V. S. Deshpande, J.@mdashFrom all this, it can be safely concluded that, (1) the appellant was directed to put an end to the life of Nago, who
was in turn to accompany him on the loaded tractor from Rohana to Karanja (2) on his pleading inability to do it alone, he was assured of the
assistance of others; (3) he and the deceased left together in the tractor with other four co-employees and one Kondabai, who also wanted lift
upto Karanja ; (4) the deceased was Assaulted to death by himself and four others by sticks and stones in S. No. 25 near Bheda tree; (5)
Kondabai was also done to death to prevent disclosure and (6) the two dead bodies were dropped on Manora-Mangrulpir road near Sakhardoh
on his way to Mangrulpir and Karanja.
2. Murder, at any rate of Nago is thus proved to be the outcome of previous concert between six persons and conjoint action of five persons
Including the appellant, in pursuance of their common intention. This evidence does not permit fixation of any individual liability for any particular
blow or injury. The appellant is proved to have given stone blow to Nago. But it is not possible to hold him liable for any of the three fatal or four
simple injuries. He can, however, be held vicariously liable for the conjoint attack u/s 302 read with section 34 Indian Penal Code.
3. Confessional statement no doubt mentions the names of the instigator and the other four collaborators. Conviction of the appellant undoubtedly
is being based on our finding that the confession is true and voluntary. Even so, there is no other sufficient legal evidence against the other co-
accused and this necessitated their acquittal. This inevitably introduces an element of inconsistency, if not of uncertainty, appellant being convicted
on the hypothesis that the persons named did instigate and collaborate and yet acquitting the very same persons on such instigation and
collaboration having remained legally unproved. Such apparent inconsistency, however, is never considered to be legal impediment in the way of
the conviction of the maker of the confession in all cases depending essentially on confessions. Such inconsistency on the other hand is judicially
accepted as an indispensable procedural safeguard under the rules of evidence. Convicted accused is always deemed to have conjointly acted with
legally unidentified persons, notwithstanding the acquittal of the named other accused for want of additional legal evidence.
4. Mr. Manohar contends that with the acquittal of all but the appellant, his conviction for the offence u/s 302 read with section 34 Indian Penal
Code is not legal, as the appellant cannot be said to have shared the common intention with any one else to warrant his vicarious liability. Reliance
is placed on the decisions of Krishna Govind Patil Vs. State of Maharashtra, ; Baul and Another Vs. State of U.P., ; Ram Tahal and Others Vs.
The State of U.P., and B. Nath v. State of Orissa AIR 1973 S C 2337 and also in Prabhu Babaji Navle Vs. State of Bombay, .
5. Now it is true that the conviction of any person or persons u/s 302 read with section 34 Indian Penal Code assumes that perpetrators of the
crime were more than one, and all of them acted (1) conjointly (2) after some prior concert (3) and in execution of their common intention. With
the acquittal of all but one such alleged perpetrators, possibility of any conjoint action in pursuance of any prior concert and common intention is
liable to be eliminated. The person sought to be convicted cannot be said to have shared the common intention, or acted in concert, with anyone,
and cannot conceivably be held vicariously liable for the fatal blow by any supposed perpetrator. In all such contingencies one such person can be
held liable only for his individual act or omission, if the same is capable of being determined or else he also is liable to be acquitted notwithstanding
the proof of his unspecified participation. Conviction in such a case introduces inconsistency in as much the conviction assumes his participation
and sharing of common intention with those whose very acquittal prima facie indicates their non-participation. Prabhu Dayal''s case (supra) is an
instance in point.
