JUDGMENT : J.J. MUNIR, J. 1. This appeal is directed against a judgment and order of Sri O.P. Jain, the then IVth Additional District and Sessions Judge, Mainpuri, dated 23.07.1983, convicting the appellant of an offence punishable under Section 304 Part – I read with Section 34 IPC, and, sentencing him to suffer ten years' rigorous imprisonment. 2. The facts giving rise to the present appeal are that on 22.06.1981, one Rajveer Singh son of Lakhan Singh, a resident of Village Dhuanpur, Police Station Jasrana, District Mainpuri submitted a written report at 4.30 p.m. with Police Station Jasrana, District Mainpuri, stating that Gangadeen and Ram Prakash etc., natives of his village were quarreling amongst themselves. The informant's nephew, Shiv Pratap Singh (deceased) had gone to cast his cattle to graze. One Banwari, a native of Village Nagla Bari, asked Shiv Pratap to come along and watch the ongoing squabble. It was about quarter to nine in the morning. As his nephew and Banwari reached near the fields of Shri Krishna, the accused, Ram Prakash @ Ramua son of Mahendra Singh, armed with a hatchet (Farsa), Ratan Singh @ Bachcha son of Nekse, armed with spade (Fawda), Ganga Ram (appellant) son of Nekse, armed with a stick (lathi), Kishori Lal son of Bade, armed with a spade (Fawda) approached the informant's nephew, and, accosted Shiv Pratap Singh, saying that he must have come to help them (the other side). And, saying so, the aforesaid four men fell upon the informant's nephew, assaulting him with hatchet (Farsa), spade (Fawda) and stick (lathi). Upon his nephew shouting out for help, the informant, along with one Kshetrapal Singh son of Munshi Singh, another Divari son of Panna Lal, and, still another Virendra Singh son of Deshraj Singh, reached the place of occurrence, and, witnessed it. The informant and his companions challenged the assailants, whereupon, they took to their heels, leaving his nephew unconscious. His nephew sustained serious injuries to his head and person, with blood oozing out all over the body. The informant, the witnesses and others carried his nephew, Shiv Pratap in a make shift palanquin to the Government Hospital, Jasrana, and, had him medically examined. After getting his nephew admitted to the Government Hospital, the informant went over to the police station to lodge an FIR, with a request that after registration, necessary action be taken. 3. The informant, the witnesses and others carried his nephew, Shiv Pratap in a make shift palanquin to the Government Hospital, Jasrana, and, had him medically examined. After getting his nephew admitted to the Government Hospital, the informant went over to the police station to lodge an FIR, with a request that after registration, necessary action be taken. 3. On the basis of this written report, Case Crime No.131 of 1981, under Sections 308/ 34 IPC was registered at P.S. Jasrana, District Mainpuri. The investigation of the case was entrusted to SI Jagdish Prasad, who interrogated the witnesses, prepared the site plan, and, took samples of blood stained/ plain earth, of which a recovery memo was drawn. 4. Dr. D.S. Shukla, PW-5, then posted at PHC, Jasrana as Medical Officer, initially examined Shiv Pratap Singh, and, found the following injuries: (1) Lacerated wound 1.5cm x 0.5cm x scalp deep on left side head, about 5cm above the pinna of left ear. Bleeding present. Margins lacerated. (2) L.W. 2Cm x 0.5cm x scalp deep on left side & back of head, 2.5cm away from injury No.1. Bleeding present. Margins lacerated. (3) L.W. 1.5cm x 0.5cm x scalp deep on occipital region of head on midline 6cm above the occipit. Bleed present. Margins lacerated. (4) L.W. 3.5cm x 0.5cm x scalp deep on Right side head, about 10cm above pinna of Right ear. Margins lacerated. Bleeding present. (5) L.W. 1.5cm x 0.5cm x scalp deep on left temporal region. Margins lacerated. About 0.8cm behind the left ear. Bleeding present. (6) L.W. 0.8cm x 0.2cm x muscle deep on medial aspect of Right forearm, about 6cm above Right wrist joint. Bleeding present. (7) L.W. 2cm x 0.3cm x muscle on posterior aspect of Right forearm, about 4cm below Right elbow joint. Bleeding present. (8) Abrasion 3cm x .5cm on posterior aspect of Right upper arm, about 4cm below Rt. shoulder joint. Bleeding present. (9) Incised wound 2cm x 0.8cm x Tissue deep on back of left shoulder joint. Margin sharp & clean cut. Bleeding present. Opinion(s) – Patient is unconscious due to Head injury Ad. X ray skull AP & lateral view. All head injuries kept under observation. Inj. No.1 to 8 are caused by blunt object. Injury no.9 is caused by sharp object. Duration fresh. 5. Considering the critical condition of the injured, Shiv Pratap Singh, Dr. Margin sharp & clean cut. Bleeding present. Opinion(s) – Patient is unconscious due to Head injury Ad. X ray skull AP & lateral view. All head injuries kept under observation. Inj. No.1 to 8 are caused by blunt object. Injury no.9 is caused by sharp object. Duration fresh. 5. Considering the critical condition of the injured, Shiv Pratap Singh, Dr. D.S. Shukla, referred the injured to Agra at once, for better management. 6. During treatment at the Agra Hospital, the injured died on 24.06.1981 at 5.00 in the evening hours. Thereafter, the inquest upon the cadaver of the deceased was conducted on 25.06.1981 at 11.00 a.m., and, the cadaver along with usual papers was sent, duly sealed, for autopsy. 