PETITIONER:
STATE OF ANDHRA PRADESH
Vs.
RESPONDENT:
K. VENKATA REDDY & OTHERS
DATE OF JUDGMENT26/03/1976
BENCH:
SARKARIA, RANJIT SINGH
BENCH:
SARKARIA, RANJIT SINGH
SHINGAL, P.N.
CITATION:
1976 AIR 2207 1976 SCR (3) 929
1976 SCC (3) 454
ACT:
Evidence Act (1 of 1872), s. 9-Identification of
accused at test identification parade-Use of.
Indian Penal Code (Act 45 of 1860), ss. 34 and 302-
Conviction under, when named co-accused are acquitted-When
permissible.
HEADNOTE:
When the bus in which the deceased and P.Ws. 1 to 3
were travelling, along with other passengers, halted at a
bus stop, a number of persons surrounded the bus, forced all
the passengers out of the bus except the deceased, and
inflicted multiple stabs on the deceased causing his death.
Thirteen persons were charged with offences under s. 302, 34
and 149 I.P.C. The trial court convicted some and acquitted
the others. In appeals against the conviction and acquittal,
the High Court acquitted all the accused. In appeal to this
Court against the acquittal of seven accused, including A-7,
^
HELD: Confirming the acquittal of others, A-7 is guilty
of an offence under s. 302, read with s. 34, I.P.C.
(1) The evidence of the interested eye-witnesses PWs 2
and 3 was sufficiently corroborated as against A-7 by the
testimony of PWs 9 and 11 the conductor and driver of the
bus. They had identified A-7 at an identification parade. It
is true that while picking out this accused at the parade
these witnesses did not say anything with regard to the
specific part played by him in the commission of the crime.
That, however, does not render the evidence of such
identification inadmissible. From the fact that PW 9 while
testifying as to the fact of identification was referring to
this accused as A-7 implies that he had identified him in
court. He had in that connection elucidated why he had
picked out A-7 at the identification parade. The evidence
given by the witness in court was substantive testimony,
while the identification made by him at the parades was
confirmatory of that fact. As regards PW 11 his evidence was
more clear. The Magistrate who held the parade had mixed up
12 other persons at this parade with the four accused,
including A-7. It could not therefore be said that the
number of other persons mixed with the accused was
inadequate. [936H; 937F; 938B-F, G-H; 939C]
(2) The result is that excepting A-7, the participation
of the other 12 named accused in the commission of the crime
has not been established. There is also no evidence to show
as to which of the assailants dealt the fatal blow on the
deceased. The medical evidence, however, shows that there
were not less than 44 incised injuries including penetrating
wounds upon the body of the deceased. The extremely large
number of injuries on the body of the deceased lends
assurance to the testimony of PWs 2 and 3 that the number of
assailants was more than 13 including some unnamed and
unidentified persons. Therefore, apart from the accused
named in the charge, there were at least one or more
unidentified person who participated in the fatal assault on
the deceased conjointly with A-7. A-7 can, therefore, be
convicted under s. 302 read with s. 34, I.P.C. [940B, G-
941B]
Maina Singh v. State of Rajasthan [1976] 3 SCR 651,
followed.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
155 of 1971.
Appeal by Special Leave from the Judgment and Order
dated 31-7-70 of the Andhra Pradesh High Court in Criminal
Appeal No. 45/69 and Criminal Revision Case No. 391/69.
930
P. Ram Reddy and P.P. Rao for the Appellants.
Govind Das, Mrs. Sunanda Bhandare, A.K. Mathur, A.K.
Sharma and M.S. Narasimhan for the Respondents.
The Judgment of the Court was delivered by
SARKARIA, J.-This appeal by special leave is directed
against a judgment of acquittal rendered by the High Court
of Andhra Pradesh.
The facts may now be stated.
There are three villages, Konda Kala Vatala, Konda
Papaya Palli and Govinda Palli situated at a short distance
from each other There were warring factions in these
villages One was led by Vellugoti Pedda Eswara Reddy
deceased and Mumagala Narayana Reddy, the Sarpanch of Konda
Kala-Vatala. The rival faction was headed by
Akkammareddigari Venkata Kondareddy, Accused No. 1 (for
short, A-1). There was bad blood between the two factions.
