What standard applies to an appellate court’s observations that no witness has deposed to, when relied on to alter a conviction?

Observations by an appellate court on how an offence might have occurred, when no witness has deposed on those lines, rest on surmises and conjectures and are not a legitimate basis for altering a conviction, though such observations, once made, do not by themselves disturb the outcome already reached on the evidence.

Indian Penal Code, 1860 — s.302 — s.304 Part II — s.34 — Alteration of conviction — Appreciation of evidence — Surmises and conjectures — Indian Penal Code, 1860 — s.304 Part II — Section 302 conviction not restored on inconsistent evidence — Held: Material inconsistencies among prosecution witnesses and doubt surrounding the victim's last statement are insufficient to restore the conviction under Section 302 read with Section 34; the High Court's alteration to Section 304 Part II is not disturbed. (¶14, 16) Indian Penal Code, 1860 — s.304 Part II — Appellate observations disapproved as surmises and conjectures — Held further: The High Court's observations on how the accused would ordinarily have acted, though no witness had deposed to that effect, rest on surmises and conjectures and do not affect the outcome of this appeal. (¶17) Indian Penal Code, 1860 — s.304 Part II — Sentence already undergone — Quietus — Held further: A1 to A4 having already suffered the sentence of rigorous imprisonment imposed by the High Court and not having challenged the modified conviction, the matter deserves a quietus; the Criminal Appeal is dismissed. (¶18)

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