7. PW-3, Dr. R.L. Kapoor, who conducted autopsy on the cadaver of Shiv Pratap Singh on 25.06.1981 at 4.00 in the evening hours, found the following ante-mortem injuries on the body of the deceased: (1) Stitched wound 3/4” long 2” above left ear with one stitch on left side of scalp. (2) Stitched wound 1” long 1” below injury No.1 on left side of scalp. (3) Stitched wound 0.5” long on the middle of occipit. (4) Stitched wound 3/4” long on the left mastoid process with two stitches. (5) Abrasion 1” x 4/10” long on the right side of scalp 4” above right ear. (6) Surgical stitched wound 2” long with rubber tube in it semicircular in shape on right temporal region. (7) Stitched wound surgical 2” long with rubber tube in it on left temporal region. (8) Scabbed abrasion 3” x 3/4” on the outer aspect of upper arm upper part right side. (9) Scabbed abrasion 1” 4/10” on the back of right forearm 3” below elbow. (10) Scabbed abrasion 0.5” x 0.5” on the medial side of right forearm 1.5” below wrist. (11) Multiple scabbed abrasions in an area of 4.5” x 1” on the inner part of left leg 5” below knee. On internal examination the said witness found – linear fracture 4.5” long starting from right to left parietal bone, contaminated depressed fracture of whole occipital bone, in an area of 7” x 3” in multiple pieces; brain was lacerated and ecchymosed under the fracture, right side of the chamber of heart was full. 8. SI Jagdish Prasad, the Investigating Officer of the case, after completion of investigation submitted a charge sheet against the accused. 9. 8. SI Jagdish Prasad, the Investigating Officer of the case, after completion of investigation submitted a charge sheet against the accused. 9. The case was committed to the sessions by the learned Judicial Magistrate (Economic Offences) vide order dated 20.07.1982. After committal of the case to the Court of Session, a charge initially for the offence punishable under Section 304 Part – I, IPC was framed, jointly against the four accused, namely, Ram Prakash @ Ramua, Ratan Singh @ Bachcha, Ganga Ram (appellant) and Kishori Lal on 07.10.1982. The charge was amended on 14.04.1983, whereby the accused were jointly charged for an offence punishable under Section 304 Part – I read with Section 34 IPC, on occasion, against three accused, namely, Ratan Singh @ Bachcha, Ganga Ram (appellant) and Kishori Lal. In between this necessary amendment of the charge, Ram Prakash @ Ramua died, and, the trial against him stood abated. The accused, including the appellant, abjured their guilt and claimed trial. 10. In order to prove its case the prosecution has examined the following witnesses: (1) PW-1, Rajveer Singh (eye witness and first informant of the case); (2) PW-2, Divari Lal (eye witness); (3) PW-3, Dr. R.L. Kapoor (conducted autopsy on cadaver of Shiv Pratap Singh); (4) PW-4, S.I. Jagdish Prasad (Investigating Officer of the case); and, (5) PW-5, Dr. D.S. Shukla (examined the injuries of Shiv Pratap Singh). 11. By way of documentary evidence, the prosecution has relied on the following documents: Sr. No. Exhibit No. Exhibited documents 1 Ex. Ka-1 Written report by PW-1, Rajveer Singh 2 Ex. Ka-2 Post-mortem report of deceased Shiv Pratap Singh, proved by Dr. R.L. Kapoor, PW-3. 3 Ex. Ka-3 Chik FIR written by Head Kanchhi Lal, proved by PW-4 4 Ex. Ka-4 Site plan prepared by SI Jagdish Prasad, PW-4 5 Ex. Ka-5 Recovery memo of blood stained and plain earth prepared by PW-4 6 Ex. Ka-6 Charge sheet submitted by SI Jagdish Prasad, PW-4 7 Ex. Ka-7 Injury report of Shiv Pratap Singh prepared by Dr. D.S. Shukla, PW-5 12. The accused, Ganga Singh @ Ganga Ram, Ratan Singh and Kishori Lal, in their separate statements under section 313 Cr.P.C. have denied the incriminating circumstances appearing in evidence against them and entered defence. They have examined Banwari as DW-1. 13. Ka-7 Injury report of Shiv Pratap Singh prepared by Dr. D.S. Shukla, PW-5 12. The accused, Ganga Singh @ Ganga Ram, Ratan Singh and Kishori Lal, in their separate statements under section 313 Cr.P.C. have denied the incriminating circumstances appearing in evidence against them and entered defence. They have examined Banwari as DW-1. 13. The learned trial court proceeded to convict the appellant alone, of all those arraigned at the trial, and, sentenced him as aforesaid by the impugned judgment and order. The other two were acquitted, giving them the benefit of doubt. 14. Heard Sri B.K. Solanki, learned counsel for the appellant and Sri J.B. Singh, learned A.G.A. along with Sri Abhinav Tripathi appearing on behalf of the State. 15. The thrust of the submission of Sri Solanki before this Court is that on common evidence, that is not separate and divisible, co-accused Ratan Singh and Kishori Lal, being acquitted by the trial court giving them the benefit of doubt, on a charge under Section 304 Part–I, read with Section 34 IPC of having committed the offence jointly with the appellant, the solitary conviction of the appellant is bad in law. 16. He submits that the charge being one of committing culpable homicide not amounting to murder, not only sharing a common intention, but acting conjointly, in perpetration of the offence with the two acquitted co-accused, it is legally untenable to sustain the conviction. It is pointed out that the charge at no point of time, was amended to exclusively arraign the appellant, which was an option available to the trial court, at any stage of the trial, in case, the evidence indicated towards his single-handed involvement. But, that was not done. It is submitted that contrariwise, the charge that was originally framed under Section 304 Part – I, IPC was amended, looking to the case of the prosecution, to a charge against all the three surviving accused, including the appellant, under Section 304 Part – I, read with Section 34 IPC. It is pointed out further by learned counsel for the appellant, that admittedly no appeal has been carried by the State from the impugned judgment and order, to the extent it records an acquittal, in favour co-accused Ratan Singh and Kishori Lal. The acquittal of the co-accused has become final. 17. It is pointed out further by learned counsel for the appellant, that admittedly no appeal has been carried by the State from the impugned judgment and order, to the extent it records an acquittal, in favour co-accused Ratan Singh and Kishori Lal. The acquittal of the co-accused has become final. 