this appeal by the appellant.
The accused Kand M also filed an appeal against their conviction.

The appellant contended that the High Court made a basic error in
seeking the aid of section 34 !PC for confirming the conviction of the B
appellant when the charge framed against them did not mention Sec. 34
!PC. It was further contended that in an appeal against acquittal there
must be compelling reason to disturb the fact-finding made by the trial
court and that unless the view of the trial court is perverse or at least
unreasonable no interference would normally be made. c
Dis1iosing of the appeals, this Court

HELD : 1. Though there was no unlawful assembly, but if the court
enters upon a finding that any of the remaining persons who participated
in the ci-ime had shared common intention with the main perpetrators of D
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 son:ie extent
overlapping. So, it is open to the court to take recourse to Section 34 IPC E
even if the said section was not specifically mentioned in the charge and
instead Section 149 IPC has been included. [32-E-G; 33-D]

Willie (William) Slaney v. State of M.P., AIR (1956) SC 116= [1955]
2SCR1140;Amar Singh v. State of Hwyana, [1974] 3 SCC 81 = [1973] SCC
(Cri) 789= AIR (1973) SC 2221 and Blwor Singh v. State of Punjab, [1974] F
4 SCC 754= [1974] SCC (Cri) 664=AIR (1974) SC 1256, relied on.

Barendra Kumar Ghosh v. King Emperor, AIR (1925) PC 1 = 29 CWN
181 = 52 IA 40 and Nana_k Chand v. State of Punjab, [1955] 1 SCR 120 =
AlR (1955) SC 274, referred to.
-~ G
2.1. 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 ac11uittal
the appellate court has to bear in mind : (1) That there is a general
presumption in favour of the innocence of the person accused in criminal H
30 SUPREME COURT REPORTS [1996] SUPP.4 S.C.R.

A cases and that presumption is only strengthened by the acquittal. (2) 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
appellate court also. Thus, the appellate court in appeals against acquit-
tals 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
B
acquittal is liable to be interfered with or disturbed.

Dwgacharan Naik v. State of Orissa, AIR (1966) SC 1775 = (1966) Cri1.
1J 1491; Caetano Piedade Femandes v. Union Tenit01y of Goa, Daman &
Diu, [19771 1 sec 707 = [19771 sec (Cri) 154 =AIR (1977) sc 135; Tota
C Singh v. State of Punjab, [1987] 2 SCC.529: [1987] SCC (Cri) 381=AIR
(1987) SC 1083; Awadhesh v. State of M.P., [1988] 2 SCC 557 = [1988] SCC
(Cri) 361 =AIR (1988) SC 1158 and As/wk Kumar v. State of Rajasthan,,
[1991] 1SCC166= (1991) SSC (Cri) 126=AIR (1990) SC 2134, referred
to. [34-C-E]

D 2.2. Trial Court which relied on the evidence of PW-6, pointed out that.
he did not refer anything about the appellant in his statement during police
investigation and hence, a conviction for the offence of murder cannot be
passed against the appellant on the strength of improvement made at the
trial. The sound reasoning of the trial court should not have been sidelined
by the High Court without providing sufficient and convincing reasons. As
E such the order of acquittal passed by the trial court in favour of the
appellant should have been maintained. So far as the appeal of accused K
and Mis concerned, there is no merit in it. [34-G-H; 35-A-B]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
170A of 1984 Etc.
F
From the Judgment and Order dated 3.2.84 of the Madhya Pradesh
High Court in Crl.A. No. 377 of 1981.

V .K. Jain and M.S. Ganesh for the Appellants.

G Uma Nath Singh for the Respondent.

The Judgment of the Court was delivered by

THOMAS, J. A youngman, by name Nanji, was Murdered on
23.8.1980, near Government Degree College, Dhar. The police arraigned
H five persons for the said murder and the Sessions Judge, after trial, con-
DHANNA v. STATE [THOMAS,J.] 31

victed the first two among them (Kannaiyalal - first accused and Maniram A
- second accused) of the offence under Section 302 !PC, and acquitted the
remaining three persons. State filed an appeal challenging the acquittal and
the convicted persons filed another appeal. High Court of Madhya Pradesh
while confirming the conviction and sentence reversed the order of acquit -
tal of 5th accused (Dhanna) and convicted him also of the offence under
Section 302 !PC. Sentence of imprisonment for life was awarded to all the B
convicts. We have before us two appeals by special leave, one jointly filed
by Kannaiyalal and Maniram and the other separately filed by Dhanna.

