Page 1 1

Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1957 OF 2008

State of Maharashtra …. Appellant

Versus

Ramlal Devappa Rathod and others …. Respondents

J U D G M E N T

Uday Umesh Lalit, J.

1.This appeal by special leave challenges the judgment and order dated

22.06.2006 passed by the High Court of Bombay in Criminal Appeal No.885

of 2001 acquitting the respondents namely original Accused Nos. 1, 2, 3, 7,

10, 12, 29 and 30 of the charges under Sections 302, 307, 326, 324, 427,

436, 435, 452, 147 and 148 read with Section 149 of the Indian Penal Code.

2.According to the prosecution, deceased Tanaji Pandurang Rathod, his

brothers and father were trustees of Durgamata Temple in Village Sevalal

Nagar, Taluka North Solapur, Solapur. They were also members of

Page 2 2

Sahakari Krushi Society, which society had received about 44 acres of

agricultural land from the Government. There was a dispute in the village

over this agricultural land. On 30

th

April, 2000 Tanaji, his brothers and

father had opened Durgamata Temple at 4.30 a.m. and performed pooja.

After completion of pooja while Drums, Shankh and Bells were being

played and blown, at about 5.50 am, a group of persons came there holding

sticks, axes, swords and stones. The mob started assaulting Tanaji, who

received injury by a sword. His brothers and family members who tried to

intervene were also assaulted. Tanaji managed to run towards the cluster of

houses of the family of his uncle Hemla Tukaram Rathod. He was running

for his life and went from place to place followed by the mob. His brothers,

other relations, sister and wife Sarojini were all the while pleading that he be

spared but the mob was relentlessly after Tanaji. The brothers who

intervened were also assaulted. Finally Tanaji had taken refuge in the house

of his uncle Hemla Tukaram Rathod. The members of the mob removed the

tiles of the roof and managed to catch Tanaji who was then taken to the field

in front of the house of Hemla Tukaram Rathod and assaulted with sword,

axes and sattur. The members of the mob then entered the house of Tanaji,

carried away all the documents from his house and set them on fire.

Valuables like gold ornaments and cash were also taken away.

Page 3 3

3.The family members managed to put Tanaji and other injured in a

tempo which carried them to Civil Hospital, Solapur for treatment.

However, Tanaji was found to be dead. The injured were given treatment

and PW1 Parmeshwar, brother of Tanaji informed the police about the

incident, pursuant to which FIR was registered. In his statement PW1

Parmeshwar named thirty four persons from the mob and also attributed

overt acts to some of those named persons. Crime No.37 of 2000 was

therefore registered on 30.04.2000 and investigation was undertaken. The

body of Tanaji was sent for post-mortem.

4. PW 16 Dr. Pradeep Chinchure and Dr. P.V. Antrolikar performed post

mortem on 30.04.2000 and found following external and internal injuries:-

1.Incised wounds two in numbers right fronto paritetal

region,

a) 2”x2 bone deep, skull palpable fracture.

b) 2”x1/2 bone deep with palpable fracture.

2.Incised wound occipital region 3 ½ ”x1” bone deep with

fracture skull,

3.Chop wound near left elbow joint 6cm x 4cm bone deep

with fracture numerous obliquely placed with loss of

anatomical continuity,

Page 4 4

4.Incised wound 2” above left ankle joint 3”x1” muscle

deep,

5. Chop wound above left ankle with amputation exposing

muscle bones of left lower leg, foot attached by skin anteriorly

7”x4” bone deep,

6.Multiple incised wounds

a)right foot 3”x1”bone deep on lateral maleolus of

right ankle,

b)2”below right ankle 4”x1”muscle deep,

c) 2”below inj. No.(b) about 3”x 1” muscle deep,

d)2”below inj. (c) 2”x1”x muscle deep,

7.Incised wound above right knee joint 3”x1”x muscle

deep,

8.Incised wound on thigh lateral aspect upper part 4”x1”

bone deep,

9.Chop wound right palm 3”x1” bone deep with partial

amputation of middle, ring, little finger and complete

amputation of inner finger which is missing.

10.Chop wound right fore-arm 3”x 2” bone deep with

fracture underlying bone.

11.Chop (incised) would 7”x2” bone deep on back near right

buttock,

12.Incised wound right shoulder joint posteriorly 4”x1/2”

muscle deep,

13.Multiple linear incised wounds all over body more on

right shoulder area that foot and both legs.

And

1)Haematoma under-scalp right fronto parietal region,

incised wound on same region and on occipital region,

Page 5 5

2)Fracture of occipital bone corresponds to column No.18

about 7 cm. in length and injury to brain,

3)Fracture of fronto parietal bone about 10 cm. in length

and injury to brain. Brain was congested oadamatus. Injury to

brain at the side corresponding to Inj. Nos.1 and 2. Subdural

haemotoma all over brain more on right side and occipital

region.