17. Learned counsel for the appellant has drawn the attention of the Court to evidence, that is not separate and divisible, appearing against the appellant, the two acquitted co-accused Ratan Singh and Kishori Lal besides the deceased co-accused Ram Prakash @ Ramua. He has invited the attention of the Court to the relevant part of the deposition of PW-1, Rajveer Singh, the first informant and a cousin to the deceased's father, that is part of his examination-in-chief, recorded on 14.04.1983. It reads as follows (in Hindi vernacular): **tc f'ko izrki Jh d`".k ds [ksr ds ikl igqapk rks mls jke izdk'k] xaxkjke] jru flag o fd'kksjh yky us ?ksj fy;k o dgk fd rw xaxknhu dh enn djus vk;k gSA ml le; jke izdk'k ij Qjlk] jru flag ij QkoM+k] xaxkjke ij ykBh o fd'kksjh ij QkoM+k FkkA mu yksxksa us Äsj dj f'ko izrki dks ekjuk 'kq: dj fn;kA f'ko izrki fpYyk;kA mlds 'kksj ij eSa] {ks=iky] ohjsUnz o fnokjh nkSM+ dj x;sA ge yksxksa us eqyfteku dks yydkjkA og yksx f'ko izrki dks csgks'k NksM+ dj HkkxsA eSa djhc chl dne nwj Fkk tc eqyfteku f'ko izrki dks ekj jgs FksA QkoM+s okyksa us QkoM+s dh ewB dh rjQ ls pyk;k FkkA f'ko izrki csgks'k gks x;k FkkA mldh pksVksa ls [kwu cgk FkkA** 18. He has further invited the attention of the Court, to drive home his point, that the evidence appearing against the acquitted co-accused, Ratan Singh and Kishori, is not separate and divisible, by referring pointedly to that part in the cross-examination of PW-1, where he says thus: **ekjihV 1& 1 1@2 feuV gqbZ gksxhA jke izdk'k us ,d okj fd;k FkkA xaxk jke us 5 & 7 okj] jru flag o fd'kksjh us nks nks rhu rhu okj fd;s FksA** 19. Learned counsel for the appellant, to further buttress his contention about the evidence being not separate and divisible, has referred to the following deposition that is part of the examination-in-chief of PW-2, an eye witness, and the only other witness of fact examined by the prosecution (in Hindi vernacular): **djhc 1 3@4 o"kZ gq, lqcg ds djhc 8 3@4 cts dh ?kVuk gS eSa ml le; vius njokts ij FkkA eSaus f'ko izrki dh vkokt lquhA fQj eSa] jktohj] {ks=iky o ohjsUnz flag ds lkFk ogka x;k tgka eqyfteku jke izdk'k] xaxkjke] jru flag o fd'kksjh yky] f'ko izrki dks ekj jgs FksA xaxk nhu ds chp okys [ksr dh nf{k.k okyh es<+ ij eqyfteku f'ko izrki dks ekj jgs FksA xaxk nhu ds [ksr dh nf{k.kh es<+ ds nf{k.k esa pd jksM gSA jke izdk'k ij Qjlk] xaxkjke ij ykBh] jru flag ij QkoM+k o fd'kksjh ij QkoM+k FkkA ge yksxksa us 15&20 dne dh nwjh ls eqyfteku dks yydkjk FkkA gekjs yydkjus ij eqyfteku pd jksM ij iwoZ dks pys x;sA** 20. On the state of this evidence, learned counsel for the appellant is most emphatic to submit that it brooks no doubt that the evidence appearing against the appellant, and, the acquitted co-accused, besides the one deceased, Ram Prakash @ Ramua, is not in the least manner, separate and divisible. The evidence is an integrated whole, that speaks about the fatal assault, being one that expressed a common intention, manifested through joint action, by all the accused. He has argued most persuasively to say, that it is on this account, that the charge in the present matter, that was initially framed under Section 304 Part – I, IPC alone, was later amended to a joint charge, against all the accused under Section 304 Part – I, read with Section 34 IPC. The learned counsel submits that this alternation of the charge, clinches the issue about the evidence not being separate and divisible. 21. The learned counsel submits that this alternation of the charge, clinches the issue about the evidence not being separate and divisible. 21. In support of his contention, learned counsel for the appellant has placed strong reliance on the decision of the Hon'ble Supreme Court in Krishna Govind Patil vs. State of Maharashtra, AIR 1963 SC 1413 , where on a charge under Section 302, read with Section 34 IPC, under an identical position on facts, the High Court reversed an order of acquittal in relation to one of the four accused tried by the Sessions Judge and convicted him alone, while maintaining the acquittal of the remaining three. Learned counsel for the appellant points out, that on this state of facts and evidence, their Lordships disapproved the solitary conviction on a charge under Section 302/ 34 IPC holding thus: “8. But the present case falls outside the said three illustrations. The High Court gave conflicting findings. While it acquitted Accused 1, 3 and 4 under Section 302, read with Section 34 of the Indian Penal Code, it convicted Accused 2 under Section 302, read with Section 34, of the said Code, for having committed the offence jointly with the acquitted persons. That is a legally impossible position. When accused were acquitted either on the ground that the evidence was not acceptable or by giving benefit of doubt to them, the result in law would be the same: it would mean that they did not take part in the offence. The effect of the acquittal of Accused 1, 3 and 4 is that they did not conjointly act with Accused 2 in committing the murder. If they did not act conjointly with Accused 2, Accused 2 could not have acted conjointly with them. Realizing this mutually destructive findings of the High Court, learned counsel for the State attempted to sustain the finding of the High Court by persuading us to hold that if the said finding was read in the context of the whole judgment, it would be clear that the learned Judges meant to hold that persons other than the acquitted accused conjointly acted with the convicted accused. We have gone through the entire judgment carefully with the learned counsel. We have gone through the entire judgment carefully with the learned counsel. But the observations of the learned Judges as regards the “other participants” in the crime must in the context refer only to the “one or other of that said three acquitted accused participated in the offer he committed by Accused 2”. There is not a single observation in the judgment to indicate that persons other than the said accused participated in the offence, nor is there any evidence in that regard. We, therefore, hold that the judgment of the High Court cannot stand. We are satisfied that on the findings arrived at by the High Court, the conviction of Accused 2 is clearly wrong.” 