STATE OF MAHARASHTRA versus RAMLAL DEVAPPA RATHOD AND OTHERS

12. Ms. M~enakshiArora, learned Sr.Advocate and Mr. Vi nay Nava re, learned Advocate submitted that the testimony s 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 C submitted that the witness was in the police station on the previous day before her examination in Court and was tutored. It was further submitted that in case of an attack by a mob having large number of persons, the principle laid down in Masalti (supra) must be applied, that the principle though first D adopted as a rule of prudence, has now assumed the status as principle of law and, therefore, unless her evidence is corroborated by at least one eye-witness, it would be hazardous to rely on her testimony. Reliance was also placed on State of U.P. v. Dan Singh and others 2, Baddi Venkata E Narasayya and others v. State of A.P.3, Binay Kumar Singh v. State of Bihar', Mrinat Das v. State of Tripura5 and lnder Singh v. State of Rajasthan6•

13. Criminal Misc. Petition No.6303 of 2015 was filed F 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. 2 (1997)3 sec 747 3 (1998)2 sec 329 • (1997)1 sec 283 • (2011)9 sec 479 H • (2015) 2 sec 734 STATE OF MAHARASHTRA v. RAM LAL DEVAPPA RATHOD [UDAY UMESH LAUT, J.] During his trial, four witnesses were examined on behalf of the A prosecutivn. Parmeshwar was examined as PW1 who again turned hostile. Prithviraj, brother ofTanaji was examined as PW2 who could not identify said accused Laxman. Sarojini, wife of Tanaji was examined as PW3. Her evidence in this trial shows that she had deposed that her husband was B 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 C 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 E v. lnder 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 F 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 G by other evidence produced by the prosecution. 1 (2002) 9 sec 537 • 2003 (2) sec 465 • (2012) 11 sec 257 c

15. In the backdrop of the aforesaid principles, if the deposition of PW12 Sarojini is analyzed, it discloses that the incident happened in nine consecutive stages: (i) In the early hours of the day in question many people had assembled near the temple and shouts were heard. A-2 Ramchandra gave a blow to PW3 Bhanudas with an iron bar. (ii) Tanaji started running from the temple towards the water tank. With him PW4 Bharat; PW1 Parmeshwar and PW6 Prithviraj were also running. A-1 Ramlal, A-2 Ramchandra, A-12 Jaysingh, A-29 Shivaji and others were following. (iii) Tanaji fell down near the well. He was beaten by A-1 Ramlal, A-12 Jaysingh and other accused with sword, axe and sticks. At this stage PW12 Sarojini tried to intervene. (iv) Tanaji somehow managed to run away and went towards the house of Hernia. All the accused were following him. Tanaji managed to enter the house of Maruti S/o Hernia.

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 Hernia. 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 Hernia. He was followed by the accused who again started removing the tin sheets A of the roof and started throwing stones inside the house. (vii) Tanaji once again escaped and entered the house of Hernia. 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 Hernia, caught Tanaji by hands and feet and took him · c to the field in front of the house of Hernia. (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 0 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 Hernia 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 Hernia. Though declared hostile on · G 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 H A progression of events as narrated in her testimony, in natural course, must have taken some length of time. The progression as stated above must have afforded sufficient opportunity for PW12 Sarojini to observe and absorb the roles played by certain accused. In her testimony she has concentrated only B 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 C 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 D 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 F entire village stood against the deceased, had impact on the witnesses who turned hostile one after the other. PW12 Sarojini was also no exception to a certain extent and apparently did not want to come and depose as a witness. Despite summons having been issued by the Trial Court she failed to appear. G 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 H no physical injuries on her person but this by itself is no ground to reject her testimony. It needs to b8 stated here that the High A 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 B 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 ~ot C supported the prosecution case. However, PW18 Pratap Kisan Pawar in his testimony deposed that such recoveries were made pursuant to the disclosure statements of the accused. It has been laid down by this Court in Mohd Aslam v. State of Maharashtra10 and Anter Singh v. State of D 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 F 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 Hernia, Jaysingh Hernia, Laxman Hernia and Shivaji. We therefore hold that though she is the sole witness, her evidence is G completely reliable and trustworthy. 10 (2001) g sec 362 11 (2004) 10 sec 657 [2015) 11 S.C.R.

