# YESHWANT AND ORS v. STATE OF MAHARASHTRA

- **Citation:** [1973] 1 S.C.R. 291
- **Court:** Supreme Court of India
- **Decided:** 1972-04-20
- **Case number:** Criminal Appeals Nos. 175 of 1969
- **Bench:** A. N. Grover, M. H. Beg
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/yeshwant-and-ors-v-state-of-maharashtra-5787
- **Pages:** 13

## Headnote

291
Indian Penal Code (Act 45 of 1860), ss. 34, 302 and 30i-Five
accused charF?ed with offences-One acquitted-Other four -convictedPropriety.
The High Court allowed an appeal .against acquittal and convicted
three of the appellants under ss. 302 and 34, 1.P.C., and the two others
under ss. 307 and 14 J.P.C.
In appeal to this Court.
HELD : The High Court had noticed the correct principles to he
observed in appeals from acquittals before reappraising the evidence in
the case.
The High Court, however, had not examined the eviaence
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 \Vas n1ade 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 df 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, l.P.C .. for the offences they committed .. [297E: 300 D-G; 301 GH; 302 D--E. G-HJ
Krishna Govind Patil v. State of Mahatashtra, [1964] I S.C.R. 678,
explained.
Jagir Sin11h v. State of Punjab, [1967] 3 S,C.R. 256 referred to.