Both the factions were proceeded against under ss. 107/151,
Cr.P.C., also
The deceased was a resident of Konda Papayapalli
village. On May 16, 1968, the deceased accompanied by PW 1,
K. Venkatareddy, went to Jammalamadugu and stayed for the
night there in the hotel of PW 12 (Dastagiri). On the
following morning at about 8-30 a.m., they boarded bus No.
APD 2083 for proceeding to their village. L. Venkata Ramanna
(PW 14) was checking tickets on that bus. When the bus
stopped at Sanjamalavari House, Accused 2, 3, 5 to 8 (for
short, A-2, A-3, A-5 to A-8) boarded it. On seeing the
accused, who belonged to his opposite faction, the deceased
got apprehensive of his safety. He therefore alighted from
the bus, and, accompanied by PW 1, returned to the hotel of
Dastagiri. After remaining at the hotel for some time they
returned to the bus stand, and boarded bus No. APD 2276, at
about 9-30 a.m. for going to their village. P.W. 11 (E.
Solomon) was the driver and P.W. 9 (V. Bala Subbanna), the
conductor of that bus. There were about 30 passengers,
including PW 2, PW 3 and PW 4, in the bus. At about 10-30
a.m., the bus halted at Nossam near the hotel of Rangappa,
PW 10. This bus-stop is at a distance of about 60 or 65
yards from the Police Outpost and is located in a populated
quarter of the town which has a population of 3,000 souls.
The conductor, the driver and some of those passengers got
down to take refreshments in the nearby hotel. Some
passengers including the deceased and P.Ws. 1, 2 and 4,
however, remained inside the vehicle. A-4 then came there.
He peeped into the bus through the door and went away
towards the house of one Yerikala Reddy, situated at a
distance of 200 feet from the bus towards the north. Soon
thereafter, A-1 and A-2, armed with revolvers, and A-3 to A-
13, all armed with daggers, came there from Yerikala Reddy’s
house, encircled the bus, and at the point of daggers forced
the passengers including PWs 1 and 4, to get out of the bus.
The deceased also tried to get away but the accused
prevented him from doing so. A-1 and A-2 took positions in
the doors of the vehicle. They fired revolvers in the air
while their companions immediately entered the bus and
there, stabbed the deceased to death causing no less than 44
injuries. The assailants were
931
yelling: “Stab ! kill !” P.Ws. 1 to 4 witnessed the
occurrence P.W. 1 while raising an alarm proceeded towards
the Police Outpost, but the accused obstructed and chased
him over a short distance. P.W. 1 took to his heels, went
away from the village and concealed himself somewhere. After
about two hours he came out of his hiding and returned to
the spot at about 12-30 p.m.
After murdering the deceased, the miscreants went away
towards the north taking their weapons with them.
Thereafter, P.Ws. 2, 3 and 4 entered the bus and found the
deceased lying dead in a pool of blood. P.W. 2 then went to
Papayapalli, five miles away, and informed the wife and the
relations of the deceased about the occurrence. He returned
to the scene of the crime in the company of those relations
at about 4 p.m.
In the meantime, the village Munsiff (P.W. 15) on
learning about this incident, also came there. At the
dictation of P.W.1, the Munsiff recorded the complaint, Ex.
P-3, and then prepared an injury statement of the deceased.
At about 3 p.m., he sent the complaint together with other
documents prepared by him, through the Talyari to the Police
Station, Vuyyalawada. A copy of the complaint was sent to
the Judicial Magistrate Koilkuntla.
Prior to the making of this complaint, Head Constable
Abdul Khadar, PW 16, of the Police Out-Post had sent an oral
information to the Police Inspector about this murder. The
Head Constable had heard the reports of revolver-fire at
about 10-30 a.m. Thereupon, he alongwith a Constable went
out to the bus stand. At the spot, he heard from the by-
standers that the deceased had been killed inside the bus.
But, despite inquiries, no one told him about the identity
or particulars of the culprits. He looked for the
complainant, if any. No one came forward to make a
complaint. The driver and the conductor of the bus were also
found absent. He therefore sent an oral information to the
Inspector through the Talari, Pollana.