22. Learned counsel for the appellant has sought to further reinforce his submission by placing reliance on the decision of the Hon'ble Supreme Court in State of W.B. vs. Vindu Lachmandas Sakhrani alias Deru, 1995 SCC (Cri) 175, where in the case of a charge under Section 302/34 IPC, against a husband and wife, the husband was acquitted, but the wife convicted. It was held by their Lordships thus: “3. Learned counsel for the respondent has raised a further point for our consideration. According to him there was no independent charge under Section 302 Indian Penal Code either against the husband or against the wife. Both were charged under Section 302 read with Section 34 Indian Penal Code. He states that the element of sharing the common intention by husband and the wife was the core of the charge. The husband having been acquitted and there being no independent charge under Section 302 Indian Penal Code against the wife, she cannot be convicted for the said offence. 4. We see force in the argument advanced by the learned counsel. Both husband and wife were charged with an offence under Section 302 read with Section 34 Indian Penal Code. The charge which was based on the common intention of the two failed with the acquittal of the husband and there being no charge under Section 302 simpliciter against the wife she could not be convicted. In any case there is no evidence on the record to show that she independently committed the offence.” 23. Sri J.B. Singh, learned Additional Government Advocate assisted by Sri Abhinav Tripathi appearing on behalf of the State, has repelled the aforesaid submissions by the learned counsel for the appellant. In any case there is no evidence on the record to show that she independently committed the offence.” 23. Sri J.B. Singh, learned Additional Government Advocate assisted by Sri Abhinav Tripathi appearing on behalf of the State, has repelled the aforesaid submissions by the learned counsel for the appellant. Sri J.B. Singh submits that the law laid down in Krishna Govind Patil (supra) a n d Vindu Lachmandas Sakhrani (supra) though an unquestionable statement of the law, is of no assistance to the appellant in view of the fact that in those decisions, unlike the case in hand, the co-accused had not been acquitted, giving them the benefit of doubt; at least, that is the position in Vindu Lachmandas (supra). In Krishna Govind Patil (supra) though the acquittal was on a benefit of doubt for the co-accused, but it was a well expressed doubt, that no one doubted. 24. Sri J.B. Singh submits that on facts of the present case, the two accused, have been acquitted giving them the benefit of doubt, but in his submission on the evidence available on record, before this Court, the doubt expressed by the learned Sessions Judge, is fanciful, conjectural, and, one based on extremely strained reasoning. He submits further that notwithstanding the absence of an appeal by the State from the order of acquittal, this Court is entitled to look into the basis of that acquittal, for the purpose of determining the liability of the appellant. He has placed reliance on the decision of the Hon'ble Supreme Court in Mohammed Moinuddin vs. The State of Maharashtra, 1971 (3) SCC 338 ; Har Prasad and others vs. The State of Madhya Pradesh, 1971 (3) SCC 455 ; and, Shri Sat Kumar vs. State of Haryana, (1974) 3 SCC 643 to submit that there is no rule of law that if the court acquits certain accused, all charged with aid of Section 34, on account of some doubt, any other co-accused, against whom there is absolute certainty about his complicity, is also entitled to acquittal. 25. 25. This Court is inclined to think that the law does not forbid this Court from looking into the evidence as a whole in the case, adduced against all those charged, even the one charge sheeted co-accused, Ram Prakash @ Ramua, who died before standing his trial, besides the two co-accused, who have been acquitted by the trial court, notwithstanding the State not appealing their acquittal. It is open to this Court as a Court of Appeal under Section 386 (1)(b) Cr.P.C., to indirectly or incidentally look into the entire evidence to find out, whether those acquitted, have indeed been rightly acquitted. This Court is free to examine the entire evidence and come even to a contrary conclusion, as regards those co-accused who have been acquitted by the trial court; this Court can hold that they have been acquitted in error, but cannot, of course, disturb or reverse the acquittal, in the absence of an appeal by the State challenging their acquittal, that is admittedly not filed in the present case. This issue has been examined and answered most elaborately by the Hon'ble Supreme Court in Bhrathi alias Sukhdev Singh vs. State of Punjab, (1991) 1 SCC 519 , where it has been dealt with by their Lordships thus: “8. We shall now examine whether the approach made by the High Court in judging the guilt of the appellant on the premise that the acquitted person also participated in the offence has introduced any error. The powers of the appellate court in dealing with an appeal against an order of conviction are defined under Section 386(1)(b) of the Code of Criminal Procedure, 1973 corresponding to Section 423(1)(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 circumstances to arrive at its own conclusion about the guilt or innocence of the accused. 