The cause of death was:- “Hemorrhage and shock due to

multiple chop wounds with head injury with fractured skull

with Sub-dural haematoma with injury to vital organs.”

5.In the meantime PW-18 Pratap Kisan Pawar, C.P.I. proceeded to the

scene of occurrence and recorded spot Panchnama Ext.75, stating inter alia

that blood stains were present in and around the temple i.e. on the tiles

around the goddess on the southern side. The grill of middle pillars from

western side was stained with dried blood. The pillar thereafter from right

side was also stained with blood due to placing of bleeding hand on it.

Thereafter trail of blood stains led to tar road between Mardi and Sevalal

Nagar 100ft away from the temple on the western side, whereon multiple

blood stains were found at different spots. From the southern side of the

temple towards water tank and at a distance of 500ft near the well of one

P.T. Rathod four blood stained rocks and broken handle of axe were found.

Faint footprints were found on the recently ploughed land near the

deceased’s paternal uncle Hemla Rathod’s land. At the house of deceased’s

Page 6 6

cousin Maruti, the doors had been damaged, the room had six tins of 12ft.

x10ft. size used as roof, out of which tin no.3 from the southern side was

removed. There were two bags of jowar and other food grain bags along

with clothes and items of daily needs present in the said room. At the house

of Jaysingh Rathod, the doors on the west facing room were removed and

placed along the eastern wall in vertical position, construction in the north-

east corner of the said room was severely damaged and there were bricks

and earth lying around. The length of the said room was 12ft. x8.6ft. and

there was a cot, food grain bags and clothes kept there. At the house of

Laxman Rathod, all the tins forming roof of the said house were detached.

The room was about 15ft. x7.6ft.in dimension and a cot, food grain bags,

items of daily needs and clothes were found there. The roof of Shivaji

Rathod’s house was set on fire. Three tins from the northern side of the

house of Hemla Rathod were also removed. At the ploughed area, pieces of

blood stained saree, tube filled with blood, three blood stained bags, a

baniyaan and two small sticks were found.

6.PW-18 Pratap Kisan Pawar, CPI attached four stones with blood

stains. He recorded statements of eight witnesses. He arrested twelve

accused persons on the same day. On the next day, he recorded statements of

Page 7 7

eight more witnesses including Sarojini, wife of Tanaji. On that day

pursuant to disclosure statements made by:-

A1- Ram Lal - sword, axe and sticks with blood stains

A2-Ramchandra - satturs, axe and sticks with blood stains

A3-Limbaji - sword, axe and sticks with blood stains

A29- Shivaji Wadaje - spear with blood stains

A30-Pandit - axe with blood stains,

were recovered and attached.

The attached articles were forwarded to the Chemical Analyzer and

the reports in that behalf were later marked as Exts.125 to 160 in the trial.

On completion of investigation charge-sheet was filed and thirty four

persons were charged for having committed the offences under Sections 147,

148, 302, 307, 324, 326, 395, 427, 435, 436, 452 read with 149 IPC.

7.In the trial, PW1 Parmeshwar stated about the incident that he had

gone to the temple to offer pooja along with his brothers Bhanudas,

Prithviraj, Tanaji and their father and that while pooja was going on, about

100 to 200 people from their village came and started beating them. He

however, stated that he did not know if the accused were present in that mob

which assaulted them and also could not say who had beaten his brother

Tanaji. The witness was therefore declared hostile. PW2 Arjun, another

Page 8 8

brother of Tanaji also did not support the case of the prosecution and was

declared hostile. The third brother Bhanudas examined as PW3 accepted

that he had sustained injuries but could not name the persons who had

assaulted him and was also declared hostile. Fourth brother Bharat

examined as PW4 was similarly declared hostile. The cousin of Tanaji

named Shivaji Hemla Rathod examined as PW5 stated that his cousins had

sustained injuries and on that day the roof of his house was burnt but he

could not name the persons who had beaten them and had set the house on

fire. He was also declared hostile. The other brother of Tanaji named

Prithviraj was examined as PW6. He accepted that he had sustained injury

on the day in question and that while they were performing pooja, 100 to

200 persons had come and assaulted them. He however did not support the

case of the prosecution on the identity of the assailants and was declared

hostile. Maruti Hemla Rathod was examined as PW7. He accepted that

Tanaji had come to take shelter in his house and that the roof of his house

was removed. However he also did not support the case of the prosecution

and was declared hostile. The sister of Tanaji named Vimal, examined as

PW8 was declared hostile, having refused to support the case of the

prosecution. Mother of Tanaji named Theplabai was examined as PW9.

She accepted that her sons and husband had gone to the temple on the

Page 9 9

occasion of Mahapooja and that after hearing the shouts she had come out of

the house. However, as regards the identity of the assailants she did not

support the case of the prosecution and was declared hostile. The medical

reports produced on record at Ext.81 to 91 established that some of these

witnesses had suffered injuries. However, the witnesses could not state who

had caused injuries to them.

