STATE OF RAJASTHAN versus BABLU @ OM PRAKASH on 24 November 2021

[2021] 7 S.C.R. 450

SUPREME COURT REPORTS

[2021] 7 S.C.R.

STATE OF RAJASTHAN

A

v.

BABLU @ OM PRAKASH

(Criminal Appeal No.1475 of 2021)

BNOVEMBER 24, 2021

[UDAY UMESH LALIT AND AJAY RASTOGI, JJ.]

Appeal against acquittal: Interference with – Prosecution casethat 13 accused along with 10-12 persons armed with weapons,forcibly entered the house of the informant and hurled abuses,Cinflicted informant’s brother with injuries who later succumbed tohis injuries – Informant also suffered injuries when he tried tointervene – Conviction of 13 accused in respect of offencespunishable u/ss. 147, 148, 149, 450 or 450/149, 452 or 452/149,302 or 302 rw ss. 149, 307 or 307 rw 149 IPC on basis of the eyeDwitness account – High Court upheld the conviction and sentenceagainst A2 and A3, however, acquitted the remaining 11 accused –On appeal, held: Even if the testimony of single witness is foundreliable by the Court, it can be the foundation of the order ofconviction – On facts, evidence of the informant-brother of thedeceased itself would normally be sufficient who received injuriesEin the transaction and his presence could not be doubted –Furthermore, on entirety, consistent and cogent eyewitness account– Presence of the prosecution witnesses who were examined aseyewitnesses to the occurrence, cannot be discredited – Fiveeyewitnesses testified to the presence and participation of theFaccused – Thus, in the face of such clear, consistent and cogentevidence on record, the High Court not justified in not relying onthe evidence of the eyewitnesses without giving any valid reasons –Order of acquittal manifestly erroneous and perverse – AccusedA1, A6, A7, A8, A10 and A13 were attributed certain overt acts notonly by PWs 1 and 27 but at least by one more witness, thus, theirGacquittal is set aside and order of conviction and sentence is restoredwhereas rest of the accused are given benefit of doubt and theiracquittal is confirmed – Penal Code, 1860 – ss 147, 148, 149, 450or 450/149, 452 or 452/149, 302 or 302 read with ss. 149, 307 or307 rw 149 – Evidence – Eye-witnesses – Code of CriminalHProcedure, 1973 – s. 378.

Partly allowing the appeals, the Court

HELD: 1.1 With regard to the presence of the prosecutionwitnesses who were examined as eyewitnesses to the occurrence,nothing was brought on record to discredit them except thesubmission that the presence of PW6-was not spoken to oradverted by PW24. The fact that one of these witnesses hadsuffered injuries in the transaction and the rest of them had takenthe deceased as well as the injured to medical center immediatelyafter the occurrence lends credibility to the case of the prosecutionunfolded through these eyewitnesses. Nothing has been broughton record in their cross-examinations to dislodge the credibilityof these witnesses. Even then, this Court may avoid the testimonyof PW6 as his presence was not adverted to by PW24. That leaveswith 5 eyewitnesses who had testified to the presence andparticipation of the accused-respondents. [Para 17][437-D-F]

1.2 Even the version of a single witness, if his testimony isfound reliable by the Court, can be the foundation of the order ofconviction. In the instant case, the evidence of PW1-, the brotherof the deceased itself would normally be sufficient. Said witnesshad received injuries in the transaction and his presence couldnot even be doubted. Additionally, there were four witnesses viz.PW2, PW24, PW25 and PW27. The chart tabulated shows therole ascribed to each of the accused. [Para 20][476-F-G]

1.3 In the face of such clear, consistent and cogent evidenceon record, the High Court was not justified in proceeding on thebasis that the eyewitnesses had not named other accused inspecific terms or entertaining any doubt and then recording orderof acquittal. The approach of the High Court was completelyagainst the settled principles of law and no valid reasons weregiven by the High Court as to why the evidence of all theeyewitnesses could not be relied upon in so far as the role playedby the acquitted accused was concerned. The order of acquittalrecorded by the High Court is found to be completely unjust andits conclusion is totally against the record. In these appeals againstacquittal, therefore, this Court is not persuaded to go by the order AB

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Aof acquittal passed by the High Court as the same, was manifestlyerroneous and perverse. [Para 21][476-H; 477-A-C]

1.4 Considering the entirety of the material on record,emerges the consistent and cogent eyewitness account on recordthrough PWs 1 and 27, which was well supported by PWs 2, 24Band 25. The evidence of PW6 has not been taken into account.[Para 22][477-C-D]

1.5 As there was an earlier incident just four days prior tothe occurrence in question, in order to lend complete assuranceand as a matter of prudence, a criteria may be adopted where, ifCany of the eyewitnesses (other than PW6), apart from and inaddition to PWs 1 and 27 had adverted to and attributed overtacts to any of the accused, the role of such accused can be takento have been established beyond any doubt. The principle inMasalti’s case would get attracted where apart from attributionof presence, nothing more was attributed by way of any overt act.DHowever, in the facts of the instant case; and to rule out anypossibility of over-implication, this criteria is adopted, moreparticularly because the matter in appeals against acquittal. Thus,accused A1, A6, A7, A8, A10 and A13 are those who wereattributed certain overt acts not only by PWs 1 and 27 but atEleast by one more witness, whereas, the role attributed to therest of them was only by PWs 1 and 27 without any othereyewitnesses apart from PW6, deposing about the role played bythem. In the circumstances, these appeals are allowed againstoriginal accused A1, A6, A7, A8, A10 and A13 while rest of theaccused-respondents are given benefit of doubt and theirFacquittal, as recorded by the High Court is confirmed. The orderof conviction and sentence recorded against original accused A1,A6, A7, A8, A10 and A13 by the Trial Court is thus restored.[Paras 23, 24][477-F-H; 478-A-B]

Masalti v. State of U.P. [1964] 8 SCR 133; State ofGMaharashtra v. Ramlal Devappa Rathod and Others(2015) 15 SCC 77 : [2015] 11 SCR 357 – referred to.

