Holding

A conviction can be sustained on the testimony of a sole, reliable, and corroborated eyewitness, and the Masalti test does not bar such conviction where specific overt acts are identified, leading to the restoration of convictions of six accused.

Summary

The State of Maharashtra prosecuted 34 accused for mob assault that resulted in the death of Tanaji Rathod. All prosecution witnesses except the deceased's wife (PW‑12) turned hostile; the trial court relied on PW‑12’s detailed testimony, corroborated by medical reports, spot‑panchnama and recovered weapons, convicting eight accused. The High Court acquitted all, applying the Masalti test that required multiple eyewitnesses for unlawful‑assembly cases. The Supreme Court held that PW‑12’s evidence was natural, reliable and sufficiently corroborated, and that the Masalti test does not apply where specific overt acts are identified. Consequently, the Court restored convictions of six accused under Sections 149, 302, etc., while granting benefit of doubt to two who did not partake in the final assault. The appeal was partly allowed, confirming the trial court’s judgment for six respondents and dismissing the appeal for the remaining two.

Issues considered

The reliability and sufficiency of a sole eyewitness testimony in a mob‑violence case
The applicability of the Masalti test to convictions under Section 149 IPC
Whether members of an unlawful assembly who did not commit overt acts can be held liable under Section 149
The evidentiary value of weapon recoveries under Section 27 of the Evidence Act without panchas’ testimony
The appropriateness of granting benefit of doubt to accused not directly involved in the fatal assault

Legislation cited

Indian Evidence Act, 1872s. 27
Indian Penal Code, 1860s. 147, s. 148, s. 149, s. 302, s. 307, s. 324, s. 326, s. 395, s. 427, s. 435, s. 436, s. 452

Subjects

sole eyewitnessunlawful assemblySection 149 IPCmob violenceevidence corroborationbenefit of doubtMasalti testweapon recoveryIndian Penal CodeIndian Evidence Act

Judgment

[2015] 11 S.C.R. 357

STATE OF MAHARASHTRA A
V:

RAM LAL DEVAPPA RATH OD AND OTHERS
(Criminal Appeal No.1957 OF 2008)
. B
SEPTEMBER 29, 2015
[PINAKI CHANDRA GHOSE AND UDAY
UMESH LALIT, JJ.]

Penal Code, 1860- ss. 147, 148, 302, 307, 324, 326, C
427, 435, 436, 452 rlw s. 149- Prosecution under- Of 34
accused-Assault by mob, causing death of one person and
injuries to others (eye-witnesses)- During trial 9 of the eye-
witnesses including injured-eyewitnesses turned hostile as
regards the identity of the accused persons - The sole eye- D
witness PW-12 supported the prosecution case - Trial court
convicted the 8 respondents-accused, while acquitting the
rest of the accused - High Court acquitted the respondents-
accused disbelieving the testimony of PW-12 - On appeal,
held: The testimony of PW-12 was natural and devoid of any E
exaggeration and the same is corroborated by the recovery
of weapons of offence at the instance of the accused, medical
evidence and other material on record - Therefore, her
evidence is reliable and trustworthy- Trial court rightly relied
on the testimony of the sole eye-witness (PW12)- In view of F
the testimony of PW12, out of the 8 accused found guilty by
the trial court, conviction of 6 of them is confirmed, holding
that prosecution case against them stood completely proved
- The other 2 respondents-accused are acquitted giving them
benefit of doubt. G

Penal Code, 1860 - s. 149 - Common object -
Applicability of- In a case of mob violence - Held: Existence

H
357
358 SUPREME COURT REPORTS [2015] 11 S.C.R.

A of common object can be ascertained from the attending facts
and circumstances - Where assault is opened by a mob of
fairly large number of people and where it is difficult to
ascertain as to whether those who had not committed the overt
act were guided by the common object, in such situation such
B ·persons who are not attributed of having done any specific
overt act, were not members of unlawful assembly.

Evidence - Sole witness - Reliance on - Held:
Conviction can be founded on the testimony of a sole witness
C - However, testimony of such witness must be confidence
inspiring and beyond suspicion and has to be corroborated
by other evidence - Witness.