Prosecution set up the following case against five accused. Around
3.30 P.M. deceased Nanji, PW-1 Gopilal and PW-5 Narainlal were C
proceeding on bicycles along Dhar-Indore Road. Their destination was
Nanji's house at Jetpura. As they reached near Government Degree Col-
lege, all the five accused emerged from the roadside and made a blitz on
Nanji. Kanniyalal and Maniram were armed with Dhariya, 3rd accused had
a pistol and 4th and 5th accused (Dhanna) had sickles with them. Deceased
tried to escape but was again attacked by the assailants with their cutting D
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.
E
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 Kannaiyalal (first accused) F
and Maniram (second accused) have inflicted cut injuries on the deceased
with Dhariyas and convicted them under Section 302 !PC and sentenced
them each to imprisonment for life.

Out of the four eye witnesses examined by the prosecution Jawarilal G
(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 eye witnesses was found to be not very reliable. H
32 SUPREME COURT REPORTS [1996] SUPP. 4 S.C.R.

A 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 contradic-
tions noted in their evidence. This is what the High Court said about it :

B
"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 thei1r
testimony untrustworthy."
c •
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 con-
victed him and sentenced him as aforesaid.

b Learned counsel, for the appellants contended the the High Court
committed a basic error in seeking the aid of Section 34 !PC for confirming
the conviction of the appellants for the offence under Section 302 !PC. So ...
long as the charge framed against them did not mention Section 34 of !PC,
the High Court was not justified in using the said provision for convicting
the appellants, according to the learned counsel.
E
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
F the main perpetrators of the crime, the court is not helpless in seeking the
aid of Section 34 (!PC) to enter a conviction against such persons arraigned
as 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. Emperor, (1925)
G PC 1).

Legal position on this aspect remained uncertain for a time after this
court rendered a decision in Nanak Chand v. The State of Punjab, [1955]
1 SCR 120. But the doubt was cleared by a constitution bench of this court
in Willie Slaney v. State of M.P., AIR 1956 SC 116, where this court
H observed at para 86, thus :

(
DHANNA v. STATE [THOMAS,J.j 33

"Sections 34, 114 and 149 of the Indian Penal Code provide for A
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 construc-
B
tively 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 c
be made out. In most of the ca,es 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. 11
D
It is, therefore, open to the court to take recourse to Section 34 of
!PC even if the said section was not specifically mentioned in the charge
and instead Section 149 !PC 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 Si11gh v. State of Haryana, AIR (1973) E
SC 2221, Bhoor Si11gh and Anr. v. State of Punjab, AIR (1974) SC 1256.
The first submission of the learned counsel for the appellant has no merit.

While dealing with the case of appellant Dhanna, we may point out
that High Court chose to believe the evidence of PW-1 and PW-2 and F
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 G
omission and he had no explanation to offer, PW-14, the Investigating
Officer who interrogated PW-6, had stated that Dhanna's a 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 H

.·
34 SUPREME COURT REPORTS (1996] SUPP.4S.C.R.

A on the said evidence. 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 com-
pelling reasons to disturb a fact finding made by the trial court and that
B
unless the view of the trial court is perverse or at least unreasonable no
interference shall normally be made.

Though the Code does not make any distinction between an appeal
from acquittal and an appeal from conviction so far as powers of the
c 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
D 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, appellate court in appeals
E a~ainst 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 and Or.1·. v. State of Olissa, AIR (1966) SC 1775,
Caetano Piedade Femandes & Anr. v. Union Terriroty of Goa, Daman & ..'
Diu, Panaji. Goa, AIR (1977) SC 135, Tota Singh and Anr. v. State of
F
Punjab, AIR (1987) SC 1083, Awadhesh and Am: v. State of M.P., AIR
(1988) SC 1158, As/wk Kumar v. State of Rajasthan, AIR (1990) SC 2134 .

. Trial court which relied on the evidence ofNanuram (PW-6) pointed
out that the witness did not refer to any role played by Dhanna when he
G 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 at the trial. The said sound reasoning should not
have been sidelined by the High Court without providing sufficient and
convicting reasons. None has been given. We have scrutinised the evidence
H and we too are satisfied that PW-6 Nanuram has, in fact, omitted to
DI-JANNA v. STATE [THOMAS, J.] 35

mention anything about Dhanna when PW -6 was questioned by police and A
has later on tried to give an improved version.

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 B
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.

In the result, we dismiss Criminal Appeal No. 252/84 filed by Kan-
haiyalal and Maniram, but we allow Criminal Appeal No. 170A/84, filed by C
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.

B.K.S. Appeal dismissed.