Case Law Reference

[1964] 8 SCR 133referred toPara 18, 23H[2015] 11 SCR 357referred toPara 19

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.1475 of 2021.

From the Judgment and Order dated 04.12.2018 of the High Courtof Judicature for Rajasthan Bench at Jaipur in D.B. Criminal AppealNo.1191 of 2017.

With

Criminal Appeal Nos.1476-1481, 1482, 1484, 1485, 1486 and 1483of 2021.

Dr. Manish Singhvi, Sr. Adv., Vishal Meghwal, Milind Kumar, Ms.Archana Pathak Dave, Kumar Prashant, Parmod Kumar Vishnoi, Advs.for the Appellant.

Aditya Kr. Choudhary, Deepak Chauhan, Gurmehar Vaan Singh,Vivek, Vaibhav Prasad Deo, Babu Malayil, Rajesh Singh Chauhan,Randhir Kumar Ojha, Advs. for the Respondent.

The Judgment of the Court was delivered by UDAY UMESH LALIT, J.

1. Leave granted.

2. These appeals are preferred by:

i) State of Rajasthan (appeals arising out of Special Leave Petition(Crl.) Nos.8676 of 2019, 9003 of 2019, 9004 of 2019, 9124 of 2019,D.No.32279 of 2019 and D.No.31873 of 2019); and

ii) Sunil S/o. Govindram, the original informant (appeals arisingout of Special Leave Petition (Crl.)Nos.8677-8682 of 2019):- challenging the acquittal of 11 accused persons namely RadheyShyam alias Golu (A1), Ramu alias Ram Singh (A4), Bablu alias OmPrakash (A5), Jeetu alias Jeetmal (A6), Ghan Shyam alias Pintu (A7),Rajendra (A8), Ram Gopal (A9), Sattu alias Satya Narain (A10), Kaptan(A11), Bhuria alias Dhara Singh (A12) and Ranjeet (A13) by the HighCourt[1] vide its judgment and final order dated 04.12.2018 in D.B. CriminalAppeal Nos.179 of 2018, 832 of 2017, 946 of 2017, 993 of 2017, 1123 of2017, 1191 of 2017, 1475 of 2017 and 26 of 2018.

1 High Court of Judicature for Rajasthan Bench at Jaipur A

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A3. 13 persons, i.e. aforementioned 11 acquitted accused and 2convicted accused [Rajendra alias Tanti (A2) and Janak Singh (A3)]were tried in Sessions Case No.80 of 2013 on the file of the Trial Court[2]in respect of offences punishable under Sections 147, 148, 149, 450 or450/149, 452 or 452/149, 302 or 302 read with Sections 149, 307 or 307read with 149 of the IPC[3].B

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4. The gist[4] of the First Information Report(FIR No.75 of 2012) inrespect of offences punishable under Sections 147, 148, 149, 452, 323and 307 IPC, lodged at the instance of Sunil S/o. Govindram (laterexamined as PW1) registered with Police Station Kaithun on 08.03.2012was to the following effect:-C

“An FIR was registered on a written report made by complainantSunil on 8.3.2012. It was stated that apart from him, Dhanpal,Madanpal, Narayan, Tulsi, Kalu Meena and Roop Singh Pahalwanwere sitting at his residence on the festival of Holi. At that time,the accused Rajendra, Janak, Ramu @ Ramsingh, Vijendra, Pintu,DGolu, Mukat, Tanti @ Rajendra, Ramgopal, Atar, Dinesh, Bhuria@ Dharasingh residents of Ganeshpura and Sukhpal resident ofUmmedganj and Kashiram along with 10-12 persons cameequipped with the weapons. They entered into complainant’s houseand attacked Dhanpal. Accused Rajendra and Pritam caused aEblow by a sword, whereas, Janak has been assigned Gandasi andcaused injury to Dhanpal. Other accused Ramgopal, Tanti,Satyanarayan, Bablu, Golu, Pintu, Dinesh and Sukhpal also causedinjuries to Dhanpal. Accused Mukut, Bhuria @ Dharasingh, Atar,Hansraj, Vijendra, bablu and Satyanarayan caused head injury tocomplainant.”F

5. The initial medical attention to said Dhanpal was given by PW19Dr. Krishna Hari Sharma.However, Dhanpal died during the course oftreatment whereafter the offence under Section 302 IPC was added.

Informant PW1 Sunil was medically examined and treated byPW17 Dr. P.P. Bansal.G

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2 Special Judge, SC & ST (Prevention of Atrocities Cases) Act, Kota, Rajasthan 3 The Indian Penal Code, 1860

4 As recorded by the High Court in the judgment under appeal.

6. The post-mortem on the body of Dhanpalwas conducted byPW30Dr. Rakesh Sharma on 09.03.2012 who found following antemortem injuries over the body of the deceased:

“Injury No.1:- Stitched wound sized 9 Cms long present on theleft side of head.