On receiving the information, Inspector Santhoji Rao
(P.W. 25) reached the place of the murder at 6 p.m. He
examined P.Ws. 1, 15, 16 and 19 and recorded their
statements under s. 161, Cr.P.C. Thereafter, he held an
inquest over the dead-body from 2-30 a.m. to 6 a.m. on May
18, 1968. During the inquest he examined P.Ws. 2, 9 and 11.
The Inspector searched for the accused but could not find
them. A-4 to A-8 surrendered on May 22, 1968 and were taken
into custody. A-2, A-3, A-9, A-10, A-11 and A-13 were
arrested by the police on June 24, 1968. Thereafter, on some
date before August 10, 1968, A-1, A-6 and A-12 were
arrested.
All the accused persons were not previously known to
the eyewitnesses. They were put up for test identification
at three parades held by Mr. Johnson, Magistrate 1st Class
(P.W. 20) on June 7, 1968, July 18, 1968 and August 10,
1968.
After completing the investigation the police sent 13
accused persons under a charge-sheet before the Magistrate
for preliminary enquiry. The Magistrate committed all the 13
accused for trial to the court of Session. The Sessions
Judge acquitted A-5, A-6, A-8, A-9 and A-11, but convicted
the remaining seven under s. 302, Penal Code and sentenced
each of them to imprisonment for life.
932
Against that judgment, two appeals were preferred to
the High Court, one by the State against the acquittal of A-
5, A-6 and A-8, and the other by the convicted accused
against their conviction. The High Court dismissed the
appeal preferred by the State but accepted the other filed
by the accused and acquitted all of them.
Aggrieved, the State made a petition in this Court
under Article 136 of the Constitution seeking leave to
appeal against the acquittal of A-1 to A-9 and A-12. This
Court however granted special leave to appeal against the
acquittal of A-1 to A-4, A-7, A-9 and A-12 only and refused
it against A-5, A-6 and A-8.
Mr. Ram Reddy appearing for the appellant-State
contends that the judgment of the High Court acquitting all
the accused persons is perverse in law and has occasioned
gross failure of justice. It is maintained that the reasons
given by the High Court for wholesale rejection of the
evidence of P.Ws. 1, 2, 3, 9 and 11 are manifestly erroneous
and contrary to the fundamental canons of appraising
evidence.
As against this, Mr. Govind Das maintains that the
reasons given by the High Court for rejecting the evidence
of these witnesses are quite sound and cannot, by any
stretch of imagination, be branded as ‘perverse’. According
to the Counsel since the view taken by the High Court is
also reasonably possible, this Court should not, in
deference to the well-established ruler of practice,
interfere with the order of acquittal.
To appreciate the rival contentions, it is necessary to
examine the reasons given by the High Court for not
accepting the evidence of these five witnesses.
P.W. 1 is the prime-mover of the gear. The case was
registered on his complaint (Ex. P-3) lodged with the
village Munsiff (P.W. 15) at 12-30 p.m. At the trial, he
narrated more or less the same story which has been set out
at the commencement of this judgment. The High Court found
his evidence unworthy of credit for these reasons:
(i) P.W. 1 is a confirmed partisan of the
deceased.
(ii) He was unable to give a consistent and
satisfactory account of the purpose of his
going to Jammalamagdu on May 16, 1968.
(iii)In the First Information Ex. P-3, he did not
state many material facts. For instance, he
did not mention there that, in the first
instance, he and the deceased had boarded the
Nandyal-Koilkuntla bus at 8-30 a.m. and
thereafter alighted from it on seeing the
accused getting into the bus.
(iv) If P.W.1 was really in the ill-fated bus, at
the time of the occurrence, he could not have
been left unharmed;
(v) The conduct of P.W. 1 was so unnatural that
it improbablises his presence at the time and
place of the incident:
(a) If he had really seen A-4 peeping into
the bus and going back to the house of
Erikala Reddy, 60 or 70
933
yards away, to inform the other accused,
it was unlikely that P.W. 1 and the
deceased would have remained sitting in
the bus. P.W. 1 knew that A-4 was a
partisan of the other accused:
(b) The conduct of P.W. 1 after the
occurrence, was also artificial,
unnatural and strange. He did not go to
the Police Outpost which was at a
stone’s throw. His explanation that he
was prevented by the accused from going
there and had to remain in hiding at
some unspecified place towards the West
for two hours till he returned to the
bus-stand at 12-30 p.m., was incredible.
