Supreme Court of India
STATE OF RAJASTHANversusBABLU @ OM PRAKASH
- Citation
- 2021 INSC 782
- Decided
- 24 November 2021
- Disposal
- Case Partly allowed
Holding
The Supreme Court restored the conviction and sentence of six accused on the basis of consistent, cogent eye‑witness evidence and held that the Masalti test does not preclude conviction where an overt act is attributed by at least one additional witness.
Summary
The case involved a violent assault on the house of an informant during Holi, resulting in the death of Dhanpal. Thirteen persons were charged under IPC sections 147, 148, 149, 450, 452, 302 and 307. The trial court convicted all of them, but the High Court upheld convictions only of two accused and acquitted the remaining eleven. On appeal, the Supreme Court examined whether the eye‑witness testimony—particularly that of the deceased’s brother (PW1) and five other witnesses—was sufficient to sustain convictions despite the lack of specific attribution by every witness. Applying the Masalti test, the Court held that where at least one additional witness besides PW1 and PW27 attributes an overt act to an accused, conviction is justified. Consequently, the convictions and sentences of six accused (A1, A6, A7, A8, A10, A13) were restored, while the acquittals of the other five were confirmed.
Issues considered
- The adequacy of eye‑witness testimony to sustain convictions under sections 147, 148, 149, 450, 452, 302 and 307 of the IPC.
- Whether the Masalti test for over‑implication applies when specific overt acts are attributed by at least one additional witness.
- Can a single reliable witness form the basis of conviction in a case of unlawful assembly?
- The applicability of Section 149 IPC where not all accused are specifically named by each witness.
Legislation cited
- Code of Criminal Procedure, 1973s. 378
- Indian Penal Code, 1860s. 147, s. 148, s. 149, s. 302, s. 307, s. 450, s. 452
Subjects
unlawful assemblyeye‑witness testimonyover‑implicationMasalti testSection 149 IPCconviction on single witnesscriminal appealacquittalevidence law
Judgment
450 [2021]REPORTS
SUPREME COURT 7 S.C.R. 450 [2021] 7 S.C.R.
A STATE OF RAJASTHAN
v.
BABLU @ OM PRAKASH
(Criminal Appeal No.1475 of 2021)
B NOVEMBER 24, 2021
[UDAY UMESH LALIT AND AJAY RASTOGI, JJ.]
Appeal against acquittal: Interference with – Prosecution case
that 13 accused along with 10-12 persons armed with weapons,
forcibly entered the house of the informant and hurled abuses,
C
inflicted informant’s brother with injuries who later succumbed to
his injuries – Informant also suffered injuries when he tried to
intervene – Conviction of 13 accused in respect of offences
punishable 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 eye
D witness account – High Court upheld the conviction and sentence
against A2 and A3, however, acquitted the remaining 11 accused –
On appeal, held: Even if the testimony of single witness is found
reliable by the Court, it can be the foundation of the order of
conviction – On facts, evidence of the informant-brother of the
deceased itself would normally be sufficient who received injuries
E
in 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 as
eyewitnesses to the occurrence, cannot be discredited – Five
eyewitnesses testified to the presence and participation of the
F accused – Thus, in the face of such clear, consistent and cogent
evidence on record, the High Court not justified in not relying on
the evidence of the eyewitnesses without giving any valid reasons –
Order of acquittal manifestly erroneous and perverse – Accused
A1, A6, A7, A8, A10 and A13 were attributed certain overt acts not
only by PWs 1 and 27 but at least by one more witness, thus, their
G
acquittal is set aside and order of conviction and sentence is restored
whereas rest of the accused are given benefit of doubt and their
acquittal is confirmed – Penal Code, 1860 – ss 147, 148, 149, 450
or 450/149, 452 or 452/149, 302 or 302 read with ss. 149, 307 or
307 rw 149 – Evidence – Eye-witnesses – Code of Criminal
H Procedure, 1973 – s. 378.
450
STATE OF RAJASTHAN v. BABLU @ OM PRAKASH 451
Partly allowing the appeals, the Court A
HELD: 1.1 With regard to the presence of the prosecution
witnesses who were examined as eyewitnesses to the occurrence,
nothing was brought on record to discredit them except the
submission that the presence of PW6-was not spoken to or
adverted by PW24. The fact that one of these witnesses had B
suffered injuries in the transaction and the rest of them had taken
the deceased as well as the injured to medical center immediately
after the occurrence lends credibility to the case of the prosecution
unfolded through these eyewitnesses. Nothing has been brought
on record in their cross-examinations to dislodge the credibility
of these witnesses. Even then, this Court may avoid the testimony C
of PW6 as his presence was not adverted to by PW24. That leaves
with 5 eyewitnesses who had testified to the presence and
participation of the accused-respondents. [Para 17][437-D-F]
1.2 Even the version of a single witness, if his testimony is
found reliable by the Court, can be the foundation of the order of D
conviction. In the instant case, the evidence of PW1-, the brother
of the deceased itself would normally be sufficient. Said witness
had received injuries in the transaction and his presence could
not even be doubted. Additionally, there were four witnesses viz.
PW2, PW24, PW25 and PW27. The chart tabulated shows the E
role ascribed to each of the accused. [Para 20][476-F-G]
1.3 In the face of such clear, consistent and cogent evidence
on record, the High Court was not justified in proceeding on the
basis that the eyewitnesses had not named other accused in
specific terms or entertaining any doubt and then recording order F
of acquittal. The approach of the High Court was completely
against the settled principles of law and no valid reasons were
given by the High Court as to why the evidence of all the
eyewitnesses could not be relied upon in so far as the role played
by the acquitted accused was concerned. The order of acquittal
recorded by the High Court is found to be completely unjust and G
its conclusion is totally against the record. In these appeals against
acquittal, therefore, this Court is not persuaded to go by the order
H
452 SUPREME COURT REPORTS [2021] 7 S.C.R.
A of acquittal passed by the High Court as the same, was manifestly
erroneous 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 record
through PWs 1 and 27, which was well supported by PWs 2, 24
B and 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 to
the occurrence in question, in order to lend complete assurance
and as a matter of prudence, a criteria may be adopted where, if
C any of the eyewitnesses (other than PW6), apart from and in
addition to PWs 1 and 27 had adverted to and attributed overt
acts to any of the accused, the role of such accused can be taken
to have been established beyond any doubt. The principle in
Masalti’s case would get attracted where apart from attribution
of presence, nothing more was attributed by way of any overt act.