Injury No.2:- 03 stitched wounds sized respectively 7 Cms, 6 Cmsand 4 Cms long present on the rear part of the head.

Injury No.3:- Stitched wound sized 1 Cms long present on theright side of the head.

Injury No.4:- Thin abrasion mark sized 1 Cms long present on theright side of neck.

Injury No.5:- Abrasion 1 X 1 Cms present on the right shoulder.Injury No.6:- Abrasion sized 2 X 1 Cms present on the right elbow.Injury No.7:- Abrasion sized 1 X 3 Cms present on the spine.Injury No.8:- Abrasion sized 1 X 1/2Cms present on the left elbow.Injury No.9:- Abrasion sized 1 X 1 Cms present on the left forearm.Injury No.10:- Abrasion sized 1 X 1 Cms present on both knees.Injury No.11 :- Abrasion sized 1 X 1/2Cms present on the rightleg.

Injury No.12:- Abrasion sized 1 X 1 Cms present on the left leg.

Injury No.13:- Scalp Hematoma was found present on both sidesof head and found hematoma present on the rear part of the head.

Injury No.14:- Left parietal bone was found fractured.

Injury No.15:- Subdural Hematoma was found present on the leftparietal part of the brain.

Injury No.16:- The brain matter had turned reddish and wasswollen.”

According to the medical opinion, the death ofDhanpal was dueto coma caused by the injuries caused upon him immediately priorto his death.

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A7. During the course of investigation, following recoveries weremade pursuant to disclosure statements of some of the accused:- B

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8. After completion of investigation and committal of the case tothe Court of Sessions, charges were framed against 13 accusedpersonsFnamed earlier, in respect of offences punishable under Sections 147,148, 149, 450 (alternatively under Section 450 read with Section 149),452 (alternatively under Section 452 read with Section 149), Section 302(alternatively under Section 302 read with Section 149) and 307(alternatively under Section 307 read with Section 149) IPC.

G9. The prosecution examined 40 witnesses in support of its caseand produced 77 documents while the defense examined one witnessand produced nine documents in support of its case.

10. PW-1 Sunil son of Govind Ram, the brother of the deceasedstated about the incident as under:

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STATE OF RAJASTHAN v. BABLU @ OM PRAKASH[UDAY UMESH LALIT, J.]

“Incident pertains to dated 08.03.2012 time at 1:30-2:00 PM inthe afternoon when it was the festival of Dhulandi and me andmy brother Dhanpal, Madan Pal, Jai Narain, Tulsi Ram, KaluMeena, Roop Singh Pehalwan were sitting in the house and weretalking to each other when just at that time people formGaneshpura&Prehladpura wherein Rajendra, Janak, RamualiasRam singh, Vijendra, Pritam son of Rajendra, cousin brother Jeetu,Golu, Mukut, Rajendra alias Tanti, Ram Gopal, Satya Narain,BhuriaaliasDhara Singh, Atar, Dinesh, Sukhpal, Ranjeet, Kaptanalong with 10-12 other persons conspiringly loaded with weaponsforcefully entered inside the house and with the intention to killattacked with sword and gandasa upon the head of my brotherDhanpal. Rajendra attacked with the sword and Janak attackedwith the gandasa, Pritam with the gandasa and persons namedRam Gopal, Tanti alisa Rajendra, Satya Narain, Bablu, Jeetu, Golu,Ranjeet, Dinesh, Sukhpal also assaulted Dhanpal by wielding withthe blows of rod and pipe. Thereafter they dragged my brother tothe Gurudwara from there and where also the said persons assaultedmy brother. When I, went there for intervening upon which Mukut,Bhuria, Atar, Hansraj, Jitendra, Kaptan assaulted me also withthe rod and pipe and Bablu and Satya Narain with the sword uponme. Thereafter which on hearing the noise of quarrel we weresaved by my brother and other persons present on the spot. Thesaid persons ran away towards Ganeshpura after committingassault.”

The witness was crossexamined by six different counsel whoappeared for the accused. When questioned about the injuries sufferedby him and the medical attention given to him, PW-1 stated:

“This incident was of one and half – two o’clock in the day. It isincorrect to say that we may have directly gone to Sudha Hospitalfrom there. Himself said firstly we had gone to M.B.S. Thereafterwe had gone to Sudha Hospital. He stated himself that from therehe was referred to Sudha Hospital. There were three injuries onmy head, for this reason I was referred. There were other injurieson my hands and legs, injuries were there on my back also. Mytreatment continued for two hours in M.B.S. Hospital, thereafterI was referred to Sudha Hospital. All the three injuries on myhead were of sword. The injuries on my head were caused whenI had come to save my brother. I was inside the house itself. It is AB

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SUPREME COURT REPORTS

Acorrect that I had come out to save my brother from inside. It iscorrect that no injury was caused to me inside the house. Theplace where the beating had taken place, that place is about 40feet open space. Himself said that the beating had taken place inthe chowk. It is correct that on the day of Dhaulandi festival Iwas sitting inside my room, my brother was walking in the chowk.BIn the near about of my house there is the house of Panna LalGhansi on the other side. There are 3 rooms, kitchen, latrine,bathroom, 80 feet garden and 12 feet wide gallery in my house. Itis correct that there is rasta in front of our house, wherein there isa tiraha (three way joint), and there is the house of Prabhu DayalCnearby. All the three injuries were sustained at one place in myhouse. The injuries by sword were hit on my head by SatyaNarayan and Bablu.”