Although he had ample opportunity and
time to go to his village and inform the
co-villagers about the incident, he did
nothing of the kind.
(vi) No bus-ticket was found with P.W. 1.
(vii)The evidence of the witnesses produced to
corroborate the version of P.W. 1 was also
unsatisfactory.
P.W. 14, Ticket-Checker of bus No. APD 2083 which the
deceased and P.W. 1 are said to have boarded earlier at
Jamalamadugu, admittedly did not know P.W. 1 prior to that
date. P.W. 14 was not asked to identify P.W. 1 at any test
identification or even in court. Moreover, P.W. 14 was
examined by the investigating Police Officer about a week
after the occurrence.
The evidence of Dastgiri, P.W. 12, owner of the hotel
at Jamalamadugu was no better. He had no record to show that
P.W. 1 and the deceased had spent the night between the 16th
and 17th May at his hotel. His testimony was at variance
with his statement recorded under s. 164, Cr.P.C. In that
statement, he did not say that the sons (i.e. A-2, A-3 and
A-6) of Kalavatala Reddy were also reported by the deceased
to be in the bus. He had simply stated there, that
Kalavatala (Reddy) and his men were in the bus. At the
trial, he stated that the deceased had informed him about
the presence of A-2, A-3 and A-6, also, in the bus. P.W. 12
was not a disinterested witness. Admittedly, the deceased
had helped him in getting assignment of land for raising a
building, before the revenue authorities. His statement was
also recorded by the police several days after the
occurrence.
(viii)There was unexplained delay in registration
of the case. The Police Station Vuyyalawada
is 12 miles from Nossam. The complaint, Ex.
P-3, was received there at 8 p.m. Copy of the
complaint reached the Magistrate Koilakuntla,
16 miles away, at 6 p.m. There was a bus
leaving Nossam at 4-30 p.m. for Koilakuntla.
It was more likely that the copy of the
complaint was sent to the Magistrate by that
bus at 4-39 p.m., and not at 3 p.m. as the
Munsiff P-W. 15, wanted to have it believed.
This inordinate delay in registering the
F.I.R. shows that the First Information was
lodged after confabulation with other persons
934
who had come from the village of the
deceased. In these circumstances, the F.I.R.
had little value as a corroborative piece of
evidence.
These reasons given by the High Court for not relying
on the evidence of P.W. 1, cannot, by any standard be said
to be unsound or puerile. There is a good deal of force in
them.
We will now take up P.W. 2. Mr. P. Ram Reddy contends
that the High Court was in error in dubbing this witness as
an interested witness. It is maintained that his
relationship or affinity with the deceased or his party had
not been established. It is argued that his evidence was
almost impeccable.
The High Court has found that P.W. 2 is closely related
to the deceased. This is an inference drawn from the conduct
of the witness in not denying a suggestion of such
relationship put to him in crossexamination by the defence.
The pointed suggestion was, whether the son of his junior
paternal uncle was married to the daughter of the deceased.
The witness replied that he did not know. The relationship
suggested was so near that the witness could not be unaware
of it. If the suggestion was wrong, he ought to have
registered a categorical denial. The High Court was
therefore justified in presuming that the witness was the
first cousin of the son-in-law of the deceased.
The next infirmity in his evidence noted by the High
Court, is that his conduct in not trying to go to the Police
Outpost or in not reporting the matter to the village
Munsiff, was not the natural conduct of an eye-witness of
the murder. The third weakness in his evidence noted by the
High Court, is, that he was not examined by the investigator
on the 17th May, although he claimed to be present at the
spot at that time. Another reason given by the High Court
for doubting his veracity was, that there was no necessity
for him to go to Proddutur to ascertain the price of castor-
oil cake because the same inquiry could be conveniently made
telephonically. The Court further found that he could not
give a satisfactory account as to why he adopted the
circuitous route via Nossam when buses starting at 6-30 and
7-30 a.m. from Jammalamadugu and plying directly to
Allagaddi were available. We need only add that this witness
also was unable to produce any bus ticket.
We agree with the High Court that in view of the
infirmities enumerated above, the evidence of P.W. 2 could
not be safely acted upon without corroboration from
independent sources.
This takes us to the evidence of P.W. 3.
The High Court found that P.W. 3, also, was not an
independent witness. He stood surety for five partisans of
the deceased in security proceedings under s. 107, Cr.P.C.
