Yeshwant & Ors Vs. State of
Maharashtra  INSC 119 (20 April 1972)
BEG, M. HAMEEDULLAH BEG, M. HAMEEDULLAH
CITATION: 1973 AIR 337 1973 SCR (1) 291 1972
SCC (3) 639
CITATOR INFO :
R 1974 SC 778 (15) R 1975 SC1917
(11,12,13,14,15,17) E&R 1976 SC1084 (16) R 1976 SC2207 (51)
Indian Penal Code (Act 45 of 1860), ss. 34,
302 and 307-Five accused charged with offences-One acquitted-Other four
The High Court allowed an appeal against
acquittal and convicted three of the appellants under ss. 302 and 34, I.P.C.,
and the two others under ss. 307 and 34 J.P.C.
In appeal to this Court,
HELD: The High Court had noticed the correct
principles to be observed in appeals from acquittals before reappraising the
evidence in the case' The High Court, however, had not examined the evidence
against each accused individually. The infirmities in the test identification
parade of one of the accused, who was said to be unknown to the witnesses, from
before (he was made to sit outside the Court where the identifying witnesses
could see him; and the Magistrate who conducted the parade did not include in
the parade other men who were bearded like the accused) made the evidence of
identification unreliable. Hence, the accused was entitled' to the benefit of
doubt. But, merely because the identity of one of the participants is doubtful,
there is no rule that the others must be acquitted. The remaining accused
persons, who were well-known to the eye witnesses, could be convicted, with the
aid of s. 34, I.P.C., for the offences they committed,., [297E; 300 D-G; 301
GH; 302 D-E, G--H] Krishna Govind Patil v. State of Maharashtra,  1
S.C.R. 678, explained.
Jagir Singh v. State of Punjab,  3
S.C.R. 256 referred to.
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeals Nos. 175 of 1969 and 90 of 1970.
Appeals by special leave from the judgment
and order dated January 28/29, 1969 of the Bombay High Court, Nagpur Bench in
Criminal Appeal No. 139 of 1968.
V. S. Desai and S. S. Shukla, for the
appellants (in Cr.A. No. 175 of 1969).
O. N. Mohindroo, for the appellant (in Cr. A.
No. 90 of 1970).
B. N. Lokur and S. P. Nayar, for the
respondent (in Cr.A. No. 175 of 1969).
B. N. Lokur and B. D. Sharma, for the
respondent (in Cr.A. No. 90 of 1970).
292 The Judgment of the Court was delivered
by Beg, J. These appeals, by special leave, are directed against the judgment
of the High Court of Bombay-allowing an appeal of the State of Maharashtra
against the, acquittal of the appellants by the Sessions Judge of Bhandara. The
appellants, Yeshwant, Suraj Lal, and Brahmanand, Tiwari were convicted under
Section 302 read with Section 34 Indian Penal Code for the murder of Sukal and
sentenced to life imprisonment. The appellants Rupchand and Bhadu alias Ramkishore
were convicted under Section 307 read with Section 34 Indian Penal Code and
sentenced to seven years' rigorous imprisonment for having made a murderous
assault on Zingu who escaped and lived to depose about the attack upon him and
the murdered man, Sukal, his relation and companion.
It appears from the prosecution case, that
Sukal and Zingu, while returning from a fishing expedition, were waylaid and
attacked by five per-sons, one of whom was armed with an axe, with which he
killed Sukal, and another with a knife, with which he stabbed Zingu "cc.,
at about 2.30, a.m.. on 15-9-1966, at a place called Marartola. of Village
Kati., near an electric lamp post. The evidence also. disclosed, that apart
from Zingu (P.W. 8), the injured in", there were two more eye witnesses,
Babaji (P.W. 17) and Jiwan (P.W. 18), who came from the direction opposite to
that of the victims.
Zingu (P,W. 8) is said to have managed to,
extricate himself from his assailants with a jerk or push and to have fled
crying for help. He also stated that, while escaping, he saw Babaji (P.W. 17)
coming from a side road with a lantern in his hand. Zingu rushed into the house
of Jainarain situated at a distance of about 200 feet from the lamp post.
Then, Dr. Narsing Galole (PW 2), a Medical practitioner.,
who was sent for, came and attended to the injuries of Zingu after having seen.