A

11. Apart from PW1-Sunil Kumar, who was injured in thetransaction, Madanpal (PW2), Narain alias Jainarayan (PW6) PrakashDalias Kalu (PW24), Roop Singh (PW25) and Tulsi Ram (PW27) wereexamined by the prosecution as eye-witnesses to the occurrence.

Evidence of these eye witnesses was completely consistent withthat of PW1 Sunil except for certain minor variations.

A. PW2-Madanpal stated:-

“On coming they shouted abuses at the house of Sunil thenDharmapal said that I will come on advising them you sit inside.No sooner Dharmapal went outside then these persons startedbeating Dharmapal and from there dragging Dharmapal tookhim to Gurudwara which is in front. Janak, Tanti, Ranjit,Rajendra, Pritam, Govind, Pintu, Bablu, Jeetu, Ram Singh,Dhara Singh who were part of those persons started givingbeating to Dharmapal. Janak hit injury on the head ofDharmapal with Gandasi. Tanti hit on the head of Dharmapalwith iron rod, then Rajendra and Pritam hit on the head ofDharmapal with swords and Golu also hit injury on the head ofDhanpal, the rest of the accused persons had iron rods andwoods with them with which they did beating with Dhanpaland these very persons also did beating with Sunil also. Lot ofblood was bleeding out from the head of both of them. ThinkingDharmapal to have died the accused persons ran away ontheir motor cycles. Then we putting Sunil and Dhanpal in the E

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STATE OF RAJASTHAN v. BABLU @ OM PRAKASH[UDAY UMESH LALIT, J.]

vehicle of Sunil brought them to Kaithun Hospital, where afterseeing Dharmapal doctors referred him to other Hospital anddid not admit him in Kaithun Hospital. After that we tookDharmapal directly to M.B.S.H., Kota, after this on treatmentnot being given we took Dharmapal to Sudha Hospital, wheregot Dharmapal admitted and got the treatment done. After thatin the morning at 5.00 on 9/3/12 the doctors declared himdead….”

B. PW6-Narayan @ Jai Narayan deposed:-

“On 8/03/2012 Rajendra Singh, Janak, Tanti @ Rajendra Singh,RadheyShyam, Ghanshyam, Gopal, Sattu, Dharasingh, Jeetu20-25 persons of the same family, all these persons had cometo Charan Chowki, Motipura, where there is house of mybrother Sunil, and started hurling abuses on the date, enteredthe house and started doing beating and dragged my brotherDharampal to outside. All started beating Dharmapal and Sunil.They attacked with speed and treating Sunil and Dharmapal tohave died left them. …”

C. The version given by PW24-Prakash alias Kalu was:

“…all these persons, out of whom Rajendra Singh, who wasidentified by the witness in Court, Janak, Rajendra, Tanti,Kaptan, Kallu @ Satya Narayan, Jetu and many other personswere there, whom I know by face, do not know their names,entered the house of Sunil and did beating with Sunil Bhai Sahaband carried him dragging towards the Gurudwara. In themeantime I, Sunil, Madanpal, Tulsi, Roop Singh Pahalwan weall came out. When Sunil had gone to intervene then they didbeating with Sunil, Rajendra with sword, Janak with gandasi,Rajendra @ Tanti with iron pipe and all other persons did rapidbeating with them. Those persons assuming Dhanpal bhaisahab to be dead ran away taking motor cycle, then takingDhanpal Bhai sahab and Sunil we had gone to Kaithun Hospital.There because of the doctor not being available we took themto M.B.S. Hospital, Kota, where also because of delay in thetreatment we took him to private Hospital Sudha Hospital.Where death of Dhanpal Bhai Sahab took place in the night.The treatment of Sunil was going on. There were severalinjuries on the head of Sunil and on the head and body ofDhanpal…”

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AD. PW25-Roop Singh deposed:-

“…As soon as Dhanpal reached near the gate, all these personstook him taking out of the house and giving beating upto theroad. They had pipe, sword, Gandasis with them, with whichthey had attacked Dhanpal. Sword was in the hand ofRajendra, Gandasi was in the hand of Janak and pipe was withTanti @ Rajendra, we all together had protected Dhanpal.These persons treating Dhanpal and Sunil to have died ranaway. We also had gone to Kaithun Hospital taking Dhanpaland Sunil in injured condition, Narayan, Tulsi, Kalu had takenthem to Hospital. …”

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E. PW27-Tulsiram in his examination stated:- C

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E. PW27-Tulsiram in his examination stated:- C

