JUDGMENT [ENTITY], J.
1. Since both these appeals arise out of the same set of facts we propose disposing them of by a common judgment.
2. Vide judgment and order dated 15-1-1982 passed by the Additional Sessions Judge, Pune, in [CASE NUMBER] the appellants were convicted and sentenced to undergo imprisonment for life under [SECTION] [ACT] Feeling aggrieved by the said judgment they have come in appeal before us:
3. Briefly stated the prosecution case runs as under:-
The informant [ENTITY] P.W. 4 was maternal aunt of the deceased [ENTITY]. She resided in a tin shed near Azad Hotel in Chaturshringi Road, Vadarwadi, Pune. The deceased was living in a house near Manjalkar Chowk, which from the evidence on record appears to be situated near Azad Hotel.
On 10-10-1981 at about 10 p.m. the informant was sitting in front of her shed. At that time she saw that [ENTITY] had gone to purchase cigarette in a pan shop. Near the said shop four other persons were standing. She then saw an altercation taking place between [ENTITY] and the aforesaid four persons who were unknown to her. Thereafter, [ENTITY] started going ahead from the pan shop and when he came in front of Azad Hotel one of them gave a push to [ENTITY] by striking his head on his chest. On account of that [ENTITY] fell down. When [ENTITY] tried to get up two out of those four persons kicked him and one of them got a hammer from nearby Azad Hotel and inflicted three blows with the same on his head. As a result [ENTITY] fell down. At that time she was shouting as to why they were assaulting [ENTITY]. After assaulting [ENTITY] those four persons ran away.
It may also be mentioned that apart from [ENTITY], this incident was seen by [ENTITY] P.W. 7, [ENTITY], P.W. 8 and [ENTITY]. P.W. 10, who also like [ENTITY] did not know the names of the appellants.
Thereafter [ENTITY] and her son [ENTITY] took [ENTITY] to the Sassoon Hospital There he was declared dead by the doctor.
In the meantime, [ENTITY] P.W. 13, who was in charge of mobile van received a wireless message from the control room on the mobile van near Pune Municipal Corporation that an incident had taken place near machhi market in Wadarwadi. On receipt of the said information [ENTITY] immediately asked the driver to take the van to machhi market. He saw that a crowd had collected in Manjalkar Chowk. Then the van moved to Pandav Nagar Police Chowky. On the way to Pandav Nagar Police Chowky he saw two persons (viz., [ENTITY] and [ENTITY]) talking to one person (appellant [ENTITY]). He took the said three persons in custody and took them to Chatushringi Police Station.
4. On the same day at about 11 p.m. [ENTITY] dictated her F.I.R. in the Sassoon Hospital to [ENTITY], P.W. 12, who was inspector in charge of Chaturshringi Police Station. Inspector [ENTITY] forwarded the said F.I.R. for registration of the offence to Chaturshringi Police Station. On the basis of the [CASE NUMBER] was registered against four unknown persons.
5. The investigation of the case was conducted by Police Inspector [ENTITY]. At the Sassoon Hospital, in his presence, [ENTITY] prepared the inquest. Thereafter [ENTITY] came back to Chaturshringi Police Station. On his arrival there [ENTITY] produced appellants [ENTITY], [ENTITY] and [ENTITY] before him. He ([ENTITY]) had also gone to the house of appellant [ENTITY] but the latter was not available there. On 11-10-1981 at 3 a.m. [ENTITY] arrested [ENTITY], [ENTITY] and [ENTITY]. At the time of arrest a shoe was recovered from [ENTITY]. He was wearing the same on his left foot. The other shoe was also recovered on his pointing out.
On the morning of 11-10-1981 at about 10 a.m. Inspector [ENTITY] visited the scene of offence and drew up the spot panchanama. He collected earth mixed with blood. The appellant [ENTITY] disclosed to him that he could get the weapon of assault namely a hammer recovered. Accordingly, under a panchanama in the presence of public panchas the hammer was recovered.
We are not going into the details of the recovery of both shoe and the hammer because the finding of the learned trial Judge is that the said recoveries were effected from an open place. In view of the said finding the said recoveries would not constitute any incriminating evidence against appellant [ENTITY].