8.It appears that Sarojini, wife of Tanaji had left the village after the

incident and was staying with her brother at Bijapur in Karnataka. Despite

summons being issued, Sarojini did not turn up to tender evidence as

witness. Finally she was brought under a non-bailable warrant and was

examined as PW12. In her testimony PW12 Sarojini described the entire

incident in following terms:-

“I know incident which took place on 30.04.2000, on

Sunday. On Sunday in the morning my husband, his brothers

Bhanudas, Parmeshwar, Prithviraj and my father-in-law

Pandurang and my two children had gone. He must have gone

around 4 a.m. to the temple. Around 5 a.m. I could hear beating

of drum, blowing of Shankh (Counch). I thereafter heard

shouts. I came out of the house. There were many people who

had assembled near the temple. My mother-in-law also came

there and wives of my brothers-in-law also came out of the

house. I saw that some quarrel was going on. I had seen that

Ramchandra Lalu Nadaje had given a blow to Bhanudas with

iron bar. My husband started running towards the water tank.

Behind him, Bharat, Parmeshwar and Prithviraj were also

running. Many people were also running after them namely

Ramlal Devappa Rathod, Jaysing Devappa Rathod,

Page 10 10

Ramchandra Lalu Nadje, Shivaji Ramaji Wadaje and other

people. Thereafter, my husband had fallen down near the well.

Thereafter, my husband was beaten by Ramlal Rathod, Jaysing

Rathod namely all the accused before the Court were assaulting

my husband with sword, axe and stick, etc. I went there and

tried to separate my husband. When I tried to separate, at that

time my brother-in-law was also beaten. At this juncture my

husband got a chance to run away and once again he started

running. All these accused before the Court once again chased

my husband. My husband thereafter went to the house of

Hemla. I also went after these accused. All the accused also

went to the house of Hemla. Then my brothers-in-law were

running. All the accused were chasing and were assaulting my

brothers-in-law. My husband had thereafter entered the house

of Maruti son of Hemla. All these accused started breaking the

door of the same house where my husband had entered. These

accused also tried to remove the roof, galvanized sheets of the

said house. I was trying to protect my husband. Myself, my

mother-in-law stood in front of the door and requested people

not to beat my husband. My husband once again got

opportunity of coming out of that house. He immediately came

out and went inside house of Jaysingh namely son of Hemla.

My husband locked inside. Thereafter these accused broke open

the wall of the house and also removed the tin sheet of roof.

Myself, my mother-in-law once again started to stop these

accused. My husband once again came out of house and ran in

the house of Laxman son of Hemla. The accused once again

removed the tin sheet roof of house of Laxman and started to

throw stones inside the house. Thereafter, my husband once

again escaped and ran in the house of Hemla. In the mean time,

accused Ramchandra Shima Rathod, Kisan Ganu Rathod,

Sitaram Gopa Rathod had set the house of Shivaji on fire. I

know all these accused. The witness identified all the three

accused namely Ramchandra, Kisan and Sitaram. When my

husband entered the house of Hemla, Ramlal Devappa Rathod

Accused No.1, Shivaji Ramaji Wadaje Accused No.29, Pandit

Gopa Rathod Accused No.30, Limbaji Manohar Rathod

Accused No.3, Ramchandra Lalu Nadaje Accused No.2,

Jaysingh Devappa Rathod Accused No.12, went inside the

house of Hemla. They caught my husband by his hands and

Page 11 11

feet and took him in the field of Hemla Rathod which is in front

of his house. They assaulted him with axe, sword, Sattur. At

that time, other accused had assaulted my brother-in-law,

Hemla and others. We tried to beg the accused not to beat us

but they never listened to us. My husband because of severe

beating had fallen unconscious. His both legs were cut off, his

both hands were chopped. So also, he was beaten over all parts

of the body. My brother-in-law Arjun, Prithviraj, Bhanudas,

Bharat, Parmeshwar. Theplabai my mother-in-law, similarly

Hari, Hemla Rathod were also beaten. All these injured were

lying on the ground. I can identify all these accused. The

witness now pointed out towards Accused No.1 Ramlal

Devappa, Accused No.29 Shivaji, Accused No.30 Pandit,

Accused No.3 Limbaji, Accused No.2 Ramchandra Lalu and

Accused No.12 Jaysingh.”

9.After considering the material on record, the Trial Court by its

judgment dated 06.10.2001 held the respondents i.e. Accused Nos.1, 2, 3, 7,

10, 12, 29 and 30 guilty of the offences punishable under Sections 147, 148,

302, 307, 326, 324, 427, 435, 436, 452 read with Section 149 IPC. The Trial

Court acquitted rest of the accused of all the charges levelled against them.