“I, Narayan, Sunil, Madanpal, Roopsingh, Prakas @ Kalu weresitting at the house of Sunil and were eating pakodis, and wereapplying gulal to one another. At about one and half – twoo’clock residents of Prahladpura and Ganehpura Rajendra,Rajendra @ Tanti, Janak, Ram Gopal, Sattu, Ram Singh @Ramu, Dhara Singh @ Bhuria, Satya Narayan @ Sattu, Ranjit,Golu @ RadheyShyam, Pintu @ Ghanshyam, Bablu, Jeetmal@ Jeetu, all these persons came to the house of Sunil. All ofthem were armed with arms. Janak had Gandasi, Rajendra @Tanti has iron pipe, Rajendra had sword, Ramgopal had ironrod with him, Golu had iron pipe, Pinto had wood and otherxalso had woods with them and had iron pipes also. They startedhurling abuses from outside the house of Sunil and said comeout today we will play holi of blood. Dhanpal told us you stop Iwill satisfy them. Just at that time these persons came insidethe house and all of them started beating Dhanpal. Janak hitwith Gandasi on the head of Dhanpal. Rajendra hit with swordon the head of Dhanpal, Tanti had hit with iron pipe, Ram Gopalalso attacked on the head of Dhanpal with iron pipe and draggingthey took Dhanpal near the Gurudwara. When Sunil came tointervene then these persons also started attacking on them.Taking Dhanpal to have died these persons went from therethen we took Dhanpal and Sunil to the hospital. From M.B.S.we took these persons to Sudha Hospital. There during thecourse of treatment the death of Dhanpal occurred.”

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12. The involvement of every accused as deposed by theeyewitnesses and the role ascribed to each of the accused can beHtabulated as under:- STATE OF RAJASTHAN v. BABLU @ OM PRAKASH[UDAY UMESH LALIT, J.]

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STATE OF RAJASTHAN v. BABLU @ OM PRAKASH[UDAY UMESH LALIT, J.]

STATE OF RAJASTHAN v. BABLU @ OM PRAKASH[UDAY UMESH LALIT, J.]

A13. The medical evidence on record was unfolded byi) PW17-Dr. P.P. Bansal who had treated PW1 Sunil, ii) PW19-Dr. Krishna HariSharma who had initially treated Dhanpal and iii) PW30-Dr. RakeshSharma who had conducted post mortem on the body of the deceasedDhanpal.

BPW36-Dr.Vivek Goel was also examined in respect of injuriessuffered by Accused Nos.1,2 and 7.

14. The Trial Court by its judgment and order dated 19.04.2017passed order of conviction against all 13 accused as under:- “Therefore in overall view of aforesaid analysis and in view ofCthe citations the prosecution has completely succeeded in provingfar from reasonable doubts the offences u/s 147, 148, 149, 450 or450/149, 302 or 302 r/w sections 149, 307 or 307 r/w section 149IPC against the accused persons RadheyShyam alias Golu,Rajendra alias Tanti, Janak Singh, Ramu alias Ram Singh, Bablu,DJeetu alias Jeetmal, GhanShyam alias Pintu, Rajendra, Ram Gopal,Sattu alias Satya Narain, Kaptan, Bhuria alias Dhara Singh andRanjeet. Accordingly, it appears justified for holding the aforesaidaccused persons guilty of the charges for the commission ofaforesaid offences and also it appears justified for acquitting theaforesaid accused persons of the charges for the offences u/sE452 or 452/149 IPC.”

By the order of sentence passed on the same day, the Trial Courtsentenced all 13 accused persons as under:- “(1)Aforesaid accused persons are held convicted for theFchargeu/s 147 IPC and are sentenced with 2 years ofrigorous imprisonment.

(2) Aforesaid accused persons are held convicted for thechargeu/s 148 IPC and are sentenced with 2 years ofrigorous imprisonment and each accused is punished witha fine of Rs.5000/- and in default of failure to deposit theGfine each accused to undergo an additional simpleimprisonment of one month.

(3) Aforesaid accused persons are held convicted for thecharge u/s 450 or 450/149 IPC and are sentenced with 7years of rigorous imprisonment and each accused isH

STATE OF RAJASTHAN v. BABLU @ OM PRAKASH[UDAY UMESH LALIT, J.]

punished with a fine of Rs.10000/- and in default of failureto deposit the fine each accused to undergo an additionalsimple imprisonment of two months.

(4) Aforesaid accused persons are held convicted for thecharge u/s 302 IPC and are sentenced with a lifeimprisonment and each accused is punished with a fine ofRs.30000/-and in default of failure to deposit the fine eachaccused to undergo an additional simple imprisonment ofsix months.

(5) Aforesaid accused persons are held convicted for thecharge u/s 307 IPC and are sentenced with 7 years ofrigorous imprisonment and each accused is punished witha fine of Rs.10000/- and in default of failure to deposit thefine each accused to undergo an additional simpleimprisonment of two months.

All the sentences of the accused persons to run concurrently.The duration of custody already undergone by the accused personsin police custody/judicial custody to be adjusted in their durationof final sentence. Warrant of sentence of the accused persons tobe accordingly prepared.”

