State of Rajasthan v. Bablu @ Om Prakash
UDAY UMESH LALIT, J.
1. Leave granted.
2. These appeals are preferred by:
i)State of Rajasthan (appeals arising out of Special Leave Petition
(Crl.) Nos.8676 of 2019, 9003 of 2019, 9004 of 2019, 9124 of 2019,
D.No.32279 of 2019 and D.No.31873 of 2019); and
ii) Sunil S/o. Govindram, the original informant (appeals arising
out of Special Leave Petition (Crl.)Nos.8677-8682 of 2019):-
challenging the acquittal of 11 accused persons namely Ra dhey
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
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 Ja ipur
STATE OF RAJASTHAN v. BABLU @ OM PRAKASH
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 Court2
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 IPC 3.
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:-
“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,
Golu, Mukat, Tanti @ Rajendra, Ramgopal, Atar, Dinesh, Bhuria
@ Dharasingh residents of Ganeshpura and Sukhpal resident of
Ummedganj and Kashiram along with 10-12 persons cam e
equipped with the weapons. They entered into complainant’s house
and attacked Dhanpal. Accused Rajendra and Pritam caused a
blow by a sword, whereas, Janak has been assigned Gandasi and
caused injury to Dhanpal. Other accused Ramgopal, T anti,
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.”
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
PW17 Dr. P.P. Bansal.
2 Special Judge, SC & ST (Prevention of Atrocities C ases) Act, Kota, Rajasthan
3 The Indian Penal Code, 1860
4 As recorded by the High Court in the judgment under appeal.
455
6. The post-mortem on the body of Dhanpalwas conducted by
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
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
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.
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
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.
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 an d was
swollen.”
According to the medical opinion, the death ofDhanpal was due
to coma caused by the injuries caused upon him immediately prior
to his death.
STATE OF RAJASTHAN v. BABLU @ OM PRAKASH
[UDAY UMESH LALIT, J.]
7. During the course of investigation, following recoveries were
made pursuant to disclosure statements of some of the accused:-
PWs Name of Witness Recovery At whose
instance
PW7
DevkrishanGurjar
Iron Pipe A1
Stick A7
Iron Rod A6
PW8 Jagdish Gurjar Iron Pipe A1
Stick A7
PW9 Pawan
Iron Pipe and
Motor Cycle A2
Gandasi and
Motor Cycle A3
PW10 Radheshyam
Iron Pipe and
Motor Cycle A2
Gandasi and
Motor Cycle A3
PW11 Rafiq Iron Pipe A10
PW12 Naresh Iron Pipe A10
PW14 Suresh Iron Rod A6
PW15 Devilal
Iron Rod A4
Iron Rod A12
PW16 Deewansingh Iron Rod A4
Iron Rod A12
PW20 Hiralal Iron Rod A5
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
named earlier, in respect of offences punishable under Secti ons 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.
9. The prosecution examined 40 witnesses in support of its cas e
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:
457
“Incident pertains to dated 08.03.2012 time at 1:30-2:00 PM in
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
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
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
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 w ith
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. T he
said persons ran away towards Ganeshpura after committi ng
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:
“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
on my hands and legs, injuries were there on my back also. M y
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
STATE OF RAJASTHAN v. BABLU @ OM PRAKASH
[UDAY UMESH LALIT, J.]
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 festi val I
was sitting inside my room, my brother was walking in the chowk.
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
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
alias Kalu (PW24), Roop Singh (PW25) and Tulsi Ram (PW27) were
examined by the prosecution as eye-witnesses to the occurre nce.
Evidence of these eye witnesses was completely consistent with
that of PW1 Sunil except for certain minor variations.
A. PW2-Madanpal stated:-
“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,
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
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
459
vehicle of Sunil brought them to Kaithun Hospital, where after
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
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
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
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
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,
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
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…”
STATE OF RAJASTHAN v. BABLU @ OM PRAKASH
[UDAY UMESH LALIT, J.]
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 o f
Rajendra, Gandasi was in the hand of Janak and pipe was with
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. …”
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 @
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
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
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
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 acc used can be
tabulated as under:-
461
Accused Role Ascribed Witness
A1 RADHEY
SHAM alias
GOLU
Entered the house PW1
Hurled abuses. Hit on
Dhanpal’s head,
dragged Dhanpal till
Gurudwara which was
100 steps away from the
house, took PW1 to the
Gurudwara.