Evidence - Sole witness - Reliance on - In a case of
o mob violence - Held: The rule of prudence that in a case of
mob violence there should be more than one eye-witness
. does not mean that in such case sole-witness cannot be relied
on, if it is otherwise reliable.

E Evidence Act, 1872 - s. 27 - Recovery of weapons at
the instance of the accused - Evidentiary value of - If not
supported by testimony of independent panchas - Held: The
recoveries need not always be proved through the deposition
of the panchas and' can be supported through the testimony
F of the investigating officer.

Partly allowing the appeal, the Court

HELD: 1.1 The case of the prosecution is based on
the testimony of PW12, the wife of the deceased. The
G 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, the testimony of a sole witness
H must be confidence inspiring and beyond suspicion,
STATE OF MAHARASHTRA v. RAMLAL DEVAPPA 359
RATHOD

leaving no doubt in the mind of the Court. Where there A
is a sole witness, his evidence has to be accepted with
an amount of caution and after testing it on the
touchstone of other material on record. The statement
of the sole eye-witness should be reliable, should not
leave any doubt in ihe mind of the Court and has to be B
corroborated by other evidence produced by the
prosecution. [Para 14] [377-0-G]

State of Haryana v. lnder Singh (2002) 9 SCC 537;
Joseph v. State of Kera/a 2003 (2) SCC 465; Ram C
Naresh v. State of Chhattisgarh (2012) 11 SCC
257 - referred to
1.2 The deposition of PW12 shows that while the
decJ!ased was being pursued and assaulted, her o
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 one of the witnesses, her
testimony concentrates only upon .those who were
primarily responsible for having pursued and assaulted E
her husband. 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 F
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. All the nine stages of the incident and
the acts at each stage are corroborated by other material G
on record. Though declared hostile on the issue of
identity of assailants, the other prosecution witnesses
also lend support to the substratum of tl)e case. The
material on record including medical evidence thus lends H
360 SUPREME COURT REPORTS [2015] 11 S.C.R.

A complete support to the version as unfolded through the
deposition of PW12. [Para 16] [379-E, G-H; 380 8-C]

1.3 The intensity of the incident where the entire
village stood against the deceased, had impact on the
B witnesses who turned hostile one after the other. PW12
was also no exception to a certain extent and apparently
did not want to come and depose as a witness. Despite
summons having been issued by the Trial Court she
failed to appear. Her presence had to be secured by way
C 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
D physical injuries on her person but this by itself is no
ground to reject her testimony. The High Court has also
not rejected her testimony doubting her presence. [Para
17] [380 F-G; 381~A]

E 1.4 Pursuant to the disclosure statements made by
A-1, A-2, A-3, A-29 and A-30, certain weapons with blood
stains were recovered immediately on the day after the
incident. The aforesaid recoveries though alleged to be
not supported by the independent panchas, PW18 in his
F testimony deposed that such recoveries were made
pursuant to the disclosure statements of the accused.
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
G the recoveries were made soon after the incident is again
a relevant circumstance and the recoveries can be
considered against the respondents as one more
circumstance. [Para 18] [381-B-E]
H
STATE OF MAHARASHTRA v. RAMLAL DEV.A.PPA 361
RATH OD

1.5 Thus, the deposition of PW12 is devoid of any A
exaggeration, completely trustworthy and reliable.
Therefore, though she is the sole witness, her evidence
is completely reliable and trustworthy. [Para 19] [381-
F-G]
B
_2.1 Section 149 IPC 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 C
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 unl~wful
assembly is sufficient to hold such members vicariously D
liable. [Para 21][383-F-G]

Mohd Aslam v. State of Maharashtra (2001) 9 SCC
362; Anter Singh v. State of Rajasthan 2004 (2)
SCR 123: (2004) 10 sec 657; State of U.P. V. E
Kishan Pa/2008 (11) SCR 1048: (2008) 16 SCC
73; Amerika Rai v. State of Bihar (2011) 4 SCC
676 - relied on.