This fact was borne out by the documentary evidence
furnished by the copies of the surety bonds, Exh. D-10 to D-
14, although the witness had the temerity to deny it
935
Mr. Ram Reddy laid great stress on the fact that the
evidence of this witness with regard to his being among the
passengers in the illfated bus at the time of occurrence,
stands corroborated from the testimony of an independent
witness, the bus conductor (P.W.9). It is further maintained
that this witness (P.W. 3) was examined during the inquest
held on the night between the 17th and 18th May. Reference
on this point has been made to the inquest report Ex. P.6.
These twin circumstances-proceeds the argument-were
sufficient to lend assurance to the interested testimony of
this witness so as to make it acceptable against A-1 and A-
2, if not against the other accused respondents. These
circumstances were noticed by the High Court. In its
opinion, they did not furnish adequate confirmation of the
testimony of P.W. 3. In this connection, the High Court
observed:
“We do not think much assurance can be taken from
the evidence of P.W. 9 about the presence of P.W. 3 on
that day in that bus. It is true that the name of P.W.
3 was mentioned as an eye-witness in the inquest
report. Even though the inquest according to P.W. 25
was held in the early hours of the morning of 18-5-1968
and the inquest report was said to be ready on that
morning, the inquest report was received in Court at 6
P.M. on 19-5-1968. As provided under sec. 174(2)
Cr.P.C. the inquest report shall be forth with
forwarded to the Court. P.W. 3 was examined on 19-5-68
only. With regard to the inquest report no other
independent panchayatdar was examined apart from P.W.
15, the village Munsiff. Having regard to these
circumstances we do not think much can be taken from
the fact that the name of P.W. 3 finds a place in the
inquest report.”
Another infirmity in the testimony of PW 3, according
to the High Court, was that documentary evidence of the
sales allegedly made by the witness at the Shandy
(periodical market) and the receipts of the fees/cess paid
on such sales to the Panchayat, was not forthcoming and that
the explanation given by the witness for non-production of
such documentary evidence was unsatisfactory.
It will be seen from the synopsis of the reasoning of
the High Court, given above, that whereas the evidence of
P.W.1 was considered to be wholly unreliable, the
possibility of P.Ws. 2 and 3 being witnesses of the
occurrence was not positively ruled out. The conclusion
reached in respect of these two witnesses was that their
evidence suffered from several infirmities and, as such in
the absence of corroboration from independent sources, it
could not be accepted as a safe basis for convicting the
accused. We are also of the opinion that as a matter of
prudence, it was not safe to convict any of the accused
respondents merely on the basis of the testimony of P.Ws. 2
and 3 We, however, do not agree with the High Court that the
evidence of P.Ws.9 and 11 did not furnish reliable
corroboration of the testimony of the interested witnesses
(P.Ws. 2 and 3 ) against any of the accused-respondents
whatever.
The sum and substance of the testimony rendered by
P.W.9, the Conductor of the bus, was that when the bus
halted at Nossam at
936
about 10-30 a.m., the witness accompanied by the Driver
(P.W. 11), got down and both of them went to the nearby
hospital for getting an injury on his leg (P.W 9’s) dressed
up. They however, did not find the Doctor there.
Consequently, both of them returned to the hotel of Rangappa
which is hardly 18 ft. from the scene of occurrence. While
the witness was standing in the verandah of the hotel, the
driver took his meals inside and then came out and went to
the adjacent hotel of Pullayya to take coffee. The witness
asked Rangappa’s wife to give him some water. He was waiting
in the doorway when he saw some persons coming from the
northern side and going to the bus and encircling it. Some
of them were armed with daggers. The witness heard the sound
“dama dama” of the firing of a revolver. The witness heard
cries from the bus-“kill ! stab !”. After the disturbance
had subsided, the witness went out and saw the deceased
lying dead inside the bus in a pool of blood. Due to fear,
the witness and the driver (P.W.11) went into the nearby
Vaisya’s house and remained there till 7-30 or 8 p.m. when
they came out on learning that the Police Inspector had come
to the spot.
At the test identification parades, the witness had
identified Accused 2 and 7. He stated that P.W. 3 was one of
the passengers who travelled in the ill-fated bus.
The driver (P.W.11) substantially corroborated P.W.9.