PW2
Came to the house, Hurled
Abuses, Hit on Dhanpal’s
head, dragged Dhanpal from
the house to Gurudwara
which was 100 steps
away, hit PW1.
PW6
Entered the house armed
with Iron Pipe, hiton the
heads of PW1
and Dhanpal.
PW27
A2 RAJENDRA Entered the house,
carrying iron pipe,
assaulted Dhanpal,
inflicted blows of rod on
the hands, legs, knees
and body of Dhanpal,
dragged Dhanpal from
the house to Gurudwara
which was 100 steps
away, assaulted PW1
inside the house as well
as outside the house.
PW1
Hurled abuses. Hit on
Dhanpal’s head,
dragged Dhanpal till
Gurudwara which was
100 steps away from the
house, took PW1 to the
Gurudwara.
PW2
STATE OF RAJASTHAN v. BABLU @ OM PRAKASH
[UDAY UMESH LALIT, J.]
Came to the house,
Hurled Abuses, hit
Dhanpal on head with
Iron Rod, hit PW1,
dragged Dhanpal from
house to Gurudwara, ran
towards PW6 to hit him.
PW6
Entered PW1’s house
and did beating with
Dhanpal with fists and
legs and carried him to
Gurudwara, hit PW1
with iron pipe, hit
Dharampal with iron
pipe.
PW24
Hurled abuses at
Dhanpal, Came to gate
and hit Dhanpal inside
the house, hit Dhanpal
PW25
Entered the house
armed with Iron Pipe
and hit on Dhanpal’s
head, hit on the heads of
PW1 and Dhanpal.
PW27
A3
SINGH
Entered the house,
attacked Dhanpal with
gandassa, dragged
Dhanpal from the house
to Gurudwara which
was 100 steps away.
PW1
Hurled abuses. Hit on
Dhanpal’s head,
dragged Dhanpal till
Gurudwara which was
100 steps away from the
house, took PW1 to the
Gurudwara.
PW2
463
Came to the house,
Hurled Abuses, hit
Dhanpal on head with
Gandasi, hit PW1,
dragged Dhanpal from
house to Gurudwara, ran
towards PW6 to hit him.
PW6
Entered PW1’s house
and did beating with
Dhanpal with fists and
legs and carried him to
Gurudwara, hit PW1
with gandasi, hit
Dharampal with iron
pipe.
PW24
Hurled abuses at
Dhanpal, Came to gate
and hit Dhanpal inside
the house, hit Dhanpal
with gandasi, hit on
Dhanpal’s head.
PW25
Entered the house
armed with gandasi and
hit on the head of
Dhanpal, hit on the
heads of PW1 and
Dhanpal.
PW27
A4 RAMU alias
RAM
SINGH
Entered the house,
dragged Dhanpal from
the house to Gurudwara
which was 100 steps
away.
PW1
Entered the house
armed with iron
pipe/wood stick, hit on
the heads of PW1 and
Dhanpal
PW27
STATE OF RAJASTHAN v. BABLU @ OM PRAKASH
[UDAY UMESH LALIT, J.]
A5 BABLU
aliasOM
PRAKASH
Assaulted Dhanpal,
attacked PW1 when he
intervened, dragged
Dhanpal from the house
to Gurudwara which are
100 steps away, caused
injuries on front side
PW1’s head
PW1
Entered the house
armed with iron
pipe/wood stick, hit on
the heads of PW1 and
Dhanpal.
PW27
A6
JEETMAL
Entered the house,
assaulted Dhanpal,
dragged Dhanpal from
the house to Gurudwara
which was 100 steps
away.
PW1
Came to the house,
Hurled Abuses,hit PW1
PW6
Entered PW1’s house
and did beating with
Dhanpal with fists and
legs and carried him to
Gurudwara, attacked
Dhanpal and PW1
PW24
Entered the house
armed with iron
pipe/wood stick, hit on
the heads of PW1 and
Dhanpal
PW27
A7 GHAN
alias PINTU
Entered the house,
dragged Dhanpal from
the house to Gurudwara
which was 100 steps
away
PW1
465
Hurled abuses. Hit on Dhanpal’s
head, dragged
Dhanpal till Gurudwara which was
100 steps away from the house, took
PW1 to the Gurudwara.