Sukal lying unconscious near the lamp post. Zingu was said to be in pain but
able to speak. Dr.Galole said that Zingu told him :
"I was caught by Rupchand and I was
assaulted by Suraj Sukal, was near me. He was caught by Yashwant and Bhadya
Master and Tiwari attacked Sukal".
Doctor; Galole then sent for a bus. But,
before the bus could arrive, Sukal had expired. Therefore, the Doctor took only
Zingu in the bus to the Hospital at Gondia. The Doctor also lodged a First
Information Report at 7.05 a.m. on 15-9-1966 at Police Station, Gondia, in
which it was stated that Zingu had said that he had been beaten by Suraj Koshti
while Rupchand Koshti had held him, and that Sukal Pelhwan "had been held
by Police Patil, Yeshwantrao Turkar, and, when Maharaj from Gondia had been
asked to beat, he had showered blows". Thus, although it was in the
evidence of Dr. Galole that Zingu had named five per-- 293 sons, yet, the First
Information, Report lodged by Dr.
Galole omits the name of Bhadia Master alias
Ramkishore, The omission from the First Information, Report,, which could only
be used to cross-examine Dr. Galole, was not put to him so that he had no
opportunity to explain it. Hence, nothing much could be, made, out of it.
One Chandanlal (P.W. 12) was said to have
accompanied Dr.Galole to the scene of occurrence, and, thereafter, to the house
of Jainnarain and to have heard what Zingu and other eye witnesses had said
there. He deposed that Zingu had said "Yeshwant and Suraj eight hold of
Sukal and Tiwari gave him blows. Bhadya Master caught hold of me and Rupchand
gave me blows". The Statement was in. accord with the consistent
statements of the three eve witnesses at the trial. Chandanlal was Sarpanch of
the Gram Panchayat of I Kati since 1966. He admitted that Harlal, the elder
brother of Yeshwant, was the Sarpanch until 1966, and that Chandanlal was his
Deputy Sarpanch. Chandanlal also said that Sukal deceased had also been a candidate
at the election. His evidence showed that Jainarain was his brother. We do not
see why the evidence of such a witness should be rejected simply because he had
taken part, as a Sarpanch naturally must, in village elections, or, because
Harlal, the elder brother of one of the accused, and Sukal, the deceased, had
also done so, even if their parties were different. The Trial Court had
observed that the election was an old affair and could hardly provide any
immediate motive for either the attack or a false implication.
Zingu's statement shows that he knew each of
the five accused quite well. But, his evidence was discarded by the, Trial
Court mainly because he was said to have given inconsistent accounts at various
stages as regards the actual person or persons who had either held or inflicted
injuries upon him or Sukal. There was divergence between what Dr. Galole and,
Chandanlal remembered about it as noticed above. In his evidence at the Trial,
Zingu stated that, Bhadya Master, had held him While Rupchand stabbed him on
his back twice. This is what he stated before Chandanlal according to that
witness. His purported dying declaration made ,it 7.30 a.m. on 15-9-1966 at
Gondia Hospital, before a Taluka Magistrate, was put to him to bring out
inconsistencies. He stated : "My statement was recorded by Taluka
Magistrate. I do not recollect what I said then as I was not fully conscious
when I made that statement". This former statement before a Magistrate, in
the form of a dying declaration, was admitted in evidence. Zingu was asked
whether he had not admitted it to be correct when he gave evidence in Court on
an earlier occasion. He said : "I again say that I did give the statement
before the Taluka Magistrate and now read over to me". It seems to us that
this was a 294 straightforward answer. The serious condition of Zingu at the
time when his purported dying declaration was recorded has to be borne in mind.
A look at the dying declaration shows that he had stated there first that he
was struck by Mukadam Patel, and, after that, he said that he was struck by
somebody who could be "a guest from Gondia". He certainly indicated,
before the Magistrate, who the members of the assembly of five were, but he was
not at all clear as to which person did what. The so-called dying declaration,
extracted as a result of questions put to him, gives a good indication of his
rather confused state of mind, which did not mean that he was untruthful. The
dying declaration runs as follows :
"Q. When were you admitted in the hospital
? Ans. Approximately at 5.30 O'clock in the early hours of this day.
O. What are the portions of body where you
have sustained injury ? Ans. On back.
Q. Which is the weapon that is responsible
for these injuries ? Ans. (Those injuries are caused) by a Katyar.