D However, in the facts of the instant case; and to rule out any
possibility of over-implication, this criteria is adopted, more
particularly because the matter in appeals against acquittal. Thus,
accused A1, A6, A7, A8, A10 and A13 are those who were
attributed certain overt acts not only by PWs 1 and 27 but at
E least by one more witness, whereas, the role attributed to the
rest of them was only by PWs 1 and 27 without any other
eyewitnesses apart from PW6, deposing about the role played by
them. In the circumstances, these appeals are allowed against
original accused A1, A6, A7, A8, A10 and A13 while rest of the
accused-respondents are given benefit of doubt and their
F acquittal, as recorded by the High Court is confirmed. The order
of 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 of
G Maharashtra v. Ramlal Devappa Rathod and Others
(2015) 15 SCC 77 : [2015] 11 SCR 357 – referred to.
Case Law Reference
[1964] 8 SCR 133 referred to Para 18, 23
H [2015] 11 SCR 357 referred to Para 19
STATE OF RAJASTHAN v. BABLU @ OM PRAKASH 453
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. A
1475 of 2021.
From the Judgment and Order dated 04.12.2018 of the High Court
of Judicature for Rajasthan Bench at Jaipur in D.B. Criminal Appeal
No.1191 of 2017.
With B
Criminal Appeal Nos.1476-1481, 1482, 1484, 1485, 1486 and 1483
of 2021.
Dr. Manish Singhvi, Sr. Adv., Vishal Meghwal, Milind Kumar, Ms.
Archana Pathak Dave, Kumar Prashant, Parmod Kumar Vishnoi, Advs. C
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 D
UDAY UMESH LALIT, J.
1. Leave granted.
2. These appeals are preferred by:
i) State of Rajasthan (appeals arising out of Special Leave Petition E
(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 arising
out of Special Leave Petition (Crl.)Nos.8677-8682 of 2019):-
F
challenging the acquittal of 11 accused persons namely Radhey
Shyam alias Golu (A1), Ramu alias Ram Singh (A4), Bablu alias Om
Prakash (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 High
Court1 vide its judgment and final order dated 04.12.2018 in D.B. Criminal G
Appeal Nos.179 of 2018, 832 of 2017, 946 of 2017, 993 of 2017, 1123 of
2017, 1191 of 2017, 1475 of 2017 and 26 of 2018.
1
High Court of Judicature for Rajasthan Bench at Jaipur H
454 SUPREME COURT REPORTS [2021] 7 S.C.R.
A 3. 13 persons, i.e. aforementioned 11 acquitted accused and 2
convicted 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 or
450/149, 452 or 452/149, 302 or 302 read with Sections 149, 307 or 307
read with 149 of the IPC3.
B
4. The gist4 of the First Information Report(FIR No.75 of 2012) in
respect of offences punishable under Sections 147, 148, 149, 452, 323
and 307 IPC, lodged at the instance of Sunil S/o. Govindram (later
examined as PW1) registered with Police Station Kaithun on 08.03.2012
was to the following effect:-
C
“An FIR was registered on a written report made by complainant
Sunil on 8.3.2012. It was stated that apart from him, Dhanpal,
Madanpal, Narayan, Tulsi, Kalu Meena and Roop Singh Pahalwan
were sitting at his residence on the festival of Holi. At that time,
the accused Rajendra, Janak, Ramu @ Ramsingh, Vijendra, Pintu,
D Golu, Mukat, Tanti @ Rajendra, Ramgopal, Atar, Dinesh, Bhuria
@ Dharasingh residents of Ganeshpura and Sukhpal resident of
Ummedganj and Kashiram along with 10-12 persons came
equipped with the weapons. They entered into complainant’s house
and attacked Dhanpal. Accused Rajendra and Pritam caused a
E blow by a sword, whereas, Janak has been assigned Gandasi and
caused injury to Dhanpal. Other accused Ramgopal, Tanti,
Satyanarayan, Bablu, Golu, Pintu, Dinesh and Sukhpal also caused
injuries to Dhanpal. Accused Mukut, Bhuria @ Dharasingh, Atar,
Hansraj, Vijendra, bablu and Satyanarayan caused head injury to
complainant.”
F
5. The initial medical attention to said Dhanpal was given by PW19
Dr. Krishna Hari Sharma.However, Dhanpal died during the course of
treatment whereafter the offence under Section 302 IPC was added.
Informant PW1 Sunil was medically examined and treated by
G PW17 Dr. P.P. Bansal.
2
Special Judge, SC & ST (Prevention of Atrocities Cases) Act, Kota, Rajasthan
3
The Indian Penal Code, 1860
4
H As recorded by the High Court in the judgment under appeal.
STATE OF RAJASTHAN v. BABLU @ OM PRAKASH 455
[UDAY UMESH LALIT, J.]
6. The post-mortem on the body of Dhanpalwas conducted by A
PW30Dr. Rakesh Sharma on 09.03.2012 who found following ante
mortem injuries over the body of the deceased:
“Injury No.1:- Stitched wound sized 9 Cms long present on the
left side of head.
Injury No.2:- 03 stitched wounds sized respectively 7 Cms, 6 Cms B
and 4 Cms long present on the rear part of the head.
Injury No.3:- Stitched wound sized 1 Cms long present on the
right side of the head.
Injury No.4:- Thin abrasion mark sized 1 Cms long present on the C
right 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.
D
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 right E
leg.
Injury No.12:- Abrasion sized 1 X 1 Cms present on the left leg.
Injury No.13:- Scalp Hematoma was found present on both sides
of head and found hematoma present on the rear part of the head.
F
Injury No.14:- Left parietal bone was found fractured.
Injury No.15:- Subdural Hematoma was found present on the left
parietal part of the brain.
Injury No.16:- The brain matter had turned reddish and was
swollen.” G
According to the medical opinion, the death ofDhanpal was due
to coma caused by the injuries caused upon him immediately prior
to his death.
