N Criminal Appeal No 108 of 1971
Appeal by Special Leave from the Judgment and order dated the 20th November 1970 of the Allahabad High Court in Criminal Appeal No 495 of 1968
D Mukherjee U K Jha and U P Singh for the Appellant
D P Unival and o P Rana for the Respondent
The Judgment of the Court was delivered by BEG J
The four appellants Daryao Singh aged 46 years
Birbal aged 50 years Dharam Pal aged 29 years and Om Pal aged 15 years were tried alongwith 14 others for the offence of rioting in the course of which two murders were committed on 761967 at about 630 am on a path adjoining the field of the appellant Daryao Singh leading to village Parsoli from village Nirpura in Police Station Doghat in the District of Meerut
The Trial Court acquitted eleven accused persons giving them the benefit of doubt and convicted seven including the four appellants
Each of the accused persons was charged and convicted under Section 302 read with Sections 149 Indian Penal Code and sentenced to life imprisonment in addition to charges and convictions under Section 149324 and 14934 IPC and either under Section 147 or Section 148 IPC depending upon the weapon alleged to have been used by an accused person
589 The prosecution case revealed a long standing enmity between two groups of village Nirpura one to which the appellants belonged and another to which Mukhtara and Raghubir the murdered men and the four other injured persons belonged
As is not unusual the origin of the hostility between the two sides seems to have been a dispute over cultivable land between collaterals who had some joint Khatas
Asa Ram PW 1 claimed to be in separate possession of some plots with his two brothers including Raghubira murdered and his uncle Mukhtara murdered 
It was alleged by Asa Ram PW 1 that Daryao Singh appellant wanted to take forcible possession of some land cultivated by him
Daryao Singh and others had already filed partition suit which was pending at the time of the occurrence
It appears that Hargyan the father of the appellant Daryao a first cousin of Mukhtara the murdered man had also been murdered in 1923 over a similar dispute
Asa Ram PW1 and Raghubira deceased Bija PW 10 and Asghar PW 4 had been convicted and sentenced to life imprisonment
They had been released on parole after five years  imprisonment On the date of occurrence Mukhtara the murdered man was said to be proceeding with Raghubir who was also murdered and Asa Ram PW1 and Bija PW10 all sitting in a buggi driven by Asghar PW4 and Smt
Jahani PW3 the wife of Asa Ram PW1 was said to be following the buggi at a short distance with some food for the party
When this buggi reached the field of Daryao Singh where a number of persons said to be eighteen altogether whose names are mentioned in the First Information Report lodged at Police Station Doghat at a distance of three miles from village Nirpura at 830 am were sitting on the boundary
These persons are alleged to have surrounded the buggi and attacked its occupants with balams and lathies shouting that the whole party in the buggi should be killed
give occupants of the buggi and after that Smt
Jahani who soon joined them were injured
Two of them Mukhtara and Raghubir died very soon after the attack
It was alleged that Dharam Pal Birbal and Daryao appellants and Nahar Ajab Singh and Ram Kishan acquitted persons were armed with balams one Salek Chand was armed with a spade and the rest with lathis
A number of witnesses are said to have arrived in response to the shout of the injured occupants of the buggi
The following injuries are shown to have been sustained by the victims of the attack 1 MUKHTARA 1
Vertical abrasion 1 12 in
x 12 in
On the head 4 in
above the middle of the left eye brow 2
Transverse abrasion 1 34 inx34 in
On the head 5 in
above the right eye brow
Round swelling 2 inx2 in
On the right side of the head 12 in
above the ear there was a depressed fracture 2 inx2 in
underneath on the bone
Transverse incised wound 1 12inx12 inxboneand brain deep on the head 1 in
behind the middle of the right car
Brain matter was coming out of the wound
590 5
Transverse incised wound 1 14inx 12 in
x bone deep on the A head 3 in
behind the upper part of the right car
The margins of injuries Nos 4 and 5 were clear cut smooth and well defined and angles on both the end were acute
Round blue mark 2 inx2 in
On the right shoulder portion
There was swelling all over the head
There was no reference of injuries Nos 1 and 6 in the inquest report 
RAGHUBIRA 1
Transverse abrasion 14 inx12
On the left ankle inner side
Vertical punctured wound inx13 inx14 in
On the back side of the elbow margins clean cut
smooth and wall defined and angles were acute
Transverse lacerated wound on the head 1 12 in
x 2 in
bone deep on the right side 3 in above the car
