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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

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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 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.

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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,

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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,

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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

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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

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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

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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

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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,

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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

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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

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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

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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

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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

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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  others2,  Baddi  Venkata  

Narasayya and others  v. State of A.P.3,  Binay Kumar Singh v. State of   

Bihar4,  Mrinal  Das v.  State  of  Tripura5 and  Inder  Singh  v. State  of   

Rajasthan6.  

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

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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   

Kerala8 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   

Chhattisgarh9  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 Maharashtra10 and Anter Singh v.  State of Rajasthan11  

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 Pal13 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 Bihar14 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