H
456 SUPREME COURT REPORTS [2021] 7 S.C.R.
A 7. During the course of investigation, following recoveries were
made pursuant to disclosure statements of some of the accused:-
At whose
PWs Name of Witness Recovery
instance
PW7 Iron Pipe A1
DevkrishanGurjar Stick A7
B Iron Rod A6
PW8 Jagdish Gurjar Iron Pipe A1
Stick A7
Iron Pipe and
A2
Motor Cycle
PW9 Pawan
Gandasi and
A3
Motor Cycle
C
Iron Pipe and
A2
Motor Cycle
PW10 Radheshyam
Gandasi and
A3
Motor Cycle
PW11 Rafiq Iron Pipe A10
PW12 Naresh Iron Pipe A10
D PW14 Suresh Iron Rod A6
Iron Rod A4
PW15 Devilal
Iron Rod A12
Iron Rod A4
PW16 Deewansingh
Iron Rod A12
PW20 Hiralal Iron Rod A5
E PW21 Harisingh Iron Rod A5
PW22 Bharat Iron Rod A5
PW23 Dharamsingh Iron Pipe A5
8. After completion of investigation and committal of the case to
the Court of Sessions, charges were framed against 13 accusedpersons
F named 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.
G 9. The prosecution examined 40 witnesses in support of its case
and produced 77 documents while the defense examined one witness
and produced nine documents in support of its case.
10. PW-1 Sunil son of Govind Ram, the brother of the deceased
stated about the incident as under:
H
STATE OF RAJASTHAN v. BABLU @ OM PRAKASH 457
[UDAY UMESH LALIT, J.]
“Incident pertains to dated 08.03.2012 time at 1:30-2:00 PM in A
the afternoon when it was the festival of Dhulandi and me and
my brother Dhanpal, Madan Pal, Jai Narain, Tulsi Ram, Kalu
Meena, Roop Singh Pehalwan were sitting in the house and were
talking to each other when just at that time people form
Ganeshpura&Prehladpura wherein Rajendra, Janak, Ramualias
B
Ram singh, Vijendra, Pritam son of Rajendra, cousin brother Jeetu,
Golu, Mukut, Rajendra alias Tanti, Ram Gopal, Satya Narain,
BhuriaaliasDhara Singh, Atar, Dinesh, Sukhpal, Ranjeet, Kaptan
along with 10-12 other persons conspiringly loaded with weapons
forcefully entered inside the house and with the intention to kill
attacked with sword and gandasa upon the head of my brother C
Dhanpal. Rajendra attacked with the sword and Janak attacked
with the gandasa, Pritam with the gandasa and persons named
Ram Gopal, Tanti alisa Rajendra, Satya Narain, Bablu, Jeetu, Golu,
Ranjeet, Dinesh, Sukhpal also assaulted Dhanpal by wielding with
the blows of rod and pipe. Thereafter they dragged my brother to
D
the Gurudwara from there and where also the said persons assaulted
my brother. When I, went there for intervening upon which Mukut,
Bhuria, Atar, Hansraj, Jitendra, Kaptan assaulted me also with
the rod and pipe and Bablu and Satya Narain with the sword upon
me. Thereafter which on hearing the noise of quarrel we were
saved by my brother and other persons present on the spot. The E
said persons ran away towards Ganeshpura after committing
assault.”
The witness was crossexamined by six different counsel who
appeared for the accused. When questioned about the injuries suffered
by him and the medical attention given to him, PW-1 stated: F
“This incident was of one and half – two o’clock in the day. It is
incorrect to say that we may have directly gone to Sudha Hospital
from there. Himself said firstly we had gone to M.B.S. Thereafter
we had gone to Sudha Hospital. He stated himself that from there
he was referred to Sudha Hospital. There were three injuries on
my head, for this reason I was referred. There were other injuries G
on my hands and legs, injuries were there on my back also. My
treatment continued for two hours in M.B.S. Hospital, thereafter
I was referred to Sudha Hospital. All the three injuries on my
head were of sword. The injuries on my head were caused when
I had come to save my brother. I was inside the house itself. It is H
458 SUPREME COURT REPORTS [2021] 7 S.C.R.
A correct that I had come out to save my brother from inside. It is
correct that no injury was caused to me inside the house. The
place where the beating had taken place, that place is about 40
feet open space. Himself said that the beating had taken place in
the chowk. It is correct that on the day of Dhaulandi festival I
was sitting inside my room, my brother was walking in the chowk.
B
In the near about of my house there is the house of Panna Lal
Ghansi on the other side. There are 3 rooms, kitchen, latrine,
bathroom, 80 feet garden and 12 feet wide gallery in my house. It
is correct that there is rasta in front of our house, wherein there is
a tiraha (three way joint), and there is the house of Prabhu Dayal
C nearby. All the three injuries were sustained at one place in my
house. The injuries by sword were hit on my head by Satya
Narayan and Bablu.”
11. Apart from PW1-Sunil Kumar, who was injured in the
transaction, Madanpal (PW2), Narain alias Jainarayan (PW6) Prakash
D alias Kalu (PW24), Roop Singh (PW25) and Tulsi Ram (PW27) were
examined by the prosecution as eye-witnesses to the occurrence.
Evidence of these eye witnesses was completely consistent with
that of PW1 Sunil except for certain minor variations.
A. PW2-Madanpal stated:-
E “On coming they shouted abuses at the house of Sunil then
Dharmapal said that I will come on advising them you sit inside.
No sooner Dharmapal went outside then these persons started
beating Dharmapal and from there dragging Dharmapal took
him to Gurudwara which is in front. Janak, Tanti, Ranjit,
Rajendra, Pritam, Govind, Pintu, Bablu, Jeetu, Ram Singh,
F Dhara Singh who were part of those persons started giving
beating to Dharmapal. Janak hit injury on the head of
Dharmapal with Gandasi. Tanti hit on the head of Dharmapal
with iron rod, then Rajendra and Pritam hit on the head of
Dharmapal with swords and Golu also hit injury on the head of
G Dhanpal, the rest of the accused persons had iron rods and
woods with them with which they did beating with Dhanpal
and these very persons also did beating with Sunil also. Lot of
blood was bleeding out from the head of both of them. Thinking
Dharmapal to have died the accused persons ran away on
their motor cycles. Then we putting Sunil and Dhanpal in the
H
STATE OF RAJASTHAN v. BABLU @ OM PRAKASH 459
[UDAY UMESH LALIT, J.]
vehicle of Sunil brought them to Kaithun Hospital, where after A
seeing Dharmapal doctors referred him to other Hospital and
did not admit him in Kaithun Hospital. After that we took
Dharmapal directly to M.B.S.H., Kota, after this on treatment
not being given we took Dharmapal to Sudha Hospital, where
got Dharmapal admitted and got the treatment done. After that
B
in the morning at 5.00 on 9/3/12 the doctors declared him
dead….”