2.2 The liability of those members of the unlawful F
assembly who actually committed the offence would
depend upon the nature and acceptability of the
evidence on record. The difficulty may however arise,
while considering the liability and extent of culpability
of those who may not have actually committed the G
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.
H
362 SUPREME COURT REPORTS [2015) 11 S.C.R.

A Existence of common object can be ascertained from
the attending facts and circumstances. When the persons
forming the assembly are shown to be having same
interest in pursuance of vyhich some of them come anned,
while others may not be so armed, such unarmed
B 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 inob of fairly large
number of people, it may at times be difficult to ascertain
whether those who had not committed any overt act
C were guided by the common object. There can be room
for entertaining a doubt whether those persons who are
not attributed of having done any specific overt act, were
innocent by-standers or were actually members of the
unlawful assembly. [Para 22][384-E-G; .385-B-D]
0
2.3 The test adopted in *Masa/ti case 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
E 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
F witnessed the relevant facets constituting the offence.
The test adopted in *Masalti case 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
G therefore perfectly right and justified in relying upon the
testimony of sole witness PW12 and the High Court
completely erred in applying the test laid down in
*Masalti case. [Para 24) [387-G-H; 388-A-B]
*Masa/tiv. State ofU.P. 1964 (8) SCR 133; Mrinal
H Das v. State of Tripura 2011 (14) SCR 411: (2011)
STATE OF MAHARASHTRA v. RAMLAL DEVAPPA 363
RATHOD

9 SCC 479; lnder Singh v. State of A
Rajasthan 2015 (1) SCR 563: (2015) 2 SCC 734
- held inapplicable.

State of U.P. v. Dan Singh and Ors.1997 (1)
SCR 764: (1997) 3 SCC 747; Baddi Venkata B
Narasayya and Ors. v. State ofA.P. (1998) 2 SCC
329; Binay Kumar Singh v. State of Bihar 1996
(8) Suppl. SCR 225: (1997) 1 sec 283 -
distinguished.
c
3. Out of eight accused found guilty by the Trial
Court, going by the testimony of PW12 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 the deceased which
resulted in his death. The other two accused, according o
to the witness had set the house of 'S' on fire and had
not participated in the final assault. Therefore, they are
granted benefit of doubt and their acquittal is confirmed.
However as regards other six accused, they having
pursued, taken out the deceased by lifting him from the E
house of 'H' and thereafter assaulted him in the field
adjacent to the house, the case of the prosecution as
against them stands completely proved. [Para 24]
[388-C-E] .
F
4. The deposition of the wife of the deceased
examined as PW3 in the trial of the 351h accused is not in
any way inconsistent with her deposition in the present
matter as PW12. She had not named the accused any
manner in the present trial and her failure to identify said G
accused or ascribe any role to him does not lead to any
inconsistency. There is no inconsistency on any count
raising any doubt about the case of the prosecution.
[Para 25] [388-F-H; 389-A]
H
364 SUPREME COURT REPORTS [2015] 11 S.C.R.

A Case Law Reference
1964 (8) SCR 133 held inapplicable Para 22
1997 (1) SCR 764 distinguished Para 12, 23
(1998) 2 sec 329 distinguished Para 12,23
8
1996 (8) Suppl. SCR 225 distinguished. Para 12
2011 (14) SCR 411 held inapplicable Para 12,23
2015 (1) SCR 563 held inapplicable Para12,
c 23,23
(2002) 9 sec 537 referred to. Para 14
2003 (2) sec 465 referred to. Para 14
(2012) 11 sec 251 referred to. Para 14
D
(2001) 9 sec 362 relied on. Para 18
..
2004 (2) SCR 123 relied on. Para 18
2008 (11) SCR 1048 relied on. Para 21

E (2011) 4 sec 676 relied on. Para 21
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 1957 of 2008

From the Judgment and Order dated 22.06.2006 of the
F . High Court of Judicature at Bombay in Criminal Appeal No.
885 of2001

Shankar Chillarge, Sonia Shankar Chillarge,f.niruddha
P. Mayee for the Appellant.
G
Meenakshi Arora, Mahima, Anjani Kumar Jha, Vinay
Naware, Dr. R.R. Deshpande, Yuvraj Gaikwad for the
Respondents.

