Judgment R. N. Sahay, N. N. Singh, JJ. 1. In the night of 6/7th August, 1970 one Jarban mian was found dead in a mysterious circumstances. The deceased was son of Md. Ishaque and was work ing as domestic servant in the house of rajchhatri Mahto since 12 years. It ap-pears that the deceased after taking meat and chura had gone to the house of his master Rajchhatri Mahto in the night for sleeping there as usual. There is a Brahmsthan near the house of rajchhatri Mahto where Jhakri, a sort of play, was going on on the occasion of mahabiri Jhanda Day. The deceased was seen playing Jhakri till late night, thereafter he went to sleep in the house of rajchhatri Mahto. In the morning, one jhingur Dusadh informed Ishaque Mian that his son was lying dead in the cow shed of Rajchhatri Mahto. Ishaque mian and his wife went near the cow shed and found their son dead. There the mother of Rajchhatri Mahto informed them that the deceased died due to snake bite. Ishaque Mian and his wife returned to their house where the dead body of Jarban Mian was brought. Ishaque Mian was advised to lodge information to the Police but he was not in favour of going to police since rajchhatris mother had informed him that his son had died due to snake bite. He did not suspect any foul play. Ishaque Mian ultimately filed fardbeyan before the Lauriya Police Station on 7-8-1970 about the mysterious death of his son. A case under Sec.302 I. P. C. was registered by the police against unknown. On 9th August, 1970 i. e. after the registration of the case, post-mortem examination was done on the dead body of the deceased which revealed extensive bruises on the back side and front of chest, face, both axillary regions and both upper arms. On dissection clotted bloods were found underneath the tissues of the bruised area. There was haematoma in both lungs. The autopsy surgeon found that the deceased had died due to injury caused to lungs which was caused by hard and blunt substance. It is established from the medical evidence that it was a case of homicide. 2. On dissection clotted bloods were found underneath the tissues of the bruised area. There was haematoma in both lungs. The autopsy surgeon found that the deceased had died due to injury caused to lungs which was caused by hard and blunt substance. It is established from the medical evidence that it was a case of homicide. 2. The investigation proceeded further and it was revealed that the present appellant Ramagya Mahto and his brother Thakur Mahto had asked the father of the deceased to hush up the case and for that they promised to give him 5 kathas of land. This fact was stated by the mother of the deceased. 3. Dip Narain Pandey, who was examined as P. W.5 had seen the deceased taking part in that Jhakri. At about 2.00 a. m. when Dip Narain Pandey was going to his Khalihan, in the torch light he saw the appellant and his brother thakur Mahto bringing a cot from their house over which a man was sleeping. On enquiry he was told by Thakur mahto that he was taking his wife to sathi Railway Station as she was ill. The appellant kept the cot in the cow shed. In the morning this witness learnt that jarban Mian was dead and also say the dead body in the house of Rajchhatri mahto. He narrated what he had seen in the night to P. W 4 Kamakhya Shukul. 4. According to P. W.4 Kamakhya shukul, there was rumour in the village that the wife of the appellant had illicit connection with the deceased. Kamakhya shukul had seen the dead body of jarban Mian but he did not notice any sign of snake bite. People suspected that the deceased had been severely beaten resulting in his death. 5. The police after investigation submitted charge sheet against the appellant and his own brother Thakur mahto under Sec.302/34 of the indian Penal Code for the murder of Jarban Mian. It appears that this appellant did not appear for trial and was declared absconder. The other accused Thakur mahto was tried in Sessions Trial No.14/84 and 3/84 before the 3rd Additional sessions Judge, Bettiah. Later the present appellant appeared and was tried separately by the same Additional sessions Judge in Sessions Trial No.192/84 and 144/84. In both the cases judgment was delivered on the same day. The other accused Thakur mahto was tried in Sessions Trial No.14/84 and 3/84 before the 3rd Additional sessions Judge, Bettiah. Later the present appellant appeared and was tried separately by the same Additional sessions Judge in Sessions Trial No.192/84 