B. PW6-Narayan @ Jai Narayan deposed:-
“On 8/03/2012 Rajendra Singh, Janak, Tanti @ Rajendra Singh,
RadheyShyam, Ghanshyam, Gopal, Sattu, Dharasingh, Jeetu
20-25 persons of the same family, all these persons had come C
to Charan Chowki, Motipura, where there is house of my
brother Sunil, and started hurling abuses on the date, entered
the house and started doing beating and dragged my brother
Dharampal to outside. All started beating Dharmapal and Sunil.
They attacked with speed and treating Sunil and Dharmapal to D
have died left them. …”
C. The version given by PW24-Prakash alias Kalu was:
“…all these persons, out of whom Rajendra Singh, who was
identified by the witness in Court, Janak, Rajendra, Tanti,
Kaptan, Kallu @ Satya Narayan, Jetu and many other persons E
were there, whom I know by face, do not know their names,
entered the house of Sunil and did beating with Sunil Bhai Sahab
and carried him dragging towards the Gurudwara. In the
meantime I, Sunil, Madanpal, Tulsi, Roop Singh Pahalwan we
all came out. When Sunil had gone to intervene then they did
beating with Sunil, Rajendra with sword, Janak with gandasi, F
Rajendra @ Tanti with iron pipe and all other persons did rapid
beating with them. Those persons assuming Dhanpal bhai
sahab to be dead ran away taking motor cycle, then taking
Dhanpal Bhai sahab and Sunil we had gone to Kaithun Hospital.
There because of the doctor not being available we took them G
to M.B.S. Hospital, Kota, where also because of delay in the
treatment 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 several
injuries on the head of Sunil and on the head and body of
Dhanpal…” H
460 SUPREME COURT REPORTS [2021] 7 S.C.R.
A D. PW25-Roop Singh deposed:-
“…As soon as Dhanpal reached near the gate, all these persons
took him taking out of the house and giving beating upto the
road. They had pipe, sword, Gandasis with them, with which
they had attacked Dhanpal. Sword was in the hand of
Rajendra, Gandasi was in the hand of Janak and pipe was with
B
Tanti @ Rajendra, we all together had protected Dhanpal.
These persons treating Dhanpal and Sunil to have died ran
away. We also had gone to Kaithun Hospital taking Dhanpal
and Sunil in injured condition, Narayan, Tulsi, Kalu had taken
them to Hospital. …”
C E. PW27-Tulsiram in his examination stated:-
“I, Narayan, Sunil, Madanpal, Roopsingh, Prakas @ Kalu were
sitting at the house of Sunil and were eating pakodis, and were
applying gulal to one another. At about one and half – two
o’clock residents of Prahladpura and Ganehpura Rajendra,
Rajendra @ Tanti, Janak, Ram Gopal, Sattu, Ram Singh @
D
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 of
them were armed with arms. Janak had Gandasi, Rajendra @
Tanti has iron pipe, Rajendra had sword, Ramgopal had iron
E rod with him, Golu had iron pipe, Pinto had wood and otherx
also had woods with them and had iron pipes also. They started
hurling abuses from outside the house of Sunil and said come
out today we will play holi of blood. Dhanpal told us you stop I
will satisfy them. Just at that time these persons came inside
the house and all of them started beating Dhanpal. Janak hit
F with Gandasi on the head of Dhanpal. Rajendra hit with sword
on the head of Dhanpal, Tanti had hit with iron pipe, Ram Gopal
also attacked on the head of Dhanpal with iron pipe and dragging
they took Dhanpal near the Gurudwara. When Sunil came to
intervene then these persons also started attacking on them.
Taking Dhanpal to have died these persons went from there
G
then we took Dhanpal and Sunil to the hospital. From M.B.S.
we took these persons to Sudha Hospital. There during the
course of treatment the death of Dhanpal occurred.”
12. The involvement of every accused as deposed by the
eyewitnesses and the role ascribed to each of the accused can be
H tabulated as under:-
STATE OF RAJASTHAN v. BABLU @ OM PRAKASH 461
[UDAY UMESH LALIT, J.]
Accused Role Ascribed Witness
A
A1 RADHEY Entered the house PW1
SHAM alias
GOLU
Hurled abuses. Hit on PW2
Dhanpal’s head, B
dragged Dhanpal till
Gurudwara which was
100 steps away from the
house, took PW1 to the
Gurudwara.
Came to the house, Hurled PW6 C
Abuses, Hit on Dhanpal’s
head, dragged Dhanpal from
the house to Gurudwara
which was 100 steps
away, hit PW1.
Entered the house armed PW27
with Iron Pipe, hiton the
D
heads of PW1
and Dhanpal.
A2 RAJENDRA Entered the house, PW1
carrying iron pipe,
assaulted Dhanpal, E
inflicted blows of rod on
the hands, legs, knees
and body of Dhanpal,
dragged Dhanpal from
the house to Gurudwara
which was 100 steps F
away, assaulted PW1
inside the house as well
as outside the house.
Hurled abuses. Hit on PW2
Dhanpal’s head, G
dragged Dhanpal till
Gurudwara which was
100 steps away from the
house, took PW1 to the
Gurudwara.
H
462 SUPREME COURT REPORTS [2021] 7 S.C.R.
A Came to the house, PW6
Hurled Abuses, hit
Dhanpal on head with
Iron Rod, hit PW1,
dragged Dhanpal from
house to Gurudwara, ran
B
towards PW6 to hit him.
Entered PW1’s house PW24
and did beating with
Dhanpal with fists and
legs and carried him to
C Gurudwara, hit PW1
with iron pipe, hit
Dharampal with iron
pipe.
Hurled abuses at PW25
Dhanpal, Came to gate
D and hit Dhanpal inside
the house, hit Dhanpal
Entered the house PW27
armed with Iron Pipe
and hit on Dhanpal’s
E head, hit on the heads of
PW1 and Dhanpal.
A3 Entered the house, PW1
SINGH attacked Dhanpal with
gandassa, dragged
Dhanpal from the house
F to Gurudwara which
was 100 steps away.
Hurled abuses. Hit on PW2
Dhanpal’s head,
G dragged Dhanpal till
Gurudwara which was
100 steps away from the
house, took PW1 to the
Gurudwara.