Round wound on the head 4 12 in
above the middle of the right eye brow with margins clean cut
ASA 1
Punctured wound 12 inx14 inx14 in
On the left side of the chest with abrasions on the margins 64 in
below the axile
Abrasion 12 inx14 in
On the left shoulder
Abrasion 12 inx14 in
oblique on the right side of the chest extending towards right shoulder from epigastrium
Abrasion 14 inx18 in
On the inner side of the left hand I in
above the wrist
Abrasion 14inx16 in
On the right arm back side 3 in
above the elbow
Contusion 34 inx12 in
On the right side 3 in
below the edge of the iliac crest
Incised wound 12 inx110 in
x skin deep 12 in
below the left eye
 4 SMT
JAHANI 1
Lacerated wound 1 13 in
x 12 in
bone deep from front to backward 3 12 in
above the left ear
Contusion 4 14 inx1 in
On the left scapular region
2 12 in
below the shoulder
Contusion 1 12 inx14 in
parallel to the earth extending from the upper and inner end of injury No 2
These injuries were simple and had been caused by some blunt weapon like lathi and were about 6 hours old fresh
I had prepared the injury report exhibit Ka 16 at the time of examination
It bears my signature and is correct 591 5
ASGHAR 1
Contusion 2 inx14 inx14 in
going from front to back 31 in
above the nose
Punctured wound 1 inx  inx 4 in
On the left hand outer side 2 in
below the elbow
BIJAI SINGH 1
Contused wound 12 inx12 in
x skin deep at the part above the nail of the thumb of right hand with contusion 1 14 in
x12 in
in the inner part of the nail
Contusion 2 14 inx34 in
extending from the palm on the 1st and 2nd knuckles whereblood had clotted in an area of 12 in
x14 
On the palmer side
Abrasion 12 inx14 in
On the back and anterior side of right hand 3 12 in
above the wrist
 Injuries were found on the side of the accused on 3 appellants only
They were as follows 1 OM PAL 1
Lacerated wound 12 inx410 inx210 in
on the inner side of left forearm 3 12 in
above the left wrist
Lacerated wound 210 inx210 inx610 in
On the inner side of left forearm
Abrasion 310 in
X21 10 in
On the upper r side of left forearm 3 12 in
above the left wrist
 2 DARYAO 1
Abrasion inx310 in on the left shoulder in front side
Wound with scab 410 inx210 in
On the left are outer side 6 in
below left shoulder
BIRBAL 1
Lacerated wound 2 inx310 in
bone deep on the front  side of head
Abrased contusion 1 inx210 in
On the left side of head 3 in
above the left ear
Contusion 12 inx410 in
On the right side of head 2 in
above the right ear
Abrasion 14 inx14 in
On the index finger of the right hand upper side on the middle phalux
Abrasion 14 inx14 in
On the upper side at the root of the middle finger of right hand
Abrasion 12 inx110 in
On the inner side of the lower portion of left fore arm 3 in
above the wrist
Abrasion 310 inx110 in
On the inner side of left wrist
592 8
Lacerated wound 310 inx110 inx310 in
an the A right at a distance of 31 in
from side of thigh anterior iliac spine
It is significant that in answer to the last question put to Daryao Singh appellant in the Committing Magistrate s Court under Section 342 Criminal Procedure Code whether he had nothing else to say the first thing that came to his mind was that Asa Ram PW1 and Bijai PW 10 and Raghubir deceased had killed his father about 15 years ago
The defense case seemed quite absurd
It was that Asa Ram and Bijai and Asghar after having killed Mukhtara and Raghubir haul come and attacked the three injured appellants at the time and place given by the prosecution
Their defense witness however in an obvious attempt to explain the injuries of the three appellants put forward the entirely new version that when Asa Bijai and Asghar were killing Mukhtara and Raghubir the three injuries appellants had attempted to save the murdered men and were injured as a consequence
The accused had even filed a First Information Report on these lines
They unsuccessfully tried to prosecute Asa and Bijai and Asghar who could not as the Trial Court and the High Court had rightly observed be expected to run berserk suddenly and attack persons on their own side for no explicable reason
The prosecution had in addition to examining injured witnesses mentioned above produced Rattan Singh PW2 Kalu PW9 and Lakhi PW7 whose testimony was discarded by it on two grounds firstly because each one was shown to have some enmity with some accused person and secondly because they were said to have been standing at a Harat nearly 400 paces away from where according to the High Court they could not have seen the occurrence
If there was no obstruction to the range of vision and none was shown by evidence these witnesses could at least make out the number of assailants from this distance as sunlight was there
The prosecution evidence suffered from some quite obvious infirmities