Q. Had a quarrel taken place in the village ?
Ans. No quarrel had taken place.
Q. Who assaulted you with the, help of a
Katyar ? Ans. Mukadam Patel.
Q When was the assault on you made ? Ans. (I
was assaulted) at 12 night in Kati proper in Marar Toli locality.
Q. How were you concerned with the dispute ?
Ans. I had no concern. In order to see the Seth, I was going to the pedhi. At
that time,Mukadam Patel said, "Maro saleko". First Sukal was struck
with the Katyar. He fell down later on, a blow was delivered on me.
'Q. How many men were there with Mukadam
Patel ? Ans. Rupchand Patel,. Bhadya Master and' Suraj were (with him).
Q. Who has made a direct assault on you ?
Ans. There was a guest from Gondia with Mukadam. Patel. He had, struck me with
the Katyar. Mukadam Patel and others had held me.
295 Q. Do you like to, say anything in
particular ? Ans. No".
The trump card, however, of the defence was
the statement of Dr. Kale (P.W. 7) who had examined Zingu and admitted him into
the Gondia Hospital and found the following injuries on him "(1) Incised
wound trangular in shape 4 cm. by lung deep left scapular area. There was a lot
of surgical emphysema surrounding it. No free blood could be detected in the
chest cavity by percussion.
(2) Incised wound 4 cm X 1 cm. X bone deep on
the, spines of 12th dorsal and 1st lumber vertebra.
(3) Incised wound 1 cm. X 0.25 cm. X
cartilage deep on the front pinna right ear.
Cartilage below was fractured".
Dr. Kale deposed that he felt that the
condition of Zingu was so serious that he asked the prosecuting Sub Inspector
to get Zingu's dying declaration recorded. He also said :
"I questioned Zingu and he told me that
he was assaulted by somebody at 2 or 3 a.m. It was he who told me that he did
not know the names of persons who had attacked. him. He told me that his
relative Sukal had died on the spot".
The Trial Court observed : "The evidence
of Dr. Kale, supported by the Memorandum of the medical case history, prepared
by him on the spot, takes the wind out of the sails of the prosecution story.
At any rate, Zingu's reluctance or inability to tell Dr. Kale the names of his
assailants. is difficult to understand if he had seen the miscreants and if he
had named them before Dr. Galole, Chandanlal, and Dr. Pullarwar". Relying
implicitly upon the evidence of Dr. Kale, the Trial Court had come to the
conclusion that Zingu must be a deliberately untruthful witness, or, at least,
a witness who had been persuaded by others to believe that the five accused had
waylaid Sukal and Zingu. It held that this accounted for his conflicting,
statements. The finding implied that not only Chandanlal but also Dr. Galole's
testimony was unacceptable.
Before we take up the evidence of other
witnesses, we may observe that the High Court had given a better reason for
distrusting the evidence of Dr. Kale than the Trial Court had given for relying
on it so completely. The High Court said:......it is significant to note that
it is during cross-examination that Dr. Kale as P.W. 7 has been asked the
question about this entry in the case record. The addition of the word 'not
between the words 'are' and 'known' is so obvious and patent that one should
have expected an explanation therefore coming from the witness rather 296 than
from the 'Judge Without any material to that effect justifying the
The additional of the word 'not' in the
purported dying declara Was in a, different ink altogether. The Trial Court had
also found that it was a subsequent addition but had attempted an utterly
conjectural explanation by holding that the insertion was made by Dr. Kale to
put his record right afterwards as there had been an honest slip of the pen by
him. The Trial Court said "The word 'not' in this memorandum prepared by
Dr. Kale does appear to have been written subsequently in different ink. But
then, it will appear from the entire case record that Dr. Kale bad stopped
writing after he advised the police to obtain the dying declaration of Zangu
and had resumed writing after the dying declaration was recorded. The word
'not' in the first portion of the Memorandum does appear to be in different
ink, but it would not be right to say that this was a deliberate interpolation
to distort facts. In my view, the word was added, because, originally there
must have been an honest slip, of the pen.
Otherwise Dr. Kale would not have stated in
the first line that somebody had assaulted Zingu. Instead, he, would have named
the persons who were the assailants. This circumstances therefore, that in the
medical case record, prepared by Dr. Kale at 5.30 a.m.
on 15th September, 1966, it has been stated
that the names of the assailants were not known is a very telling circumstance.