H
STATE OF RAJASTHAN v. BABLU @ OM PRAKASH 463
[UDAY UMESH LALIT, J.]
Came to the house, PW6 A
Hurled Abuses, hit
Dhanpal on head with
Gandasi, hit PW1,
dragged Dhanpal from
house to Gurudwara, ran B
towards PW6 to hit him.
Entered PW1’s house PW24
and did beating with
Dhanpal with fists and
legs and carried him to
C
Gurudwara, hit PW1
with gandasi, hit
Dharampal with iron
pipe.
Hurled abuses at PW25
Dhanpal, Came to gate D
and hit Dhanpal inside
the house, hit Dhanpal
with gandasi, hit on
Dhanpal’s head.
Entered the house PW27 E
armed with gandasi and
hit on the head of
Dhanpal, hit on the
heads of PW1 and
Dhanpal.
F
A4 RAMU alias Entered the house, PW1
RAM dragged Dhanpal from
SINGH the house to Gurudwara
which was 100 steps
away.
Entered the house PW27 G
armed with iron
pipe/wood stick, hit on
the heads of PW1 and
Dhanpal
H
464 SUPREME COURT REPORTS [2021] 7 S.C.R.
A A5 BABLU Assaulted Dhanpal, PW1
aliasOM attacked PW1 when he
PRAKASH intervened, dragged
Dhanpal from the house
to Gurudwara which are
B 100 steps away, caused
injuries on front side
PW1’s head
Entered the house PW27
armed with iron
pipe/wood stick, hit on
C the heads of PW1 and
Dhanpal.
A6 Entered the house, PW1
JEETMAL assaulted Dhanpal,
dragged Dhanpal from
D the house to Gurudwara
which was 100 steps
away.
Came to the house, PW6
Hurled Abuses,hit PW1
Entered PW1’s house PW24
E
and did beating with
Dhanpal with fists and
legs and carried him to
Gurudwara, attacked
Dhanpal and PW1
F Entered the house PW27
armed with iron
pipe/wood stick, hit on
the heads of PW1 and
Dhanpal
A7 GHAN Entered the house, PW1
G
dragged Dhanpal from
alias PINTU the house to Gurudwara
which was 100 steps
away
H
STATE OF RAJASTHAN v. BABLU @ OM PRAKASH 465
[UDAY UMESH LALIT, J.]
Hurled abuses. Hit on Dhanpal’s PW2 A
head, dragged
Dhanpal till Gurudwara which was
100 steps away from the house, took
PW1 to the Gurudwara.
B
Came to the house, Hurled PW6
Abuses,gave
beating to Dhanpal, hit PW1
Entered the house armed with wood PW27
stick, hit on C
the heads of PW1 and Dhanpal
A8 RAJENDRA Entered the house, Attacked PW1
Dhanpal on head with sword,
caused injury with swordon the
backside of Dhanpal’s head, D
dragged Dhanpal from the house to
Gurudwara
which was 100 steps away
E
Gave Dhanpal one blow on the head PW2
Hurled Abuses, hit Dhanpal on head PW6
withswords, hit PW1
Entered PW1’s house and did PW24 F
beating with Dhanpal with fists and
legs and carried him to Gurudwara,
hit PW1 with sword, hit
Dharampal with sword
G
Hurled abuses at Dhanpal, Came to PW25
gate and hit Dhanpal inside the
house, hit Dhanpal
with sword, hit on Dhanpal’s head
H
466 SUPREME COURT REPORTS [2021] 7 S.C.R.
A Entered the house armed PW27
with sword and hit on
Dhanpal’s head, inflicted
injuries on PW1 with sword,
hit on the heads of PW1
and
Dhanpal
B
A9 RAM Entered the house, assaulted PW1
Dhanpal, dragged Dhanpal
from
the house to Gurudwara
which was 100 steps
C away
Came to the house, PW6
Hurled Abuses, hit PW1
Entered the house armed PW27
with iron rod and hit on
Dhanpal’s head,
D hit on the heads of PW1 and
Dhanpal
A10 Entered the house, assaulted PW1
SATYA Dhanpal, attacked PW1
NARAIN when he intervened,
dragged Dhanpal from the
E house to Gurudwara which
was 100 steps away,
caused injuries on PW1’s
head
F Came to the house, Hurled PW6
Abuses,hit PW1
Entered PW1’s house and PW24
attacked Dhanpaland carried
him to
Gurudwara, attacked PW1
G and Dhanpal
Entered the house armed PW27
with iron pipe/wood stick,
hit on the heads of PW1
and
Dhanpal
H
STATE OF RAJASTHAN v. BABLU @ OM PRAKASH 467
[UDAY UMESH LALIT, J.]
A11 KAPTAN Entered the house, attacked PW1 A
PW1 when he intervened,
ragged Dhanpal from the
houseto Gurudwara which
was 100 steps away
B
Entered PW1’s house and PW24
did beating with Dhanpal
with fists and legs and
carried him to
Gurudwara, attacked PW1
and Dhanpal
C
A12 BHURIA Entered the house, attacked PW1
alias PW1 when he intervened
SINGH
Came to the house, Hurled PW6
Abuses,hit PW1
D
Entered the house armed PW27
with iron pipe/wood stick,
hit on
the heads of PW1 and
Dhanpal
A13 RANJEET Entered the house, PW1 E
assaulted Dhanpal
Hurled abuses. Hit on PW2
Dhanpal’s head, dragged
Dhanpal till Gurudwara
which was 100 steps away
from the house, took PW1 to
F
the Gurudwara.
Hurled Abuses, gave PW6
beating to Dhanpal, hit
PW1, dragged Dhanpal
from house to
Gurudwara, ran
towards PW6 tohit hi m G
Entered the house armed PW27
with iron pipe/wood stick,
caught Dhanpal, hit on the
heads of PW1 and Dhanpal
H
468 SUPREME COURT REPORTS [2021] 7 S.C.R.
A 13. The medical evidence on record was unfolded byi) PW17-
Dr. P.P. Bansal who had treated PW1 Sunil, ii) PW19-Dr. Krishna Hari
Sharma who had initially treated Dhanpal and iii) PW30-Dr. Rakesh
Sharma who had conducted post mortem on the body of the deceased
Dhanpal.
B PW36-Dr.Vivek Goel was also examined in respect of injuries
suffered by Accused Nos.1,2 and 7.