PW2
Came to the house, Hurled
Abuses,gave
beating to Dhanpal, hit PW1
PW6
Entered the house armed with wood
stick, hit on
the heads of PW1 and Dhanpal
PW27
A8 RAJENDRA Entered the house, Attacked
Dhanpal on head with sword,
caused injury with swordon the
backside of Dhanpal’s head,
dragged Dhanpal from the house to
Gurudwara
which was 100 steps away
PW1
Gave Dhanpal one blow on the head PW2
Hurled Abuses, hit Dhanpal on head
with swords, hit PW1
PW6
Entered PW1’s house and did
beating with Dhanpal with fists and
legs and carried him to Gurudwara,
hit PW1 with sword, hit
Dharampal with sword
PW24
Hurled abuses at Dhanpal, Came to
gate and hit Dhanpal inside the
house, hit Dhanpal
with sword, hit on Dhanpal’s head
PW25
STATE OF RAJASTHAN v. BABLU @ OM PRAKASH
[UDAY UMESH LALIT, J.]
Entered the house armed
with sword and hit on
Dhanpal’s head, inflicted
injuries on PW1 with sword,
hit on the heads of PW1
and
Dhanpal
PW27
A9 RAM Entered the house, assaulted
Dhanpal, dragged Dhanpal
from
the house to Gurudwara
which was 100 steps
away
PW1
Came to the house,
Hurled Abuses, hit PW1
PW6
Entered the house armed
with iron rod and hit on
Dhanpal’s head,
hit on the heads of PW1 and
Dhanpal
PW27
A10
SATYA
NARAIN
Entered the house, assaulted
Dhanpal, attacked PW1
when he intervened,
dragged Dhanpal from the
house to Gurudwara which
was 100 steps away,
caused injuries on PW1’s
head
PW1
Came to the house, Hurled
Abuses,hit PW1
PW6
Entered PW1’s house and
attacked Dhanpal and carried
him to
Gurudwara, attacked PW1
and Dhanpal
PW24
Entered the house armed
with iron pipe/wood stick,
hit on the heads of PW1
and
Dhanpal
PW27
467
A11 KAPTAN Entered the house, attacked
PW1 when he intervened,
ragged Dhanpal from the
house to Gurudwara which
was 100 steps away
PW1
Entered PW1’s house and
did beating with Dhanpal
with fists and legs and
carried him to
Gurudwara, attacked PW1
and Dhanpal
PW24
A12 BHURIA
alias
SINGH
Entered the house, attacked
PW1 when he intervened
PW1
Came to the house, Hurled
Abuses,hit PW1
PW6
Entered the house armed
with iron pipe/wood stick,
hit on
the heads of PW1 and
Dhanpal
PW27
A13 RANJEET Entered the house,
assaulted Dhanpal
PW1
Hurled abuses. Hit on
Dhanpal’s head, dragged
Dhanpal till Gurudwara
which was 100 steps away
from the house, took PW1 to
the Gurudwara.
PW2
Hurled Abuses, gave
beating to Dhanpal, hit
PW1, dragged Dhanpal
from house to
Gurudwara, ran
towards PW6 tohit him
PW6
Entered the house armed
with iron pipe/wood stick,
caught Dhanpal, hit on the
heads of PW1 and Dhanpal
PW27
STATE OF RAJASTHAN v. BABLU @ OM PRAKASH
[UDAY UMESH LALIT, J.]
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. Rake sh
Sharma who had conducted post mortem on the body of the deceased
Dhanpal.
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 vie w of
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 Go lu,
Rajendra alias Tanti, Janak Singh, Ramu alias Ram Singh, Bablu,
Jeetu alias Jeetmal, GhanShyam alias Pintu, Rajendra, Ram Gopal,
Sattu alias Satya Narain, Kaptan, Bhuria alias Dhara Sin gh 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
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 t he
chargeu/s 147 IPC and are sentenced with 2 years of
rigorous imprisonment.
(2) Aforesaid accused persons are held convicted for th e
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
fine each accused to undergo an additional simple
imprisonment of one month.