Each of the four injured eye witnesses while naming each of the eighteen accused persons as participants in the occurrence and specifying their weapons without any contradiction had failed to assign any particular part to any of them
Each injured witness said that all the eighteen accused persons named in the First information Report were assaulting the injured
This was hardly consistent with either the medical evidence or the very short time the whole occurrence was said to have lasted
It was physically impossible for all the eighteen accused persons to attack simultaneously each of the five victims
However we cannot interpret the impressions of rustic witnesses sought to be conveyed through their statements as though they were made in carefully drawn up documents calling for a literal interpretation
It was likely that each of them had seen some acts of some assailants but due to natural discrepancies in their accounts as each could only depose the part he had observed each had been instructed to omit this part of his testimony
That may explain how each consistently stated that all the accused persons were attacking 593 his or her party although he or she could not specify which accused attacked which victim
From the manner in which each witness could without making any mistake name each of the eighteen accused persons almost in the same order and specify the weapon each carried without any discrepancy some tutoring could be suspected
Nevertheless both the Trial Court and the High Court had reached the definite conclusion that the party of assailants consisted of more than five persons
It also found that this party was sitting on the boundary of the field of Daryao apparently waiting with their weapons for the buggi carrying Raghubir and Mukhtara and others to reach the spot where they surrounded it and attacked
It was clear from the nature and number of injuries of both sides which we have set out above in extenso that the attacking party must have consisted of more persons than the party of the male victims who were five in number
Even if these five victims were sitting in the buggi they were not all empty handed
Some of them had lathis which they plied in self defence
The number and location of injuries on both sides also indicated an attack by a group of persons which must have surrounded the party traveling in the buggi
Even if two persons are engaged in stopping the buggi and there are two on each of the two sides of the buggi their number would be six
Again even if at least one person is assumed to be the assailant of each of the victims in a simultaneous attack upon them the number of such assailants alone would come to at least six
It is however clear from the injuries on Mukhtara and Raghubir that each was attacked by more than one person because each had injuries with sharp edged weapons and lathis
these facts were enough to come to the conclusion that the total number of assailants could not conceivably have been less than five
The High Court however after giving the benefit of doubt to four of the accused persons on the ground that their cases did not differ from those of the others acquitted came to the obviously correct conclusion that at least the four appellants before us must have taken part in the attack because they admitted their participation in the occurrence which took place at the time and place of the incident in which Raghubir and Mukhtara had lost their lives
Three of the accused persons as already indicated had received injuries
On their own version these injuries were sustained in the same occurrence
If therefore the prosecution version about the broad character of the incident is correct the only question which remained was Against which accused person was the case of participation in the attack established beyond reason able doubt The High Court came to the conclusion that the admissions of the four accused corroborated by the injuries on the bodies of three OF them left no doubt whatsoever that they were in any case among the assailants
The others had merely been given the benefit of doubt lest some injustice is done by relying implicitly on partisan witnesses appearing in a type of case in which the innocent ale not infrequently sought to be roped in with the guilty who are of course not spared
This did not mean that the total number of assailants was actually less than five as the learned Counsel for the appellants asked us to presume from the fact that fourteen out of the eighteen accused persons were actually acquitted
594 It is true that the acquittal of an accused person does raise in the eye of law a presumption that he is innocent even if he was actually
guilty
But it is only the acquitted accused person and not the convicted accused persons who can as a rule get the benefit of such a presumption