14. The Trial Court by its judgment and order dated 19.04.2017
passed order of conviction against all 13 accused as under:-
“Therefore in overall view of aforesaid analysis and in view of
C the citations the prosecution has completely succeeded in proving
far from reasonable doubts the offences u/s 147, 148, 149, 450 or
450/149, 302 or 302 r/w sections 149, 307 or 307 r/w section 149
IPC against the accused persons RadheyShyam alias Golu,
Rajendra alias Tanti, Janak Singh, Ramu alias Ram Singh, Bablu,
D Jeetu alias Jeetmal, GhanShyam alias Pintu, Rajendra, Ram Gopal,
Sattu alias Satya Narain, Kaptan, Bhuria alias Dhara Singh and
Ranjeet. Accordingly, it appears justified for holding the aforesaid
accused persons guilty of the charges for the commission of
aforesaid offences and also it appears justified for acquitting the
aforesaid accused persons of the charges for the offences u/s
E 452 or 452/149 IPC.”
By the order of sentence passed on the same day, the Trial Court
sentenced all 13 accused persons as under:-
“(1) Aforesaid accused persons are held convicted for the
F chargeu/s 147 IPC and are sentenced with 2 years of
rigorous imprisonment.
(2) Aforesaid accused persons are held convicted for the
chargeu/s 148 IPC and are sentenced with 2 years of
rigorous imprisonment and each accused is punished with
a fine of Rs.5000/- and in default of failure to deposit the
G
fine each accused to undergo an additional simple
imprisonment of one month.
(3) Aforesaid accused persons are held convicted for the
charge u/s 450 or 450/149 IPC and are sentenced with 7
years of rigorous imprisonment and each accused is
H
STATE OF RAJASTHAN v. BABLU @ OM PRAKASH 469
[UDAY UMESH LALIT, J.]
punished with a fine of Rs.10000/- and in default of failure A
to deposit the fine each accused to undergo an additional
simple imprisonment of two months.
(4) Aforesaid accused persons are held convicted for the
charge u/s 302 IPC and are sentenced with a life
imprisonment and each accused is punished with a fine of B
Rs.30000/-and in default of failure to deposit the fine each
accused to undergo an additional simple imprisonment of
six months.
(5) Aforesaid accused persons are held convicted for the
charge u/s 307 IPC and are sentenced with 7 years of C
rigorous imprisonment and each accused is punished with
a fine of Rs.10000/- and in default of failure to deposit the
fine each accused to undergo an additional simple
imprisonment of two months.
All the sentences of the accused persons to run concurrently. D
The duration of custody already undergone by the accused persons
in police custody/judicial custody to be adjusted in their duration
of final sentence. Warrant of sentence of the accused persons to
be accordingly prepared.”
14.1 The evidence led by the prosecution through the eyewitnesses E
account of PW1-Sunil Kumar, PW2-Madanpal, PW6-Narain alias
Jainarayan, PW24-Prakash alias Kalu, PW25-Roop Singh and PW27-
Tulsiram was found by the Trial Court to be trustworthy. The submission
advanced on behalf of the accused with regard to PW6-Narain alias
Jainarayan was dealt with by the Trial Court as under:-
F
“In the sequence of the said witness it was contended by the
Counsel during the arguments that the said witness is not the
witness of crime scene and has been planted and his presence is
not corroborated by PW-24 Prakash alias Kalu and he arrived at
the crime scene after the occurrence of incident and in the said
relation PW-29 Chhagan Singh, Investigation Officer, has also G
disclosed that during his investigation he did not find the said
witness as the eyewitness. In the said sequence, the facts and the
contentions rendered by the Investigation Officer and the Counsels
are not found appropriate. On perusing the testimonies rendered
by other witnesses in relation to the said fact wherein the
H
470 SUPREME COURT REPORTS [2021] 7 S.C.R.
A examination-in-chief of PW-1 Sunil itself he has disclosed the
presence of Jai Narain inside his house. In the report Exhibit P-
1 also he has disclosed the presence of Jai Narain inside his house
at the time of occurrence of incident and the said fact has also
been corroborated during his deposition before the Court and which
has not been contradicted in any manner. Similarly has
B
corroborated the presence of Jai Narain during his cross-
examination and had brought him to the hospital after lifting him.
……”
15. All 13 convicted accused, being aggrieved, filed aforesaid D.B.
Criminal Appeal Nos. 179 of 2018, 832 of 2017, 946 of 2017, 993 of
C 2017, 1123 of 2017, 1191 of 2017, 1475 of 2017 and 26 of 2018 in the
High Court. The High Court by its Judgment, presently under challenge,
affirmed the conviction and sentence recorded against Rajendra alias
Tanti (A2) and Janak Singh (A3) but acquitted all other 11 accused
persons of the charges levelled against them. It was observed by the
D High Court:-
“The argument of learned counsel for the appellants is about over
implication and false implication of other accused, who have not
been assigned any specific injury to the injured and deceased even
by eyewitnesses. It is true that when the FIR was registered,
E names of nineteen accused were given apart from involvement
of 10-12 other persons. The police did not file charge-sheet against
seven accused out of nineteen, though charge-sheet against
Ranjeet, who was not named in the FIR, was filed. It is after
making investigation of the case. On the strength of the aforesaid,
we need to find out a case of over-implication, rather, for that, to
F look into the evidence led by the prosecution.
… … …
We find that the prosecution even produced independent witnesses
PW/25 Roopsingh, who has supported the prosecution case and,
G accordingly, corroborated the statement of PW/1 Sunil Kumar.
In view of the above, the prosecution could lead evidence to prove
participation of Janak Singh, Pritam and Rajendra @ Tanti in the
occurrence and to cause head injury to deceased.
The prosecution, however, did not file charge-sheet against Pritam
and even no application under Section 319 Cr.P.C. was moved
H
STATE OF RAJASTHAN v. BABLU @ OM PRAKASH 471
[UDAY UMESH LALIT, J.]
during the course of trial thus despite specific allegation against A
Pritam to cause one head injury to deceased, he has not been
prosecuted.
In view of the above, there remains two accused against whom
specific allegation remains for causing head injury to deceased
Dhanpal, namely Janak Singh and Rajendra @ Tanti. We find B
that eye-witnesses and injured witnesses have not named other
accused in specific terms with assignment of weapon and injury,
either to injured or to deceased. They have been convicted with
the aid of Section 149 IPC.