6. Cases, however, do arise where notwithstanding the acquittal of all but one, offence can be firmly held to have been committed by more than
one person, though other alleged participants are required to be acquitted either due to their false implication or doubtful evidence or inadequate or
total absence of any evidence against them. It has been held in Bharwad Mepa Dana and Another Vs. The State of Bombay, that there is no legal
bar to convict even such one person where the Court is satisfied, that offence is committed by more than five, in pursuance of the common object,
attracting section 149 Indian Penal Code or by more than one person pursuant to common intention attracting section 34 Indian Penal Code and
further satisfied that no prejudice is being caused to the accused in his defence due to the substitution of other unidentified perpetrators in place of
the named acquitted ones. It is also held that no question of any new case being made out by the Court can be involved in such a contingency. This
decision refers to some of its earlier cases including the case of Prabhu Dayal (supra) which has been distinguished. This view also has been further
affirmed in Mohan Singh Vs. State of Punjab, . Both these cases, no doubt, arose out of convictions of less than five perpetrators of crime u/s 302
read with section 149 Indian Penal Code, though more than unidentified five were found to have committed the crime in pursuance of their
common object. In both the cases the convictions were upheld for the offence u/s 302 read with section 34 Indian Penal Code. This does not
make any difference to the principle of attracting vicarious liability involved u/s 302 read with either of these sections 34 or 149 Indian Penal Code.
7. In Krishna Patil''s case, strongly relied on by Mr. Manohar, all the charge-sheeted four accused were acquitted for offence u/s 302 read with
section 34 by the trial Court. Accused Nos. 1, 3 and 4 had pleaded alibi, Accused No. 2 Krishna had admitted having assaulted the deceased, but
pleaded self defence. The High Court confirmed the acquittal of accused Nos. 1, 3 and 4 though it was inclined to accept the prosecution evidence
partly. In spite of their such acquittal, Krishna Patil alone was convicted for offence u/s 302 read with section 34 Indian Penal Code. On the
findings of the High Court as quoted and interpreted by the Supreme Court in para. 4 at page 1415, this case can be said to be class by itself.
Positive finding of Krishna having shared the common intention with ''one or the other'' acquitted accused, according to the Supreme Court,
introduced an inconsistency, holding such other accused having participated and also in the same breath not so participated in the crime. Secondly,
(1) finding that some of the other accused were ''undoubtedly'' there and yet finding it unsafe to hold them guilty as also that (2) accused No. 2
committed the offence with ''one or more of the accused'' betrayed vacillation and uncertainty within the ratio of Dalip Singh and Others Vs. State
of Punjab, as to if Krishna shared such intention with any one at all. Thirdly, as a Corollary to this approach, the finding also did not indicate any
trace of any unidentified participants other than such acquitted persons, to share such intention, and to attract vicarious liability u/s 34 Indian Penal
Code. This all created ''legally impossible position'' as discussed in para. 8, which impelled the Supreme Court to acquit Krishna Patil.
8. Superficial reading of a few observations in paras. 5 and 6 of the judgment does create an impression as though ratio of B. M. Dana''s case was
intended to be overruled. But the learned Judges in terms approvingly referred to Mohansingh''s case (supra) in para 7 of the judgment and
distinguished the facts of the case before them. Mr. Manohar''s reliance on such observations in Krishna PatiVs case therefore can be of no avail
to him. Other three cases merely refer or follow Krishna PatU''s case. Prabhu Dayal''s case has been distinguished in B. M. Dana''s case.
9. If deceptive appearances of similarity in facts are eliminated, this Krishna''s case is clearly distinguishable on our findings. Crime is the result of
conjoint action of the appellant and four other unidentified persons. There was prior concert between them and common intention was shared by
them all at the instance of the instigator. There is no element of uncertainty as to the fact of participation by such others and their having remained
unidentified. Their having remained unidentified by itself cannot introduce either any infirmity or inconsistency, as our finding as to the participation
by such other persons is firm. To say that the appellant acted in concert with unidentified participants is not the same thing as saying positively that
he so participated with the acquitted accused. The distinction, though subtle, is real and transparent and of some substance. There is nothing in
Krishna Patil''s case to indicate that recognition of such a distinction, required to be relied on in all cases depending on confessional statements, is
legally fatal.
10. Invariably in such cases, convicted accused is held to have acted in concert with persons other than the acquitted accused. This necessitates
positive assumption that each one of such acquitted person was innocent and could not have been amongst the unidentified perpetrators of crime.