On the same day i.e. 11-10-1981 [ENTITY] recorded the statements of [ENTITY], P.W. 7, [ENTITY], P.W. 8 and [ENTITY], P.W. 10 and others. On 12-10-1981 at 12.30 Noon he arrested appellant [ENTITY]. On 17-10-1981 he sent a report to the Executive Magistrate for holding identification parade of the appellants because they were not known to the witnesses. Consequently, on 21-10-1981 the identification of the appellants was held. The same was conducted by Special Executive Magistrate [ENTITY], P.W. 11. At the test identification all the four eye witnesses viz., [ENTITY], [ENTITY], [ENTITY] and [ENTITY], P.Ws. 4,7,8 and 10 respectively identified the appellants.
On 22-10-1981 Inspector [ENTITY] forwarded the articles to the Chemical Analyst. On 23-1-1983 the map was prepared. On 22-3-1982 [ENTITY] handed over the investigation to [ENTITY], P.W. 14. On 1-5-1982 [ENTITY] recorded the statement of [ENTITY]. On 10-5-1982 he recorded the supplementary statement of [ENTITY], P.W. 8 On 14-6-1982 he forwarded the appellants [ENTITY], [ENTITY] and [ENTITY] to the Sassoon Hospital for collecting samples of their blood. The said samples were received by him and on 15-6-1982 he forwarded them to the Chemical Analyst.
After completing the investigation on 17-6-1982 he submitted the charge-sheet against the appellants.
6. Going backwards, the post-mortem examination of the corpse of [ENTITY] was conducted by Dr. [ENTITY], P.W. 9 On the corpse Dr. [ENTITY] found the following ante mortem injuries:
"(1) Contused and lacerated wound present over left parietal eminence over head measuring 21/4" into 11/2" into bone deep associated with fracture of skull bone. The margins were contused irregular and edges were retracted. Antemortem clots present;
(2) C.L.W. present over left side of back of head just 21/2" behind left ear middle. Margins were contused, irregular and edges retracted. Antemortem clots present;
(3) Abrasions 1/2" x 1/2" just above right eye brow outer part. Antemortem clots were present;
(4) Transverse linear abrasion present over right upper eye lid measuring 1/2"x 1/10" cuticle deep. Antemortem clots were present;
(5) Abrasion present over right cheek bone measuring 1/2" x 1/2 into cuticle deep. Antemortem clots present;
(6) Abrasion over right arm upper part and back measuring 2 1/4" x 1" cuticle deep. Antemortem clots present.
On internal examination Dr. [ENTITY] found depressed fracture over left parietal bone measuring 2 1/4" x 2" x 3/4" deep. Antemortem clots present. In the opinion of Dr. [ENTITY] external injuries Nos. 1 and 2 could be caused by a heavy, blunt and hard weapon like hammer, article No. 1 and the remaining injuries could be caused by a hard and rough object such as fist and kick blows. Dr. [ENTITY] also found that the injuries were sufficient in the ordinary course of nature to cause the death.
7. The case was committed to the Court of Sessions in the usual manner where a charge for offences punishable under [SECTION] [ACT] and in the alternative [SECTION] [ACT] was framed against the appellants to which they pleaded not guilty and claimed to be tried.
8. In the trial Court in all the prosecution examined 14 witnesses. Out of them four viz., [ENTITY], [ENTITY], [ENTITY] and [ENTITY], P.Ws. 4,7,8 and 10 respectively were examined as eye-witnesses. We may straightaway mention that none of these witnesses named the appellants in their statements but they identified them in the test identification parade and also in the trial Court. In defence no witness was examined.
9. The learned trial Judge believed the evidence adduced by the prosecution and convicted and sentenced the appellants in the manner stated above. Hence this appeal.
10. We have heard Mr. [ENTITY] and Mrs. [ENTITY] for the appellants and Mr. [ENTITY], Additional Public Prosecutor for the respondent. We have also perused the depositions of the material witnesses; the exhibits tendered and proved by the prosecution; the identification memo.; the statements of the appellants recorded under [SECTION] [ACT]; and the impugned judgment. After giving our anxious consideration to the matter, we are squarely satisfied that there is merit in these appeals and they deserve to be allowed.