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 circumstances to arrive at its own conclusion about the guilt or innocence of the accused. In Sunder Singh case[1962 Supp 2 SCR 654 : AIR 1962 SC 1211 : (1962) 2 Cri LJ 290] this Court has held that the provisions of Section 423(1)(a) do not create a bar against the appellate court considering 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 are 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 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. 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. 9. The general principle of the criminal liability is that it primarily attaches to the person who actually commits an offence and it is only such person that can be held guilty and punished for the offence. Sections 34 and 149 of the Indian Penal Code deal with the liability for constructive criminality. Section 149 creates a specific offence and postulates an assembly of five or more persons having a common object. Section 34 has enacted a rule of co-extensive culpability when offence is committed with common intention by more than one accused. The offence of criminal conspiracy punishable under Section 120-B, IPC, consists in the very agreement between two or more persons to commit a criminal offence. Section 34 has enacted a rule of co-extensive culpability when offence is committed with common intention by more than one accused. The offence of criminal conspiracy punishable under Section 120-B, IPC, consists in the very agreement between two or more persons to commit a criminal offence. Before these sections can be applied, the court must find with certainty that there were at least two persons sharing the common intention or five persons sharing the common object or two persons entering into an agreement. The principle of vicarious liability does not depend upon the necessity to convict a requisite number of persons; it depends upon proof of facts beyond reasonable doubt which makes such a principle applicable. As observed by Krishna Iyer, J. in Harshadsingh v. State of Gujarat [ (1976) 4 SCC 640 : 1977 SCC (Cri) 26 : AIR 1977 SC 710 ] (SCC p. 643, para 8) “if some out of several accused are acquitted but the participating presence of a plurality of assailants is proved, the conjoint culpability for the crime is inescapable”. When more persons than one are prosecuted and one of them is convicted and others are acquitted, the order of acquittal cannot be set aside unless an appeal has been duly preferred in that behalf against the said order. But there is no bar to the appellate court acting under Section 386 of the Code of Criminal Procedure to appreciate the whole evidence in a given case for the purpose of accepting or rejecting the appeal before it. The evidence examined as a whole may show that the appellant is guilty under Section 34 of the Indian Penal Code having shared a common intention with the other accused who are acquitted and the acquittal of these persons was bad. There is nothing in law to prevent the appellate court from expressing that view and recording that finding. The conviction of the appellant in such a case could be maintained on the basis of that finding. This is the correct legal approach to prevent miscarriage of justice. A wrong and erroneous order of acquittal though irreversible in the absence of an appeal by the State would not operate as a bar in recording constructive liability of the co-accused when concerted action with common intention stands proved. This is the correct legal approach to prevent miscarriage of justice. A wrong and erroneous order of acquittal though irreversible in the absence of an appeal by the State would not operate as a bar in recording constructive liability of the co-accused when concerted action with common intention stands proved. In Sunder Singh case [1962 Supp 2 SCR 654 : AIR 1962 SC 1211 : (1962) 2 Cri LJ 290] four persons were tried for offence under Sections 302/304, IPC. The Sessions Judge gave the benefit of doubt to Rachpal Singh and acquitted him but convicted the other three of the offences charged. No appeal was preferred against the acquittal of Rachpal Singh. But the three convicted persons appealed to the High Court. The High Court was of the view that the Sessions Judge was wrong in giving the benefit of doubt to Rachpal Singh that Rachpal Singh was present at the scene of occurrence and all the four accused had the common intention alleged by the prosecution. The appellants in that case contended before the Supreme Court that the High Court had no jurisdiction or authority to embark upon an enquiry into the propriety or validity of the acquittal of Rachpal Singh and that its finding that Rachpal Singh had taken part in the offence as alleged by the prosecution had introduced serious infirmity in the judgment of the High Court. Gajendragadkar, J., as he then was, speaking for the bench of three Judges observed at page 664 as under: “When the High Court in appeal considered the case against the three appellants, it had inevitably to examine the comment made by Mr. Sethi against the reliability of the witnesses on the ground that their evidence against Rachpal Singh had not been accepted by the trial Court and that necessarily meant that the High Court had to apply its mind to that problem as well. If in dealing with the case presented before it on behalf of the appellants it became necessary for the High Court to deal indirectly or incidentally with the case against Rachpal Singh, there is no legal bar at all. If in dealing with the case presented before it on behalf of the appellants it became necessary for the High Court to deal indirectly or incidentally with the case against Rachpal Singh, there is no legal bar at all. It may be that in considering the evidence as a whole, the High Court may have come to the conclusion that the evidence against Rachpal Singh was unsatisfactory and if it had come to such a conclusion, it would have examined the said evidence in the light of this infirmity. On the other hand, after considering