The importance of this circumstance is hightened because of Zingu's own
admission that when he was taken to the Gondia hospital, the doctor who treated
him did ask him as to who were the persons who had assaulted him. Surely, if
Dr.Kale had asked hat question to Zingu and if Zingu had given out the names of
his assailants, then there was no reason why 'Dr.
Kale should have refrained from mentioning
these names in, the memorandum prepared by him while he was sitting by the side
of the bed of Zingu. It is also important to note that it was Dr. Kale who sent
for the police to record a dying declaration of Zingu and he was himself
present when the dying declaration was recorded and he certified at the foot of
the dying declaration that Zingu was in his senses and mentally clear
throughout the dying declaration. It is therefore difficult to believe that
Dr.; Kale Would prepare a false record after knowing the names of the
assailants from Zingu in answerr to a question put to him by him. On the
contrary it is highly probable that Zangu did not tell Dr.
Kale the names of his assailants".
297 It is difficult to understand why the
Trial Court wanted to avoid the use of the word "deliberate" to
describe a subsequent addition in a different ink which could only be and was
admitted by Or.. Kale himself to be "deliberate", unless it meant to
convey that distortion was not deliberate. If the Doctor had made the insertion
afterwards in a different ink, it meant, as the Trial Court's findings
indicated, that this was done after the had heard the dying declaration. We
fail to understand how Dr. Kale could have honestly made. such an alteration at
all in the bed head ticket after having heard the dying' declaration even if we
re prepared to believe that, in the special circumstances of this case, it was
not unnatural for Dr. Kale to be so anxious to, find out and record a dying declaration
himself be-fore a Magistrate had come and recor ded the purported dying
declaration. After having been taken through the evidence about the two
"dying declarations"one recorded unofficially by Dr. Kale and corrected
by him afterwards and another recorded about two hours later by a Magistrate in
the 'presence of 'Dr. Kale- we have no hesitation in agreeing with the High
Court that the statement, put in Zingu's mouth by Dr.Kale, could not have been
correctly recorded by Dr.Kale and it had to be totally ignored. 'it certainly
could not knock the bottom out of the prosecution case, as the Trial Court
thought that it did In the circumstances stated above, the High Court was, in
our opinion, quite right in reassessing the prosecution evidence from a correct
angle. It rightly held that, even if Zingu's evidence was not, by itself,
sufficient to establish the prosecution case. the defence, had not got over the
evidence. of Babaji and Jiwan, who were quite natural witnesses. They had come
near enough to see and recognise the assailants. in good enough light before,
the miscreants, ran away. The evidence of these two eye witnesses was strongly
corroborated by what Dr. Galole and Chandanlal had stated. The 'High Court,
noticed that the Trial Court had itself rejected the. defence suggestion that
there was a conspiracy between Dr. Galole and Chandanlal, arising out of
village factions, to implicate the accused persons and to instigate Zingu, into
naming them. It had, held that the attempt to shake the testimony of Dr. Galole
by cross-examination had completely failed. We may add that, if there. had been
an attempt to implicate and involve five innocent per sons deliberately in a
serious case. of murder, and to support it by perjured evidence, the evidence
of Zingu would probably have been free from the infirmities it contains due to
the sudden nature, of the attack from behind upon him. It was not unnatural for
Zingu to have been confused and 'Yet, to have had a sufficient idea as to who
these five persons were. It was also quite easy for him to have seen Babji, who
was coming with a lantern 298 from the opposite direction, when Zingu passed
him while running towards Jainarain's house. Zingu was not asked how he made
out the identities of his assailants or of Babaji.
In the absence of, any cross-examination on
these points, we do not think that his testimony could be rejected as useless
either on the ground that he must have had only a fleeting glimpse of the five
men who had waylaid and attacked Sukal and Zingu or because he could not have
been seen Babaji on the scene at all., It is one thing to make out the
identities of several previously known persons who waylay and attack. It is
quite another matter to be able to remember and describe correctly afterwards the
exact words and actions of each.