To appreciate the argument of learned counsel for the appellant, C
we have considered the case to find out as to whether a case for
conviction with the aid of Section 149 IPC is made out. As per the
prosecution, the appellants had a motive to cause the occurrence
and, therefore, they came with common object. The accused were
equipped with the weapons thus not only case of unlawful assembly
was proved but their participation with common object also gets D
proved in reference to the incident took place four days ago when
complainant party attacked on the accused party. It is only to
settle the score that accused came and caused occurrence on
8.3.2012.
We find that four days prior to the date of incident in the present E
case, complainant said to have attacked on the accused party. In
view of the above, there was a motive with the accused to cause
occurrence. Once motive was there, common object to cause
occurrence can also be inferred, however, conviction cannot be
based on inferences but facts proved by evidence. F
… … …
The injured and deceased did not receive injury by sharp edged
weapon but it all depends whether Gandasi was sharp enough to
cause such an injury. In view of the above, we are not inclined to
accept the argument of learned counsel for the appellant Janak G
Singh with reference to the nature of injury to the deceased when
specific 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 been
recovered from him. Against him also specific allegation for H
472 SUPREME COURT REPORTS [2021] 7 S.C.R.
A causing head injury to the deceased has been made. The recovery
of weapon at his disclosure is corroborated by the statement of
eye-witnesses thus, we find case against him also.
So far as Rajendra S/o. Kashi/Dharam Singh is concerned, initially,
the charge-sheet was not filed against him. He has otherwise
B taken a defence of “alibi” in his statement under Section 313
Cr.P.C. It is by stating that four days prior to the date of occurrence
in this case, he sustained injuries on head, thus was at his residence.
He has denied his participation in the occurrence, rather, his
presence therein. The statement of said accused namely Rajendra
S/o Kashi/Dharam Singh has been corroborated by PW/37
C Ramendra Singh. It is stated that on the festival of Holi, he visited
Rajendra S/o Kashi/Dharam Singh at his residence. He was having
head injury covered with a bandage. The said witness has
supported the statement of Rajendra S/o Kashi/Dharam Singh. It
is also a fact that no weapon has been recovered from him and,
D initially, when the FIR was lodged, name of only one Rajendra
was given for head injury. It was subsequently named by the
witness as Rajendra Singh @ Tanti. In view of the above, we find
a case in favour of Rajendra S/o Kashi/Dharam Singh. It is not
only by accepting his plea of alibi but taking into consideration the
evidence to corroborate it.
E
So far as other accused are concerned, since we have not
accepted the case of the prosecution for conviction with the aid
of Section 149 IPC and as specific allegation for causing injury
with the assignment of weapon has not been made, we find a
case in their favour also. We have already recorded the finding
F about previous enmity between the two groups and, at times, it
results in over-implication, which is even established from the fact
that after investigation, charge-sheet was not filed against all the
accused. Thus, mere recovery of the weapons at their disclosure
cannot connect the accused without assignment of injury to them.”
G 16. In this appeal we heard Dr. Manish Singhvi, learned Senior
Advocate and Additional Advocate General on behalf of the State,
Ms. Archana Pathak Dave, learned Advocate for the Complainant and
Mr. Aditya Kumar Choudhary, Mr. Rajesh Singh Chauhan and
Mr. Randhir Kumar Ojha, learned Advocates for the accused-
H respondents.
STATE OF RAJASTHAN v. BABLU @ OM PRAKASH 473
[UDAY UMESH LALIT, J.]
It was submitted on behalf of the appellants that the eyewitness A
account was quite clear and specifically adverted to the overt acts
committed by all the accused and that the High Court was not right in
acquitting 11 accused-respondents. It was submitted that no cogent
reasons were given by the High Court in setting aside the order of
conviction and sentence against said 11 accused-respondents and that
B
this Court would, therefore, be justified in setting aside the order of
acquittal 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 High
Court, there was an incident four days prior to the occurrence in question,
in which some of the accused persons had received injuries. Thus, the C
inter se rivalry between two groups could as well be and was rightly
found 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 who
were examined as eyewitnesses to the occurrence, nothing was brought D
on record to discredit them except the submission that the presence of
PW6-Narain alias Jainarayan was not spoken to or adverted by PW24-
Prakash @ Kalu. The fact that one of these witnesses had suffered
injuries in the transaction and the rest of them had taken the deceased
as well as the injured to medical center immediately after the occurrence E
lends credibility to the case of the prosecution unfolded through these
eyewitnesses. 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-Narain
aliasJainarayan as his presence was not adverted to by PW24-Prakash F
@ Kalu. That leaves us with 5 eyewitnesses who had testified to the
presence and participation of the accused-respondents.
18. In Masalti vs. State of U.P.5 a four Judge Bench of this Court
was called upon to consider whether the approach adopted by the High
Court in convicting only those accused with respect to whom at least G
four witnesses had given a consistent account, came up for consideration.
In that case five persons had lost their lives in the assault opened by the
unlawful assembly and apart from witness Laxmi Prasad, none of the
witnesses had attributed any overt acts to the accused but had merely
5
(1964) 8 SCR 133; AIR 1965 SC 202 H
474 SUPREME COURT REPORTS [2021] 7 S.C.R.
A mentioned the names of the accused being present as part of the unlawful
assembly. Adopting the yardstick as stated above, the High Court affirmed
the conviction of 10 accused persons out of 35 accused persons under
Section 32 read with 149 IPC by the Trial Court, which decision of the
High Court was accepted by this Court.
B 19. The decision in Masalti5 has since then been followed by this
Court consistently and was explained in State of Maharashtra vs.
Ramlal Devappa Rathod and others6 as under:-
21. 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
C Masalti5 is applicable? In Masalti5one Laxmi Prasad and his armed
companions had proceeded to the house of one Gayadin. On the
instigation of Laxmi Prasad, the assailants broke open the doors
of the house of Gayadin, killed four persons including Gayadin
and dragged their bodies out of the house whereafter one more
person was killed. These five dead bodies were then taken to the
D field and set on fire. Out of thirty-five accused who were convicted,
ten accused were given death sentence. The High Court confirmed
their sentence of death and out of the remaining accused, seven
were given benefit of doubt. Insofar as the accused who were
convicted with the aid of Section 149, the High Court adopted a
E test and held that unless at least four witnesses had shown to
have given a consistent account against any of the appellants, the
case against them could not be said to have been proved. The
decision discloses that except Laxmi Prasad, none of the assailants
was assigned any particular part. The evidence as regards other
accused was that they were part of unlawful assembly which is
F evident from the following observations of this Court: (Masalti
case5, AIR p. 207, para 7)
“7. … It also considered another feature which characterised
the evidence of all the witnesses and that was that they gave
their account of the incident substantially in similar terms and
G did not assign particular parts in respect of overt acts to any of
the assailants except Laxmi Prasad, Accused 1.”