11. At the outset we would like to point out that the main plank of evidence on which prosecution relies against the appellants is identification evidence. As mentioned earlier, the appellants were unknown to the witnesses. Their identification was held on 21-10-1981 and the parade was conducted by Special Executive Magistrate [ENTITY]. At the said parade all the four witnesses viz., [ENTITY], [ENTITY], [ENTITY] and [ENTITY], P.Ws. 4,7,8 and 10 respectively identified the appellants. Had this identification evidence inspired confidence the same, in our opinion, would have been sufficient to bring home the guilt of the appellants. However, in the instant case we are squarely satisfied that the evidence of identification does not inspire any confidence. In the Division Bench decision in the case of [ENTITY]1The State, , [ENTITY] J., speaking for the Division Bench in paragraph 35 observed that before a Court can rely upon the evidence of identification it should be satisfied that in between the arrest of the accused and prior to their being put up for identification they were not shown to the witnesses. In the same decision [ENTITY] J. observed that it is not incumbent upon the accused to establish affirmatively that they were shown to the witnesses prior to their identification and they would discharge the burden if they could succeed in creating a reasonable doubt in the mind of the Court. To use the words of [ENTITY], J.:
"Direct evidence may not be available, but he may discharge his burden by showing., for example, that he and the witnesses were present in the police-station at the same time, or that he was marched through the village of the witnesses or that the witnesses were present at the office of the Prosecuting Inspector when his jail warrant was being prepared."
Applying the norms to be borne in mind by us, as laid down in (supra), we have examined the question as to whether the appellants could have been shown to the witnesses prior to the test identification. In this connection, it would be pertinent to refer to the observations of the learned trial Judge recorded in paragraph 16 of the impugned judgment. In the said paragraph the learned Judge has observed that the complainant [ENTITY] in cross-examination unequivocally admitted that she was taken to Chatushringi Police Station after the recording of her complaint in Sassoon Hospital. There she saw [ENTITY] and [ENTITY] and she also deposed that in her presence at the Police Station the police called the eye-witnesses [ENTITY], P.W. 8, [ENTITY], P.W. 10 and [ENTITY], P.W. 7. However, the learned Judge felt that this admission by [ENTITY] would only impair her credibility and not of the remaining eye-witnesses. To this logic of the learned trial Judge we are not prepared to subscribe. Once there is evidence to show that the said three eye witnesses had seen or there was a reasonable likelihood of their seeing the three appellants at the Police Station, the mere fact that these witnesses denied such a suggestion, when put to them in cross-examination, in our opinion, would not come to the rescue of the prosecution. As observed by [ENTITY], J., in [ENTITY]'s case (supra) the obligation on the accused is not to establish his plea of being shown affirmatively. He discharges his burden if he can create a reasonable doubt in the mind of the Court that he had been shown prior to test identification. The evidence of [ENTITY] and the circumstance that these three appellants pleaded in their statements under [SECTION] [ACT] that they were shown to the witnesses is sufficient to create this doubt.
Mr. [ENTITY], learned Additional Public Prosecutor, vehemently contended that the aforesaid admission of [ENTITY] does not lead to the inference that the said three eye-witnesses had seen the three appellants at the Police Station. To appreciate his submission the following lines from paragraph 8 of [ENTITY]'s statement have been extracted by us :
" That time I saw the accused Nos. 1,2 and 3 present before the Court in Chatushringi Police Station and that time above three accused were brought by police under arrest in Chaturshringi Police Station. During my above presence in the Police Station, police called [ENTITY], [ENTITY] and [ENTITY] for recording their statements. It is not true that at the time of recording the statements of the above three witnesses, the accused Nos. 1 to 3 were present in the Police Station."
Mr. [ENTITY] urged that if the aforesaid passage is read as a whole, the inference would be that the said eye-witnesses were called for the purpose of interrogation and when they were being interrogated the three appellants were not present. We regret that we are not able to accede to this contention of Mr. [ENTITY]. In our view the said passage would show that the three appellants and the three eye-witnesses were present at the Police Station. Once that is established a very reasonable doubt would legitimately arise that the appellants were shown to them or they had seen them. It may be that these three appellants were shown to them prior to the recording of their statements. Hence when their statements were being recorded they may not be at the Police Station.