The Judgment of the Court was delivered by
H
STATE OF MAHARASHTRA v. RAMLAL DEVAPPA 365
RATH OD

UDAY UMESH LAUT, J. 1.This appeal by special leave A
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 B
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 C
Solapur, Solapur. They were also members of Sahakari Krushi
Society, which society had received about 44 acres of
agricultural land from the Government. There was a dispute in
the village over this agricultural land. On 301h April, 2000 Tanaji,
his brothers and father had opened Durgamata Temple at D
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 E
members who tried to intervene were also assaulted. Tanaji
managed to run towards the cluster of houses of the family of
his uncle Hernia Tukaram Rathod. He was running for his life
and went from place to place followed by the mob. His brothers, F
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 Hernia
Tukaram Rathod. The members of the mob removed the tiles G
of the roof and managed to catch Tanaji who was then taken to
the field in front of the house of Hernia Tukaram Rathod and
assaulted with sword, axes and sattur. The members of the
mob then entered the house of Tanaji, carried away all the
H
366 SUPREME COURT REPORTS [2015) 11 S.C.R.

A documents from his house and set them on fire. Valuables
like gold ornaments and cash were also taken away.

3. The family members managed to put Tanaji and other
injured in a tempo which carried them to Civil Hospital, Solapur
B 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
C 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 ofTanaji was sent for post-mortem.

4. PW 16 Dr. Pradeep Chinchure and Dr. P. V. Antrolikar
D performed post mortem on 30.04.2000 and found following
external and internal injuries:-

1. Incised wounds two in numbers right fronto paritetal
region,
E a) 2"x2 bone deep, skull palpable fracture.
b) 2"x1/2 bone deep with palpable fracture.

2. Incised wound occipital region 3 % "x1" bone deep
with fracture skull,
F
3. Chop wound near left elbow joint 6cm x 4cm bone
deep with fracture numerous obliquely placed with loss
of anatomical continuity,

G 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,
H
STATE OF MAHARASHTRA v. RAM LAL DEVAPPA 367
RATHOD [UDAY UMESH LAUT, J.]

6. Multiple incised wounds A
a) right foot 3"x1 "bone deep on lateral maleolus of
right ankle,
b) 2"below right ankle 4"x1 "muscle deep,
B
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,
c
8. Incised wound on thigh lateral aspect upperpart4"x1"
bone deep,

9. Chop wound right palm 3"x1" bone deep with partial
amputation of middle, ring, little finger and complete D
amputation of inner finger which is missing.

10. Chop wound right fore-arm 3"x 2" bone deep with
fracture underlying bone. .
E
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,
F
13. Multiple linear incised wounds all over body more on
right shoulder area that foot and both legs.

And
G
1) Haematoma under-scalp right fronto parietal region,
incised wound on same region and on occipital region,

2) Fracture of occipital bone corresponds to column
No.18 about 7 cm. in length and injury to brain,
H
368 SUPREME COURT REPORTS [2015] 11 S.C.R.

A 3) Fracture offronto parietal bone about 10 cm. in length
and injury to brain. Brain was congested oadamatus. Injury
to brain at the side corresponding to lnj. Nos.1 and 2.
Subdural haematoma all over brain more on right side
and occipital region.
B
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."
c
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
o 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 1OOft away from the
E 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
F ploughed land near the deceased's paternal uncle Hernia
Rathod's land. At the house of deceased's cousin Maruti, the
doors had been damaged, the room had six tins of 12ft. x1 Oft.
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
G 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
H corner of the said room was severely damaged and there were
STATE OF MAHARASHTRA v. RAMLAL DEVAPPA 369
RATHOD [UDAY UMESH LAUT, J.]

bricks and earth lying around. The length of the said room A
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 B
Shivaji Rathod's house was set on fire. Three tins from the
northern side of the house of Hernia 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. C

6. PW-18 Pratap Kisan Pawar, CPI attached four stones
with blood stains. He recorded statements of eight witnesses.
He arrested twelve accused persons on the same day. On the
next day, he recorded statements of eight more witnesses D
including Sarojini, wife of Tanaji. On that day pursuant to
disclosure statements made by:-

A 1- Ram Lal - sword, axe and sticks with blood stains
E
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 F

· A30-Pandit- axe with blood stains,

were recovered and attached.