(3) Aforesaid accused persons are held convicted for th e
charge u/s 450 or 450/149 IPC and are sentenced with 7
years of rigorous imprisonment and each accused is
469
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.
(4) Aforesaid accused persons are held convicted for th e
charge u/s 302 IPC and are sentenced with a life
imprisonment and each accused is punished with a fine of
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 th e
charge u/s 307 IPC and are sentenced with 7 years of
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 .
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
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-Narai n alias
Jainarayan was dealt with by the Trial Court as under:-
“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
disclosed that during his investigation he did not find the s aid
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 whe rein the
STATE OF RAJASTHAN v. BABLU @ OM PRAKASH
[UDAY UMESH LALIT, J.]
examination-in-chief of PW-1 Sunil itself he has disclosed t he
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 a lso
been corroborated during his deposition before the Court and which
has not been contradicted in any manner. Similarly has
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
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 accus ed
persons of the charges levelled against them. It was obs erved by the
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 regi stered,
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 a gainst
Ranjeet, who was not named in the FIR, was filed. It is aft er
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
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,
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
471
during the course of trial thus despite specific allegation against
Pritam to cause one head injury to deceased, he has not bee n
prosecuted.
In view of the above, there remains two accused against w hom
specific allegation remains for causing head injury to deceas ed
Dhanpal, namely Janak Singh and Rajendra @ Tanti. We find
that eye-witnesses and injured witnesses have not named othe r
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,
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
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 occurrenc e on
8.3.2012.
We find that four days prior to the date of incident in the present
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 caus e
occurrence can also be inferred, however, conviction cannot b e
based on inferences but facts proved by evidence.
… … …
The injured and deceased did not receive injury by sharp edge d
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 Jan ak
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
STATE OF RAJASTHAN v. BABLU @ OM PRAKASH
[UDAY UMESH LALIT, J.]
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
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, rathe r, his
presence therein. The statement of said accused namely Rajendra
S/o Kashi/Dharam Singh has been corroborated by PW/ 37
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 witnes s 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,
initially, when the FIR was lodged, name of only one Rajendra
was given for head injury. It was subsequently named by t he
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.
So far as other accused are concerned, since we hav e not
accepted the case of the prosecution for conviction with the aid
of Section 149 IPC and as specific allegation for causing in jury
with the assignment of weapon has not been made, we find a
case in their favour also. We have already recorded the finding
about previous enmity between the two groups and, at time s, 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.”
16. In this appeal we heard Dr. Manish Singhvi, learned Se nior
Advocate and Additional Advocate General on behalf of the State,
Ms. Archana Pathak Dave, learned Advocate for the Complainant a nd
Mr. Aditya Kumar Choudhary, Mr. Rajesh Singh Chauha n and
Mr. Randhir Kumar Ojha, learned Advocates for the a ccused-
respondents.
473
It was submitted on behalf of the appellants that the eyewitne ss
account was quite clear and specifically adverted to th e overt acts
committed by all the accused and that the High Court was not right in
acquitting 11 accused-respondents. It was submitted th at no cogent
reasons were given by the High Court in setting aside th e order of
conviction and sentence against said 11 accused-respondents and that
this Court would, therefore, be justified in setting aside th e order of
acquittal recorded by the High Court.
The learned Advocates appearing on behalf of the acc used-
respondents, on the other hand, submitted that, as found by the H igh
Court, there was an incident four days prior to the occurrence in question,
in which some of the accused persons had received injuries. Thu s, the
inter se rivalry between two groups could as well be and was ri ghtly
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
on record to discredit them except the submission that the prese nce of
PW6-Narain alias Jainarayan was not spoken to or adverted by PW24-
Prakash @ Kalu. The fact that one of these witnesses had s uffered
injuries in the transaction and the rest of them had taken the de ceased
as well as the injured to medical center immediately after the occurrence
lends credibility to the case of the prosecution unfolded through t hese
eyewitnesses. Nothing has been brought on record in the ir cross-
examinations to dislodge the credibility of these witnesses.
Even then, we may eschew the testimony of PW6-Narai n
aliasJainarayan as his presence was not adverted to by PW24-Prakash
@ Kalu. That leaves us with 5 eyewitnesses who had testi fied 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 wh om at least
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, no ne of the
witnesses had attributed any overt acts to the accused bu t had merely
STATE OF RAJASTHAN v. BABLU @ OM PRAKASH
[UDAY UMESH LALIT, J.]