## Text

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YESHWANT AND ORS.
v.
STATE OF MAHARASHTRA
April 20, 1972
[A. N. GROVER AND M. H. BEG, JJ.]
291
Indian Penal Code (Act 45 of 1860), ss. 34, 302 and 30i-Five
accused charF?ed with offences-One acquitted-Other four -convictedPropriety.
The High Court allowed an appeal .against acquittal and convicted
three of the appellants under ss. 302 and 34, 1.P.C., and the two others
under ss. 307 and 14 J.P.C.
In appeal to this Court.
HELD : The High Court had noticed the correct principles to he
observed in appeals from acquittals before reappraising the evidence in
the case.
The High Court, however, had not examined the eviaence
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 \Vas n1ade 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 df 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, l.P.C .. for the offences they committed .. [297E: 300 D-G; 301 GH; 302 D--E. G-HJ
Krishna Govind Patil v. State of Mahatashtra, [1964] I S.C.R. 678,
explained.
Jagir Sin11h v. State of Punjab, [1967] 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.
G
V. S. Desai and S. S. Shukla, for the appellants (in Cr. A. No.
1750£1969).
0. 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.
H
N?. 175 of 1969).
B. N. Lokur and B. D. Sharma, for the respondent (in Cr. A.
No. 90 of 1970).
292
SUPREME COURT REPORTS
(1973] 1 s.c.R.
The Judgment of the Court was delivered by
Beg, J. These appeals, by special leave, are directed against
th.: 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 w'th 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
live persons, one of whom was armed with an axe, with which he
killed Sukal, and another with a knife, with which he stabbed
Zingu thrice, 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
man, 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 ?nd 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".
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Doctor Galole then sent for a bus.
But, before the bus
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could arrive, Sukal had expired.
Therefore, the Doctor took only
Zingu in the bus to the Hospital at Gcndia.
The Doctor also
lodged a First Information Report at 7.05 a.m. on 15-9-1966 at
Police Station, Gondia, in which it w~s 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
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Patil Y eshwantrao 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 nariJ.ed five· per-
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YESHWANT V, STATE (Beg, J.)
293
sons, yet, the First Information ~port. lodged by Dr .. Galole omits
the mime of Bhadia ¥aster 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 J ainnarain and to have heard what Zingu and other eye wit·
nesses had said. there.
He deposed that Zingu had said "Yeshwant
and Suraj caught 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
eye witnesses at the trial.
Chandanlal was Sarpanch of the Gram
Panchayat of Kati since 1966. He admitted that Harlal, the elder
brother of Y eshwant, 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. stage& as regards the actual person or persons who had
either held or inflicted injuries upon him or Suk.al.
There was
divergence between what Dr. Galole and C..'handaolal remembered
about it as noticed above. In his evidence at the Trial, l.ingu·
stated that Bhadya Master had he.Id him while Rupchand stabbed
him on his back twice.
This is what he. st.ated before Chandanlal
nccording to that witness.
His purported dying declaration made
at 7.30 a.m. on 15·9•1966 at Gonoia.Hospital, before a Taluka
Magistrate, was put to him to bring out inconsistencies.
He:
;tated : "My statement was recorded by Taluka Magistrate.
I do
noc recollect what I sald then as I was not fully com,cious when
I made that statement".
This former statement before a Magistrate, in the forni 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 sai~ :
"I again say that I-did give the statement befm: the.Taluka Magistrate and now read over to me".
It seems to us that this was a
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SUPREME COURT REPORTS
[1973] l S.C.R.
straight-forward answer.
The serious condition of Zingu at the
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time when his purported dying declaration was recorded has to be
borne in mind.
A look at the dying declaration shows t!Fat 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 Gandia''.
He certainly indicated, before the Magistrate, who the membeys of the assembly of five were, but he was
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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 i'ldication of his rather confused state of mind, which did not
mean '.hat he was untruthful.
The dying declaration runs
as
follows :
"Q. When were you admitted in the hospital?
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Ans. Approximately at 5.30 O'clock in the early
hours of this day.
Q. 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 causeli) 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. Mukadarn 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 ?
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.Ans. There was a guest from Gandia with Mukadam
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Patel.
He had struck me with the Katyar.
Mukadarn Patel and others had held me.
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YESHWANT v. STATE (Beg, J.)
Q. Do you like to say anything in particular ?
Ans. No".
295
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) Incise4 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 l st lumber vertebra.
( 3) Incised wound l 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 ~ub 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 ;>ne should have
expected an explanation therefor coming from the witness rather
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SUl'Rf:ME COURT REPORTS
[1973] l S.C.R .
. than from the Judge without any material to that .effect iustifying
Jhe explanation".
"
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. The a.dditio1_1 of the. word 'not' in the purported dying declaration was m a different mk altogether.
The Trial Court had also
found that it was a subsequent addition but had attempted an
utterly conjectur~l explanation by holding that the insertion was
made by Dr. Kale to put his record right afterwards its 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 had stopped writing after he
advised the police to obtain the dying declaration of
Zingu 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
hav.e stated in the first line that somebody had assaulted
Zingu.
Instead, he would have named the persons who
were the assailants.
This circumstance, 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 kn0-:-1n
is a
very telling circumstance.
The importance of this circumstance is hightened because of Zingu's o\\ 11 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, ifDr. Kale had
asked that question te Zingu and if Zingt: had given
out the names of his assailants, then there was no reason
why Dr. Kale should have Tefrained from mentioning
these names in the memorandum prepared by him while
he was sitting by the side of the bed of Zingu.
It i>
also important to note that it was Dr. Kale who sent for
the police to record a dying declaration of Zin&u and he
was himself present when the dying
declarat10n 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
answer to a question put to him by him.
On the contrary it is highly probable that Zingu did not tell Dr.
Kale" the names of his assailants".
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YESHWANT v. STATE (Beg, J.)
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It is
difficult
tc
understand
why
the
Trial
Court
wanted to avoid the use of the word "deliberate" to describe a
sub~equent addition in a different ink which could only be and
was admitted by Dr. Kale himself to be "deliberate", unless it
meant to eonvey 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 he 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 were
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 decluration himself before a Magistrate had come
and recorded 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 1hat 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
qpinion, .quite right in reassessiμg the prosecution evidence from a
correct angle.
It rightly held that, even if Zingu's evidence was
not, by itself, sufficient to establi< h 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 reccgnise the a~sailants 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 persons deliberately in a serious case of murder, and
to support it b.y 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 hi.d a
sufficient idea as fo who these five persons were.
It was also quite
easy for him to have seen Babaji, who was coming with a lantern
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SUPREME COURT REPORTS
[ 1973] 1 S.C.R.
from the opposite direction, when Zingu passed him while running
towards J ainarain's house.
Zingu was not asked how he made out
the. idenfr.ies of his assailants or of Babaji.
In tI:le 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 Ziagu was attacked from behind,
as he undoubtedly was, Batlaji 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 more
towards extrioating 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 c ,.
Babaji and Ji'Yan.
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.
Kale'~
evidence and that Babaji and Jiwan were mere "rrattling" (the
very word used by the Trial Court) witnesses wh.- were itching to
figure, in the words of the Trial Court, "once in a life time'', as
heroes in a dram2. for the unfolding of which they drew entirely
upon their imaginaqons 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 recorL 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 anypre-concert, a story involving five. innocent m~n in the gra".e
offence of murder without any anunus or motive shown on tlleir
part for behaving in such a dastardly fashion.
The Trial Court emphasized what it considered to be the
"incessant prattling" of Babaji, as contrasted with hi~ silence. at the
time when the Panchnama was drawn up.
There JS no evidence
that Babaji was abnormally l'?'luacious at ! ainarain's h?use.
It
was natural for him to have said, at the earliest opportumty, what
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YESHWANT v. STATE (Beg, J,)
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he saw.
It indicates that he had not cooked up a story snbsequently.
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.
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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 Y eshwant
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
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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 emphatic.
Another ground given by the Trial Court for discarding the
evidence of both Babaji and Jiwan was that each had said that
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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 :he adhesive tape on the neck of Brahmanand Tiwari in the light of a lamp at a distance of 17 5 feet and
recognised hiin because of that instead of mentioning the beard of
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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
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SUPREME COURT REPORTS
[1973] ! S.C.R.
his neck''.
Immediately before that, he had stated : "I had iden-
~ified 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 th~ Taluka Magistrate because of the adhesive tape.
At any rate, 1t 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 sufficie1>tlv to
see them well before they ran away.
Jiwan had also stated ihat
he had identified "the new man" from Gandia "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 identific<.~ion parade with what they think
they had also seen at the ti'Tie of an occurrence.
The crossexamination of these witness·~s lef>t much wihch had •to be !here if
!heit 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 ev!dence 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
new man".
The Trial Court has \ilso 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 SO!l).C 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 Go~hale (P. W. 19),. stated that he
had examined the attendance RegiSter and found hun absent on
15-9-1966 at night.
Neither side summoned the actual attendance
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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 unsatisfaccory nature of evideAce as to his identity.
We may also mention here some circumstancial 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 Tiwari.
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 victims.
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 ..
!ant 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. Ii 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 durin2
the Trial and had positively stated that he had no complaint against
the Police. We think that the minor injuries on the bodies of Rupchand and Bhadu are significant because they fit in with Zingu's
version that be 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
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[1973] l S.C.R.
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 Y eshwant.
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 possible motives of the accused.
TI.e discovery of the true motive
for a crime is nc• 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
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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 wHh s. 34,
I.P.C., the effect of finding that three of them, who were specically 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.
(l) [1964]1 S.C.R. 678
(2) [l 967] 3 S.C.R. 256.
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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 l.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 engagJd in attack -
ing 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 witness.
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: