Holding

When the participation of an accused in a joint attack is established beyond reasonable doubt, he can be convicted under Section 302 read with Section 34 IPC even if other co‑accused are acquitted and even if he did not cause the fatal injury.

Summary

The Supreme Court examined the murder convictions of Subash and Shiv Shankar under Section 302 read with Section 34 of the Indian Penal Code. The prosecution alleged a dispute over repair charges that led to a joint attack on the deceased, with eye‑witnesses identifying the accused in identification parades that were held after a considerable delay and without any descriptive particulars in the FIR. The Court held that once an accused’s participation in a common‑intention attack is proved beyond reasonable doubt, he can be convicted under Section 302 / 34 even if other co‑accused are acquitted for lack of identity proof and even if he did not inflict the fatal wound. Because the identification of Shiv Shankar was unreliable due to the long delay and absence of descriptive particulars, he was given the benefit of doubt and acquitted. Subash’s participation was sufficiently established, so his conviction was upheld and his appeal dismissed. The Court also rejected arguments that the case should be limited to Section 324 IPC or that the entire prosecution case fails because of the acquittals of other accused.

Issues considered

Whether a conviction under Section 302 read with Section 34 IPC can stand when other co‑accused are acquitted for lack of identity proof.
Whether delay in holding an identification parade and absence of descriptive particulars in the FIR vitiate the identification evidence.
Whether participation in a joint attack, without proof of causing the fatal injury, suffices for conviction under Section 302 / 34 IPC.
Whether the accused can be convicted only under Section 324 IPC when the murder charge is contested.
Whether the benefit of doubt granted to other accused extends to the appellant.

Legislation cited

Indian Penal Code, 1860s. 302, s. 324, s. 34

Subjects

Joint liabilitySection 34 IPCIdentification paradeDelay in FIRBenefit of doubtMurder convictionAcquittalCriminal Procedure

Judgment

SUBASH .SHIV SHANKAR
A
v.
STATE OF U.P.

APRIL 14, 1987

B [M.M. DUTI AND S. NATARAJAN, JJ.]

Indian Penal Code, 1860-Sections 34 and 302-Joint attack by
accused-Some accused acquitted for want of acceptable proof of
identity-Other accused cannot fscape conviction when participation in )-
attack established by prosecution.
c Criminal Trial-Identification Parade--Delay in holding of-
First Information Report and statements of wltnesses=A.bsence of
descriptive particulars of accused-Conviction-Whether vitiated,

The prosecution alleged that there was a dispute between the
D appellant in Appeal No. 287 of 1978 and the deceased in regard to
payment of repair charges for a machine part and that three or four
days later this appellant alongwith others attacked the deceased when
he was accompanied by P.W. 1 and P.W. 2. It was further alleged that
while the appellant in Appeal No. 288 of 1978 caught hold of the
deceased, the appellant in the first appeal and two others repeatedly
E stabbed him with knives and caused several injuries. P. W. 2 was also y~ ..
injured when he tried to intercede. The deceased and P. W. 2 were taken
to hospital where the deceased was pronounced dead. P. W. 1 presented
a complaint at the Police Station.

The appellant in the first appeal absconded and surrendered be· -(
f fore the court later. On questioning, he named the assailants, who were
arrested on different dates. Test indentification parades were held for
two accused persons wherein the appellant in the second appeal was ~
identified by three witnesses, but the other accused was Identified by
only of them. In the subsequent identification parade held for another
accused, none of the witnesses was able to identify him. All the accused
G were tried and the two appellants and another accused were convicted
under Section 302 read with Section 34 Indian Penal Code and Section
324 read with Section 34 Indian Penal Code for having committed mur-
der of the deceased and caused hurt with a knife to P. W. 2 and were
awarded imprisonment for life and three years' rigorous imprisonment
respectively, the sentences to run concurrently. The fourth accused who
H was not identified by any one of the witnesses at the identification
962
SUBASH v. U.P. STATE 963

parade and whose name was not mentioned in the First Information
A
."-+ Repprt, was acquitted. The High Court in appeal confirmed the convic-
tiou pf the hyq 11ppellants but acquitted the third accused on the ground
that he had been identified by only P.W. 2 and not by other witnesses.

In the appeal to this Court, it was submitted on behalf of the
appellant iu Criminal Appeal No. 287 of 1978 that the prosecution B
evidence suffers from numerous infirmities and as such, the trial court
~ and the High Court ought not to have convicted him, that in any case
the benefit of doubt given to the two of the other accused ought to have
been given to him, that there was an attempt to cover up the delay in
~-Y
making the report, that the motive put forward for the occurrence was
of a flimsy nature and it was unbelievable that for non-payment of
repair charges the dece11sed would have been attacked alongwith his c
companions, that P.W. 1 did not have proper eye sight, that P.W. 3 was
' ~ a chance witness and that C. W. 1 failed to support the prosecution case,
am! that even though P.W. 2 was an injured witness, there was no
guanmtee that his evidence is truthful. It was further urged that the
appellant could be convicted only for an offence under Section 3~4 D
Indian Penal Code for the injury caused to the deceased as well as P. W.
2, that as the sub-stratum of the prosecution fails, the entire case had to
fail and that when the other accused persons were acquitted, the appel-
~y
lant alone cannot be convicted under Section 302 read with Section 34
I.P.C., in the absence of evidence that he caused any of the fatal injuries
-
on the deceased. E
~

It was submitted on behalf of the appellant in Crimi.nal Appeal
No. 288 of 1978 that neither his name nor any of his characteristics were
:>.-.
/ mentioned in the First Information Report by any of the eye witnesses,
th11t he was falsely implicated, that there was no motive for him to mur-
_J der the deceased, that one of the prosecution witnesses had altogether F
denied his presence, that there was delay in his arrest and holding of the
ldentilication parade and he was exposed to the identifying witnesses by
not covering his distinctive features, that the prosecution had failed to
prove beyond reasonable do!!bt his participation in the commission of
the occurrence and that when the other accused, one of whose name
figured in the First Information Report, were acquitted by giving the G
. --{ benefit pf do11bt, he should also have been given the same benefit of
doubt.

Dismissing the appelll of the appellant in Appeal No. 287 of 1978
and allowing the appeal of the appellant in Appeal No. 288 of 1978, this
Court, H
964 SUPREME COURT REPORTS [198'1] 2 S.C.R.

A HELD: I. When participation of the appellant with the other
assailants is established beyond reasonable doubt by the prosecution, he
cannot escape the consequences of the attack committed hy him and his
accomplices in furtherance of their common intention and conviction
under Section 302 read with Section 34 Indian Panel Code even though
the other accused stand acquitted and even though there may be no
B
evidence that the accused caused one of the fatal injuries. [973E]

2. The other accused were acquitted only for want of acceptable
proof of their identity and not because the eye witnesses had not seen
f-
the occurrence or that the occurrence had taken place in a different
manner. Therefore, there is no merit in the contention that when the
..., ~

c other accused persons were acquitted, the appellant,,in Criminal Appeal
!!lo. 287 of 1978 alone cannot be convicted under Section 302 read with
Section 34 Indian Penal Code, in the absence of evidence to show that he
caused any of the fatal injuries on the deceased. The appellant, there-
;.....
fore, cannot escape the consequences of the attack jointly committed by
him and his accomplices in furtherance of the common intention. [972B-E]
D
3. There is nothing improbable in the appellant having nurtured
a grievance against the deceased and wanting to settle scores with him.
The evidence of the eye witnesses was clearly to the effect that the
appellant told his companions on seeing the deceased that he was the
person who had quarreled with him and taken away the machine part
y··
E
without paying the repair charges. Making common cause of his grie-
vance, the appellant's companions had also joined him in perpetrating
an attack on the deceased. The trial court and the High Court were
right in accepting the evidence of these witnesses. [970F-G]

F
4. There is no merit in the contention that the appellant can be
convicted only for an offence under Section 324 Indian Penal Code for
~
"'
injury caused to the deceased as well as P.W. 2. The trial court had
framed a separate charge against the appellant under Section 324
Indian Penal Code in addition to the charge under Section 324 read with
Section 34 Indian Penal Code. There is also no merit in the contention
that when the sub-stratum of the prosecution case fails, the entire case
G has to fail. The prosecution xersion fully survives in spite of the acquittal
of the other accused for want of proofof identity. [9710-F] '}-·

5. Where there is delay in holding an identification parade, it
would not be safe to place reliance on the identification of the accused
H by the eye witnesses. [969D-E]

•
SUBASH v. U.P. STAIB 965

6. Where the witnesses had not given any description of the ac-
cused in the First Information Report or in the statements during the A
investigation, their identification of the accused at the trial cannot be
safely accepted by the court for convicting the accused. [969E)

7. The appellant in Criminal Appeal No. 288 of 1978 was not
arrested for nearly nine weeks after coming to know of his name and B
..J I
address from the other appellant. It was not the case of the prosecution
that the appellant was absconding. Apart from this infirmity, the appel-
lant was not put up for test identification parade prmpptly and it was
held three weeks after his arrest and no explanation was offered for the
delay in holding it. There is, therefore, room for doubt as to whether
the delay in holding the identification parade was in order to enable the
identifying witnesses to see him in the police lock up or in the jail C
premises and make a note of his features. A sufficiently long interval of
time had elapsed between the date of occurrence when the witnesses had
seen the appellant for a few minutes and the date of the identification
parade. [9680-H; 969A)
D
8. Although all the three witnesses had identified the appellant at
the identification parade, after nearly four mouths, in the absence of
any descriptive particulars of the appellant in the First Information
Report or in the statements of witnesses during the investigation, it
would not be safe and proper to act upon the identification of the

- appellant by the three witnesses at the identification parade and hold E
that he was one of the assailants of the deceased. [969A-D)

>- 9. As the conviction of the appellant was based solely with refe-
rence to his identification at the parade, he has to be given the benefit of
doubt and acquitted. [973E)
j F
Muthu Swami v. State of Madras, AIR 1954 SC 4; Mohd. Abdul
Hafeez v. State of Andhra Pradesh, AIR 1983 SC 361; Gurdev Singh
and others v. The State, 1963 Punjab Law Reporter, 409; State of U.P.
v. Hari Prasad, AIR 1974 SC 1740; Ugar Ahir v. State of Bihar, AIR
1965 SC 277; Vi jay Kumar v. State of J & K, AIR 1982 SC 1022; and
Amir Hussain v. State of U.P., AIR 1975 SC 2211, referred to. G

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 287-288 of 1978.

From the Judgment and Order dated 14.10.1977 of the Allaha-
bad High Court in Criminal Appeal Case No. 2242 of 1972. H
966 SUPREME COURT ~EPORTS. IJ987] 2 S.C.R.

A Frank Anthony, Sushi! Kumar and J.K. Das f~r \he Appellant in
~.A.~.Wcl~. . ~

U.R. Lalit, S.K. Bisaria and A.O. Malhotra·for (he AJlpellant ip
Crl. A.No. 288 of 1978.

B Prithvi Raj, C.P. Mittal and Dalveer Bhandari f~r the Respondent.

The Judgment of the Court was delivered by

NATARAJAN, J, These Appeals by Special Leave arise out of a
common judgment rendered by the Allahabad High Court in three
"'1-
C Criminal Appeals filed before it by the appellants and one Raj
Kishore. Appellant Subash and appellant Shiv Shankar were convicted
alongwith Raj Kishore by the 4th Additional Sessions Judge, Bareilly
under Section 302 read with Section 34 Indian Pe11al Code and Section
324 read with Section 34 Indian Penal Code respectively fpr having
committed the murder. of one Ram Babu and for haying caused hurt
D with a knife to witness Dinesh Shankar. For the said c9nvictions they
were awarded imprisonment for life and three year's R.I., respectively
and the sentences were ordered to run concurrently. One Om Kumar
who was also sent up for Sessions trial under the two charges men-
tioned above was acquitted by the Sessions Judge. The three convicted
persons preferred appe~ls to the High Court and the High Court has
E confirmed the convictions and sentences awarded to Subash and Shiv
Shankar but acquitted Raj Kishore. -
The offences in question were committed on March 12, 1971 i.e.,
a day after Holi Festival at about 11 a.m. on the Bareilly-Nainital
Road in Bareilly. The prosecution case was that while Shiv Shankar
F caught hold of Ram Babu, Subash, Raj Kishore and Om Kumar re-
peatedly stabbed him with knives and caused fatal injuries to him.
When Dinesh Shankar (P.W. 2) tried to intercede he was also stabbed
by Subash and caused an injury. Besides, Dinesh Sbankar (P,W. 2) the
occurrence was witnessed by an uncle of ·Ram Babu viz. Budh Sen
(P.W. 1) and Shyam Behari (P.W. 3) and some others. Ram Babu and
G Dinesh Shankar were taken to the hospital but Ram Babu was pro-
nounced dead in the hospital. The motive for the occurrence was that
about 15 or 20 days prior to the occurrence Ram Babu had given a
machine part to Subash for being welded but Subash failed to carry out
the work; neverthless he refused to return the machine part without
the repair charges being paid to him. Ram Babu refused to pay the
H charges and there was an altercation but the parties were pacified by
SUBASH v. U.P. STATE {NATARAJAN. J.] 967

Dinesh Shankar and Ram Babu took away the machine part without A
paying any charges to Subash. The quarrel had taken place about 3 or
4 days before the occurrence. Bearing this grudge in mind, when Ram
Babu, accompanied by Budh Sen and Dinesh Shankar was proceeding
to Qutabkhana to witness the Holi celebrations, Subash assisted by his
three companions attacked Ram Babu in the manner set out earlier
and caused fatal injuries to him. Tuer~ were as many as 14 injuries on B
.--\\ Ram Babu among which 7 were punctured wounds. Among the punc-
tured wounds, injury nos. 7 and 8 were deep in.juries which had injured
the pleura, left lung, pericardium and the heart. These injuries were
- )r certified to be sufficient in the ordinary course of nature to cause
death. Dinesh Shankar {P.W. 2) also had sustained an incised wound
on his left thigh.
c
. ·~ Budh Sen {P.W. 1) got a report Exhibit Kha 1 written by his son
and presented it at the Police Station at 1.12 p.m. Therein he has
stated that accused Subash was known to him but the other three
assailants were not known to him but another witness Bhuvan Chand
examined as C.W. l, had informed him that one Raja Ram was one of D
the assailants of Ram Babu. It would appear that subsequently Bhuvan
Chand refused to testify out of fear of the accused and hence he was
not cited as a witness in the charge-sheet. Even so, having regard to
the averments in Exhibit Kha 1, the Sessions Judge examined Bhuvan
Chand as a court witness. He, however, failed to corroborate Budh
Sen and stated that he did not know anything about the occurrence. E

Subash was absconding and he surrendered before the court on
12.3.71. He was subsequently questioned by the Investigating Officer
and he gave information regarding the names and addresses of the other
three assailants. Raj Kishore was arrested on 23.5.1971 and Shiv
Shankar was arrested on 14.6. 71 from the office of the Central Excise, F
Bareilly where he was employed. Om Kumar surrendered himself in
Courton 15.7.71.

Test identification parades were held for Raj Kishore and Shiv
Shankar on 5.5.71 wherein Shiv Shankar was identified by Budh Sen,
Dinesh Shankar and Shyam Behari but Raj Kishore was identified G
only by Dinesh Shankar. In the subsequent test identification parade
·held for Om Kumar on 27.7.71 none of the witnesses was able to
identify him. The defence of all the accused was one of denial.

Since accused Om Kumar was not identified by any of the witnes-
ses at the test identification parade and since his name was not H
968 SUPREME COURT REPORTS [1987] 2 S.C.R.

A mentioned in Exhibit Kha I the Sessions Judge acquitted him of the
charges and convicted only the two appellants and Raj Kishore. The
High Court acquitted Raj Kishore because he had been identified.only
by Dinesh Shankar and not by the other witnesses but, however, con-
firmed the conviction of these two appellants and it is against such
confirmation by the High Court, the appellants have preferred these
B Appeals.

Before dealing with the case of Subash we can conveniently deal
with the appeal of Shiv Shankar. Admittedly he was not known to any
of the eye witnesses.and his name does not also find a place in the First --.' ...
Information Report Exhibit Kha 1. His name came to be known only
C through Subash when he was questioned in the jail on 7.4. 1971. Even
if it were so, it is not understandable why the Investigating Officer
should have taken three weeks to question Subash after his surrender ).<. •
in Court on 17.3.1971. Be that as it may, even after getting the name
and address of Shiv Shankar from Subash, the Investigating Officer
has failed to trace him and arrest him till 14.6.1971. Shiv Shankarwas
D an employee in the office of the Central Excise Department at Bareilly
itself. It is, therefore, difficult to believe that the Investigating Officer
would not have been able to trace him and arrest him for nearly 9
weeks after coming to know of Shiv Shankar's name and address from
Subash. As a matter of fact, the Investigating Officer has stated in his
evidence that he visited the house of Shiv Shankar two or three times
E to arrest him but Shiv Shankar was not to be found. If Shiv Shankar
was absent from the house the Investigating Officer could have easily
learnt from the neighbours where he was working and where he had
-
gone and located him and arrested him. It is not the prosecution case.
that Shiv Shankar was absconding. In such circumstances it is difficult
to accept the prosecution case that the Investigating Officer could not
F trace and arrest Shiv Shankar till 14.6. 71 in spite of coming to know on
7.4. 71 itself that he was one of the assailants of Ram Babu.

Apart from this infirmity we further find that Shiv Shankar was
not put up for test identification parade promptly. The identification
parade has been held three weeks after his arrest and no explanation
G. has been offered for the delay in holding the test identification parade.
There is, therefore, room for doubt as to whether the delay in holding
the identification parade was in order to enable the identifying witnes-.
ses to see him in the police lock-up or in the jail premises and make a
note of his features.

H Over and above all these things there remains the fact that a
SUBASH v. U.P. STATE [NATARAJAN, J.l 969

sufficiently long interval of time had elapsed between the date of A
occurrence when the witnesses had seen Shiv Si)ankar for a few
minutes and the date of the test identification parade. It is, no doubt,
true that all the three witnesses had correctly identified Shiv Shankar
at the identification parade but it has to be borne in mind that nearly 4
months had elapsed during the interval. It is relevant to mention here
that neither in Exhibit Kha I nor in their statements during investiga· B
tion, the eye witnesses have given any descriptive particulars of Shiv
Shankar. While deposing before the Sessions Judge they have stated
that Shiv Shankar was a tall person and had 'sallow' complexion. If it is
on account of these features the witnesses were able to identify Shiv
Shankar at the identification, parade, they would have certainly
mentioned about them at the earliest point of time because their C
memory would have been fresh then. Thus in the absence of any
descriptive particulars of Shiv Shankar in Exhibit Kha 1 or in the
statements of witnesses during investigation, it will not be safe and
proper to act upon. the identification of Shiv Shankar by the three
witnesses at the identification parade and hold that he was one of the
assailants of Ram Babu. As pointed out in Muthu Swami v. State of D
Madras, A.LR. 1954 S.C 4 where an identification parade is held
about 2· 1/2 months after the occurrence it would not be safe to place
reliance on the identification of the accused by the eye witnesses. In
another case Mohd. Abdul Hafeez v. State of Andhra Pradesh, A.LR.
1983 S.C. 361 it was held that where the witnesses had not given any
description of the accused in the First Information Report, their E
identification of the accused at the Sessions trial cannot be safely
accepted by the court for awarding conviction to the accused. In the
present case there was a long interval of nearly 4 months before the
test identification parade was held and it is difficult to accept that
in spite of this interval of time the witnesses were able to have a clear
image of the accused in their minds and identify him correctly at the F
identification parade.

Mr. U.R. Lalit, learned counsel for Shiv Shankar further con·
tended that Shiv Shankar had certain distinctive features like scars on
the face, reddish lips etc., and these marks of identification should
have been furnished to the witnesses before they were called upon to G
identify Shiv Shankar at the identification parade. We do not think it
necessary to go into the merits of this argument in the light of our
conclusion already reached. As the conviction of Shiv Shankar is based
solely with refere·nce to his identification at the identification parade,
he has to be given the benefit of doubt and acquitted in the light of our
finding. Accordingly, Shiv Shankar's appeal has to succeed. H
970 SUPREME tOtJRT REPORTS [1987] 2 S.C.R.

Coming now to the appeal of Subash it was strenuously con-
. A
tended by Mr. Frank Anthony, learned counsel that the prosecution
evidence suffers from numerous infirmities and as such the Sessions
+--""'
Judge and the High Court ought not to have convicted him. His further
argument was that in any case the benefit of doubt given to Om Kumar
and Raj Kishore, oug!1t to have been given to Subash also. Mr.
B Anthony argued that Exhibit Kha 1 could not have been given at 1. 12
p.m. because there is no evidence to show when the report was sent to ';..-..
the Magistrate and when it was received by him. The learned counsel
referred to Gurdev Singh and others v. The State, [1963] Punjab Law
Reporter, 409 where the dangers ensuing from a First Information -4-"
'
Report not being lodged promptly have been pointed out. We are
unable to accept the argument of Mr. Anthony because there are no
c materials to warrant an inference that Exhibit Kha 1 had been given
later but ante-dated to cover up the delay in making the report. It is ):-.
true that the First Information Report sent to Court does not contain
the, Magistrate's endorsement regarding the time of its receipt, but
Ram Kishan, Head Constable (P.W. 5) has deposed that the special
D report was despatched to the Magistrate at 1.20 p.m. itself through
constable Chiman Lal and that the General Diary contains an entry to
that effect.

It was seriously urged by Mr. Anthony that the motive put y-·
forward for the occurrence was of a flimsy nature and it is unbelievable
E that for non-payment of repair charges Subash would have attacked
Ram Babu along with his companions. This argument has to fail be-
cause Dinesh Shankar has clearly deposed that there was an alterca-
- ~
tion between Subash and Ram Babu ~here on four days earlier and ~
Ram Babu took away the machine pan without paying repair charges
to Subash. There is, therefore, nothing improbable in Subash having
F nurtured a grievance against Ram Babu and wanting to settle scores :......
with him. The evidence of the eye-witnesses is clearly to the effect that
Subash told his companions on seeing Ra1!1 Babu, that he is the person
who had quarrelled with him and taken away the machine part without
paying the repair charges. Making common cause of his grievance
Subash's companions had also joined him in perpetrating an attack on
G Ram Babu. The intent of Subash in launching an attack on Ram Babu
can be gauged from the fact that when Dinesh Shankar tried ·to )--
intervene, he had prevented him and inflicted a stab injury on him
·also.

The further argument of Mr. Anthony was that Budh Sen did not
"
H have proper eye sight, that Shyam Behari was a chance witness and .
~.,.
SUBASH v. U.P. STATE !NATARAJAN, J.] 971

that Bhuvan Chand named in Exhibit Kha I had failed to support the A
prosecution case and as such there is no acceptable evidence to convict
Subash. He also stated that even though Dinesh Shankar is an injured·
witness, there is no guarantee his evidence is truthful. None of these
contentions in our opinion, has any merit. Budh Sen has stated that his
eye sight is poor without glasses but with spectacles he can see well. It
is not the case of the appellant that Budh Sen was not wearing his B
spectacles at the time of the occurrence. In so far as Dinesh Shankar
and Shyam Behari are concerned, their presence at the scene cannot
admit any doubt because their names find a place in Exhibit Kha I.
Moreover Dinesh Shankar has sustained an injury on his left thigh.
The evidence of these witnesses has been accepted by the Session
Court and the High Court and we see no reason to take a different C
view. In so far as Bhuvan Chand (C.W. 1) is concerned, the prosecu-
::il,_ tion has satisfactorily explained why he was not cited as a witness. He
had no doubt furnished the name of Raja Ram alias Raj Kishore to
Budh Sen but he subsequently backed out fearing reprisal at the hands
of the accused. Mr. Anthony argued that even if his contentions are
not accepted, Subash can be convicted only for an offence under Sec- D
ti on 324 Indian Penal Code for the in jury caused to Ram Babu as well
as Dinesh Shankar. We may mention here that the Sessions Judge had
framed a separate charge-against the appellant Subash under Section
324 Indian Penal Code in addition to the charge under Section 302
read with Section 34 Indian Penal Code. Mr. Anthony invited our atten-
tion to State of U.P. v. Hari Prasad, A.I.R. 1974 S.C. 1740 and Ugar E
Ahir v. State of Bihar, A.I.R. 1965 S.C. 277 to contend that when the
sub-stratum of the prosecution case fails, the entire case has to fail. We
find the facts in those cases were entirely different and hence they can
have no relevance to this appeal. In the present case, the prosecuiion
version fully survives in spite of the acquittal of the other accused for
want of proof of indentity. F

The last argument of Mr. Anthony was that in any event when
the other accused persons are acquitted, Subash alone cannot be con-
victed under Section 302 read with Section 34 Indian Penal Code. in the
absence of evidence to show that he caused any of the fatal injuries on
Ram Babu. This argument is devoid of any merit. The case of Subash G
stands on a different footing from that of the other accused because he
has been clearly named and the particulars of his profession and
address have been furnished in Exhibit Kha I. All the witnesses have
stated that he was known to all of them. In contrast the names of the
other accused were not known to the eye witnesses and the name of
Raj Kishore alone had been furnished to Budh Sen by Bhuvan Chand. H
972 SUPREME COURT REPORTS [19871 2 S.C.R.

A Besides attacking Ram Babu Subash had also attacked Dinesh
Shankar. He was absconding and had later surrendered himself ill
court. No test identification parade was held for him because his
+-·
identity was never in doubt. He had a grudge against Ram Babu and it
wi1s on his instigation the attack qn Ram Babu had been launched. His
case, therefore, stands on a distinctively different footing from that of
B the other accused persons. Even though the other accused are acqtli!-
ted it is only for want of proof of their identity and not because the eye
witnesses had not seen the occurrence or that the occurrence had taken /---
place in a different manner. Subash cannot, therefore, escape the
consequences of the attack jointly committed by hiill a!ld his acconip~ "11--•
lices in furtherance of their common intention even though the i'.lther '
C accused stand acquitted for want of acceptable pri'.lof of their identity.
Mr. Anthony referred us to the decision in Vljay Kumar v. State ofJ &
K, A.LR. 1982 S.C. 1022 to contend that when the other accused k •
stand acquitted Subash also should be acquitted of the charge under'
Section 302 read with Section 34 Indian Penal Code. The facts in that
case bear no comparison with the facts in this case. On the other hand
D Amir Hussain v. State of U.P., A.LR. 1975 S.C. 2211 will be the
decision apt for consideration in this case. In the above case 10 persons
were acquitted by the Sessions Judge and three alone were convicted
under Section 302 read with Section 34 Indian Penal Code. Among
those three, two were acquitted by the High Court and consequently
only one of the accused stood convicted. The said accused appealed to
E this court and contended that since the other two accused had been
acquitted, he should also be acquitted of the charge under Section 302
read with Section 34 Indian Penal Code. Repelling the contention this
Court held as follows:-
'
"Much stress has been laid on behalf of the appellant
F upon the fact that despite the evidence of the above -~-
mentioned four eye-witnesses, the High Court has acquit- ~
ted Karimuddin and Mohd. Ibrahim accused. It is, in our
view ;not necessary to express an opinion on the point as to
whether those two accused were rightly acquitted or not.
All that we can say is that the benefit of doubt which re-
G sulted in the acquittal of the other two accused would not
vitiate the conviction of the appellant in case the evidence }-
adduced against him is found to be satisfactory and con-
vincing. The material on record establishes that the appel-
lant had a motive to join in the assault on Ibrahim Pradhan.
The appellant held out a threat and report about it was
H lodged by Ibrahim deceased at the police station about
SUBASH v. U.P. STATE (NATARAJAN, l.] 973

3-1/2 months prior to the present occurrence. The evidence A
about the motive lends assurance to the evidence of the
eye-witnesses regarding the complicity of the appellant.

We would, therefore, maintain the conviction of the
appellant.
B
As regards the sentence, it may be stated that the
only injury which is attributed to the appellant is an incised
wound on the right arm of Ibrahim. The incised wound
which was found on the scalp of Mehandi Hasan was
ascribed by the eye-witnesses to Karimuddin who has been
acquitted. In view of the fact that a comparatively minor C
injury was attributed to the appellant and he is being vicari-
ously held liable for the fatal injuries caused by the other
culprits, we consider it to be a fit case in which we might
substitute the lesser sentence for the extreme penalty of
death. We accordingly maintain the conviction of the D
appellant but reduce his sentence to that of imprisonment
for life."

We are, therefore, of the view that even though the other
accused stand acquitted and even though there is no evidence that
Subash caused one of the fatal injuries, he cannot escape conviction
E
under Section 302 read with Section 34 Indian Pana! Code when his
participation with three other assailants in the attack on Ram Babu has
been established beyond reasonable doubt .by the"prosecution. We,
>- therefore, confirm his convictions and the sentences awarded therefor.

In the result Cr!. Appeal No. 287 of 1978 will stand dismissed
F
while 'er!. Appeal No. 288 of 1978 will stand allowed. Appellant Sub-
ash will surrender himself to custody failing which he should be
arrested for serving out the sentence. Appellant Shiv Shankar will
stand acquitted of the convictions under Section 302 read with Section
34 Indian Pana! Code and 324 read with Section 34 Indian Penal Code
and his bail bonds will stand cancelled.
G
N.P.V. Cr!. Appeal No. 287/78 dismissed.
Crl. Appeal No. 288/78 allo)Ved.
I