N 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 4569 and Criminal Revision Case No 39169
930 P Ram Reddy and PP Rao for the Appellants
Govind Das Mrs Sunanda Bhandare AK Mathur AK Sharma and MS 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 sections 107151 Cr
PC 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 am 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 am for going to their village
PW 11 E Solomon was the driver and PW 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 am 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 3000 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 PWs 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  PWs 1 to 4 witnessed the occurrence PW 1 while raising an alarm proceeded towards the Police Outpost but the accused obstructed and chased him over a short distance
PW 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 pm
After murdering the deceased the miscreants went away towards the north taking their weapons with them
Thereafter PWs 2 3 and 4 entered the bus and found the deceased lying dead in a pool of blood
PW 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 pm
In the meantime the village Munsiff PW 15 on learning about this incident also came there
At the dictation of PW1 the Munsiff recorded the complaint exhibit P 3 and then prepared an injury statement of the deceased
At about 3 pm 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 am
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 PW 25 reached the place of the murder at 6 pm
He examined PWs 1 15 16 and 19 and recorded their statements under section 161 Cr
PC Thereafter he held an inquest over the dead body from 2 30 am to 6 am on May 18 1968
During the inquest he examined PWs 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 PW 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 section 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 PWs 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
PW 1 is the prime mover of the gear
The case was registered on his complaint exhibit P 3 lodged with the village Munsiff PW 15 at 12 30 pm
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 PW 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
iiiIn the First Information exhibit 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 am and thereafter alighted from it on seeing the accused getting into the bus
iv If PW1 was really in the ill fated bus at the time of the occurrence he could not have been left unharmed v The conduct of PW 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 PW 1 and the deceased would have remained sitting in the bus
PW 1 knew that A 4 was a partisan of the other accused b The conduct of PW 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 pm 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 PW 1
viiThe evidence of the witnesses produced to corroborate the version of PW 1 was also unsatisfactory
PW 14 Ticket Checker of bus No APD 2083 which the deceased and PW 1 are said to have boarded earlier at Jamalamadugu admittedly did not know PW 1 prior to that date
PW 14 was not asked to identify PW 1 at any test identification or even in court
Moreover PW 14 was examined by the investigating Police Officer about a week after the occurrence
The evidence of Dastgiri PW 12 owner of the hotel at Jamalamadugu was no better
He had no record to show that PW 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 section 164 Cr
In that statement he did not say that the sons ie 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
PW 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
viiiThere was unexplained delay in registration of the case
The Police Station Vuyyalawada is 12 miles from Nossam
The complaint exhibit P 3 was received there at 8 pm Copy of the complaint reached the Magistrate Koilakuntla 16 miles away at 6 pm
There was a bus leaving Nossam at 4 30 pm for Koilakuntla
It was more likely that the copy of the complaint was sent to the Magistrate by that bus at 4 39 pm and not at 3 pm as the Munsiff P W 15 wanted to have it believed
This inordinate delay in registering the FIR 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 FIR had little value as a corroborative piece of evidence
These reasons given by the High Court for not relying on the evidence of PW 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 PW 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 PW 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 am 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 PW 2 could not be safely acted upon without corroboration from independent sources
This takes us to the evidence of PW 3
The High Court found that PW 3 also was not an independent witness
He stood surety for five partisans of the deceased in security proceedings under section 107 Cr
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 PW9
It is further maintained that this witness PW 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 exhibit P6
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 PW 3
In this connection the High Court observed We do not think much assurance can be taken from the evidence of PW 9 about the presence of PW 3 on that day in that bus
It is true that the name of PW 3 was mentioned as an eye witness in the inquest report
Even though the inquest according to PW 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 PM on 19 5 1968
As provided under sec
1742 Cr
PC the inquest report shall be forth with forwarded to the Court
PW 3 was examined on 19 5 68 only
With regard to the inquest report no other independent panchayatdar was examined apart from PW 15 the village Munsiff