the evidence, the High Court may well have come to the conclusion, as it has, in fact, done in the present case, that the evidence against Rachpal Singh is also good and need not have been discarded. In our opinion, there is no doubt that if in appreciating the points made by the appellants before it the High Court had to consider the whole of the evidence, in respect of the accused persons, it was free to come to one conclusion or the other in respect of the said evidence, so far as it related to Rachpal Singh. That is why we think that the point made by Mr Sethi that Section 423(1)(a) precluded the High Court from considering the merits of the order of acquittal even incidentally or indirectly cannot be upheld.” It was pointed out that when the High Court considered the criticism against the prosecution evidence based on the assumption that the said evidence was found to be unreliable insofar as Rachpal Singh is concerned, it was not appreciating that evidence with a view to reverse the order of acquittal passed in favour of Rachpal Singh; it was appreciating only with a view to decide whether the said evidence should be believed against the appellants before it and observed thus at page 666: “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.” 10. These observations indicate 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. 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 would 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. 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 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. It may well be remembered that the English rule of repugnancy on the face of record for annulling the conviction of co-conspirator on the other conspirator being acquitted is not applicable in this country, since such cases are governed by statutory law which does not recognise any such rule vide I.G. Singleton v. King Emperor [AIR 1925 Cal 501 : 26 Cri LJ 662] . (Emphasis by Court) 26. The decision of their Lordships in Bhrathi alias Sukhdev Singh (supra) was followed by a Division Bench of the Kerala High Court in Shemy vs. State of Kerala, Criminal Appeal no.1478 of 2012 (D), decided on 12.12.2017, wherein the argument advanced to the effect that the decision of their Lordships in Bhrathi alias Sukhdev Singh (supra) is per incuriam, since it has failed to notice the decision in Krishna Govind Patil (supra), which is a Four Judge Bench of their Lordships, has been rejected with the court holding that Bhrathi alias Sukhdev Singh (supra) is not per incuriam as their Lordships in Bhrathi alias Sukhdev Singh (supra) agreed with the law in Krishna Govind Patil (supra), but explained where it would apply. 27. This Court, therefore, on the stand taken by the learned A.G.A., is inclined to examine the evidence appearing against the acquitted co-accused, Ratan Singh and Kishori Lal, and, whatever has appeared in evidence against the deceased co-accused, Ram Prakash @ Ramua. So far as the genesis, time, place, manner of occurrence, the role assigned to each of the assailants in the assault, is concerned, the same figures most boldly in the evidence of the first informant, PW-1, introduced hereinbefore. So far as the genesis, time, place, manner of occurrence, the role assigned to each of the assailants in the assault, is concerned, the same figures most boldly in the evidence of the first informant, PW-1, introduced hereinbefore. The manner of assault, the role assigned to each of the four accused, and, the place, have been detailed in the examination-in-chief of PW-1, extracted hereinabove. The other relevant facts about the genesis and time of occurrence, the following deposition of PW-1 is eloquent: **xaxk jke o jru flag eqyfteku lxs HkkbZ gSaA jke izdk'k o fd'kksjh xkao ds ukrs muds HkkbZ yxrs gSaA jke izdk'k vfHk;qDr dk fu/ku gks x;k gSA jru flag] xaxk jke o fd'kksjh dejk vnkyr esa ekStwn gSaA djhc 1 3@4 o"kZ gq, lqcg ds xjhc 8 1@2 cts xaxk nhu ds [ksr ij xaxk nhu o jke izdk'k esa >xM+k gks jgk FkkA f'ko izrki HkSl pjus dks NksM+us ds fy, Ålj esa x;k FkkA og Ålj esa HkSls NksM+ dj ykSV jgk FkkA gekjs ?kj ls djhc 50 dne nwj [ksr esa dUMs iFkrs gSA ogka ls uxyk cjh dk cuokjh] f'ko izrki dks cqyk dj xaxknhu ds [ksr ij ys x;k tgka >xM+k gks jgk FkkA dUMk iFkus okyk [ksr gekjs ?kj ls fn[kkbZ nsrk gSA gekjs ?kj ls xaxk nhu ds [ksr Hkh fn[kkbZ nsrs gSaA tc cuokjh f'ko izrki dks cqykdj ys x;k ml le; djhc 8 3@4 cts gksaxsA** 28. Regarding the manner of assault by the acquitted co-accused, Kishori Lal and Ratan Singh, PW-1, has said in his cross-examination thus: **fjiksVZ esa ijs'kkuh ds dkj.k ;g fy[kkuk /;ku ugha jgk fd fd'kksjh o jru flag us QkoM+k ewaB dh vksj ls pyk;s FksA** 29. Regarding the manner of assault by the acquitted co-accused, Kishori Lal and Ratan Singh, PW-1, has said in his cross-examination thus: **fjiksVZ esa ijs'kkuh ds dkj.k ;g fy[kkuk /;ku ugha jgk fd fd'kksjh o jru flag us QkoM+k ewaB dh vksj ls pyk;s FksA** 29. Regarding the manner of assault by co-accused, Ratan Singh and Kishori Lal, and, deceased, Ram Prakash @ Ramua, who was wielding the Farsa, it is said thus in his cross-examination by PW-2, Diwari Lal: **jru flag o fd'kksjh yky ds QkoM+ksa dh /kkj cgqr eghu FkhA QkoM+k djhc pkj ikap bap pkM+k FkkA nksuksa us ,d ,d QkoM+k pyk;k FkkA f'ko izrki dks QkoM+s ewaB dh vksj ls yxs FksA eSaus ewaB dh vksj ls QkoM+k ekjus dh ckr njksxk th dks ugha crkbZ FkhA mUgksaus ugha iwNk fd QkoM+s dSls ekjs blfy;s ugha crkbZA ekjihV djhc nks feuV gqbZ gksxhA Qjlk dh rjQ ls ugha cfYd lh/kk ekjk FkkA Qjls dk Qky 8 & 10 bap yEck gksxkA ?kj ls ?kVukLFky rd igqapus esa FkksM+k gh le; yxk FkkA vf/kd ls vf/kd 3&4 feuV yxs gksaxsA ge pkjksa xokg lkFk gh lkFk x;s FksA lc ikl gh ikl FksA ;kn ugha fd dkSu vkxs o dkSu ihNs FkkA** 30. There is not much issue about the genesis of the dispute which appears to be based on the sudden appearance of the accused at the fields of one Ganga