14.1 The evidence led by the prosecution through the eyewitnessesaccount of PW1-Sunil Kumar, PW2-Madanpal, PW6-Narain aliasJainarayan, PW24-Prakash alias Kalu, PW25-Roop Singh and PW27-Tulsiram was found by the Trial Court to be trustworthy. The submissionadvanced on behalf of the accused with regard to PW6-Narain aliasJainarayan was dealt with by the Trial Court as under:- “In the sequence of the said witness it was contended by theCounsel during the arguments that the said witness is not thewitness of crime scene and has been planted and his presence isnot corroborated by PW-24 Prakash alias Kalu and he arrived atthe crime scene after the occurrence of incident and in the saidrelation PW-29 Chhagan Singh, Investigation Officer, has alsodisclosed that during his investigation he did not find the saidwitness as the eyewitness. In the said sequence, the facts and thecontentions rendered by the Investigation Officer and the Counselsare not found appropriate. On perusing the testimonies renderedby other witnesses in relation to the said fact wherein the A

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Aexamination-in-chief of PW-1 Sunil itself he has disclosed thepresence of Jai Narain inside his house. In the report Exhibit P-1 also he has disclosed the presence of Jai Narain inside his houseat the time of occurrence of incident and the said fact has alsobeen corroborated during his deposition before the Court and whichhas not been contradicted in any manner. Similarly hasBcorroborated the presence of Jai Narain during his cross-examination and had brought him to the hospital after lifting him.

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15. All 13 convicted accused, being aggrieved, filed aforesaid D.B.Criminal Appeal Nos. 179 of 2018, 832 of 2017, 946 of 2017, 993 ofC2017, 1123 of 2017, 1191 of 2017, 1475 of 2017 and 26 of 2018 in theHigh Court. The High Court by its Judgment, presently under challenge,affirmed the conviction and sentence recorded against Rajendra aliasTanti (A2) and Janak Singh (A3) but acquitted all other 11 accusedpersons of the charges levelled against them. It was observed by theDHigh Court:- “The argument of learned counsel for the appellants is about overimplication and false implication of other accused, who have notbeen assigned any specific injury to the injured and deceased evenby eyewitnesses. It is true that when the FIR was registered,Enames of nineteen accused were given apart from involvementof 10-12 other persons. The police did not file charge-sheet againstseven accused out of nineteen, though charge-sheet againstRanjeet, who was not named in the FIR, was filed. It is aftermaking investigation of the case. On the strength of the aforesaid,we need to find out a case of over-implication, rather, for that, toFlook into the evidence led by the prosecution.

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We find that the prosecution even produced independent witnessesPW/25 Roopsingh, who has supported the prosecution case and,Gaccordingly, corroborated the statement of PW/1 Sunil Kumar.In view of the above, the prosecution could lead evidence to proveparticipation of Janak Singh, Pritam and Rajendra @ Tanti in theoccurrence and to cause head injury to deceased.

The prosecution, however, did not file charge-sheet against Pritamand even no application under Section 319 Cr.P.C. was movedH

during the course of trial thus despite specific allegation againstPritam to cause one head injury to deceased, he has not beenprosecuted.

In view of the above, there remains two accused against whomspecific allegation remains for causing head injury to deceasedDhanpal, namely Janak Singh and Rajendra @ Tanti. We findthat eye-witnesses and injured witnesses have not named otheraccused in specific terms with assignment of weapon and injury,either to injured or to deceased. They have been convicted withthe aid of Section 149 IPC.

To appreciate the argument of learned counsel for the appellant,we have considered the case to find out as to whether a case forconviction with the aid of Section 149 IPC is made out. As per theprosecution, the appellants had a motive to cause the occurrenceand, therefore, they came with common object. The accused wereequipped with the weapons thus not only case of unlawful assemblywas proved but their participation with common object also getsproved in reference to the incident took place four days ago whencomplainant party attacked on the accused party. It is only tosettle the score that accused came and caused occurrence on8.3.2012.

We find that four days prior to the date of incident in the presentcase, complainant said to have attacked on the accused party. Inview of the above, there was a motive with the accused to causeoccurrence. Once motive was there, common object to causeoccurrence can also be inferred, however, conviction cannot bebased on inferences but facts proved by evidence.

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The injured and deceased did not receive injury by sharp edgedweapon but it all depends whether Gandasi was sharp enough tocause such an injury. In view of the above, we are not inclined toaccept the argument of learned counsel for the appellant JanakSingh with reference to the nature of injury to the deceased whenspecific allegation has been made by the injured as well as eye-witnesses for causing head injury to him.

So far as Rajendra @ Tanti is concerned, a blunt object has beenrecovered from him. Against him also specific allegation for AB

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causing head injury to the deceased has been made. The recoveryof weapon at his disclosure is corroborated by the statement ofeye-witnesses thus, we find case against him also.

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So far as Rajendra S/o. Kashi/Dharam Singh is concerned, initially,the charge-sheet was not filed against him. He has otherwisetaken a defence of “alibi” in his statement under Section 313Cr.P.C. It is by stating that four days prior to the date of occurrencein this case, he sustained injuries on head, thus was at his residence.He has denied his participation in the occurrence, rather, hispresence therein. The statement of said accused namely RajendraS/o Kashi/Dharam Singh has been corroborated by PW/37Ramendra Singh. It is stated that on the festival of Holi, he visitedRajendra S/o Kashi/Dharam Singh at his residence. He was havinghead injury covered with a bandage. The said witness hassupported the statement of Rajendra S/o Kashi/Dharam Singh. Itis also a fact that no weapon has been recovered from him and,initially, when the FIR was lodged, name of only one Rajendra B

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was given for head injury. It was subsequently named by thewitness as Rajendra Singh @ Tanti. In view of the above, we finda case in favour of Rajendra S/o Kashi/Dharam Singh. It is notonly by accepting his plea of alibi but taking into consideration theevidence to corroborate it.