We think that the evidence of Babaji and
Jiwan is even more important than that of Zingu. If Zingu was attacked from
behind, as he undoubtedly was, Babaji and Jiwan would have had a better
opportunity of seeing the actions of each of the assailants in front of them
than Zingu whose attention must have been directed mole towards extricating
himself from the clutches of his own assailants from behind. This is exactly
what we find from the evidence. The Trial Court had failed to see that some of
the very reasons given by it for holding that the impressions on the mind of
Zingu must have been confused were not present at all in the case of Babaji and
The Trial Court had started from the
basically erroneous assumption that Zingu's evidence provided the real
foundation of the prosecution case which had been demolished by Dr. Kales
evidence and that Babaji and Jiwan were mere "prattling" (the very
word used by the Trial Court) witnesses who. were itching to figure, in the words
of the Trial Court, "once in a life time", as heroes in a drama for
'the unfolding of which they drew entirely upon their imaginations to the
extent that they practically hypnotised Zingu into making false assertions with
regard to the identities of the five members of the party which waylaid and
attacked him and Sukal. There is no evidence on the record to show that Zingu
had a feeble mind or that Babaji and Jiwan had such a powerful hold upon him as
to. be able to make him say whatever they wanted. Nor is there any evidence
upon the record to show that Babaji and Jiwan had a tendency to indulge in such
wonderful feats of imagination as to invent, so quickly and without any
preconcert, a story involving five innocent men in the grave offence of murder without
any animus or motive shown on their part for behaving in such a dastardly
The Trial Court emphasized what it considered
to be the "incessant prattling" of Babaji, as contrasted with his
silence at the time when the Panchnama was drawn up. There is no evidence that
Babaji was, abnormally loquacious at Jainarain is house. It was natural for
him. to have said, at the earliest opportunity, what 299 he saw. It indicates
that he had not cooked up a story subsequently. After he had already said what
he had seen, there was no occasion for him to repeat it at the time when the
Panchnama was drawn up. Indeed, if he had behaved in this fashion his conduct
would have become suspicious. The Trial Court itself had believed that Babaji
was a natural witness of the locality whose presence at the spot was explained
by the fact that it was the night during which a symbolic "Marbat"
(representing a corpse) had to be carried during the night by a person
belonging to the caste of Babaji and Jiwan.
Babaji was just near the fork of the road on
which the lamp post was located. We find, from the site plan, that there was no
obstruction whatsoever between the place from which he is shown to be moving
forward in the direction of the lamp-post. Babaji and Jiwan must have, moved a
few steps forward on hearing the cries of Zingu who passed babaji only at a
distance of two feet as he ran towards the house of Jainarain. The finding of
the High Court, that Babaji was only 25 steps from the place where Sukal was
attacked, before the very eyes of Babaji and Jiwan, is in consonance with the
evidence on record. The view of the Trial Court that he was probably not in a
position to see what occurred in front of him is entirely conjectural and
unsupported by anything brought out either in the cross-examination of Babaji
or by a reference to the site plan.
It is true that Jiwan had stated, in the
committing Magistrate's Court, that Suraj, Rupchand, and Bhadu had caught Zingu
after Sukal had fallen down and had also stated there that Yeshwant appellant
was not there. At the Trial, he admitted frankly that these were mistaken
statements. He had corrected these errors of observation or memory when he
deposed at the Trial. We do not think that such errors are uncommon in the
testimony of the most truthful witnesses.
Indeed, they indicate that the evidence of
Jiwan was untutored. All we can say is that Babaji's evidence is more clear and
Another ground given by the Trial Court for
discarding the evidence of both Babaji and Jiwan was that each had said that
there was some adhesive tape on the neck of the appellant Brahmanand Tiwari who
was not known to them from before. The Trial Court was of the view that it was
absurd for Babaji and Jiwan to say that they saw the adhesive tape on the neck
of Brahmanand Tiwari in the light of a lamp at a distance of 175 feet and
recognised him because of that instead of mentioning the beard of Brahmanand
which was far more prominent and obvious. We find that this, view of the Trial
Court was based on a misreading of the evidence. What Babaji had said was that
he, had identified the previously unknown man "by his face and from the
tape on L128SupCI/72 300 his neck". Immediately before that, he had stated
: "I had identified him before the Taluka Magistrate Gondia".