By subsequent order dated 06.10.2001, the Trial Court sentenced the

respondents to various terms including life imprisonment under Section 302

read with Section 149 IPC.

It was observed by the Trial Court that the death of Tanaji was proved

by the prosecution to be homicidal and that out of the witnesses examined

by the prosecution, PW12 Sarojini alone had supported the case of the

Page 12 12

prosecution while nine other eye witnesses had turned hostile. It stated that

as laid down by this Court, it was possible and permissible to rely on the

testimony of a single witness if the evidence was trustworthy and free from

doubt. The Trial Court found the version of PW12 Sarojini to be natural,

free from doubt and well supported by other material on record, including

the spot panchnama and the fact that the houses where Tanaji had taken

refuge one after the other were found to have been damaged and burnt.

While dealing with the question whether such version could be relied upon

in view of the decision of this Court in Masalti v. State of U.P.

1

, the Trial

Court observed that it would be unsafe to rely on the evidence of witnesses

who speak in general and omnibus way without any specific reference to the

overt acts committed by them but PW12 Sarojini had given specific names

of accused and attributed specific overt acts to those accused. According to

the Trial Court these allegations were not omnibus or general in nature and

as such the matter would not be covered by the decision of this Court in

Masalti (supra). It thus found that the prosecution had completely proved

that Accused Nos.1, 2, 3, 7, 12, 29 and 30 were guilty of the offences with

which they were charged.

1

1964 (8) SCR 133

Page 13 13

10.The convicted accused i.e. the respondents herein carried the matter

by filing Criminal Appeal No.885 of 2001 in the High Court of Bombay.

The State did not file any appeal against the acquittal of rest of the accused

and their acquittal attained finality. The High Court by its judgment under

appeal, acquitted the respondents of all the charges against them. It was

observed by the High Court that the entire case rested on the sole testimony

of PW12 Sarojini and if according to her she had followed the assailants and

had tried to save her husband, the possibility of her suffering any injury

could not be ruled out but no such injuries were reported. Additionally, all

the injured persons as well as those whose houses were burnt had refused to

identify any of the assailants. The High Court relied upon the decision of

this Court in Masalti (supra) and observed thus:-

“……We find that the trial court was not justified in

arriving at a conclusion that it is the appellants-accused

who are guilty of having committed murder of Tanaji and

assaulted the witnesses by taking into consideration

evidence of PW12 Sarojini and other evidence i.e.

medical and forensic which is merely of corroborative in

nature and, therefore the caution sounded by the Supreme

Court in the case of Masalti and others vs. State of Uttar

Pradesh cited supra squarely applies to the factual matrix

of the case.”

11.In this appeal by special leave we have heard Mr. Shankar Chillarge,

learned Advocate for the State and Ms. Meenakshi Arora, learned Senior

Page 14 14

Advocate and Mr.Vinay Navare, learned Advocate for the respondents-

accused. It was submitted by Mr. Chillarge, learned Advocate that the

impact of the incident was such that though most of the eye-witnesses had

suffered injuries, yet those witnesses including four brothers, sister and

mother of Tanaji had not supported the prosecution case. However, it was

PW12 Sarojini who described everything in detail how Tanaji was assaulted.

All the stages of the incident were clearly stated by her and were fully

supported by the other material on record. In his submission, testimony of

even a single witness can be relied upon if it is found to be trustworthy and

supported by material on record, that reliance on the decision of Masalti

(supra) was not called for and that the assessment made by the High Court

was completely erroneous.

12.Ms. Meenakshi Arora, learned Sr. Advocate and Mr. Vinay Navare,

learned Advocate submitted that the testimony of PW12 Sarojini was not

worthy of reliance. In their submission, her statement under Section 161

Cr.PC was not recorded the same day. Though it was asserted by the

witness that she tried to intervene and save her husband, she had not

suffered any injury making her very presence doubtful. It was submitted

that the witness was in the police station on the previous day before her

examination in Court and was tutored. It was further submitted that in case

Page 15 15

of an attack by a mob having large number of persons, the principle laid

down in Masalti (supra) must be applied, that the principle though first

adopted as a rule of prudence, has now assumed the status as principle of

law and, therefore, unless her evidence is corroborated by at least one eye-

witness, it would be hazardous to rely on her testimony. Reliance was also

placed on State of U.P. v. Dan Singh and others

2

, Baddi Venkata

Narasayya and others v. State of A.P.

3

, Binay Kumar Singh v. State of

Bihar

4

, Mrinal Das v. State of Tripura

5

and Inder Singh v. State of

Rajasthan

6

.

13.Criminal Misc. Petition No.6303 of 2015 was filed on behalf of

respondent No.8 submitting that one of the suspects named Laxman

Ramchandra Rathod was not tried along with thirty-four accused tried in the

present matter and he was subsequently tried in Sessions Case No.359 of

2003. During his trial, four witnesses were examined on behalf of the

prosecution. Parmeshwar was examined as PW1 who again turned hostile.