Deen, where some kind of quarrel was going between Ganga Deen and the deceased co-accused, Ram Prakash @ Ramua. The deceased, Shiv Pratap was invited by Banvari (who was cited as a prosecution witness, but not called by the prosecution and has deposed as DW-1), to witness the fight when the deceased, Shiv Pratap was returning home after casting his cattle to graze. Upon his arrival at site, he was accosted by the four co-accused, including the deceased, Ram Prakash, saying that he must have come to help the other side, that is to say, Ganga Deen. And, so saying, the four accused including the appellant, assaulted the deceased, Shiv Pratap, with the appellant wielding a lathi, the acquitted co-accused, Ratan Singh and Kishori Lal wielding a Fawada each, which they employed to assault, as apparent from the deposition of PW-1 in his examination-in-chief, by the reverse blunt end of the Fawada. And, so saying, the four accused including the appellant, assaulted the deceased, Shiv Pratap, with the appellant wielding a lathi, the acquitted co-accused, Ratan Singh and Kishori Lal wielding a Fawada each, which they employed to assault, as apparent from the deposition of PW-1 in his examination-in-chief, by the reverse blunt end of the Fawada. That the blunt end of the Fawada was used by Kishori and Ratan Singh, is a stand maintained by him in his cross-examination, though he says that he forgot to mention that detail in the FIR. Here, it must be said, that it is indeed a detail, which may legitimately be not there in the FIR. Regarding the number of blows delivered, this witness says in his cross-examination that Ram Prakash is responsible for one blow, Ganga Ram (the appellant) for 5–7 blows, whereas the acquitted co-accused, Ratan Singh and Kishori are credited with 2 – 3 blows each. The nature of the weapons wielded by each of the four accused, including the appellant, is identical in the account of assignment of those weapons by PW-2, also an eye witness. 31. In his cross-examination, PW-2, has further detailed the nature of the weapon and manner of assault by saying that Ratan Singh and Kishori Lal, the acquitted co-accused, had a Fawada each, with a sharp edge. Each of the Fawada, had a blade of about 4 – 5” width. These two Fawada wielding assailants, had delivered a single blow each to the deceased, Shiv Pratap, employing the blunt end. The deceased accused, Ram Prakash has been deposed to about, in the cross-examination of PW-2, with reference to his weapon alone, the Farsa, by saying that the said weapon was not employed by its blunt end, but its sharp edge. 32. The testimony of both witnesses of fact, is flawlessly consistent, about the nature of the weapon wielded, the manner of assault by each of the accused, including the appellant, and, even the duration of assault. The learned counsel for the appellant has pointed out that the number of blows delivered by the acquitted co-accused vary in count, but that submission is stated to be rejected. An assault is by no means an event sport, where the witnesses may act like referees to keep count of the number of blows delivered by each assailant. 33. The learned counsel for the appellant has pointed out that the number of blows delivered by the acquitted co-accused vary in count, but that submission is stated to be rejected. An assault is by no means an event sport, where the witnesses may act like referees to keep count of the number of blows delivered by each assailant. 33. A perusal of the injuries sustained by the deceased at the time of his medical examination show, five lacerated wounds to the head, and, by the description and dimension of those wounds, the same broadly coalesce with the ocular version. The injury report shows the ninth site as an incised wound, 2cm x 0.8cm x tissue deep on the back of left shoulder joint. Margin sharp and clean cut. This injury is precisely attributable to the single Farsa blow authored by the deceased accused, Ram Prakash, who is said to have struck by the sharp side of the weapon. Here, also the ocular version is flawlessly corroborated. The Doctor, PW-5, who examined the injuries has opined injuries nos. 1 to 5 to be the possible result of assault by a blunt weapon, and, injury no.9 to be caused by a sharp edged weapon. This evidence by the Doctor who examined injuries of the deceased, earliest in point of time, lends further assurance to the prosecution, against all the accused arraigned. 34. Learned counsel for the appellant has invited the attention of the Court to the doubt about the place of occurrence, particularly, based on the testimony of the solitary defence witness, Banwari, DW-1. This witness, was cited by the prosecution, but not examined, and, for good reason. The learned Sessions Judge has rightly noticed that the father of the deceased, Shiv Pratap, had prosecuted this witness in a case under Section 25 of the Arms Act, where PW-1, the uncle of the deceased, had deposed as a prosecution witness. He has, therefore, rightly been disbelieved by the learned Sessions Judge, as an inimical witness, whose testimony in no manner dents the prosecution. 35. He has, therefore, rightly been disbelieved by the learned Sessions Judge, as an inimical witness, whose testimony in no manner dents the prosecution. 35. The learned Sessions Judge, despite an overall reasonable view of evidence taken by him, has gone awry in the last but one paragraph of the judgment impugned, where he has attached undue importance to omission of the fact being mentioned in the FIR that the two acquitted co-accused, who wielded the Fawada, struck by the blunt end of it. He has strengthened the retention of his doubt on this score about the involvement of Ratan Singh and Kishori Lal, for the further reason, that in the cross-examination, PW-2, has said that in his statement to the Investigating Officer, he has not mentioned this fact. These two considerations in the opinion of this Court, are not even spots, let alone blots, on an otherwise crystal clear prosecution account strongly supported by an ocular version of two eye witnesses, and, buttressed by medico-legal opinion of PW-5. This Court finds that the two accused acquitted, have been given benefit of doubt by the learned Sessions Judge on the basis of strained reasoning which is not, by any means, a plausible view of the evidence on record. 36. Since, on an overall view of the evidence, the prosecution case of involvement of all the four accused is clearly established, the submission of the learned counsel for the appellant, that acquittal of the two co-accused, makes the solitary conviction of the appellant for an offence punishable under Section 304/34 IPC, ipso facto bad, is not at all tenable and must be rejected. It is quite another matter that there being no appeal against acquittal, of co-accused, Ratan Singh and Kishori Lal, their acquittal cannot be disturbed, and, stands good. 37. In this view of the matter, so far as the conviction of the appellant for an offence punishable under Section 304 Part-I/ 34 IPC is concerned, the same is not liable to be disturbed. 38. The learned counsel for the appellant has placed much emphasis on the fact that the sentence imposed is disproportionate, ten years' rigorous imprisonment, being the maximum term permissible for the substantive offence under Section 304 Part-I, IPC. He has emphasized the fact that the appellant was aged 35 years at the time his statement under Section 313 Cr.P.C. was recorded by the trial court. He has emphasized the fact that the appellant was aged 35 years at the time his statement under Section 313 Cr.P.C. was recorded by the trial court. That was on 24.06.1983. A period of 35 years has gone by. He would be now aged 70 years. At this point of time in the evening of his life, sending him back to jail for ten years, would be grossly disproportionate. 39. It is further argued that the appellant, or the co-accused, as the evidence would show, did not commit the offence with premeditation, or with a determined intention to kill. It happened on the spur of moment that the deceased arrived invited to witness an ongoing fight between the appellant and co-accused, on the one hand, and, Ganga Deen on the other. He was invited there by Banwari. The appellant and the acquitted co-accused, as well as the deceased co-accused, taking him to be one who had come to the support of Ganga Deen, were suddenly provoked into assaulting him. It is emphasized that the deceased, cannot be surely said to have assaulted him with a determined intention to kill, wielding as he was, a lathi. The other co-accused, since acquitted, also used, the blunt end of the Fawada, they were wielding. The deceased co-accused who did strike the deceased with his Farsa, hit him on a non-vital part of his body. It is submitted that these are factors that entitle the appellant, at this stage of his life, to a lenient treatment. The learned counsel for the appellant has relied upon the decision of the Hon'ble Supreme Court in Bishnupada Sarkar and another vs. State of West Bengal, 2012(3) ACR 2876 (SC) and Matibar Singh vs. State of Uttar Pradesh, (2015) 16 SCC 168 . On the other hand, the learned A.G.A. has relied on the decision of Sevaka Perumal etc. vs. State of Tamil Nadu, AIR 1991 SC 1463 to submit that undue sympathy lowers public confidence in the efficacy of law as held in the said decision of their Lordships. Reliance has also been placed on Hazara Singh vs. Raj Kumar and others, (2014) 1 SCC (Cri) 159. 40. This Court has given an anxious consideration to the issue of sentence. Reliance has also been placed on Hazara Singh vs. Raj Kumar and others, (2014) 1 SCC (Cri) 159. 40. This Court has given an anxious consideration to the issue of sentence. No doubt the offence established against the appellant is one under Section 304 Part – I, IPC, but the entire evidence, looked at from the sentencing angle does not show a premeditated and determined crime. It shows an episode that happened at the spur of moment, where a fight with a third person was already going on. The appearance of the deceased on the scene, at the beckoning of Banwari, led to some kind of a sudden provocation to the appellant and his three co-accused, who took the deceased for an ally of Ganga Deen, with whom they were locked into a pitched fight. It was, therefore, a suddenly provoked and thoughtless action, and the manner of assault also, demonstrates that nature of it. It is equally true that the incident happened 35 years ago, and, the appellant, from what appears on record, was aged 35 years at the time. He would, therefore, now be aged 70 years, which the learned counsel for the appellant asserts to be his age. Sending him to jail for ten years may be disproportionate considering the entirety of circumstances. Considering the overall facts and circumstances of the case, and, drawing upon the guidance of their Lordships of the Supreme Court in Bishnupada Sarkar (supra), which too was a case under Section 304 Part – I, IPC, the sentence of the appellant deserves to be reduced to three years' RI, which in the considered opinion of this Court would meet the ends of justice. 41. In the result, the conviction ordered by the judgment impugned is hereby affirmed, but the sentence of ten years' rigorous imprisonment awarded by the trial court is reduced to a term of three years' rigorous imprisonment. The accused/ appellant will surrender to his bail bonds to serve out the sentence as ordered above. Any period of incarceration already undergone shall be set off. 42. Accordingly, the appeal succeeds in part, and, is allowed in above terms. 43. A copy of this judgment along with trial court record be sent to the Sessions Judge, Mainpuri for information and necessary compliance. Judgment be certified and placed on record.