Therefore, it is apparent that the face,
which included the beard, was mentioned by Babaji. It also appears that he
meant to say that he identified him before the Taluka Magistrate because of the
adhesive tape. At any rate, it was not clarified, by the cross-examination of
this witness, that he meant to say that he saw the adhesive tape at the time of
the occurrence. The witness was certainly advancing and probably did advance
towards the party of assailants sufficiently to see them well before they ran
away. Jiwan had also stated that he had identified "the new man" from
Gondia "by his face and the tape". Again, it was not clarified, even
by question put by the Court, whether the adhesive tape was seen by the witness
only at the time of the identification parade or also at the time of the
;attack. However, even assuming that they could not have seen the tape at the
time of the attack but had said that they did see it, witnesses of
identification are known to confuse the image they see at the time of the
identification parade with what they think they had also seen at the time of an
occurrence. The cross-examination of these witnesses left much which had to be
there if their veracity was seriously challenged.
The infirmities in the test identification
parade of a previously unknown bearded man, whom even Zingu could only describe
as "a guest from Gondia", does make the evidence as to the identity
of the bearded man who attacked Sukal with an axe doubtful. Neither Babaji nor
Jiwan knew him from before and described him as "a snow man". The
Trial Court has also observed that the appellant Brahmanand had a beard.
It is clear from the admission of Babaji and
Jiwan that Brahmanand was brought by the Police and made to sit outside the
Court of the Magistrate where these witnesses also waited before the
identification parade began. The, Magistrate took no precautions to see whether
other similar bearded men joined the parade. There were only five other persons
in the parade. Apparently, Brahmanand had a tape on his neck at that time. The
identification proceeding was, therefore, rightly described by the Trial Court
as "a farce".
As we have already observed, the confusion
with which Zingu's mind must have been covered, as a result of the sudden
attack upon him, made it difficult to rely upon his powers of observation
singly. Even he could have mistaken some other bearded man for the
"Maharaj from Gondia". Zingu did not apparently even know the name of
the Maharaj to be able to give it. In addition, we find that this appellant is
a night watchman in the Irrigation Department of Zila Parishad who was posted
at Gondia. The Investigating Officer, Datatray Gokhale (P.W. 19), stated that
he had examined the attendance Register and found him absent on 15- 9-1966 at
night. Neither side summoned the actual attendance 3 01 register so as to get
the entry with regard to the night between 14th and 15th September, 1966, with
which we are concerned, proved. The result is that the evidence of the identity
of Brahmanand as the assailant who had actually used the axe on Sukal remains
involved in doubt which is not removed by any reliable corroborative evidence.
It is well known that evidence as to identity, particularly of previously
unknown persons, is a deceptive kind of evidence which has led to miscarriages
of justice sometimes. We, therefore, think that Brahmanand Tiwari appellant is
entitled to the benefit of the doubt emerging from the unsatisfactory nature of
evidence as to his identity.
We may also mention here some circumstantial
evidence tendered by the prosecution. Some clothes believed to have been
stained with blood were recovered by the Police on 15-9-1966 from the houses of
Rupchand, Yeshwant and Bhadu and, on 19-9-1966, from the house of Brahmanand
But, except for stains on the dhoti recovered
from the house of Yeshwant, it could not be established that the stains were of
human blood as the clothes appeared to have been washed. As regards the blood
spots on the dhoti of Yeshwant it was not established that the blood group
"B", of the human blood on this dhoti was of either of the two
The, blood of Sukal was of group
"A". The connection of this evidence with the occurrence under
consideration was not shown by anything on record.
Then, there were some contusions on the body
of the appel- lant Bhadu and a contusion on the forehead of Rupchand
approximating in duration the time which had elapsed between the occurrence and
their examination. The Trial Court had accepted the explanation of Bhadu that
he had sustained injuries when he fell from his bicycle. It had, however, not
accepted the explanation of Rupchand that the injury on his forehead was due to
the beating by the Police because Rupchand had- appeared on more than one
occasion before the Judicial Magistrate for remand during the Trial and had
positively stated that he had no, complaint against the Police. We think that
the minor injuries on the bodies of Ruin. chand and Bhadu are significant
because they fit in with Zingu's version that he had jerked himself free. This
'jerk', when he was struggling for his life, could not have been a gentle push.
We may also mention here that each of the accused denied participation in the
attack but gave no evidence in defence.