The observations of this Court further show that though testimony
of a single witness would be enough to convict an accused person,
H 6
(2015) 15 SCC 77
STATE OF RAJASTHAN v. BABLU @ OM PRAKASH 475
[UDAY UMESH LALIT, J.]
in a case involving large number of accused, where the witnesses A
depose to the fact that certain persons were members of unlawful
assembly which had committed the offences in question, a test so
adopted by the High Court was found to be safe. It was observed
that though every member of the unlawful assembly would be
liable for the offence committed by anyone actuated by and
B
entertaining common object of the unlawful assembly, in the
absence of any overt act or specific allegation, it was possible to
adopt such test.
… … …
24. The liability of those members of the unlawful assembly who C
actually committed the offence would depend upon the nature
and acceptability of the evidence on record. The difficulty may
however arise, while considering the liability and extent of
culpability of those who may not have actually committed the
offence but were members of that assembly. What binds them
and makes them vicariously liable is the common object in D
prosecution of which the offence was committed by other
members of the unlawful assembly. Existence of common object
can be ascertained from the attending facts and circumstances.
For example, if more than five persons storm into the house of the
victim where only few of them are armed while the others are not E
and the armed persons open an assault, even unarmed persons
are vicariously liable for the acts committed by those armed
persons. In such a situation it may not be difficult to ascertain the
existence of common object as all the persons had stormed into
the house of the victim and it could be assessed with certainty
that all were guided by the common object, making every one of F
them liable. Thus when the persons forming the assembly are
shown to be having same interest in pursuance of which some of
them come armed, while others may not be so armed, such
unarmed persons if they share the same common object, are liable
for the acts committed by the armed persons. But in a situation G
where assault is opened by a mob of fairly large number of people,
it may at times be difficult to ascertain whether those who had
not committed any overt act were guided by the common object.
There can be room for entertaining a doubt whether those persons
who are not attributed of having done any specific overt act, were
H
476 SUPREME COURT REPORTS [2021] 7 S.C.R.
A innocent bystanders or were actually members of the unlawful
assembly. It is for this reason that in Masalti5 this Court was
cautious and cognizant that no particular part in respect of an
overt act was assigned to any of the assailants except Laxmi
Prasad. It is in this backdrop and in order to consider
B “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”, (AIR p. 211, para 17)
this Court at SCR pp. 148-49 in Masalti5 observed that his
C 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 Masalti5 was only to determine liability of
those accused against whom there was no clear allegation of
having committed any overt act but what was alleged against
them was about their presence as members of the unlawful
D 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
E counter to the well-known maxim that “evidence has to be weighed
and not counted” as statutorily recognised in Section 134 of the
Evidence Act.”
20. In the backdrop of the principles set out in the decisions of this
Court, even the version of a single witness, if his testimony is found
F reliable by the Court, can be the foundation of the order of conviction.
In the instant case, the evidence of PW1-Sunil Kumar, the brother
of the deceased itself would normally be sufficient. Said witness had
received injuries in the transaction and his presence could not even be
doubted. Additionally, there were four witnesses viz. PW2-Madanpal,
G PW24-Prakash alias Kalu, PW25-Roopsingh and PW27-Tulsiram. The
chart tabulated hereinabove shows the role ascribed to each of the
accused.
21. In the face of such clear, consistent and cogent evidence on
record, the High Court was not justified in proceeding on the basis that
the eyewitnesses had not named other accused in specific terms or
H
STATE OF RAJASTHAN v. BABLU @ OM PRAKASH 477
[UDAY UMESH LALIT, J.]
entertaining any doubt and then recording order of acquittal. The A
approach of the High Court was completely against the settled principles
of law and no valid reasons were given by the High Court as to why the
evidence of all the eyewitnesses could not be relied upon in so far as the
role played by the acquitted accused was concerned. We find the order
of acquittal recorded by the High Court to be completely unjust and its
B
conclusion to be totally against the record.
In these appeals against acquittal, therefore, we do not find
ourselves persuaded to go by the order of acquittal passed by the High
Court as the same, in our considered view, was manifestly erroneous
and perverse.
C
22. Considering the entirety of the material on record, what
emerges is the consistent and cogent eyewitness account on record
through 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 into
account the evidence of PW6-Narain alias Jainarain for the reasons
stated hereinabove. D
23. As there was an earlier incident just four days prior to the
occurrence in question, in order to lend complete assurance and as a
matter of prudence, a criteria may be adopted where, if any of the
eyewitnesses (other than PW6), apart from and in addition to PWs 1
and 27 had adverted to and attributed overt acts to any of the accused,the E
role of such accused can be taken to have been established beyond any
doubt.
We must hasten to add that the principle in Masalti5 would get
attracted where apart from attribution of presence, nothing more was
attributed by way of any overt act. However, in the facts of the instant F
case; and to rule out any possibility of over-implication we have adopted
this criteria, more particularly because we are considering the matter in
appeals against acquittal. Thus, accused A1, A6, A7,A8, A10 and A13
are those who were attributedcertain overt acts not only by PWs 1 and
27 but at least by one more witness, whereas, the role attributed to the G
rest of them was only by PWs 1 and 27 without any other eyewitnesses
apart from PW6, deposing about the role played by them.
24. In the circumstances, we allow these appeals against original
accused A1, A6, A7, A8, A10 and A13 while rest of the accused-
H
478 SUPREME COURT REPORTS [2021] 7 S.C.R.
A respondents are given benefit of doubt and their acquittal, as recorded
by the High Court is confirmed.
The order of conviction and sentence recorded against original
accused A1, A6, A7, A8, A10 and A13 by the Trial Court is thus restored.
These accused persons shall surrender themselves within four weeks
B from today, failing which they shall be taken in custody to serve out the
sentence recorded against them.
The copies of this Judgment and Order shall be sent to the
concerned Police Station and the jurisdictional Chief Judicial Magistrate
for compliance.
C 25. These appeals are partly allowed to the extent indicated above.
Nidhi Jain Appeals partly allowed.
D
E
F
G
H
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