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So far as other accused are concerned, since we have notaccepted the case of the prosecution for conviction with the aidof Section 149 IPC and as specific allegation for causing injurywith the assignment of weapon has not been made, we find acase in their favour also. We have already recorded the findingFabout previous enmity between the two groups and, at times, itresults in over-implication, which is even established from the factthat after investigation, charge-sheet was not filed against all theaccused. Thus, mere recovery of the weapons at their disclosurecannot connect the accused without assignment of injury to them.”

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16. In this appeal we heard Dr. Manish Singhvi, learned SeniorAdvocate and Additional Advocate General on behalf of the State,Ms. Archana Pathak Dave, learned Advocate for the Complainant andMr. Aditya Kumar Choudhary, Mr. Rajesh Singh Chauhan andMr. Randhir Kumar Ojha, learned Advocates for the accused-Hrespondents.

It was submitted on behalf of the appellants that the eyewitnessaccount was quite clear and specifically adverted to the overt actscommitted by all the accused and that the High Court was not right inacquitting 11 accused-respondents. It was submitted that no cogentreasons were given by the High Court in setting aside the order ofconviction and sentence against said 11 accused-respondents and thatthis Court would, therefore, be justified in setting aside the order ofacquittal recorded by the High Court.

The learned Advocates appearing on behalf of the accused-respondents, on the other hand, submitted that, as found by the HighCourt, there was an incident four days prior to the occurrence in question,in which some of the accused persons had received injuries. Thus, theinter se rivalry between two groups could as well be and was rightlyfound by the High Court to be the motive to over-implicate; and as such,the High Court was justified in recording acquittal.

17. With regard to the presence of the prosecution witnesses whowere examined as eyewitnesses to the occurrence, nothing was broughton record to discredit them except the submission that the presence ofPW6-Narain alias Jainarayan was not spoken to or adverted by PW24-Prakash @ Kalu. The fact that one of these witnesses had sufferedinjuries in the transaction and the rest of them had taken the deceasedas well as the injured to medical center immediately after the occurrencelends credibility to the case of the prosecution unfolded through theseeyewitnesses. Nothing has been brought on record in their cross-examinations to dislodge the credibility of these witnesses.

Even then, we may eschew the testimony of PW6-NarainaliasJainarayan as his presence was not adverted to by PW24-Prakash@ Kalu. That leaves us with 5 eyewitnesses who had testified to thepresence and participation of the accused-respondents.

18. In Masalti vs. State of U.P.[5] a four Judge Bench of this Courtwas called upon to consider whether the approach adopted by the HighCourt in convicting only those accused with respect to whom at leastfour witnesses had given a consistent account, came up for consideration.In that case five persons had lost their lives in the assault opened by theunlawful assembly and apart from witness Laxmi Prasad, none of thewitnesses had attributed any overt acts to the accused but had merely A

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Amentioned the names of the accused being present as part of the unlawfulassembly. Adopting the yardstick as stated above, the High Court affirmedthe conviction of 10 accused persons out of 35 accused persons underSection 32 read with 149 IPC by the Trial Court, which decision of theHigh Court was accepted by this Court.

B19. The decision in Masalti[5 ]has since then been followed by thisCourt consistently and was explained in State of Maharashtra vs.Ramlal Devappa Rathod and others[6] as under:-

21. That brings us to the question whether in an attack such asthe present one, how far the principle laid down by this Court inCMasalti[5] is applicable? In Masalti[5]one Laxmi Prasad and his armedcompanions had proceeded to the house of one Gayadin. On theinstigation of Laxmi Prasad, the assailants broke open the doorsof the house of Gayadin, killed four persons including Gayadinand dragged their bodies out of the house whereafter one moreperson was killed. These five dead bodies were then taken to theDfield and set on fire. Out of thirty-five accused who were convicted,ten accused were given death sentence. The High Court confirmedtheir sentence of death and out of the remaining accused, sevenwere given benefit of doubt. Insofar as the accused who wereconvicted with the aid of Section 149, the High Court adopted aEtest and held that unless at least four witnesses had shown tohave given a consistent account against any of the appellants, thecase against them could not be said to have been proved. Thedecision discloses that except Laxmi Prasad, none of the assailantswas assigned any particular part. The evidence as regards otheraccused was that they were part of unlawful assembly which isFevident from the following observations of this Court: (Masalticase[5], AIR p. 207, para 7)

“7. … It also considered another feature which characterisedthe evidence of all the witnesses and that was that they gavetheir account of the incident substantially in similar terms andGdid not assign particular parts in respect of overt acts to any ofthe assailants except Laxmi Prasad, Accused 1.”

The observations of this Court further show that though testimonyof a single witness would be enough to convict an accused person, in a case involving large number of accused, where the witnessesdepose to the fact that certain persons were members of unlawfulassembly which had committed the offences in question, a test soadopted by the High Court was found to be safe. It was observedthat though every member of the unlawful assembly would beliable for the offence committed by anyone actuated by andentertaining common object of the unlawful assembly, in theabsence of any overt act or specific allegation, it was possible toadopt such test.

