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PETITIONER: YESHWANT AND ORS.

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT20/04/1972

BENCH: BEG, M. HAMEEDULLAH BENCH: BEG, M. HAMEEDULLAH GROVER, A.N.

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)

ACT: Indian Penal Code (Act 45 of 1860), ss. 34, 302 and 307-Five accused  charged  with  offences-One  acquitted-Other   four convicted-Propriety.

HEADNOTE: 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,  [1964]  1 S.C.R. 678, explained. Jagir Singh v. State of Punjab, [1967] 3 S.C.R. 256 referred to.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeals Nos.  175

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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

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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 :

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             "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

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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 explanation". 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

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             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    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 correc ted 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

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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 Jiwan. 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 fashion. 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.

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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 emphatic. 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.

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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 now 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  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- 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

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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

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to the realm of facts and not of law. (1) [1964]1 S.C.R. 678 (2) [1967] 3 S.C.R. 256. 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 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. 304