But any such finding positively excluding the acquitted accused from the Preview of the ''unidentified'', in the facts of this case, would be illogical
and inconsistent with our appreciation of the confessional statement. Such positive exclusion would as much lead to the ''legally impossible
position'' as the positive implication of the acquitted accused adverted to in Krishna Patil''s case, unless of course evidence were to permit a clear
finding of their false implication. Criminal trial is essentially aimed at proving the guilt and not at proving the innocence or, at, any roving enquiry into
the conduct of the accused to necessitate any such finding of false implication in every case. Acquittal of the accused ordinarily implies absence of
proof of his guilt and revives the presumption of innocence and not the positive proof of his innocence, under the scheme of our laws. Acquittal of
the other accused in the present case does not amount to the proof of their such innocence as to warrant their positive exclusion from the
''unidentified'' persons, with whom appellant is held by us to have acted in concert.
11. Discussion at the end of para. 12 at page 293 of B. M. Dana''s case indicates that Supreme Court had left such a question open. We have
already indicated how such a finding was found to be a ''must'' in Krishna Patil''s case due to High Court''s peculiar finding quoted in para. 4 of the
judgment. It is true that acquittal of the accused in this case also is attributed by the Supreme Court in paras. 6 and 8 to ''benefit of doubt'' giving an
impression, on superficial reading, as though every such acquitted accused must be excluded from the ''unidentified'' persons. The words ''benefit
of doubt'', however, do not admit of any fixed connotation and convey acquittal under variety of circumstances. Krishna Patil''s case cannot be
said to have laid down any such rule of law. This decision really turns on its own facts as explained by the Supreme Court itself in a recent case of
Yeshwant and Others Vs. The State of Maharashtra, .
12. Reliance was placed by Mr. Manohar on the following passage at page 479 from the case of Sambasivam v. Public Prosecutor, Federation of
Malaya 1950 A C 458 in support of his argument of exclusion:
The effect of a verdict of acquittal ... is not completely stated by saying that the persons acquitted cannot be tried again for the same offence. To
that it must be added that the verdict, is binding and conclusive in all subsequent proceedings between the parties to the adjudication.
This passage has been quoted with approval by the Supreme Court in Pritam Singh and Another Vs. The State of Punjab, , to uphold Pritam
Singh''s contention that in his subsequent trial for murder, the prosecution was estopped from proving his possession of pistol in view of his earlier
acquittal under the Arms Act. This procedural immunity from prosecution afresh, of any one on his acquittal, does not amount to a certificate of his
positive innocence, as discussed, earlier to warrant his exclusion from the unidentified perpetrators of crime. Two other cases viz. Sunder Singh
and Others Vs. The State of Punjab, and Karan Singh Vs. State of Madhya Pradesh, , are illustrative of the limitations of these, widely worded
observations.
13. We are thus unable to accede to the contentions either that the acquittal of all but the appellant must result in his acquittal also or that he cannot
be convicted unless he can be held to have acted in concert with persons other than the acquitted accused and that the acquitted accused must be
excluded from such unidentified. We are unable to see any rational basis, logic reason or justice in acquitting the appellant in spite of his confession
of having committed the murder conjointly with four others and when the confession is found by us to be dependable against him. Such an
approach is not supported by either of the cases, cited including Krishna Patil''s case. The protection of the innocent must always be the concern of
any Court which must start with initial presumption of innocence of the accused. But suggested approach is more pedantic and doctrinaire ,than
realistic and is liable to result in miscarriage of justice in cases of dacoity, rioting or cases based on confessional statements, where acquittal of
some becomes inevitable in Deference''s to procedural safeguards, without falsifying the evidence pointing at his or their guilt.
14. Vicarious liability of a convicted person u/s 34, thus does not so much depend on conviction or identification of other participants as on the
firm finding that offence was committed conjointly by more than one person. Neither acquittal of others nor inability to determine their false
implication or exclusion thereof from unidentified others is sufficient to displace conviction of such person.
(The rest of the judgment is not material to this Report.)
