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Saturday, July 4, 2015

No interference in acquittal=To us, it is doubtful whether PW2 Mewa Ram could be called a natural and truthful witness and could be completely relied upon. The movements of Akash are also not established to show that he was actually there as suggested by the witness. Since PW2 Mewa Ram is the sole witness and the entire case depends on his testimony, we have looked for even minutest detail which could possibly lend corroboration. We have however not been able to locate any such material. In order to evoke confidence and place intrinsic reliance on the testimony of this sole witness, we tried to find some corroboration on material particulars, which unfortunately is lacking. The assessment of the entire material has left many doubts and questions unanswered. Two facts, that the baithak was of ownership of the respondents and that the body of Akash was found there, though very crucial, cannot by themselves be sufficient to fix the liability. The baithak was not part of the house, was across the road and apparently accessible to others. And importantly, presence of respondents--whether some or all of them, has not been fully established. -According to the prosecution the weapon was blood stained and was kept in the folds of dhoti by said Sanjay. However, no such blood stained dhoti of respondent Sanjay was recovered. For that matter no blood stained clothes were recovered from any of the respondents though they were supposed to be authors of the crime which left body of Akash in a pool of blood. Even the blood stains found on the cemented portion from Chamunda Math, though of human origin, were quite disintegrated as per FSL examination.In the circumstances and particularly when we are considering an appeal against acquittal, the interference in the present case would be justified and called for, only if we were to find the testimony of the sole witness of such character that it could be fully relied upon. In the present matter where the accused are being tried for an offence punishable with capital punishment, the scrutiny needs to be stricter. In our view the material on record definitely falls short and the respondents are entitled to benefit of doubt. We, therefore, affirm the view taken by the High Court and dismiss the state appeals. The appeal preferred by the Complainant is also dismissed.

                                                                  Reportable


                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL Nos.623-24/2008


State of U.P.                                          …. Appellant

                                   Versus

Satveer & Ors.                                        …. Respondents

                          With Crl. A. 622 OF 2008


                               J U D G M E N T



Uday Umesh Lalit, J.



1.    These appeals by Special Leave arise out of judgment and  order  dated
24.04.2007 passed by the High Court of Judicature at Allahabad  in  Criminal
Appeal  No.7911  of  2006  and  Criminal  Reference  No.15  of  2006.  While
rejecting the Reference, the High Court allowed  the  Appeal  and  acquitted
the respondents of the charges under Section 302 read with Section 34 IPC.

2.    Pursuant to the statement of PW1 Roop Basant recorded by scribe  Soran
Lal at 12:45 p.m. on 24.02.2006, Crime  No.23  was  registered  with  Police
Station Khurja Dehaat, Bulandshahar against the respondents. It was  alleged
that on that day Akash aged about 8 years, nephew of said  PW1  was  playing
near Ambedkar Park. At about 10 a.m. respondent Subhadra took said Akash  to
her baithak, which was seen by villagers Mewa Ram and Vijay  Pal.   At  that
time three sons of said Subhadra, who along with  Subhadra  are  respondents
herein, were sitting in the Verandah. They went inside  taking  Akash  along
with them and did not come out for about half an hour. It was  alleged  that
the respondents then came  out  with  a  “thaal”  filled  with  articles  of
worship (pooja samagri) and went towards Chamunda Math  for  worship.  Since
Mewa Ram and Vijay Pal did not see Akash coming  out,  they  suspected  some
foul play and soon after the respondents had left  for  Chamunda  Math  they
went inside the baithak. As they entered, they saw dead body of Akash  lying
in a pool of blood with nostrils and ears cut.  They  raised  hue  and  cry,
which attracted    number of villagers.  When  the  villagers  saw  body  of
Akash, the situation took an ugly turn and there  was  complete  chaos.  The
people then went to the Math and assaulted the respondents.

3.     The police thereafter arrived in the village and  Inquest  Panchanama
was conducted  between  2:30  p.m.  to  4:00  p.m.  Around  this  time,  the
respondents were arrested at about 3:30 p.m. After the inquest, the body  of
Akash was sent for post mortem. PW7 Dr. Rajesh Kumar conducted  post  mortem
at 4:30 p.m and found following ante mortem injuries on  the  body  of  said
Akash :-
An incised wound size 1cm X 0.5cm X muscle &  cartilage  deep  present  over
pinna of right ear.
2.     A contusion 5 cms X 3 cms  present  over  right  side  of  face  just
anterior to the right ear.
A braded contusions 5 cms X 3 cms present over left side of face 3 cms  away
from nose.
4.    A contusion 4 cms X 3 cms present over left side of face  3  cms  away
from nose
5.    An incised wound 1 cm X .5 cm X muscle &  cartilage  and  muscle  deep
present over left side of nostril.
6     An incised wound 1 cm X .5 cm X muscle & cartilage deep  present  over
right side of nostril.
7.    An incised wound 1 cm X .5 cm X muscle deep present over tip of chin.
8.    Multiple contusion in the area of 7cms X 5 cms over anterior  &  right
side of neck at the level of Adam’s apple
9.    Abraded contusion 4 cms x 4cms present over anterior  aspect  of  neck
over Adam’s apple and towards left side.

