SC:Sole testimony can establish identity of a member of unlawful assembly

The Hon’ble Supreme Court, on 21st January 2020, in the matter of Duleshwar & Anr. v. The State of M.P (Now Chhattisgarh) with Criminal Appeal No. 1815 of 2017 and Criminal Appeal No. 1814 of 2017 observed that 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.

The Hon’ble Supreme Court observed that:

Formation of an unlawful assembly with common object being the basic ingredient for invoking Section 149 IPC, the first point to be determined is as to whether formation of such an unlawful assembly is established. (Para 14)

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 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. (Para 14)

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 or any other article co-related with the crime in question cannot be ignored altogether. (Para 15.1)

Copy of judgement: Judgement_21-Jan-2020

-Adv. Tushar Kaushik 

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