LexYESHWANT AND ORS. versus STATE OF MAHARASHTRA
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.A B c D E F 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 -convicted- Propriety. 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 identifica- tion 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 G- H; 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 evi- dence 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 Yash- want and Bhadya Master and Tiwari attacked Sukal". A B c D E . F Doctor Galole then sent for a bus. But, before the bus G
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