Prithviraj, brother of Tanaji was examined as PW2 who could not identify

2

(1997)3 SCC 747

3

(1998)2 SCC 329

4

(1997)1 SCC 283

5

(2011)9 SCC 479

6

(2015) 2 SCC 734

Page 16 16

said accused Laxman. Sarojini, wife of Tanaji was examined as PW3. Her

evidence in this trial shows that she had deposed that her husband was

assaulted and had taken refuge in the houses of his cousins. She however did

not identify nor could she ascribe any role to said accused Laxman. The

Investigating Officer was examined as PW4. In the face of inability of any

of the prosecution witnesses to identify said accused Laxman, he was

acquitted by judgment dated 29.02.2008. This judgment having become

final, it is contended that the case of the prosecution stood finally rejected

and that in any case there could be no inconsistent findings, as regards the

very same offence.

14.The case of the prosecution depends upon the testimony of PW12

Sarojini. The substantive evidence on record is only through this witness.

The law on the point is well settled that a conviction can well be founded

upon the testimony of a sole witness. However, as laid down in State of

Haryana v. Inder Singh

7

the testimony of a sole witness must be confidence inspiring and beyond

suspicion, leaving no doubt in the mind of the Court. In Joseph v. State of

Kerala

8

it was stated that where there is a sole witness, his evidence has to

7

(2002) 9 SCC 537

8

2003 (2) SCC 465

Page 17 17

be accepted with an amount of caution and after testing it on the touchstone

of other material on record. It was further stated in Ram Naresh v. State of

Chhattisgarh

9

that the statement of the sole eye-witness should be reliable,

should not leave any doubt in the mind of the Court and has to be

corroborated by other evidence produced by the prosecution.

15.In the backdrop of the aforesaid principles, if the deposition of PW12

Sarojini is analyzed, it discloses that the incident happened in nine

consecutive stages:

(i)In the early hours of the day in question many people had assembled

near the temple and shouts were heard. A-2 Ramchandra gave a blow

to PW3 Bhanudas with an iron bar.

(ii)Tanaji started running from the temple towards the water tank. With

him PW4 Bharat, PW1 Parmeshwar and PW6 Prithviraj were also

running. A-1 Ramlal, A-2 Ramchandra, A-12 Jaysingh, A-29 Shivaji

and others were following.

(iii)Tanaji fell down near the well. He was beaten by A-1 Ramlal, A-12

Jaysingh and other accused with sword, axe and sticks. At this stage

PW12 Sarojini tried to intervene.

9

(2012) 11 SCC 257

Page 18 18

(iv)Tanaji somehow managed to run away and went towards the house of

Hemla. All the accused were following him. Tanaji managed to enter

the house of Maruti S/o Hemla. All the accused were trying to break

the door and remove the galvanized sheets on the roof. At this stage

PW12 Sarojini stood in front of the door and requested the accused

not to beat her husband.

(v)Tanaji got an opportunity, came out of the house and went inside the

house of Jaysingh S/o Hemla. He locked himself in. The accused

started breaking open the wall of the house and remove tin sheets of

the roof and started throwing stones inside the house.

(vi)Tanaji once again came out of the house and entered the house of

Laxman S/o Hemla. He was followed by the accused who again

started removing the tin sheets of the roof and started throwing stones

inside the house.

(vii)Tanaji once again escaped and entered the house of Hemla. In the

meantime A-27 Ramchandra, A-10 Kishan and A-7 Sita Ram set the

house of Shivaji on fire.

(viii)A-1 Ramlal, A-29 Shivaji, A-30 Pandit, A-3 Limbaji, A-2

Ramchandra and A-12 Jaysingh entered the house of Hemla, caught

Page 19 19

Tanaji by hands and feet and took him to the field in front of the

house of Hemla.

(ix)It was here that the aforementioned six accused assaulted Tanaji with

axe, sword and sattur. His legs were cut off, his hands were chopped.

PW12 Sarojini identified these six accused persons.

16.The deposition of PW12 Sarojini shows that while Tanaji was being

pursued and assaulted, her attention was focussed in so far as her husband

was concerned, which is quite natural. Except referring to the initial blow

which was given to Bhanudas, her testimony concentrates only upon those

who were primarily responsible for having pursued and assaulted her

husband. All the stages as stated above and the acts at each stage are

corroborated by other material on record. The fact that the incident started

at the temple, then shifted next to the well and then to the cluster of houses

of Hemla is well-supported by the blood stains found at these places as

disclosed in the spot panchnama as also by the damage caused to the houses

of Hemla. Though declared hostile on the issue of identity of assailants, the

other prosecution witnesses also lend support to the substratum of the case.

The material on record including medical evidence thus lends complete

support to the version as unfolded through the deposition of PW12 Sarojini.