The attached articles were forwarded to the Chemical G
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, H
370 SUPREME COURT REPORTS [2015] 11 S.C.R.

A 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
B brothers Bhanudas, Prithviraj, Tanaji and theirfather 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
C his brotherTanaji. The witness was therefore declared hostile.
PW2 Arjun, another brother of Tanaji also did not support the
case of the prosecution and was declared hostile. The third
brother Bhanudas examined as PW3 accepted that he had
sustained injuries but could not name the persons who had
D assaulted him and was also declared hostile. Fourth brother
Bharat examined as PW4 was similarly declared hostile. The
cousin of Tanaji named Shivaji Hernia 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
E 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
F 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 Hernia Rathod was examined as PW7.
He accepted that Tanaji had come to take shelter in his house
G 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 sisterofTanaji named Vimal, examined as PW8
was declared hostile, having refused to support the case of
the prosecution. Mother of Tanaji named Theplabai was
H examined as PW9. She accepted that her sons and husband
STATE OF MAHARASHTRA v. RAM LAL DEVAPPA 371
RATHOD [UDAY UMESH LAUT, J.]

had gone to the temple on the occasion of Mahapooja and A
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. B
However, the witnesses could not state who had caused injuries
to them.

8. It appears that Sarojini, wife ofTanaji had left the village
after the incident and was staying with her brother at Bijapur in C
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:- D

"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 myfather-
in-law Pandurang and my two children had gone. He must E
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 F
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 G
running. Many people were also running after them namely
Ramlal Devappa Rathod, Jaysing Devappa .Rathod,
Ramchandra Lalu Nadje, Shivaji Ramaji Wadaje and
other people. Thereafter, my husband had fallen down H
372 SUPREME COURT REPORTS [2015] 11 S.C.R.

A 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-
B 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
Hernia. I also went after these accused.All the accused
c also went to the house of Hernia. 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 Hernia. All these
accused started breaking the door of the same house
D
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
E 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 Hernia. My husband locked inside. Thereafter these
accused broke open the wall of the house and also
F 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 Hernia. The accused once again removed
. the tin sheet roof of house of Laxman and started to throw
G stones inside the house. Thereafter, my husband once
again escaped and ran in the house of Hernia. In the
mean time, accused Ramchandra Shima Rathod, Kisan
Ganu Rathod, Sitaram Gopa Rathod had set the house
of s.hivaji on fire. I know all these accused. The witness
H
STATE OF MAHARASHTRA v. RAMLAL DEVAPPA 373
RATHOD [UDAY UMESH LAUT, J.]

identified all the three accused namely Ramchandra, A
Kisan and Sitaram. When my husband entered the house
of Hernia, 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 NadajeAccused No.2, B
Jaysingh Devappa RathodAccused No.12, went inside
the house of Hernia. They caught my husband by his
hands and feet and took him in the field of Hernia Rathod
which is in front of his house. They assaulted him with
axe, sword, Sattur. At that tirrie, other accused had C
assaulted my brother-in-law, Hernia 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 .
0
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, Hernia Rathodwere also beaten. All these
injured were lying on the ground. I can identify all these E
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."
F
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 G
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.
H
374 SUPREME COURT REPORTS [2015] 11 S.C.R.

A It was observed by the Trial Court that the death of Tanaji
· was proved by the prosecution to be homicidal and that out of
the witnesses examined by the prosecution, PW12 Sarojini
alone had supported the case of the prosecution while nine
other eye witnesses had turned hostile. It stated that as laid
B 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
C 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 ofU.P. 1, the Trial Court observed that it would be unsafe
0
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
E 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
F offences with which they were charged.