The effect of findings on questions of fact depends upon the nature of those findings
If for example only five known persons are alleged to have participated in an attack but the Courts find that two of them were falsely implicated it would be quite nature and logical to infer or presume that the participants were less than five in number
On the other hand if the Court holds that the assailants were actually five in number but there could be a doubt as to the identity of two of the alleged assailants and therefore acquits two of them the others will not get the benefit of doubt about the identity of the two accused so long as there is a firm finding based on good evidence and sound reasoning that the participants were five or more in number
Such a case is one of doubt only as to identity of some participants and not as to be total number of participants
It may be that a definite conclusion that the number of participants was at least five may be very difficult to reach whale the allegation of participation is confined to five known persons and there is doubt about the identity of even one
But where a large number of known persons such as eighteen as is the case before us are alleged to have participated and the Court acts on the principle that it is better to err on the side of safety so that no injustice is done to a possibly wrongly implicated accused and benefit of doubt is reaped by a large number with the result that their acquittal out of abundant caution reduces the number of those about whose participation there can be no doubt to less than five it may not be really difficult at all as it not in she case before us to recall the conclusion that having laggard to undeniable facts the number of participants could not possibly be less than five
We have for the reasons given above also reached the same conclusion as the learned Judges of the Allahabad High Court
We wish that the High Court had itself given such reasons which are not at all difficult to find in this case so that its conclusion on the number of participants may not have appeared ratter abrupt
Justice has not only to be done but as have been often said must manifestly appear to be done
Even if the number of assailants could have been less them five in the instant case which we think on the facts stated above was really not possible we think that the fact that the attacking party was clearly shown to have waited for the buggi to reach near the field of Daryao in the early hours of 761967 shows pre planning
Some Of the assailants had sharp edged weapons
They were obviously lying in wait for the buggi to arrive
They surrounded and attacked the occupants shouting that the occupants will be killed
We do not think that more convincing evidence of a pre concert was necessary
Therefore if we had thought it necessary we would not have hesitated to apply Section 34 IPC also to this case
The principle of vicarious liability does not depend upon the necessity to convict a required number of persons
It depends upon proof of facts beyond reasonable 595 doubt which makes such principle applicable
See Yehwant  Anr
vs State of Maharashtra1 and Sukh Ram vs State of UP2
The most general and basic rule on a question such as the one we are considering is that there is no uniform inflexible or invariable rule applicable for arriving at what is really an inference form the totality of facts and circumstances which varies from case to case
We have to examine the elect of findings given in each case on this totality
It is rarely exactly identical with that in another case
Other rules are really subsidiary to this basic verity and depend for their correct application OF the peculiar facts and circumstances in the context of which they are enunciated
In Yeshwant s case supra the question was whether the acquitah of an alleged participant said to be Brahmanand Tiwari for the murder of a man called Sukal could make it impossible to apply the principle of vicarious liability to convict under Section 30234 IPC Yeshwant the only other participant in under
This Court observed at p303 The benefit of this doubt can only go to the appellant Brahmanand Tiwari and not to the other accused persons 13 who were known well to each eye witness Distinguishing Krishna Govind Patil vs State of Maharashtra 3 this Court said in Yeshwant s case supra at p 302 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  The following cases were also cited before us Dalip Singh  vs State of Punjab 4 Bharwad Mepa Dana  Anr
vs State of Bombay5 Kartar Singh vs State of Punjab6 Mohan Singh vs State of Punjab7 Ram Bilas Singh  Ors
vs State of Bihar8 In the case of Ram Bilas Singh supra previous decisions of this Court on the question argued before us have been considered at some length and a passage from Krishna Govind Patil s case supra was also quoted