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24. The liability of those members of the unlawful assembly whoactually committed the offence would depend upon the natureand acceptability of the evidence on record. The difficulty mayhowever arise, while considering the liability and extent ofculpability of those who may not have actually committed theoffence but were members of that assembly. What binds themand makes them vicariously liable is the common object inprosecution of which the offence was committed by othermembers of the unlawful assembly. Existence of common objectcan be ascertained from the attending facts and circumstances.For example, if more than five persons storm into the house of thevictim where only few of them are armed while the others are notand the armed persons open an assault, even unarmed personsare vicariously liable for the acts committed by those armedpersons. In such a situation it may not be difficult to ascertain theexistence of common object as all the persons had stormed intothe house of the victim and it could be assessed with certaintythat all were guided by the common object, making every one ofthem liable. Thus when the persons forming the assembly areshown to be having same interest in pursuance of which some ofthem come armed, while others may not be so armed, suchunarmed persons if they share the same common object, are liablefor the acts committed by the armed persons. But in a situationwhere assault is opened by a mob of fairly large number of people,it may at times be difficult to ascertain whether those who hadnot committed any overt act were guided by the common object.There can be room for entertaining a doubt whether those personswho are not attributed of having done any specific overt act, were AB

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innocent bystanders or were actually members of the unlawfulassembly. It is for this reason that in Masalti[5] this Court wascautious and cognizant that no particular part in respect of anovert act was assigned to any of the assailants except LaxmiPrasad. It is in this backdrop and in order to consider A

“whether the assembly consisted of some persons who weremerely passive witnesses and had joined the assembly as amatter of idle curiosity without intending to entertain thecommon object of the assembly”, (AIR p. 211, para 17)

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this Court at SCR pp. 148-49 in Masalti[5] observed that hisCparticipation as a member of the unlawful assembly ought to bespoken by more than one witness in order to lend corroboration.The test so adopted in Masalti[5] was only to determine liability ofthose accused against whom there was no clear allegation ofhaving committed any overt act but what was alleged againstthem was about their presence as members of the unlawfulDassembly. The test so adopted was not to apply to cases wherespecific allegations and overt acts constituting the offence arealleged or ascribed to certain named assailants. If such test is tobe adopted even where there are specific allegations and overtacts attributed to certain named assailants, it would directly runEcounter to the well-known maxim that “evidence has to be weighedand not counted” as statutorily recognised in Section 134 of theEvidence Act.”

20. In the backdrop of the principles set out in the decisions of thisCourt, even the version of a single witness, if his testimony is foundFreliable by the Court, can be the foundation of the order of conviction.

In the instant case, the evidence of PW1-Sunil Kumar, the brotherof the deceased itself would normally be sufficient. Said witness hadreceived injuries in the transaction and his presence could not even bedoubted. Additionally, there were four witnesses viz. PW2-Madanpal,GPW24-Prakash alias Kalu, PW25-Roopsingh and PW27-Tulsiram. Thechart tabulated hereinabove shows the role ascribed to each of theaccused.

21. In the face of such clear, consistent and cogent evidence onrecord, the High Court was not justified in proceeding on the basis thatthe eyewitnesses had not named other accused in specific terms orH

entertaining any doubt and then recording order of acquittal. Theapproach of the High Court was completely against the settled principlesof law and no valid reasons were given by the High Court as to why theevidence of all the eyewitnesses could not be relied upon in so far as therole played by the acquitted accused was concerned. We find the orderof acquittal recorded by the High Court to be completely unjust and itsconclusion to be totally against the record.

In these appeals against acquittal, therefore, we do not findourselves persuaded to go by the order of acquittal passed by the HighCourt as the same, in our considered view, was manifestly erroneousand perverse.

22. Considering the entirety of the material on record, whatemerges is the consistent and cogent eyewitness account on recordthrough PWs 1 and 27, which was well supported by PWs 2, 24 and 25.We may, at the cost of repetition, state here that we have not taken intoaccount the evidence of PW6-Narain alias Jainarain for the reasonsstated hereinabove.

23. As there was an earlier incident just four days prior to theoccurrence in question, in order to lend complete assurance and as amatter of prudence, a criteria may be adopted where, if any of theeyewitnesses (other than PW6), apart from and in addition to PWs 1and 27 had adverted to and attributed overt acts to any of the accused,therole of such accused can be taken to have been established beyond anydoubt.

We must hasten to add that the principle in Masalti[5 ]would getattracted where apart from attribution of presence, nothing more wasattributed by way of any overt act. However, in the facts of the instantcase; and to rule out any possibility of over-implication we have adoptedthis criteria, more particularly because we are considering the matter inappeals against acquittal. Thus, accused A1, A6, A7,A8, A10 and A13are those who were attributedcertain overt acts not only by PWs 1 and27 but at least by one more witness, whereas, the role attributed to therest of them was only by PWs 1 and 27 without any other eyewitnessesapart from PW6, deposing about the role played by them.

24. In the circumstances, we allow these appeals against originalaccused A1, A6, A7, A8, A10 and A13 while rest of the accused- A

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Arespondents are given benefit of doubt and their acquittal, as recordedby the High Court is confirmed.

The order of conviction and sentence recorded against originalaccused A1, A6, A7, A8, A10 and A13 by the Trial Court is thus restored.These accused persons shall surrender themselves within four weeksBfrom today, failing which they shall be taken in custody to serve out thesentence recorded against them.

The copies of this Judgment and Order shall be sent to theconcerned Police Station and the jurisdictional Chief Judicial Magistratefor compliance.

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25. These appeals are partly allowed to the extent indicated above.

Nidhi Jain

Appeals partly allowed.

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