It is noteworthy that the progression of events as narrated in her testimony,

Page 20 20

in natural course, must have taken some length of time. The progression as

stated above must have afforded sufficient opportunity for PW12 Sarojini to

observe and absorb the roles played by certain accused. In her testimony she

has concentrated only upon the roles of those accused who were directly

responsible for having committed certain overt acts. Out of large body of

thirty-four accused, she named only nine of them and attributed clear

specific roles to them. If the incident went on for some length of time, it

lends complete credibility to the version of the witness in terms of

opportunity to observe salient features and the stages of the incident.

Though a feeble suggestion was made in the cross-examination that she was

not present in the village on the date in question, we have no doubt about her

presence and the fact that she had opportunity to witness the incident. The

incident also happened after 5.50 am on a day in summer and as such there

is nothing to entertain any doubt about her capacity and available

opportunity to observe the features of the incident.

17.The criticism leveled by the learned Advocate for the respondents that

PW12 Sarojini was in the police station on the day prior to her examination

in Court and that she was tutored, is not correct. The intensity of the incident

where the entire village stood against the deceased, had impact on the

witnesses who turned hostile one after the other. PW12 Sarojini was also no

Page 21 21

exception to a certain extent and apparently did not want to come and depose

as a witness. Despite summons having been issued by the Trial Court she

failed to appear. Her presence had to be secured by way of warrant issued

by the Court and as such her presence in the police station cannot be termed

as excuse for tutoring as suggested. In fact the way her presence had to be

secured by a warrant of arrest, lends ring of credibility to her version. It is

true that there are no physical injuries on her person but this by itself is no

ground to reject her testimony. It needs to be stated here that the High Court

has also not rejected her testimony doubting her presence but has proceeded

to put the matter in the light of the decision of this Court in Masalti (supra).

18.It also requires to be noted that pursuant to the disclosure statements

made by A-1 Ramlal, A-2 Ramchandra, A-3 Limbaji, A-29 Shivaji and A-30

Pandit, certain weapons with blood stains were recovered immediately on

the day after the incident. The aforesaid recoveries have been doubted by

the Trial Court inasmuch as the independent panchas had not supported the

prosecution case. However, PW18 Pratap Kisan Pawar in his testimony

deposed that such recoveries were made pursuant to the disclosure

statements of the accused. It has been laid down by this Court in Mohd

Page 22 22

Aslam v. State of Maharashtra

10

and Anter Singh v. State of Rajasthan

11

that the recoveries need not always be proved through the deposition of the

panchas and can be supported through the testimony of the investigating

officer. The fact that the recoveries were made soon after the incident is

again a relevant circumstance and we accept that the recoveries can be

considered against the respondents as one more circumstance.

19.In the aforesaid premises, we find that the deposition of PW12

Sarojini is devoid of any exaggeration, completely trustworthy and reliable.

Her deposition is well-supported by the medical evidence and other material

on record including the destruction and damage to the houses of Maruti

Hemla, Jaysingh Hemla, Laxman Hemla and Shivaji. We therefore hold that

though she is the sole witness, her evidence is completely reliable and

trustworthy.

20.That brings us to the question whether in an attack such as the present

one, how far the principle laid down by this Court in Masalti (supra) is

applicable? In Masalti one Laxmi Prasad and his armed companions had

proceeded to the house of one Gayadin. On the instigation of Laxmi Prasad,

the assailants broke open the doors of the house of Gayadin, killed four

10

(2001) 9 SCC 362

11

(2004) 10 SCC 657

Page 23 23

persons including Gayadin and dragged their bodies out of the house

whereafter one more person was killed. These five dead bodies were then

taken to the field and set on fire. Out of thirty-five accused who were

convicted, ten accused were given death sentence. The High Court

confirmed their sentence of death and out of the remaining accused, seven

were given benefit of doubt. In so far as the accused who were convicted

with the aid of Section 149, the High Court adopted a test and held that

unless at least four witnesses had shown to have given a consistent account

against any of the appellants, the case against them could not be said to have

been proved. The decision discloses that except Laxmi Prasad, none of the

assailants was assigned any particular part. The evidence as regards other

accused was that they were part of unlawful assembly which is evident from

the following observations of this Court:

“It also considered another feature which characterized the

evidence of all the witnesses and that was that they gave their

account of the incident substantially in similar terms and did

not assign particular parts in respect of overt acts to any of the

assailants except Laxmi Prasad accused No.1”.

12

The observations of this Court further show that though testimony of a

single witness would be enough to convict an accused person, in a case

12

(1964) 8 SCR 133 at 140

Page 24 24

involving large number of accused, where the witnesses depose to the fact

that certain persons were members of unlawful assembly which had

committed the offences in question, a test so adopted by the High Court was

found to be safe. It was observed that though every member of the unlawful

assembly would be liable for the offence committed by anyone actuated by

and entertaining common object of the unlawful assembly, in the absence of

any overt act or specific allegation, it was possible to adopt such test.

