G.C.Mathur, J. - (1.) The following question has been referred by a learned Single Judge for decision by a larger Bench: "Whether in an appeal against conviction an appellate court can u/S. 423 (1)(b)CrPC reverse the finding of the trial court regarding co-accused who have been acquitted and against whose acquittal no appeal has been filed and hold on the basis of such finding that the appellant was rightly convicted. -
(2.) This very question was answered by a Full Bench in Gulab v. State, AIR 1951 Allahabad 660 (FB) in the affirmative. Shankar Saran and Bindbasni Prasad, II., two of the learned Judges constituting the Full Bench relied upon the majority view in Zamir Qasim v. Emperor, AIR 1944 Allahabad 137 (FB) in answering the question in the affirmative but Harish Chandra, J. arrived at the same conclusion independently of Zamir Qasim's case. In Zamir Qasim's case the majority held that an appellate court is, subject to other provisins contained in the CrPC empowered u/S. 423(1)(b) to alter a finding of acquittal into one of conviction even though no appeal has been preferred by the Government, subject to the condition that it cannot enhance the sentence imposed. In State of Andhra Pradesh v. Thadi Narayana, A.I.R. 1962 SC 240 the Supreme Court ha taken a view contrary to the majority view in Zamir Qasim's case and has held that in exercising the power conferred by Section 423(1) (b) the appellate court cannot convert an acquittal into a conviction. It is because of the reversal of the majority view in Zamir Qasim's case upon which the opinion of two of the learned Judges in Gulab's case was founded that the learned Singh Judge thought that the decision in Gulab's case also requires reconsideration. If the matter had rested there we would have referred the question to a larger Bench.
(3.) Sri R.N. Mulla, learned counsel for the applicant, has strenuously contended that the that the question should be referred to a Full Bench. He has urged that once an accused has been acquitted of an offence and no appeal is preferred against the acquittal then the acquittal as well as the finding on which the acquittal is based are final and cannot be examined or altered. This does not appear to be the correct position in view of the Supreme Court decision. A question similar to the one referred by the learned Single Judge arose for consideration before the Supreme Court in Sunder Singh v. State of Punjab, A.I.R. 1962 SC 1211. In this case four persons including one Rachhpal Singh were tried for an offence u/S. 302/34 IPC. The trial court acquitted Rachhpal Singh but convicted the other three. No appeal was filed against the acquittal of Rachhpal Singh but the three convicted persons preferred an appeal. The High Court held that the three appellants and Rachhpal Singh had the common intention to commit the offence and it was inclined to take the view that Rachhpal Singh had been wrongly given the benefit of doubt by the trial court. It was urged before the Supreme Court that Rachhpal Singh having been acquitted and no appeal having been filed against his acquittal the High Court had no jurisdiction in an appeal by the convicted persons to reverse the finding of the trial court and to hold that Rachhpal Singh was present at the scene of the occurrence and shared the common intention with the three appellants, as alleged by the prosecution. Repelling this contention the Supreme Court observed:- .......when the High Court considered Mr. Sethi's criticism against the prosecution evidence based on the assumption that the said evidence was found to be unreliable in so far as Rachhpal Singh is concerned, it was not appreciating that evidence with a view to reverse the order of acquittal passed in favour of Rachhpal Singh, it was appreciating that evidence only with a view to decide whether the said evidence should be believed against the appellants before it. That is why we think no assistance can be legitimately claimed by Mr. Sethi from the decision in the case of Pritam Singh in support of his argument that the High Court has acted illegally or improperly in expressing its opinion that the prosecution evidence against Rachhpal Singh was not unsatisfactory. Indeed, as an appellate Court, the High Court has to consider indirectly and incidentally the evidence adduced against an accused person who had been acquitted by a trial court in several cases where it is dealing with the appeals before it by the co-accused persons who had been convicted at the same trial and in doing so, the High Court and even this Court sometimes records its indirect conclusion that the evidence against the acquitted persons was not weak or unsatisfactory and that the acquittal may in that sense be regarded as unjustified, vide Bimbadhar Pradhan v. The State of Orissa, 1956 SCR 206 at p. 219 : (S) A.I.R. 1956 SC 469 at p. 474. Therefore, we do not think that there is any substance in the point made by Mr. Sethi that the judgment of the High Court suffers from a serious infirmity in that it examined the evidence against Rachhpal Singh and came to the conclusion that the said evidence was not unsatisfactory.............." This decision fully answers the question referred by the learned Singh Judge. We may refer to two more cases decided by the Supreme Court which show that the findings in favour of an accused who has been acquitted and whose acquittal has become final may be examined in an appeal by the convicted accused or in the trial of another co-accused held separately. In Ajendranath v. State of Madhya Pradesh, 1964 AWR 15 : A.I.R. 1904 SC 107 six persons were tried for conspiring to steal certain goods (S. 120-B IPC), for stealing them (S. 379 IPC) and for concealing the stolen goods (S. 414 IPC). The trial court acquitted one person but convicted the remaining five including Ajendranath. On appeal by the five convicted persons the appellate court acquitted all of them on the ground that the property recovered was not proved to be stolen property and that the conspiracy was not proved. The Sate field an appeal against Ajendra nath and another accused Gopinath. The High Court dismissed the appeal against Gopinath but convicted Ajendra Nath u/S. 414 IPC. It was contended before the Supreme Court that it was not open to the High Court to record a finding that the recovered property was stolen property when the State had not appealed against the other co-accused who had been acquitted on the basis of the finding that the property recovered was not proved to be stolen property. This contention was repelled by the Supreme Court in these words: "........We do not see any force in this contention. The mere fact that the learned Additional Sessions Judge acquitted the other accused on the ground that the property recovered was not proved to be stolen property did not preclude the State from appealing against the acquittal of the appellant against whom there is better evidence for establishing that he was in possession of the stolen property than the evidence was against the other co-accused. The State could challenge the correctness of the findings of the learned Additional Sessions Judge about the property being stolen property and, consequently, the High Court can record its own finding on that question.";