We find that the High Court had noticed the
correct principles to be observed in appeals from acquittals before
reappraising the evidence in the case. It had pointed out that erroneous
assumptions of the Trial Court, which were unsupported by evidence, had led to
the acquittal of the accused. If we find ourselves in agreement with the view
of the High Court, as we do, that the 302 evidence of the two eye witnesses,
who were in a better position to see and describe the occurrence than the
victim Zingu, is natural, credible, and unshaken, and is also fully
corroborated by other good evidence in the case, we do not think that the mere
fact that the prosecution had not given evidence either to corroborate Zingu's
assertions that he and Sukal had gone out fishing during the night or to make
out a good enough motive for murder would justify the rejection of the evidence
of the three eye-witnesses. It was suggested by the prosecution that the defeat
of Harlal at the Panchayat elections must rankling. in the mind of his brother
Yeshwant. But, there is no evidence to show what Sukal and Zingu had to do with
that or why the other accused should join hands with Yeshwant. The defence
suggestion, in the cross-examination of witnesses, that the occurrence took
place elsewhere is belied by the finding of the body of Sukal a few paces from
the lamp post, but another suggestion that Sukal was a bully, who went about
with Zingu, collecting money, may conceivably give a clue to the pos- sible
motives of the accused. The discovery of the true motive for a crime is not imperative
in every case.
The High Court had, however, not examined the
evidence against each accused individually. Hence, the weakness in the evidence
of identity given against Brahmanand Tiwari appellant escaped due attention in
the High Court. We have, therefore, thought it fit to correct this error and
give the benefit of doubt to this appellant.
It has been strongly contended by Mr. Desai,
on behalf of the remaining appellants, that they too are entitled to the
benefit of doubt about the whole case which thus emerges.
He has relied upon Krishna Govind Patil v.
State of Maharashtra(1), and Jagir Singh v. State of Punjab (2).
In Krishna Govind Patil's case (Supra) this
Court held that, where four persons were charged under Section 302 read with s.
34, I.P.C., the effect of finding that three of them, who were specially
indicated as the "other participants", were entitled to the benefit
of doubt, it was not possible to convict the fourth accused' under Section 302
read with Section 34 I.P.C. It is, clear that, in that case, the only remaining
accused could, if at all, be convicted under Section 302 simpliciter.
Apparently, the evidence was not good enough to sustain the conviction of the
remaining accused person singly. We do not think that this decision, which
depends upon its own facts, as criminal cases generally do, lays down any
general principle that, where the identity of one of the participants is
doubtful, the whole case must end in acquittal. Such a question belongs to the
realm of facts and not of law.
(1) 1 S.C.R. 678 (2)  3 S.C.R.
303 This Court said in Krishna Govind Patil's
case (Supra) "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". In the case before us, there is
evidence that the man who used the axe on Sukal was a man who looked like
Brahmanand Tiwari, the appellant, and could be this accused himself. We are,
however, not satisfied that the identity of the man who used the axe on Sukal
is satisfactorily established as that of the appellant Brahmanand Tiwari. In
such a case, we think that the remaining accused persons;
could be convicted with the aid of Section 34
I.P.C. for the offences they committed. Indeed, if five persons. are lying in
wait for two to pass and then pounce upon them so that three are engaged in
attacking one and two attack the other, it may be difficult to hold, as the
High Court has done, that Sections 147 and 149 I.P.C. would be inapplicable.
But, as the accused have been acquitted of
the charge of rioting, we cannot enter into this question and convert this
acquittal into a conviction under Section 147 I.P.C., at this stage.
In Jagir Singh's case (Supra), it was pointed
out that Section 34 I.P.C., is intended to meet a case where members of a party
act in furtherance of a common intention of all but it is difficult to prove
the part played by each of them individually. This case helps the prosecution
and not the appellants. The only part of the prosecution case on which we
entertain a reasonable doubt is the identity of the man who attacked Sukal with
the axe. The benefit of this doubt can only go to the appellant Brahmanand
Tiwari and not to the other accused persons who were known well to each eye
The result is that we think that the case
against four out of the five appellants is established beyond any reasonable
doubt. But, we doubt whether the identity of the fifth man, who was certainly
there, is satisfactorily established as that of Brahmanand Tiwari. Accordingly,
we allow the appeal of Brahmanand Gokul Prasad Tiwari and acquit him of all the
charges levelled against him. He shall be released forthwith unless wanted in
some other connection. The appeal of the four remaining appellants is dismissed
and their convictions and sentences are maintained.
V.P.S. Appeal dismissed.