He stated that he had seen five or six persons carrying
white think like daggers in their hands going behind the
bus. The witness was then taking coffee at the hotel of
Pullayya. He then heard the “dum dum” sound from the bus. At
the test identification parades held before the Magistrate,
the witness had identified A-7 and A-11.
The High Court while conceding that P.Ws. 9 and 11 were
the “proper persons to have spoken about the occurrence”,
brushed aside their evidence even against the accused
identified by them at the test identifications, mainly on
the ground that they were “unwilling witnesses” and were not
prepared to speak the whole truth. The High Court noticed
that there was a discrepancy with regard to the receipt of
injury by P.W. 9 between his statement before the police and
the subsequent statement recorded under s. 164, Cr.P.C.
Before the police, P.W.9 had stated that he had received an
injury. But in his statement recorded under s. 164, Cr.P.C.
he said that he had a boil on his leg. It appears to us that
this discrepancy was of no consequence. P.Ws.9 and 11 were
the conductor and the driver of the bus. It is undisputed
that the bus was parked close to the hotels of Rangappa
(P.W.10) and Pullayya. Their presence near the bus at the
hotels was a highly probable fact. Even if the reason for
their going to the nearby hospital was disbelieved, it could
not affect their being eyewitnesses of the incident. Might
be that they did not disclose all that they had seen and had
not identified all the culprits whom they could identify;
but that is no ground to hold that their evidence could not
furnish valuable corroboration of the testimony of the
interested witnesses (P.Ws. 2 and 3) even against the
accused whom they identified at the test identifications and
later in court.
The statements of P.Ws. 2, 9 and 11 were recorded by
the Investigating Officer during the night between the 17th
and 18th May 1968
937
from 2-30 a.m. to 6 a.m. There was thus no good reason for
wholesale rejection of the evidence of P.Ws. 9 and 11. It
therefore remains to be seen to what extent the independent
testimony of P.Ws. 9 and 11 lends corrobation to the
statements of the interested witnesses (P.Ws. 2 and 3).
At the test identification parade held on June 7, 1968,
A-4, A-5, A-7 and A-8 were paraded along with 12 other
prisoners. P.Ws. 2, 3, 9 and 11 were called upon to identify
the accused at this parade. P.W. 2 while identifying A-7 at
the parade, said: “I saw him while killing the deceased in
the bus” P.W. 3 also identified A-7 as Konda Kalavatalavadu.
He also identified A-4 and A-8 by touching their hands.
P.W.9 identified A-7 saying: “I suspect this man”. He could
not identify others. P.W.11 also at this parade picked out
A-7 who was then standing at No. 15 in the parade and said
that he had seen him.
The second batch of the accused persons consisting of
A-2, A-3, A-9, A-10, A-11 and A-13 was arrested on June 24,
1968. These six accused persons were paraded at the test
identification on July 18, 1968. P.Ws. 1, 2, 3 and 9 were
called upon to identify them at the parade. P.W. 3 picked
out A-2, A-3, A-9 and A-10 at the parade. P.W. 9 similarly
identified A-2 by touching his hand. A-2 objected that in
1962 or 1963 P.W. 9 had served him as driver of his bus for
10 days.
The third test identification parade was held on August
10, 1968. At this parade, nine accused persons A-1 to A-3,
A-6, A-9 to A-13 were paraded. P.Ws. 1, 2, 3 and 11 were
called upon to identify. P.W. 2 identified A-8, while P.W.11
identified A-11 only. He could not identify A-2 or the other
accused who were in this parade.
Thus the net result is that at the test
identifications, P.Ws. 9 and 11 had correctly identified A-
7, P.W 9 had identified A-2, also. But P.W. 11 could not
identify him.
The question is, whether the evidence of P.Ws.9 and 11
can be safely relied upon as against A-7 and A-2. In our
opinion, so far as A-7 is concerned, chances of mistake in
identification by these witnesses were extremely remote.
Mr. Gobind Das, Counsel for the respondents, contends
that the evidence of test identification is not substantive
evidence. It can be the Magistrate holding the parade did
not mix up with the accused adequate number of other
prisoners and did not hold separate parades for individual
accused; (b) at the time of picking out A-7 and A-2 at the
parade, the identifying witnesses did not say as to in what
connection they were identifying them. It is stressed that
the evidence of test identification is not substantive
evidence. It can be used only to corroborate or lend
assurance to the identification made by the same witness in
court. If at the time of picking out a particular accused at
the parade, a witness does not say anything about the role
of the person, thus identified, in the commission of the
crime, such test identification little evidentiary value.