In none of these cases was it decided that where out of abundance of caution a large number of accusel persons obtained an acquittal with the result that the number of those whose participation is established beyond reasonable doubt is reduced to less than five but at the same time it is clear that the total number of assailants could not be less than five the convicted accused persons must necessarily get the benefit of doubt arising in the case of the acquitted accused persons
A case like the one before us stands on the Same footing as any other case where there is certainty that the number of participants was not less than five but there is doubt only as to 1 1973 I SCR p 291  302  303
2 1974 2 SCR p 518
3  4  5  6  7 1962 Suppl 3 SCR 848
8 596 The identity of some of the participants
It has to be remembered that doubts may arise with regard to the participation of a particular accused person in circumstances whose benefit can only be reaped by the accused who raises such doubt
Doubts may also arise about the veracity of the whole prosecution version and doubts about the participation of individual accused persons may contribute to the emergence of such doubts which may cover and engulf the whole case
Never the less if as in the instant case the Courts whose duty is to separate the chaff from the grain does hold that the convicted persons were certainly members of an unlawful assembly which must have consisted of more than five persons we do not see any principle of law or justice which could stand in the way of the application of Section 149 JPC for convicting those found indubitably guilty of participation in carrying out of the common object of an unlawful assembly
The only remaining question arises from the age of Om Pal Which at the time of trial was found by the Trial Court to be about 15 years
This means that Section 29 of the Uttar Pradesh Children Act 1951 was applicable to the case
This Section reads as follows 29
Commitment of child to approved school 1 Where a child is found to have committed an offence punishable with transportation or imprisonment the Court if satisfied on inquiry that it is expedient so to deal with the child may order him to be sent to an approved school for such period of stay as will not exceed beyond the time when the child will attain the age of 18 years or for a shorter period the reasons for such period to be recorded in writing
2 Where prior to the commencement of this Act a youthful offender has been sentenced to transportation Or imprisonment the State Government may direct that in lieu of undergoing or completing such sentence he shall if under the age of sixteen years be sent to an approved school and thereupon the offender shall be subject to all the provisions of this Act as if he had been originally ordered to be detained in such school
 This question was not raised earlier so that the Trial Court or the High Court may take the action it was open to the Courts to take after due inquiry
Such action if considered expedient could only be to send the appellant to an approved school
We may observed that although the appellant om Pal was said to be armed with a lathi no specific part was assigned to him by any prosecution witnesses
He was bound with the background of hostility between two sides and 597 the events mentioned above to have been misled by the bad example of his elders
No previous participation in such a case and no previous conviction was shewn against him
We therefore think that appropriate action under Section 29 of the Children s Act could have been taken in his case if the question had been raised in time
We hope that the punishment he has already undergone has had a salutary effect in making him conscious of the gravity of the consequences of joining an unlawful assembly
All that we can do now in the circumstances of Om Pal s case is to recommend the remission of the remaining period of om Pal s sentence to the authorities concerned
Subject to the observations made above with regard to om Pal we affirm the convictions and sentences and dismiss this appeal


Summary:
The 4 appellants were tried along with 14 others for the offence of rioting in the course of which 2 murders were committed at 6 30 am on 7 1967
The prosecution revealed a long standing enmity between the tyo groups one to which the appellants belonged and the other to which the deceased belonged
The defence case was that people belonging to the group of the deceased killed the deceased and that thereafter they attacked the 3 injured appellants
At the trial however the defence witnesses stated that the 3 witnesses who were injuredl atempted to save the deceased and were therefore injured
The prosecution evidence suffered from some quite obvious infirmitied