If the norms of burden of proof in respect of proving the plea of being shown as laid down in [ENTITY]'s case (supra) are borne in mind, the appellants [ENTITY], [ENTITY] and [ENTITY] have discharged that burden.
12. It is also pertinent to note that appellant [ENTITY] also pleaded that he was shown to the identifying witnesses at Police Station Chaturshringi. This was pleaded by him in his statement under [SECTION] [ACT] in reply to question No. 36. When the investigating agency was unscrupulous enough to show three of the appellants to the identifying witnesses at the Police Station or there was a reasonable likelihood of their being shown to them there how can we with any degree of confidence accept the statement of these very witnesses that appellant, [ENTITY] had not been shown to them at the Police Station. When the credibility of these witnesses stands impaired in respect of the three accused persons then there is no assurance that they are credible against the 4th appellant viz., appellant [ENTITY], who also raises a similar plea.
13. We wish to emphasize that in a case resting on identification evidence before a Court can record/sustain a conviction it should be satisfied that the investigation is beyond reproach and the investigating agency prior to the test identification had not shown the suspects to the witnesses. Then and then alone it should record/sustain a conviction. Here it is not so. It is heavily tainted. Once the Court loses faith in the fairness of the investigating agency, it becomes unsafe to either record/or confirm a conviction based on evidence of identification. In situations like this the benefit of doubt is given to the accused. And it would also have to be given to appellant [ENTITY].
14. In our view, for the reasons mentioned above, it would be unsafe to place reliance upon the evidence of test identification against the appellants.
15. Once the evidence of test identification is rejected, precious little remains with the prosecution. In a weak hearted manner Mr. [ENTITY] urged that against appellant [ENTITY], there is evidence of recovery of shoe, the weapon of assault viz., hammer, blood stained jeans and shirt which he was putting on when arrested. He urged that this evidence coupled with the evidence of test identification is sufficient to infer that the prosecution has proved its case against the said appellant beyond reasonable doubt. We regret that we cannot accede to his contention. In paragraph 30 of the judgment the learned Judge has observed that the recovery of shoe was effected from an open place. In paragraph 31 of the impugned judgment the learned Judge has observed that the recovery of hammer was also effected from an open place. As mentioned earlier, recoveries effected from an open place are not incriminating evidence. Hence the said recoveries cannot be of any help to the prosecution in persuading this Court in confirming the conviction of the appellant [ENTITY].
Mr. [ENTITY] also submitted that blood stained jeans and a white shirt were recovered from appellant [ENTITY] and the report of the Chemical Analyst is that there was human blood, blood group being 'B', on the said clothes. He urged that the blood group of the deceased was also B. In his contention this recovery also clinches the participation of the said appellant. We regret that we cannot accede to his submission. What Mr. [ENTITY] seems to have lost sight of is that the blood group of the appellant [ENTITY] was also 'B' and the appellant has offered an explanation as to how his clothes came to be stained with blood. The said explanation finds mention in the judgment of the learned trial Judge, though it has been rejected by him.
16. Mr. [ENTITY] also contended that against appellant [ENTITY] there is recovery of blood stained bush shirt and the Chemical Analyst found blood of 'B' group and since the blood group of the deceased was also 'B' this is an incriminating circumstance which coupled with the evidence of identification is sufficient to fix his involvement in the crime. We regret that we cannot accede to his contention. We want to make it plain that for reasons mentioned in paragraph 11 no reliance can be placed on the evidence of identification. As regards presence of blood on his shirt, the appellant has offered an explanation in terms that his daughter was injured and her blood fell on his bush shirt and that was of 'B' group.
Even if it is assumed for arguments sake that the said circumstance exists against this appellant it by itself is not sufficient to sustain his conviction. At the most it may raise a strong suspicion against the said appellant. But as [ENTITY], J., as he then was, observed in paragraph 9 of the oft quoted Judgment in the case of [ENTITY] v. State of Punjab, , " suspicions, however, strong cannot take the place of proof." Even if we go to the extent of holding that the prosecution case against the said appellant may be true, as urged by Mr. [ENTITY], still that would not be sufficient to sustain the conviction of the appellant. As to why it would not be sufficient we quote again from [ENTITY]'s case; this time from paragraph 11 wherein [ENTITY], J., observed thus: Considered as a whole the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence." In the instant case this distance has not been covered by the prosecution in the manner stated above and at the highest the prosecution case is one of grave suspicion against this appellant.