Further, it is pointed out that P.W. 9 was not called upon
to identify A-2 and A-7
938
in court at the time of his examination as a witness.
Reference has made to a number of decisions including Kamal
Gope v. State of Bihar,(1) Kanta Prasad v. Delhi
Administration(2) and Sampat Tatyada Shinde v. State of
Maharashtra(3).
In our opinion, so far as the identification of A-7 by
P.Ws. 9 and 11 is concerned it can safely be relied upon as
confirmatory of their evidence in court. A-7 was identified
by P.Ws. 9 and 11 at the test identification parade held on
June 7, 1968. It is true that while picking out this accused
at the parade these witnesses did not say anything with
regard to the specific part played by him in the commission
of the crime. That however does not render the evidence of
such identification inadmissible. The Magistrate (P.W. 20)
who held the parade had mixed up 12 other persons at this
parade with the four accused, including A-7. It could not
therefore be said that the number of other persons mixed
with the accused was indequate. The very fact that both
P.Ws. 9 and 11 commonly identified A-7, dispels any
suspicion of such identification being a chance
identification. In the witness-box, at the trial, however,
P.W. 9 specifically stated: “I could identify only accused 2
and 7 among those persons who came to the bus from the
northern side armed with daggers”. Referring to the test
identification parade, the witness added:
“I identified A-7 as one of the persons who came
with dagger to the bus”.
In cross-examination, the witness reaffirmed:
“It is not true.. that A-2 and A-7 were not among
the persons who came to the bus.. It is not true that I
have identified A-2 and A-7 at the parades not because
they were seen near the bus but because Police showed
them to me earlier to facilitate identification”.
From the very fact that the witness while testifying as
to the fact of identification was referring to this accused
as A-7 implies that he had identified him in court, also,
and had, in that connection, elucidated why he had picked
out A-7 at the identification parade. The evidence given by
the witness in court was substantive testimony, while the
identification made by him at the parade was confirmatory of
that fact. This proposition is well established and it is
not necessary to discuss the rulings cited at the bar on
this point.
No capital can be made out of the fact that the trial
judge recorded the evidence of the witness with regard to
identification of A-7, in court, in an inartistic, laconic
manner.
In the case of P.W. 11, however, the trial Judge
recorded this fact more clearly. The witness stated:
“I can identify 2 persons among the 5 or 6 persons
who were seen going behind the bus with white things
like daggers. They are accused 7 and 11 (witness
identified accused 7 and 11).”
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With reference to the test identification, the witness
stated:
“I identified A-7 in the 1st parade and A-11 in
the second parade”.
In cross-examination, he refuted a suggestion made by
the defence that he had identified accused 7 at the parade
because the police had shown him to the witness, earlier.
For these reasons we think that the High Court was
clearly in error in discarding the evidence of these
independent witnesses (P.Ws. 9 and 11) so far as the
participation of A-7 in the commission of the crime was
concerned.
The evidence of the interested witnesses (P.Ws. 2 and
3) was sufficiently corroborated as against A-7 by the
credible testimony of P.Ws. 9 and 11. It could therefore be
safely acted upon for convicting A-7 as one of the
participants in the commission of the murder of P. Eswara
Reddy, deceased.
As regards A-2, it is to be noted that neither PW 9 nor
P.W. 11 stated that this accused was armed with a revolver.
Neither of these witnesses has stated that any of the five
or six persons who were seen by them going to the bus and
encircling it, was armed with a revolver. They only say that
those persons were carrying daggers. The prosecution case
however is that A-2 was armed with a revolver only, which he
fired in the air. Further when P.W. 9 picked out A-2 at the
identification parade, the latter had objected that P.W. 9
was already known to him because he had served him as a
driver for about 10 days. It is true that this suggession
was not repeated in the crossexamination of P.W. 9; but we
have also to keep in mind in this connection that P.W. 11
had failed to identify A-2 at the test identification parade
although both these witnesses had seen the culprits more or
less from the same situation and distance. As a matter of
abundant caution, while hearing this appeal, we do not
consider the identification of A-2 at the test
identification parade by P.W. 9, can lend sufficient
assurance to the testimony of P.Ws. 2 and 3 so as to justify
the conversion of his acquittal into conviction.