Each of the 4 injured eye witnesses while naming each of the IX accused persons as participants in the occurrence and specifying their weapons without any contradiction had failed to assign any particular part of any of them
Each injured eye witness said that all 18 accused persons were assaulting the injured
I his was hardly consistent with the medical evidence
The Trial Court acquitted 11 accused giving them the benefit of doubt and convicted 7 including the 4 appellants under section 302 read with section 149
The High Court gave the benefit of doubt to all the accused except the 4 appellants
The High Court came to the conclusion that the 4 appellants had taken part in The attack in view of the admission of the 4 accused about their participating in the occurrence corroborated by the injuries on the bodies of 3 of them
On appeal by Special leave it was contended by the appellants that since 14 out of 18 accused persons were actually acquitted the Court must presume that total number of assailants was less than 5 and that they
therefore cannot be convicted under section t 49  HELD 1
It is true that the acquittal of an accused person does raise in the eye of law a presumption that he is innocent even if he was actually guilty
but it is only the acquitted accused person and not the convicted accused person who can as a rule get the benefit of such a presumption
The effect of findings on questions of fact depends upon the nature of those findings 1 only five known persons are alleged to have participated in an attack and the counts find that 2 of them were falsely implicated it would be quite natural and logical to infer or presume that the participants were less than 5 in number
On the other
hand if the court holds that the assailant were actually 5 in number but there could be a doubt as to the identity of 2 of the alleged assailants and therefore acquits 2 of them the others will not get the benefit of douht
so long as there is a firm finding based on good evidence and sound reasoning that the participants were 5 or more in number
Such a ease is one of doubt only as to identity of some participants and not as to total number of participants
594A C 2
It is true that there are some unfirmities in the prosecution evidence However the impression of rustic witnesses sought to he conveyed through their statements cannot be interpreted as though they were made in carefully drawn up documents calling for a literal interpretation
592 H 588 3
The number and location of injuries on both sides also indicate an attack by a group of persons which must have surrounded the party of the deceased persons travelling in the Buggi
Even is 2 persons are engaged in stopping the Buggi and there are 2 on each side of the Buggi then the number would be 6
Again even if one person Is assumed to be the assailant of each of the victims in a simultaneous attack upon them the number of such assailants alone would come to at least 6
The deceased had injuries with sharp edged weapons and lathis
It is therefore clear that each one was attacked by more than one person
These facts were enough to come to the conclusion that the total number of assailants could not conceivably have been less than 5
593 C E 4
Even if the number of assailants could have been less than 5 which can the facts stated was really not possible we think that the fact that the attacking party was clearly shown to have waited for the Buggi to reach near the field of Daryao in the early hours shows pre planning
Some of the assailants had sharp edged weapons
They were obviously lying in wait for the Buggi to arrive
A more convincing evidence of a pre concert was not necessary
Therefor if necessary
we would not have hesitated to apply section 31 of IPC also to this case
The principle of vicarious liability does not depend upon the necessity to convict the required number of persons but it depends upon proof of facts beyond reasonable doubt which makes such a principle applicable
594 F H 595 A Yeshwant  Anr
vs State of Maharashtra 1973 1 SCR 291 It 302 303 at and Sukh Ram vs State of UP  distinguished
5The age of appellant Om Pal at the time of trial was IS years
Section 29 of the UP Children Act 1951 was applicable to the case
This question was not raised either before the Trial Court or before the High Court
Although Om Pal accused was said to be armed with a lathi no specific part was assigned to him by the prosecution witnesses He must have been misled by the bad example of his elders
No previous participation in such a case and no previous conviction was shown against him
The appropriate acion under section 29 of the Children Act could have been taken in his case is the question had been raised in time
The Court recommended the remission of the remaining period of Om Pal to the authorities concerned
548D H 599A C