10. The convicted accused i.e. the respondents herein
carried the matter by filing Criminal Appeal No.885 of 2001 in
the High Court of Bombay. The State did not file any appeal
G 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

H 1. 1964 (8) SCR 133
STATE. OF MAHARASHTRA v. RAMLAL DEVAPPA 375
.. . RATHOD [UDAYUMESH LAUT, J.] ·

the sole testimony of PW12 Sarojini and if according to her ·A
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 injLlries 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 B ·
. · - 1 . ' : · I

relied upon the decision of this Court in Masalti (supra) and
observed thus: 7 ; . . , . · ·. .; .. . . .... _• ·. ··
•·•... ,:,We find that the trial court was not justified in arriving .I I '•
/ · · at a conclusion that it is the appellants-accused who are C '·
. ·· · guilty of having committed murder ofTanaji and assaulted
; .the witnesses by taking. into consideration evidence of
· PW12 Sarojini and other evidence·i.e: medical and
c forensic whicli is merely of corroborative in nature and, ·
• ·: ·therefore the caution sounded by the Supreme Court in D
·· '; the.case of Masalti and others vs. State of Uttar Pradesh
. cited su'pra squarely applies to the factual matrix of the
,, , ,.. -- r - ', - , •
··case. ·· ·- ·
· 1.1. In this appeal by special leave we have heard Mr. E
Shankar'Chillarge, learned Advocate for the State and Ms.
Meeriakshi Arora; learned .Senior Advocate and Mr.Vinay
Navare, learned Advocate for.the respondents-accused. It was
submitted by Mr. Chillarge; learned Advocate that the impact
of the incident was such that though most of the eye-witnesses F
had 'suffered injuries; yet those witnesses including four
brothers; sister and mother ofTanaji 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 G
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) Vias· H
376 SUPREME COURT REPORTS [2015) 11 S.C.R.

A not called for and that the assessment made by the High Court
was completely erroneous.

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 Tripura 5
and lnder Singh v. State of Rajasthan 6•

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.

G 2 (1997)3 sec 747
sec 329
3 (1998)2

• (1997)1 sec 283
• (2011)9 sec 479
H • (2015) 2 sec 734
STATE OF MAHARASHTRA v. RAM LAL DEVAPPA 377
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.
D
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 Kerala 8 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 H
378 SUPREME COURT REPORTS [2015] 11 S.C.R.

A 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
B 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
c 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
D
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
E 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
F
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
G 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
H
STATE OF MAHARASHTRA v. RAMLAL DEVAPPA 379
RATHOD [UDAYUMESH LAUT, J.]

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 B
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 E
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 F
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
380 SUPREME COURT REPORTS [2015] 11 S.C.R.

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.
E 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
STATE OF MAHARASHTRA v. RAMLAL DEVAPPA 381
RATHOD [UDAY UMESH LAUT, J.]

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 Maharashtra 10 and Anter Singh v. State of D
Rajasthan 11 that the recoveries need not always be proved
through the deposition of the panchas and can be supported
through the testimony of the investigating officer. The fact that
the recoveries were made soon after the incident is again a
relevant circumstance and we accept that the recoveries can E
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 H
382 SUPREME COURT REPORTS [2015) 11 S.C.R.

A 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
0
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
F
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
G 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,

H 12
(1964) 8 SCR 133 at 140
STATE OF MAHARASHTRA v. RAMLAL DEVAPPA 383
RATHOD [UDAY UMESH LAUT, J.]

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; D
(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. E
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) 1s sec 73 H
384 SUPREME COURT REPORTS [2015] 11 S.C.R.

A "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
8 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."
c
Further, in Amerika Rai v. State of Bihar14 it was
observed as under:

"The law of vicarious liability under Section 149 IPC is
D 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."

E 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
STATE OF MAHARASHTRA v. RAMLAL DEVAPPA 385
RATHOD [UDAY UMESH LAUT, J.]

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
H
386 SUPREME COURT REPORTS [2015] 11 S.C.R.

A 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
F 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
STATE OF MAHARASHTRA v. RAMLAL DEVAPPA 387
RATHOD [UDAY UMESH LAUT, J.]

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 F
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
388 SUPREME COURT REPORTS [2015] 11 S.C.R.

A 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
0
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.

F 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
STATE OF MAHARASHTRA v. RAMLAL DEVAPPA 389
RATHOD [UDAY UMESH LAUT, J.]

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.