Case: Marachalil Pakku &amp; Another Vs. State of Madras

whether accused 3 to 7 were the five among the seven persons who entered the house that day. That is the reason why their names do not appear in Ex. P-1. If their names also had appeared in Ex. P-1 we would have held that they are as much guilty as accused 1 and 2 are. The absence of their names in Ex. P-1 does not give us sufficient confidence to hold that since seven persons took part in the murder of whom accused 1 and 2 decidedly participated, the remaining five should necessarily be accused 3 to 7.We cannot therefore feel an abiding conviction of a moral certainty about the truth of the participation of he other five accused. Though it is a case where we may be morally convinced, from the evidence of P. Ws. 3, 4, 5 and 6, that these accused were also there, we are inclined to give them the benefit of the doubt. We are fully convinced that seven persons took part in this crime. But in regard to the identity of five of the seven persons, an element of doubt has occurred in our mind in view of the absence of their names in Ex. P-1 and their non-mention by P. W. 1. When we weigh the evidence of P. Ws. 3 to 6 in the scale along with that of P. W.1 and Ex. P-1, it seems to us that greater weight should be given to that of P. W. 1 and Ex. P-1. In those circumstances we have to give the benefit of the doubt to accused 3 to 7".7. It is this inconsistency in which the learned Judges fell that led us to the granting of special leave to appeal. The learned Judges positively held that seven persons took part in the crime. Witnesses whom they believed definitely named those seven persons. Their names were not give by P. W. 1 and P. W. 2 in Ex. P-1 because they had not identified the five with certainty, P. Ws. 5 and 6 whose evidence has been held to be true gave their names and identified them.It was nobodys case that the five who took part in this murder along with the two appellants were some others than those who had been charged and tried for the offence. In this situation the learned counsel for the appellants urged that their conviction was illegal as the charge was that the appellants and other five accused constituted an unlawful assembly and the said five accused having been acquitted, and in the absence of a charge that five other unknown persons constituted an unlawful assembly, the two appellants could not be held members of the unlawful assembly which had the above common object. It was also urged that there was misjoinder of charges and the trial was vitiated on that ground as well.8. In our judgment, none of the contentions raised by the learned counsel has any force. It is true, as stated in - Dalip Singh v. State of Punjab, AIR 1953 SC 364 (A),that unless a mistaken identity is suggested or where the circumstances shut out any reasonable possibility of mistaken identity, then the hesitation on the part of the judge can only be ascribed, not to any doubt about identity but to a doubt about the number taking part. This proposition has no application here where in very firm language a finding has been given that seven persons took part in the crime. Owing to the names of accused 3 to 7 not having been included in Ex. P-1 the High Court was not prepared to hold that the five named by P. Ws. 5 and 6 were necessarily the persons who participated in the crime.In view of this finding the contention that the two appellants could not be convicted under section 302 read with section 149 cannot be sustained. Be that as it may, after hearing Mr. Sethi on the merits of the case, we are satisfied that the High Court was in error in acquitting accused 3 to 7 and giving them the benefit of doubt. P. W. 2 who was responsible for Ex. P-1 was not sure about the identity of these five persons. In Ex. P-1 it was said that Pakku, Moosa and five other Muslims had stabbed Kannan with Knife. P. Ws. 5 and 6 were not present at the time when Ex. P-1 was dictated and therefore their evidence could not be affected by the circumstance that the names of accused 3 to 7 were not mentioned in Ex. P-1, and there was no reason to doubt the evidence of P. Ws. 5 and 6 on any grounds whatsoever.9. We have not been able to understand how the High Court could acquit these persons having held that the evidence of P. Ws. 5 and 6 as to how Kannan was murdered by accused 1 and 2 stabbing him and the others holding him by his hands and legs, was true. It also said that with regard to participation of accused 3 to 7 they could not say that the prosecution evidence was unreliable.On these findings, in our opinion, no scope was left for introducing into the case the theory of the benefit of doubt. We think that accused 3 to 7 were wrongfully acquitted. Though their acquittal stands, that circumstance cannot affect the conviction of the appellants under section 302 read with section 140, I. P. C.10. In this case there can be no doubt whatsoever that the two appellants along with five others came with the purpose and with the common object of putting an end to the life of Kannan. That being so, the conviction of appellants 1 and 2 for murder under section 302 read with section 149 is fully justified. We do not think that there has been any misjoinder of charges in this case. But even if it be so, that misjoinder has not caused any prejudice in the case.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]7. It is this inconsistency in which the learned Judges fell that led us to the granting of special leave to appeal. The learned Judges positively held that seven persons took part in the crime. Witnesses whom they believed definitely named those seven persons. Their names were not give by P. W. 1 and P. W. 2 in Ex.because they had not identified the five with certainty, P. Ws. 5 and 6 whose evidence has been held to be true gave their names and identified them.It was nobodys case that the five who took part in this murder along with the two appellants were some others than those who had been charged and tried for the offence. In this situation the learned counsel for the appellants urged that their conviction was illegal as the charge was that the appellants and other five accused constituted an unlawful assembly and the said five accused having been acquitted, and in the absence of a charge that five other unknown persons constituted an unlawful assembly, the two appellants could not be held members of the unlawful assembly which had the above common object. It was also urged that there was misjoinder of charges and the trial was vitiated on that ground as well.8. In our judgment, none of the contentions raised by the learned counsel has any force. It is true, as stated inDalip Singh v. State of Punjab, AIR 1953 SC 364  (A),that unless a mistaken identity is suggested or where the circumstances shut out any reasonable possibility of mistaken identity, then the hesitation on the part of the judge can only be ascribed, not to any doubt about identity but to a doubt about the number taking part. This proposition has no application here where in very firm language a finding has been given that seven persons took part in the crime. Owing to the names of accused 3 to 7 not having been included in Ex.the High Court was not prepared to hold that the five named by P. Ws. 5 and 6 were necessarily the persons who participated in the crime.In view of this finding the contention that the two appellants could not be convicted under section 302 read with section 149 cannot be sustained. Be that as it may, after hearing Mr. Sethi on the merits of the case, we are satisfied that the High Court was in error in acquitting accused 3 to 7 and giving them the benefit of doubt. P. W. 2 who was responsible for Ex.was not sure about the identity of these five persons. In Ex.it was said that Pakku, Moosa and five other Muslims had stabbed Kannan with Knife. P. Ws. 5 and 6 were not present at the time when Ex.was dictated and therefore their evidence could not be affected by the circumstance that the names of accused 3 to 7 were not mentioned in Ex.and there was no reason to doubt the evidence of P. Ws. 5 and 6 on any grounds whatsoever.9. We have not been able to understand how the High Court could acquit these persons having held that the evidence of P. Ws. 5 and 6 as to how Kannan was murdered by accused 1 and 2 stabbing him and the others holding him by his hands and legs, was true. It also said that with regard to participation of accused 3 to 7 they could not say that the prosecution evidence was unreliable.On these findings, in our opinion, no scope was left for introducing into the case the theory of the benefit of doubt. We think that accused 3 to 7 were wrongfully acquitted. Though their acquittal stands, that circumstance cannot affect the conviction of the appellants under section 302 read with section 140, I. P. C.10. In this case there can be no doubt whatsoever that the two appellants along with five others came with the purpose and with the common object of putting an end to the life of Kannan. That being so, the conviction of appellants 1 and 2 for murder under section 302 read with section 149 is fully justified. We do not think that there has been any misjoinder of charges in this case. But even if it be so, that misjoinder has not caused any prejudice in the case.