and 144/84. In both the cases judgment was delivered on the same day. Both the accused persons were convicted and sentenced to undergo imprisonment for life under Sec.302 of the Indian Penal Code. 6. Co-accused Thakur Mahto preferred appeal before this Court in cr. Appeal No.238 of 1985. A Division bench of this Court vide judgment dated 27-5-1991 allowed the appeal of thakur Mahto and set aside his conviction on the ground that the circumstantial evidence brought on record by the prosecution was not strong enough for holding the said appellant guilty fpr the murder of Jarban Mian. This court found that the facts on record were not consistent and the chain of circumstantial evidence was missing. The Court disbelieved the evidence of Dip Narain pandey and Kamakhya Shukul about the illicit relation between the deceased and the wife of this appellant. The Investigating officer was not examined in both the cases. It was held by this Court that non-examination of the Investigating officer has also caused prejudice to the accused. 7. The circumstances relied upon by the trial Court for the conviction of the appellant has been enumerated by the trial court in paragraph 14 of the judgment under appeal: " (i) That Jarban Mian died due to assault by hard and blunt weapon vide postmortem report, ext.-1 and the evidence of rw.3 Dr. N. K. N, Sinha. (ii) That Jarban Mian was working as a servant in the house of Rajchhatri Mahto and used to sleep in the night there. (iii) That Jarban Mian was entangled and had illicit relation with wife of ramagya Mahto as spoken by the different witnesses. The said circumstances was motive behind the murder. (iv) That Jarban Mian took part in the jharki play up to 12 in the night of occurrence and then went to sleep in the house of Rajchhatri as usual. (iii) That Jarban Mian was entangled and had illicit relation with wife of ramagya Mahto as spoken by the different witnesses. The said circumstances was motive behind the murder. (iv) That Jarban Mian took part in the jharki play up to 12 in the night of occurrence and then went to sleep in the house of Rajchhatri as usual. (v) That accused Thakur Mahto and ramagya Mahto were seen by RW.5 Dip narayan Pandey bringing out the dead body of the Jarban Mian from their house and when asked by him (RW.5) this accused Thakur gave a false reply that as his wife was ill so he was taking her to sathi Railway Station. (vi) That dead-body of Jarban Mian was found by witnesses in the cow-shed (Bhusauli) of Rajchhatri Mahto. (vii) That evidence on record proved that houses of Rajchhatri Mahto, Ramagya mahto and Thakur Mahto are situated at one place and all are related to each other. (viii) That accused Thakur Mahto in the morning wanted the informant to hushup this case and with that ending view he promised certain allurements like money and land. " 8. The evidence against the acquitted accused Thakur Mahto was identical. The case is based purely on circumstantial evidence. In view of the acquittal of Thakur Mahto, question arises as to whether the conviction of the appellant can be sustained. The answer must be in the negative. The act of murder was not an individual act, of murder by the accused. The police submitted charge sheet under Section 302/34 of the Indian Penal Code. Learned trial court took serious steps in charging both the accused persons separately under Sec.302 of the indian Penal Code, which is not the prosecution case. Both the accused should have been charged under Section 302/34 of the Indian Penal Code. 9. In Krishna Govind Patil V/s. State of Maharashtra, AIR 1963 S. C.1413, which was decided by four Hon ble judges of the Supreme Court, the appellant before the Supreme Court was tried along with three others for an offence under Sec.302 read with section 34 of the Indian Penal Code. 9. In Krishna Govind Patil V/s. State of Maharashtra, AIR 1963 S. C.1413, which was decided by four Hon ble judges of the Supreme Court, the appellant before the Supreme Court was tried along with three others for an offence under Sec.302 read with section 34 of the Indian Penal Code. The high Court acquitted three of the four accused persons by giving them the benefit of doubt in view of the fact that their identity was not established but fourth appellant Krishna Govind Patil was convicted under Sec.302 read with Sec.34 of the Indian Penal code on the ground that he had committed the offence along with one or other of the acquitted accused. The supreme Court held that the conviction of the fourth accused by the High Court was clearly wrong as other accused were acquitted either on the ground that the evidence was not acceptable or by giving benefit of doubt and the effect of in law would be that they did not take part in the offence. The effect of acquittal of the three accused was that they did not conjointly act with the fourth accused in committing the murder. If that was so the fourth accused could not be convicted under Sec.302 read with section 34 of the Indian Penal Code for having committed the offence jointly with the acquitted persons. 