17. There is another aspect which deserves to be considered and that is appellants [ENTITY], [ENTITY] and [ENTITY] cannot be said to have shared the common intention to commit [ENTITY]'s murder. A perusal of the F.I.R. lodged by [ENTITY] would show that the incident took place on the spur of the moment and was preceded by an altercation between the deceased [ENTITY] and the four accused persons and during the course of the same one of the accused persons got a hammer and inflicted blows with the same on the head of [ENTITY]. On these facts it is clear that [SECTION] [ACT] would have no application inasmuch as three amongst the four accused persons were merely present at the place of the incident and the murder of the deceased was not in furtherance of their common intention but was the individual act of the 4th accused who got something in his hand on the spur of the moment and inflicted blows with it on the head of the deceased. At the test identification while identifying the appellants [ENTITY] stated that it was the appellant [ENTITY] who inflicted hammer blows on the head of the deceased: appellant [ENTITY] dashed his head on the chest of the deceased; and appellants [ENTITY] and [ENTITY] gave kick blows to the deceased. The same thing was stated by her in her deposition before the trial Court.
It is significant to point out that in the F.I.R. there is no mention either of the accused dashing his head on the chest of the deceased or of the accused persons giving kick blows to the deceased.
In our view this improvement at the time of test identification and in her statement in the trial Court was made by [ENTITY] at the instance of the prosecution with the oblique motive of securing the application of [SECTION] [ACT] vis-a-vis the appellants [ENTITY], [ENTITY] and [ENTITY].
The learned trial Judge in paragraph 20 of the impugned judgment has rejected the evidence of [ENTITY] and her claim of having seen the incident on some grounds; one of them being this improvement. The learned trial Judge has failed to appreciate the perspective in which this improvement was introduced by the prosecution in the evidence of [ENTITY]. We are certainly not prepared to accept it.
In our view if the averments in the F.I.R. are assumed to be correct then the factual position is that while the deceased [ENTITY] was at the pan shop buying cigarettes an altercation between him and four unknown persons the appellants took place and during the course of the same one of them, ( from the evidence on record it appears to be [ENTITY]) fetched a hammer from the Azad hotel and inflicted three blows with the same on the head of the deceased.
18. In our view on the facts set out above, appellants, other than [ENTITY], were merely present on the place of the incident. It is well settled that mere presence does not make a person ipso facto liable under [SECTION] [ACT] For the application of the said section it has to be established that a criminal act was committed by several persons in furtherance of their common intention. In the instant case we cannot say with certainty that the deceased was murdered in furtherance of common intention of [ENTITY], [ENTITY] and [ENTITY].
In this connection, it would be appropriate to refer to the observations of the Judicial Committee of the Privy Council in the case of [PRECEDENT], wherein their Lordships have said that " the inference of common intention within the meaning of the term in [SECTION] should never be reached unless it is a necessary inference deducible from the circumstances of the case. " In the present case it is not. The F.I.R. shows that the murder of the deceased was not committed in furtherance of common intention. It was the individual act of one accused. A crude effort to invoke application of [SECTION] [ACT] was made by the witnesses at the time of the test identification of the appellants and in their statements in the trial Court by assigning specific parts to these appellants. This improvement, as said earlier, we are not inclined to believe.
19. For the reasons mentioned above, we are implicitly satisfied that the learned trial Judge erred in convicting and sentencing the appellants to life imprisonment under [SECTION] [ACT]
20. In the result these appeals are allowed. We set aside the conviction and sentence of the appellants under [SECTION] [ACT] and acquit them on the said count. The appellants are on bail. They need not surrender. Their bail bonds stand cancelled and sureties discharged.
Before parting with this judgment we would be failing in our fairness if we do not record the assistance rendered to us by the learned Counsel for the parties in the disposal of these appeals. Mr. [ENTITY], learned A.P.P. left no stone unturned to persuade us to accept that the impugned judgment was correctly arrived at.