JUDGMENT Harjit Singh Bedi, J. - The facts of the case as given in the first information report recorded by Kanta Sharma (PW-2) are as under :- 2. Kanta Sharda deceased (sister of Kanta Sharmas husband, Brij Mohan Sharma) had been married to Sushil Kumar Sharda about thirty years before the incident. Kanta Sharda and her husband had a dispute with Arvind Sharda, Sushil Kumar Shardas younger brother, regarding the partition of the family property. Information with regard to the dispute was frequently conveyed by Kanta Sharda to Kanta Sharma and her husband. At about 10.30 A.M. on March 18, 1997 Kanta Sharma (PW-2) went to visit Kanta Sharda and found Arvind Sharda accused standing at the gate. On seeing her, Arvind Sharda shouted out provocatively and told her that he and his wife, Minakshi had burnt Kanta Sharda after sprinkling kerosene oil on her so that the dispute could be brought to an end and that she could, if she wanted, see her in the civil hospital. Kanta Sharma then returned home and accompanied by her husband, Brij Mohan, went to the Civil Hospital, Jalandhar and found Kanta Sharda admitted in the hospital with serious burn injuries. On enquiry, Kanta Sharda told those present, including Kanta Sharma, that her brother-in-law, Arvind Sharda, and his wife, Minakshi, had set her on fire in the court-yard of their house after sprinkling kerosene oil on her and while Minakshi accused had caught hold of her from her long hair, Arvind Sharda had set her alight. A ruqa was also sent by Dr. J.S. Toor (PW-13) to the Station House Officer, Police Station, Division No. 3, Jalandhar with regard to the admission of the injured in the hospital, on which ASI Surjit Singh (PW-12) went to the hospital and recorded the statement of Kanta Sharma (PW-2) at 2.20 P.M. and on its basis the first information report was registered at the police station at 2.30 P.M.; with the special report being delivered to the Illaqa Magistrate at Jalandhar itself at 7.00 P.M. Kanta Sharda ultimately died on March 23, 1997 and information to that effect was sent to the police by Dr. Alok G. Lalwani (PW-1). Alok G. Lalwani (PW-1). On the completion of the investigation accused Arvind Sharda was charged substantively for the murder while Minakshi was charged for the same offence with the aid of Section 34 of the Indian Penal Code and as they pleaded not guilty, were brought to trial. 3. In order to prove its case, the prosecution relied upon the evidence of PW-1 Dr. Alok G. Lalwani, who had treated Kanta Sharma in the hospital with serious burn injuries and ultimately declared her death on March 23, 1997; PW-8 Dr. Suresh Dadra, who had conducted the post-mortem examination on the dead body and had found that the death had been caused due to cardio respiratory arrest as a result of burn injuries; PW-13 Dr. J.S. Toor, who on March 18, 1997, had sent the ruqa to the police station giving information regarding the arrival of the injured in the hospital; PW-2 Kanta Sharma, the first information; PW-3 Brij Mohan, the brother of the deceased and husband of Kanta Sharma (PW-2); PW-4 Sushil Kumar Sharda, the husband of the deceased and who had seen the two accused running away after having set the deceased on fire; PW-11 Shri M.S. Randhawa, Judicial Magistrate Ist Class, Jalandhar, who had recorded the dying declaration of the deceased; and finally PW-12 ASI Surjit Singh, the Investigating Officer of the case. 4. The prosecution case was then put to the accused and their statements recorded under Section 313 of the Code of Criminal Procedure. They denied the allegations levelled against them. They also examined Gurpreet Deo, the then Superintendent of Police, City Jalandhar, as DW-1. 5. The trial Court observed that the death of Kanta Sharda on account of the burns, was an admitted fact. The Court then examined the evidence of Kanta Sharma (PW-2), her husband Brij Mohan (PW-3) and Sushil Kumar Sharda (PW-4), the husband of the deceased, and concluded that the evidence of these witnesses could not be taken entirely at its face value as there were certain unexplained circumstances in it. The Court, in particular, noted that the statements made by these witnesses were at variance with the dying declaration made by the deceased before Shri M.S. Randhawa, Judicial Magistrate Ist Class (PW-11), wherein she had stated that she had been set alight by Minakshi accused. The Court, in particular, noted that the statements made by these witnesses were at variance with the dying declaration made by the deceased before Shri M.S. Randhawa, Judicial Magistrate Ist Class (PW-11), wherein she had stated that she had been set alight by Minakshi accused. The trial Court also observed that the report submitted by Gurpreet Deo (DW-1) exonerating the two accused could not be accepted, more-so as the dying declaration had been recorded by a Judicial Magistrate, whereas the enquiry made by the Police Officer was opinion evidence and not admissible as such. The trial Court accordingly held that the involvement of Arvind Sharda was suspect, whereas the case against Minakshi accused for the offence punishable under Section 302 of the Indian Penal Code was clearly made out. The Court accordingly convicted her for the offence of murder and sentenced her to undergo imprisonment for life and to pay a fine of Rs. 2000/- and in default thereof to undergo further rigorous imprisonment for three months. 6. The present appeal has been filed by Minakshi against the judgment of the trial Court. 7. We have been informed by Mr. P.S. Mann, learned senior counsel appearing for the accused, that Arvind Sharda, the acquitted co-accused of the present appellant, has since died. 8. Mr. Mann, the learned counsel appearing for the accused has, first and foremost, argued that the trial Court itself had disbelieved the statements of the three primary witnesses, namely, Kanta Sharma, Brij Mohan and Sushil Kumar Sharda with regard to material aspects of the case and as such the trial Courts reliance only on the dying declaration was not called for. He has also urged that a substantive charge under Section 302 of the Indian Penal Code had been framed against Arvind Sharda and under Section 302 read with Section 34 of the Indian Penal Code against Minakshi, the accused/appellant, and as Arvind Sharda has since been acquitted and no appeal had been filed against his acquittal, the vicarious liability sought to be fastened on the appellant was not sustainable. He has relied on Nanak Chand v. State of Punjab, AIR 1955 Supreme Court 274, and Suraj Pal v. State of Uttar Pradesh, AIR 1955 Supreme Court 419, to support his contention. 