STATE OF MAHARASHTRA Vs. RAMLAL DEVAPPA RATHOD & ORS

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 1957 of 2008, Judgment Date: Sep 29, 2015

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 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 30th 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.

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,

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,

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 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 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 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 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, 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 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 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.

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 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 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 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 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.
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
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, 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 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 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 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 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 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 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, 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.

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 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 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 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 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

-----------------------
[1] 1964 (8) SCR 133

[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

[7] (2002) 9 SCC 537

[8] 2003 (2) SCC 465

[9] (2012) 11 SCC 257

[10] (2001) 9 SCC 362

[11] (2004) 10 SCC 657