Having regard to these circumstances we do not think much can be taken from the fact that the name of PW 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 feescess 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 PW1 was considered to be wholly unreliable the possibility of PWs 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 PWs 2 and 3 We however do not agree with the High Court that the evidence of PWs9 and 11 did not furnish reliable corroboration of the testimony of the interested witnesses PWs 2 and 3  against any of the accused respondents whatever
The sum and substance of the testimony rendered by PW9 the Conductor of the bus was that when the bus halted at Nossam at 936 about 10 30 am the witness accompanied by the Driver PW 11 got down and both of them went to the nearby hospital for getting an injury on his leg PW 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 PW11 went into the nearby Vaisya s house and remained there till 7 30 or 8 pm 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 PW 3 was one of the passengers who travelled in the ill fated bus
The driver PW11 substantially corroborated PW9
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 PWs 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 PW 9 between his statement before the police and the subsequent statement recorded under section 164 Cr
Before the police PW9 had stated that he had received an injury
But in his statement recorded under section 164 Cr
PC he said that he had a boil on his leg
It appears to us that this discrepancy was of no consequence
PWs9 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 PW10 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 PWs 2 and 3 even against the accused whom they identified at the test identifications and later in court
The statements of PWs 2 9 and 11 were recorded by the Investigating Officer during the night between the 17th and 18th May 1968 937 from 2 30 am to 6 am
There was thus no good reason for wholesale rejection of the evidence of PWs 9 and 11
It therefore remains to be seen to what extent the independent testimony of PWs 9 and 11 lends corrobation to the statements of the interested witnesses PWs 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
PWs 2 3 9 and 11 were called upon to identify the accused at this parade
PW 2 while identifying A 7 at the parade said I saw him while killing the deceased in the bus PW 3 also identified A 7 as Konda Kalavatalavadu
He also identified A 4 and A 8 by touching their hands
PW9 identified A 7 saying I suspect this man
He could not identify others
PW11 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
PWs 1 2 3 and 9 were called upon to identify them at the parade
PW 3 picked out A 2 A 3 A 9 and A 10 at the parade
PW 9 similarly identified A 2 by touching his hand
A 2 objected that in 1962 or 1963 PW 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
PWs 1 2 3 and 11 were called upon to identify
PW 2 identified A 8 while PW11 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 PWs 9 and 11 had correctly identified A 7 PW 9 had identified A 2 also
But PW 11 could not identify him
The question is whether the evidence of PWs9 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 PW 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 vs State of Bihar1 Kanta Prasad vs Delhi Administration2 and Sampat Tatyada Shinde vs State of Maharashtra3
In our opinion so far as the identification of A 7 by PWs 9 and 11 is concerned it can safely be relied upon as confirmatory of their evidence in court
A 7 was identified by PWs 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 PW 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 PWs 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 PW 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 PW 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
 939 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 PWs 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 PWs 2 and 3 was sufficiently corroborated as against A 7 by the credible testimony of PWs 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 PW 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 PW 9 picked out A 2 at the identification parade the latter had objected that PW 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 PW 9 but we have also to keep in mind in this connection that PW 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 PW 9 can lend sufficient assurance to the testimony of PWs 2 and 3 so as to justify the conversion of his acquittal into conviction
Thus the position that emerges is that the evidence of PWs 2 and 3 has been adequately confirmed by the reliable and independent testimony of PWs 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 section 302 read with section 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
940 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 section 149 or section 34 Penal Code for the murder in question  In Maina Singh vs State of Rajasthan1 after reviewing earlier decisions viz Dalip Singh vs State of Punjab2 Bharwad Mepa Dana and Anr
vs State of Bombay3 Kartar Singh vs State of Punjab4 Krishna Govind Patil vs State of Maharashtra5 Mohan Singh vs State of Punjab6 Yeshwant vs State of Maharashtra7 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 FIR 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 PW 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 PW 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 PWs 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 941 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 section 302 read with section 34 Penal Code
According we allow this appeal against A 7 reverse his acquittal convict him under section 302 read with section 34 Penal Code and sentence him to imprisonment for life
VPS Appeal allowed


Summary:
When the bus in which the deceased and PWs 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 section 302 34 and 149 IPC
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 section 302 read with section 34 IPC 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 section 302 read with section 34 IPC 940B G 941B Maina Singh vs State of Rajasthan   followed