21.We may at this stage consider the law of vicarious liability as

stipulated in Section 149 IPC. The key expressions in Section 149 IPC are:

(a) If an offence is committed by any member of an unlawful

assembly;

(b) in prosecution of common object of that assembly;

(c) which the members of that assembly knew to be likely to be

committed in prosecution of that object;

(d) every person who is a member of the same assembly is guilty of

the offence.

This Section makes both the categories of persons, those who

committed the offence as also those who were members of the same

assembly liable for the offences under Section 149 IPC, if other

requirements of the Section are satisfied. That is to say, if an offence is

Page 25 25

committed by any person of an unlawful assembly, which the members of

that assembly knew to be likely to be committed, every member of that

assembly is guilty of the offence. The law is clear that membership of

unlawful assembly is sufficient to hold such members vicariously liable.

It would be useful to refer to certain decisions of this Court. In State

of U.P. v. Kishan Pal

13

it was observed:

“It is well settled that once a membership of an unlawful

assembly is established it is not incumbent on the prosecution

to establish whether any specific overt act has been assigned to

any accused. In other words, mere membership of the unlawful

assembly is sufficient and every member of an unlawful

assembly is vicariously liable for the acts done by others either

in the prosecution of the common object of the unlawful

assembly or such which the members of the unlawful assembly

knew were likely to be committed.”

Further, in Amerika Rai v. State of Bihar

14

it was observed as

under:

“The law of vicarious liability under Section 149 IPC is crystal

clear that even the presence in the unlawful assembly, but with

an active mind, to achieve the common object makes such a

person vicariously liable for the acts of the unlawful assembly.”

22. The liability of those members of the unlawful assembly who actually

committed the offence would depend upon the nature and acceptability of

the evidence on record. The difficulty may however arise, while considering

the liability and extent of culpability of those who may not have actually

13

(2008) 16 SCC 73

14

(2011) 4 SCC 676

Page 26 26

committed the offence but were members of that assembly. What binds them

and makes them vicariously liable is the common object in prosecution of

which the offence was committed by other members of the unlawful

assembly. Existence of common object can be ascertained from the

attending facts and circumstances. For example, if more than five persons

storm into the house of the victim where only few of them are armed while

the others are not and the armed persons open an assault, even unarmed

persons are vicariously liable for the acts committed by those armed persons.

In such a situation it may not be difficult to ascertain the existence of

common object as all the persons had stormed into the house of the victim

and it could be assessed with certainty that all were guided by the common

object, making every one of them liable. Thus when the persons forming the

assembly are shown to be having same interest in pursuance of which some

of them come armed, while others may not be so armed, such unarmed

persons if they share the same common object, are liable for the acts

committed by the armed persons. But in a situation where assault is opened

by a mob of fairly large number of people, it may at times be difficult to

ascertain whether those who had not committed any overt act were guided

by the common object. There can be room for entertaining a doubt whether

those persons who are not attributed of having done any specific overt act,

Page 27 27

were innocent by-standers or were actually members of the unlawful

assembly. It is for this reason that in Masalti (supra) this Court was cautious

and cognizant that no particular part in respect of an overt act was assigned

to any of the assailants except Laxmi Prasad. It is in this backdrop and in

order to consider “whether the assembly consisted of some persons who

were merely passive witnesses and had joined the assembly as a matter of

idle curiosity without intending to entertain the common object of the

assembly”, this Court at pages 148-149 in Masalti (supra) observed that his

participation as a member of the unlawful assembly ought to be spoken by

more than one witness in order to lend corroboration. The test so adopted in

Masalti (supra) was only to determine liability of those accused against

whom there was no clear allegation of having committed any overt act but

what was alleged against them was about their presence as members of the

unlawful assembly. The test so adopted was not to apply to cases where

specific allegations and overt acts constituting the offence are alleged or

ascribed to certain named assailants. If such test is to be adopted even

where there are specific allegations and overt acts attributed to certain

named assailants, it would directly run counter to the well known maxim

that “evidence has to be weighed and not counted” as statutorily recognized

in Section 134 of the Evidence Act.

Page 28 28

23.We now deal with other cases relied upon by the learned Advocates

for the respondents. In State of U.P. v. Dan Singh (supra) fourteen persons

were killed. Six were burnt alive in a house that was set on fire, while other

eight were killed in the mob assault. According to witness Nari Ram,

accused Dan Singh and Ram Singh were spraying kerosene on the house

while Jasod Singh and Gosain Singh were putting the house on fire. This

Court found the aforesaid named accused, who were ascribed specific roles,

to have set the house on fire and responsible for killing of six persons who

died as a result of burns. While considering the question of the killing of

eight other persons by the members of the unlawful assembly at different

places in the adjoining fields, this Court then relied upon the test in Masalti

(supra). It is evident that the test was relied upon when it came to the

question of finding the liability of the members of the unlawful assembly

other than those against which there were specific allegations. It was

observed, “….. If we accept the testimony of PW1 and PW7 in its entirety

then all the respondents must be regarded as being members of the unlawful

assembly and provisions of Section 149 IPC would be applicable to them.