9. He has relied on Nanak Chand v. State of Punjab, AIR 1955 Supreme Court 274, and Suraj Pal v. State of Uttar Pradesh, AIR 1955 Supreme Court 419, to support his contention. 9. As against this, Shri S.S. Randhawa learned State counsel has placed reliance on Willie (William) Slaney v. State of Madhya Pradesh, AIR 1956 Supreme Court 116, in which the two judgments aforesaid had been discussed and then distinguished and has argued that merely because a charge had not been framed would not be a ground for acquittal unless it could further be shown that the omission to frame a charge had caused prejudice to an accused. He has, however, placed primary reliance on the observations of the Honble Supreme Court in Brati alias Sukhdev Singh v. State of Punjab, 1991 Criminal Appeals Reporter 1, and Khujji @ Surendra Tiwari v. The State of Madhya Pradesh, 1991 Criminal Appeals Reporter 320, and has submitted that the evidence against Arvind Sharda, the acquitted accused, too had been conclusive and the findings of the trial Court leading to his acquittal were erroneous and though no appeal challenging his acquittal had been filed and he had in fact since died, the Appellate Court could still review the evidence and arrive at a conclusion of guilt against him as well, though it could not convert his acquittal into a conviction at this stage. 10. We have considered the matter in the light of the arguments advanced by the learned counsel. We do not find it necessary to go into the question whether any prejudice had been suffered by Minakshi accused or not. The set of judgments cited by the learned counsel for the accused, therefore, need not detain us long as we are of the opinion that the acquittal of Arvind Sharda recorded by the Sessions Judge was not called for as we find no reasons to doubt the evidence given by Kanta Sharma and Sushil Kumar Sharda P.Ws. We find that Kanta Sharma had recorded the FIR at about 2.30 P.M. on the basis of the information that had been conveyed to her orally by the deceased. In her statement she had clearly stated that both the accused had in furtherance of their common intention set her on fire. Kanta Sharma reiterated the same story in the course of her evidence in the Court as well. In her statement she had clearly stated that both the accused had in furtherance of their common intention set her on fire. Kanta Sharma reiterated the same story in the course of her evidence in the Court as well. Likewise Sushil Kumar Sharda (PW-4), the husband of the deceased, had clearly stated that he had witnessed the two accused soon after they had burnt the deceased and that while Arvind Sharda had run away after doing so, Minakshi had stood at the spot laughing though she had become serious on seeing him. Both these witnesses have also stated to the motive for the incident. It appears that there were frequent quarrels between the two families with regard to the partition of the property. It was in such a situation that the Honble Supreme Court in Brati alias Sukhdev Singhs case (supra) observed that "section 423(1) a does not create a bar against the appellate Court to consider indirectly and incidentally a case against the person who was acquitted, if that becomes necessary when dealing with the case in the appeal presented on behalf of the other accused who were convicted. 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 would not have been discarded. When several persons are alleged to have committed an offence in furtherance of their 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. 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" and again "that the High Court is entitled to evaluate the prosecution evidence and arrive at its own conclusion. Such assessment is for the limited purpose of determining whether the infirmity which led to the acquittal of one of the accused persons could be availed of by the other accused who had been convicted. Such assessment is for the limited purpose of determining whether the infirmity which led to the acquittal of one of the accused persons could be availed of by the other accused who had been convicted. On re-examination of the evidence the appellate Court is free to reach its own conclusion which may be contrary to the one reached by the trial Court while acquitting the co- accused. It can certainly come to an independent finding that evidence against the acquitted accused was satisfactory and could not have been discarded. On the basis of such a finding, the appellate Court does not proceed to disturb the order of acquittal which has become final. It can certainly consider the impact of its conclusion on the case of the appellant before it. If on the evidence, the High Court can unmistakably arrive at the conclusion that the appellant and the acquitted person had acted in furtherance of their common intention, the conviction of the appellant with the aid of Section 34 is legal. It would be a travesty of justice, if no conviction can be founded with the aid of Section 34 notwithstanding the finding that the acquitted person was in fact one of the participants in the offence." The observations made in Khujji @ Surendra Tiwari (supra) are similar in content. We are, therefore, on the opinion that notwithstanding the acquittal of Arvind Sharda and the fact that no appeal had been filed against his acquittal, this Court is empowered to re-appraise the evidence and come to a finding that he too had been equally involved in the incident. We are, therefore, of the opinion that it is open to this Court to record a conviction under Section 302/34 of the Indian Penal Code against Minakshi. 11. We, therefore, find no merit in the appeal. It is accordingly dismissed. Appeal dismissed.