Thus, the position that emerges is that the evidence of
P.Ws. 2 and 3 has been adequately confirmed by the reliable
and independent testimony of P.Ws. 9 and 11 as against A-7,
while no such corroboration is forthcoming against any of
the other accused-respondents. The High Court was therefore
not justified in acquitting A-7.
The only question that remains to be considered is :
What offence has been made out against A-7 ? The charge-
sheet by the police in this case was submitted against 13
named persons including A-7. The charge under s. 302 read
with s. 34, Penal Code was also framed by the Sessions Judge
against all the 13 named accused. In the charge, it was not
mentioned that besides these named accused, there were some
unidentified or un-named persons who acted conjointly with
the charged accused, A-1 to A-13. But there was positive
evidence on the record that besides the 13 named accused,
there were four or more unidentified persons who
participated in the commission of the crime.
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Now the position which emerges is that excepting A-7,
the participation of the other 12 named accused in the
commission of the crime has not been established. The effect
of their acquittal is that they would be deemed to have
never participated in the criminal enterprise which resulted
in the death of the deceased. There is nothing on the record
to show as to who out of these persons dealt the fatal blows
to the deceased. The question that falls to be determined is
: Can A-7, in such circumstances, be held vicariously liable
by invoking s. 149 or s. 34, Penal Code for the murder in
question ? In Maina Singh v. State of Rajasthan(1) after
reviewing earlier decisions viz., Dalip Singh v. State of
Punjab(2); Bharwad Mepa Dana and Anr. v. State of Bombay(3),
Kartar Singh v. State of Punjab(4); Krishna Govind Patil v.
State of Maharashtra(5); Mohan Singh v. State of Punjab(6);
Yeshwant v. State of Maharashtra(7); on this point this
Court speaking through Shinghal J. reiterated the law, thus
:
“It would thus appear that even if, in a given
case, the charge discloses only the named persons as
co-accused and the prosecution witnesses confine their
testimony to them, even then it would be permissible to
come to the conclusion that others named or unnamed,
besides those mentioned in the charge or the evidence
of the prosecution witnesses, acted conjointly with one
of the charged accused if there was other evidence to
lead to the conclusion, but not otherwise.”
(emphasis supplied)
Let us now have another look at the case in hand, in
the light of the above enunciation.
In the F.I.R., it was alleged by the informant that 8
named persons and 10 unnamed persons who were not known to
the informant, had conjointly committed the crime. At the
trial, P.W. 2 testified that the total number of culprits
who had participated in the commission of the murder was 20.
At the trial, he named A-2 to A-5 and identified A-7, A-10,
and A-12 as 8 out of those 20 culprits who had committed the
crime. The evidence of P.W. 3 on this point was that the
number of the culprits who committed the murder, while
acting in concert, was 17. This means according to the
evidence, there were acting conjointly with A-7 at least 4
or 7 more persons in addition to the 13 who were charged by
the Committing Magistrate. The medical evidence shows that
there were no less than 44 incised injuries, including
penetrating wounds, apart from one lacerated wound, two
contusions and one abrasion on the body of the deceased.
Practically, he was made minced meat. The extremely large
number of injuries on the body of the deceased lends
assurance to the testimony of P.Ws. 2 and 3 that the number
of assailants was more than 13 including some unnamed and
unidentified persons. This evidence on the record is thus
sufficient to base a firm finding that apart from the
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accused named in the charge, there were at least one or more
unidentified persons who participated in the criminal action
against the deceased con-jointly with A-7. While the precise
number of those unidentified persons, other than the 13
named in the charge, cannot be ascertained with certitude,
it can safely be said that apart from 13 named in the
charge, there were some more confederates of A-7 and all of
them participated in the fatal assault on the deceased in
the manner alleged by the prosecution. A-7 can therefore be
safely convicted under s. 302 read with s. 34, Penal Code.
According, we allow this appeal against A-7, reverse his
acquittal, convict him under s. 302 read with s. 34, Penal
Code and sentence him to imprisonment for life.
V.P.S. Appeal allowed.
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