5 (1964) 8 SCR 133; AIR 1965 SC 202
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 unde r
Section 32 read with 149 IPC by the Trial Court, which decision of the
High Court was accepted by this Court.
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 others 6 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
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 Gayadi n
and dragged their bodies out of the house whereafter one mo re
person was killed. These five dead bodies were then taken to the
field and set on fire. Out of thirty-five accused who were convicted,
ten accused were given death sentence. The High Court confirmed
their sentence of death and out of the remaining accused, seven
were given benefit of doubt. Insofar 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 t o
have given a consistent account against any of the appellants, the
case against them could not be said to have been proved. The
decision discloses that except Laxmi Prasad, none of the assailants
was assigned any particular part. The evidence as regards other
accused was that they were part of unlawful assembly which is
evident from the following observations of this Court: (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
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,
6 (2015) 15 SCC 77
475
in a case involving large number of accused, where the witnesses
depose to the fact that certain persons were members of unlawful
assembly which had committed the offences in question, a test so
adopted by the High Court was found to be safe. It was observed
that though every member of the unlawful assembly would be
liable for the offence committed by anyone actuated by a nd
entertaining common object of the unlawful assembly, in t he
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
actually committed the offence would depend upon the nature
and acceptability of the evidence on record. The difficulty ma y
however arise, while considering the liability and ex tent of
culpability of those who may not have actually committed the
offence but were members of that assembly. What binds the m
and makes them vicariously liable is the common objec t in
prosecution of which the offence was committed by o ther
members of the unlawful assembly. Existence of common object
can be ascertained from the attending facts and circumsta nces.
For example, if more than five persons storm into the house of the
victim where only few of them are armed while the others are not
and the armed persons open an assault, even unarmed persons
are vicariously liable for the acts committed by those a rmed
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 certai nty
that all were guided by the common object, making every one of
them liable. Thus when the persons forming the assembly are
shown to be having same interest in pursuance of which some of
them come armed, while others may not be so armed, s uch
unarmed persons if they share the same common object, are liable
for the acts committed by the armed persons. But in a si tuation
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
STATE OF RAJASTHAN v. BABLU @ OM PRAKASH
[UDAY UMESH LALIT, J.]
innocent bystanders or were actually members of the unla wful
assembly. It is for this reason that in Masalti5 this Court was
cautious and cognizant that no particular part in respect of a n
overt act was assigned to any of the assailants except L axmi
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”, (AIR p. 211, para 17)
this Court at SCR pp. 148-49 in Masalti5 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 Masalti5 was only to determine liability of
those accused against whom there was no clear allegati on of
having committed any overt act but what was alleged against
them was about their presence as members of the unl awful
assembly. The test so adopted was not to apply to cases where
specific allegations and overt acts constituting the offe nce are
alleged or ascribed to certain named assailants. If such test is to
be adopted even where there are specific allegations and ove rt
acts attributed to certain named assailants, it would directly run
counter to the well-known maxim that “evidence has to be weighed
and not counted” as statutorily 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 testi mony is found
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 wi tness had
received injuries in the transaction and his presence could not ev en be
doubted. Additionally, there were four witnesses viz. PW2-Madanpal,
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 evidenc e 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
477
entertaining any doubt and then recording order of acqui ttal. 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. We find the order
of acquittal recorded by the High Court to be completely unjust and its
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 e rroneous
and perverse.
22. Considering the entirety of the material on record, w hat
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 re asons
stated hereinabove.
23. As there was an earlier incident just four days prior to t he
occurrence in question, in order to lend complete assurance and a s a
matter of prudence, a criteria may be adopted where, i f any of the
eyewitnesses (other than PW6), apart from and in addition to P Ws 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.
We must hasten to add that the principle in Masalti5 would get
attracted where apart from attribution of presence, nothin g more was
attributed by way of any overt act. However, in the facts of the instant
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
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-
STATE OF RAJASTHAN v. BABLU @ OM PRAKASH
[UDAY UMESH LALIT, J.]
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
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.
25. These appeals are partly allowed to the extent indicated above.
Nidhi Jain Appeals partly allowed.