10. Same situation arises here. If both the accused were tried together, they would have been charged under section 302/34 of the Indian Penal code, Both the accused preferred appeals in the High Court. The appeal preferred by co-accused Thakur Mahto was disposed of by this Court and he was acquitted. The present appellant is bound to be acquitted in view of the supreme Court decision referred to above. 11. Mr. Kamta Prasad Gupta, learned A. P. P. has tried to distinguish this case by placing reliance on two decisions of the Supreme Court: (i)Brathi @ Sukhdev Singh V/s. State of punjab, AIR 1991 S. C.318, and (ii) Khujji @ Surendra Tiwari V/s. State of Madhya pradesh, AIR 1991 S. C.1853. In both these cases Krishna Govind Patils case has been distinguished. In A. I. R.1991 s. C.318, it has been held that in the matter of appreciation of the evidence the powers of the appellate court are as wide as that of the trial court. In both these cases Krishna Govind Patils case has been distinguished. In A. I. R.1991 s. C.318, it has been held that 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. In considering the evidence as a whole, the appellate Court may come to the conclusion that the evidence against the person acquitted was also good and need not have been discarded. 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 out on a reappraisal of the evidence that some of the accused persons have been wrongly acquitted, although it could not interfere with such acquittal in the absence of an appeal by the State Government. In this decision, two persons were charged under Section 302/34 of the Indian Penal Code. One accused was acquitted by the trial court and the other accused was convicted under Sec.302 of the Indian Penal code. On appeal the High Court set aside the conviction under Sec.302 i. P. C. but ordered conviction under section 302/34 of the Indian Penal Code and maintained the sentence. The supreme Court held that notwithstanding the acquittal of the other accused, the High Court was within its power to review the evidence and examine whether the acquittal of other accused was justified. 12. In Khujji @ Surendra Tiwari V/s. State of Madhya Pradesh, AIR 1991 S. C.1853 similar view was taken. In the case reported in A. I. R.1991 S. C.318 the attention of the Hon ble Judges of the supreme Court was not drawn to the decision of four Judges Bench in A. I. R.1963 S. C.1413 which fact had been noticed in A. I. R.1991 S. C.1853. Both decisions cited by the learned Counsel for the State are distinguishable. The division Bench acquitted Thakur mahto on the ground that the evidence against him was wholly insufficient to sustain his conviction. The verdict is final and cannot be questioned. 13. Both decisions cited by the learned Counsel for the State are distinguishable. The division Bench acquitted Thakur mahto on the ground that the evidence against him was wholly insufficient to sustain his conviction. The verdict is final and cannot be questioned. 13. In this view of the matter, the appellant cannot be convicted under section 302/34 I. P. C. or under Section 302 I. P. C. More so, as noticed earlier, the circumstantial evidence relied upon by the trial court was held to be wholly insufficient to bring home charge against the accused Thakur Mahto. In our view the evidence is wholly insufficient to sustain the conviction of the appellant. The trial court has taken into consideration an isolate circumstance i. e. evidence of Dip Narain Pandey that he had seen both the accused persons carrying dead body on the cot. This fact has been disbelieved by this Court in the appeal filed by Thakur Mahto. 14. For the reasons stated above, this appeal is allowed and the conviction of the appellant is set aside and he is acquitted of the charges. The appellant is discharged from the liability of his bail bonds. Appeal Allowed.