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 Masa/ti one Laxmi Prasad and his armed companions had proceeded to the house of one Gayadin. On the instigation of Laxmi Prasad, B the assailants broke open the doors of the house of Gayadin, killed four persons including Gayadin and dragged their bodies out of the house whereafter one more person was killed. These five dead bodies were then taken to the field and set on fire. Out of thirty-five accused who were convicted, ten accused C 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 assail.ants was assigned any particular E part. The evidence as regards other accused was that they were part of unlawful assembly which is evident from the following observations of this Court: "It also considered another feature which characterized the evidence of all the witnesses and that was that they gave their account of the incident substantially in similar terms and did not assign particular parts in respect of overt acts to any of the assailants except Laxmi Prasad accused No.1 ".12 The observations of this Court further show that though testimony of a single witness would be enough to convict an accused person, in a case involving large number of accused, 12 (1964) 8 SCR 133 at 140 where the witnesses depose to the fact that certain persons A 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 forthe offence committed by anyone actuated by and entertajning common object of the B 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 vica·rious liability as stipulated in Section 149 IPC. The key expressions C 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 tht;i same assembly liable for the offences under Section 149 IPC, if other requirements of the Sectjon are F satisfied. That is to say, if an offence is committed by any person of an unlawful assembly, which the members of that assembly knew to be likely to be committed, every member of that assembly is guilty of the offence. The law is clear that membership of unlawful assembly is sufficient to hold such G members vicariously liable.

It would be useful to refer to certain decisions of this Court. In State of U.P. v. Kishan Pa/1 3 it was observed: '' (2ooa) 1 s sec 73 c "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 F 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 G 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 H ,. c2011) 4 sec 676 vicariously liable for the acts committed by those armed A 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 B 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 C 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 0 attributed of having done any specific overt act, were innocent by-standers or were actually members of the unlawful assembly. It is for this reason that in Masalti (supra) this Court was cautious and cognizant that no particular part in respect of an overt act was assigned to any of the assailants except Laxmi E 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 Masa/ti F (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 G 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 kr.own maxim that "evidence has to be weighed and not counted" as statutorily recognized in Section 134 of the B Evidence Act.

23. We now deal with other cases relied upon by the learned Advocates forthe respondents. In StateofU.P. v. Dan Singh (supra) fourteen persons were killed. Six were burnt C 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 D 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 E 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 PW? 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 G mind the observations of this Court in Masalti (supra) case, we feel that even though a very large number of members of the unlawful assembly had taken part in the attack on the Dams, it would be safe if only those of the respondents should be held to be the members of the unlawful assembly.who have H been specifically identified by at least fol.ii eyewitnesses". The decision in Baddi Venkata Narasayya and others (supra) A 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 B overt act.

The decision in Mrinal Das (supra) was principally on the reliability of the evidence of a pardoned accomplice and the principle in Masa/ti (supra) was not even projected for consideration by this Court. In lnder Singh (supra) the submission advanced on behalf of the prosecution was C 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 0 to the informant, the witnesses cannot be expected to notice, remember and depose the individual acts committed by different accused persons vis-a-vis the five victims." This again discloses that there were no specific overt acts attributed to any of the accused and the allegations were general in nature E 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 G dealing with cases of those accused who are sought to be made vicariously responsible forthe 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 H 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- B witness.

The Trial Court was therefore perfectly right and justified in relying upon the testimony of sole witness PW12 Sarojini and the High Court completely erred in applying the test laid down in Masalti (supra). The view taken by the High Court being completely erroneous and unsustainable, in this appeal C 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 andA-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 E six accused, they having pursued, taken out Tanaji by lifting him from the house of Hernia 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 subm.issions 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 G 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 H is no inconsistency on any count raising any doubt about the case of the prosecution, we reject the submissions advanced A 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 B 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 C appeal stands disposed of in the above terms. Kalpana K. Tripathy Appeal partly all.owed.