Even though we see no reason to disregard their evidence, nevertheless,

keeping in mind the observations of this Court in Masalti (supra) case, we

feel that even though a very large number of members of the unlawful

Page 29 29

assembly had taken part in the attack on the Doms, it would be safe if only

those of the respondents should be held to be the members of the unlawful

assembly who have been specifically identified by at least four

eyewitnesses”. The decision in Baddi Venkata Narasayya and others

(supra) does not show that any witness had specifically attributed any overt

act to any of the accused. In Binay Kumar Singh (supra), the decision again

turned on identification of the accused as members of unlawful assembly

without there being specific attribution against any of the accused of having

committed any overt act. The decision in Mrinal Das (supra) was

principally on the reliability of the evidence of a pardoned accomplice and

the principle in Masalti (supra) was not even projected for consideration by

this Court. In Inder Singh (supra) the submission advanced on behalf of the

prosecution was recorded thus, “…… It was highlighted on behalf of

prosecution that when a large number of accused persons had run after the

deceased and indulged in indiscriminate assault resulting into death of four

persons in an open field and serious injuries to the informant, the witnesses

cannot be expected to notice, remember and depose the individual acts

committed by different accused persons vis-à-vis the five victims.” This

again discloses that there were no specific overt acts attributed to any of the

Page 30 30

accused and the allegations were general in nature principally focusing on

the identification of the accused being members of the unlawful assembly.

24.We do not find anything in Masalti (supra) which in any way qualifies

the well settled principle that the conviction can be founded upon the

testimony of even a single witness if it establishes in clear and precise terms,

the overt acts constituting the offence as committed by certain named

assailants and if such testimony is otherwise reliable. The test adopted in

Masalti (supra) is required to be applied while dealing with cases of those

accused who are sought to be made vicariously responsible for the acts

committed by others, only by virtue of their alleged presence as members of

the unlawful assembly without any specific allegations of overt acts

committed by them, or where, given the nature of assault by the mob, the

Court comes to the conclusion that it would have been impossible for any

particular witness to have witnessed the relevant facets constituting the

offence. The test adopted in Masalti (supra) as a rule of prudence cannot

mean that in every case of mob violence there must be more than one eye-

witness. The Trial Court was therefore perfectly right and justified in relying

upon the testimony of sole witness PW12 Sarojini and the High Court

completely erred in applying the test laid down in Masalti (supra). The view

taken by the High Court being completely erroneous and unsustainable, in

Page 31 31

this appeal against acquittal, we have no hesitation in setting it aside and

restoring that of the Trial Court. Out of eight accused found guilty by the

Trial Court, going by the testimony of PW12 Sarojini, only six of them that

is to say Accused Nos.A-1, A-2, A-3, A-12, A-29 and A-30 had caused final

assault on Tanaji which resulted in his death. The other two accused,

according to the witness had set the house of Shivaji on fire and had not

participated in the final assault. We therefore grant them benefit of doubt

and confirm their acquittal. However as regards other six accused, they

having pursued, taken out Tanaji by lifting him from the house of Hemla and

thereafter assaulted him in the field adjacent to the house, the case of the

prosecution as against them stands completely proved.

25.Lastly, we deal with Criminal Misc. Petition No.6303 of 2015 and

submissions on the basis of the judgment in Sessions Case No.359 of 2003.

The deposition of Sarojini examined therein as PW3 is not in any way

inconsistent with her deposition in the present matter as PW12. She had not

named accused Laxman Ramchandra Rathod in any manner in the present

trial and her failure to identify said accused Laxman or ascribe any role to

him does not lead to any inconsistency. Without going into the question

whether such subsequent judgment could in any way be relevant, since there

is no inconsistency on any count raising any doubt about the case of the

Page 32 32

prosecution, we reject the submissions advanced on the basis of the

judgment in Sessions Case No.359 of 2003.

26.In the result this appeal is partly allowed as against Accused Nos.A-1,

A-2, A-3, A-12, A-29 and A-30. Their acquittal as recorded by the High

Court is set aside and the judgment of conviction and order of sentence as

recorded by the Trial Court as against them stands restored. The appeal as

against Accused Nos.7 and 10 stands dismissed. Accused Nos.A-1, A-2, A-

3, A-12, A-29 and A-30 be taken in custody forthwith to undergo the

sentences awarded to them. The appeal stands disposed of in the above

terms.

…………………………..J.

(Pinaki Chandra Ghose)

……………………………J.

(Uday Umesh Lalit)

New Delhi,

September 29, 2015