DULESHWAR & ANR. versus THE STATE OF M.P. (NOW CHHATTISGARH)

Citation: [2020] 5 S.C.R. 1001 · Decided: 21-01-2020 · Supreme Court of India · Bench: A.M. KHANWILKAR · Disposal: Disposed off

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Judgment (excerpt)

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DULESHWAR & ANR.
v.
THE STATE OF M.P. (NOW CHHATTISGARH)
(Criminal Appeal No. 1813 of 2017)
JANUARY 21, 2020
[A. M. KHANWILKAR AND DINESH MAHESHWARI, JJ.]
Penal Code,1860:
ss. 147, 148, 302, 302/149 and 325 - Prosecution under – Of
18 accused persons – For causing grievous injury to one person
PW1 and causing death of another – In two different incidents –
Eye-witnesses to both the incidents – High Court convicted 10
accused while acquitting 8 accused giving them benefit of doubt –
Appeal by 9 of the convicted accused persons and Revision filed by
complainant against acquitted accused persons – High Court
affirmed the order of trial court – Appeal to Supreme Court by 7 of
the convicted accused – Held: It is proved from the consistent
testimonies of eye-witnesses that the appellants-accused 1, 2, 5, 7
and 12 formed unlawful assembly with weapons and indulged in
the assault – Count of witnesses is further corroborated by recovery
of blood-stained weapons and clothes – Hence their conviction is
sustained – However, prosecution failed to prove its case beyond
reasonable doubt against appellants-accused 8 and 13.
Allowing the appeals filed by appellants-accused 8 and 13,
while dismissing those filed by other appellants, the Court
HELD:1. The fact that a large assembly was indeed formed,
where the members were armed with weapons including lathis
and tangiyas and they indulged in assault over the deceased, is
evident on the face of record with the consistent testimonies of
the eye-witnesses PW-2, PW-3, PW-4 and PW-5. Even the witness
declared hostile i.e., PW-9 has also testified to the fact of assault
by an assembly over the deceased; he even named at least two of
the assailants. Thus, the fact of formation of an unlawful assembly
with weapons is amply established. Once formation of unlawful
assembly at the time of committing of offence is established, the
question of specific role of an individual member of the assembly
[2020] 5 S.C.R. 1001
1001
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SUPREME COURT REPORTS
[2020] 5 S.C.R.
is rendered secondary. In other words, the prosecution need not
prove any specific overt act on the part of each and every member
of that assembly. It is also established beyond doubt in the present
case that the deceased was brutally beaten black and blue with
extensive injuries all over his body, including contusions,
lacerated wounds and multiple fractures of various bones and
ribs. The post-mortem report and the medical opinion that the
deceased died due to shock with rupture of liver and fracture of
ribs leave nothing to doubt that he was done to harsh and
gruesome death with merciless thrashing, including multiple use
of blunt weapons like lathi. Thus, the fact that there had been an
assembly with the common object of battering the deceased to
death is hardly of any doubt. The manner of causing death makes
it clear that the intention of assailants forming such assembly
had only been to cause death and the acts were done with that
intent alone. [Para 14][1027-A-F]
Lalji v. State of UP (1989) 1 SCC 437 : [1989] 1 SCR
130; Masalti v. State of U.P. [1964] 8 SCR 133 –
relied on.
2. In cases involving multiple accused persons and several
witnesses, it is the quality of evidence that matters and not the
quantity; and even the testimony of a single witness may be
sufficient to establish the identity of an accused as member of an
unlawful assembly but, when the size of assembly is quite large
and many persons have witnessed the incident; and when a witness
deposes in general terms, it would be useful to adopt the test of
consistency of more than one witness so as to remove any doubt
about identity of an accused as a member of the assembly in
question. However, even if adopting such a test of consistency,
what is to be looked for is the ‘consistent account of the incident’;
and the requirement of consistency cannot be overstretched as
if to search for repetition of each and every name of the accused
in each and every testimony. In other words, the comprehension
of overall evidence on record is requisite; and mere counting of
heads or mere recitation of names or omission of any name in the
testimony of any particular witness cannot be decisive of the
matter. In such facts and circumstances, even the relevance of
the corroborating facts and factors like that of recovery of weapons
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or any other article co-related with the crime in question cannot
be ignored altogether. [Paras 15 & 15.1][1

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