It was found that there was bleeding from the mouth  and  nostrils.  As  per
PW7 Dr. Rajesh Kumar,  the  cause  of  death  was  asphyxia  resulting  from
throttling. The witness stated that injury Nos.1, 5, 6 and 7  were  possible
by a sharp cutting weapon.

While the respondents were arrested, on personal search of  accused  Sanjay,
blood stained dharati or sickle was recovered. Since  the  respondents  were
found to be having injuries, they were referred to PW3  Dr.  A.  Kumar,  who
found seventeen injuries on the body of respondent  Sanjay,  one  injury  on
the  body  of  respondent  Satveer  and  four  injuries  on  the  person  of
respondent Subhadra.  The injuries were fresh and  in  the  opinion  of  the
witness  were  possibly  received  around  11:15  a.m.  on  the  same   day.
Investigating Officer  prepared  Site  plan  Ext.Ka-15  according  to  which
baithak in question was about 12’ x 12’  with  one  door  and  an  adjoining
verandah in front and the  baithak  was  bounded  by  a  boundary  wall.  He
recovered blood stained earth from the baithak and  blood  stained  cemented
portion from Chamunda Math, which blood was  later  found  to  be  of  human
origin.

After  completing  investigation,  charge  sheet  was  filed   against   the
respondents and they were tried in the court of  Additional  Sessions  Judge
(Fast Track Court), Bulandshahar  in  Sessions  Trial  No.516  of  2006  for
having committed the offences under Section 302 read  with  Section  34  IPC
and Section 7 of Criminal Law Amendment Act. The prosecution in  support  of
its case examined seven witnesses including two Doctors namely  PWs3  and  7
and Informant Roop Basant as PW1. Mewa Ram  was  examined  as  PW2.  In  his
testimony PW2 stated that on 21.02.2006 at about 10:00  a.m.  while  he  was
sitting in front of Ambedkar Park on a bench outside the clinic of a  doctor
along with Vijay Pal, he saw respondent Subhadra take Akash to  the  baithak
by holding his arm, where respondents  Satveer,  Sanjay  and  Shishpal  were
already present.  All the respondents then went inside along with Akash  and
did not come out for about half an hour.  Thereafter  the  respondents  came
out with a “thaal” with “pooja samagri”  and  went  towards  Chamunda  Math.
Since Akash was nowhere to be seen, the  witness  and  Vijay  Pal  suspected
foul play. They immediately went inside the baithak and saw  the  dead  body
of Akash lying in a pool of blood. He further stated that in  Chamunda  Math
he could see stains of blood  on  cemented  portion  and  according  to  the
witness the respondents were indulging in Tantrism. The witness stated  that
the injuries on the person of respondents were as a result of beating  given
by the villagers and that the respondents had thereafter fled away.  In  the
cross examination of the witness nothing was suggested to  the  effect  that
said baithak was not of the ownership and control of the respondents.

The Trial Court after considering the  material  on  record  found  the  eye
witness account coming from PW2 Mewa Ram to  be  trustworthy  and  that  the
case was fully established against the respondents.  It  recorded  findings;
a) That on 24.02.2006 at about  10:00  O’clock  accused  Subhadra  took  the
deceased Akash by holding his hand to their baithak.  b)  That  the  accused
Satveer, Sanjay and Shishpal also accompanied Subhadra  while  going  inside
the baithak. c) That all the accused Subhadra, Sanjay, Shishpal and  Satveer
came out of baithak after 20-25 minutes.  d)  That  they  were  holding  the
Pooja Samagiri. e) That all the accused offered prayer at Chamunda Math  and
offered flowers, batasa and lit the lamp there. f) That  PW2  Mewa  Ram  had
seen the dead body of Akash and found that ears and nose of Akash  were  cut
and he was in pool of blood. g) That PW2 Mewa Ram was sitting on  the  bench
near the clinic of a doctor which was 10-12 feet  away  from  the  place  of
incident. h) That the dead body of deceased Akash was found in  the  baithak
of accused persons which proved the death or  human  sacrifice  by  all  the
accused persons.

The Trial Court convicted  the  respondents  under  Section  302  read  with
Section 34 IPC. After considering the submissions advanced on behalf of  the
prosecution and the respondents on the issue of punishment, the Trial  Court
by its further order found the case to be rarest of rare warranting  extreme
punishment  of  death  penalty.  It  thus  imposed  death  penalty  on   the
respondents subject to confirmation by the High Court.

7.    The matter reached the High Court upon Reference so made by the  Trial
Court.  The  respondents  also  preferred  Crl.  Appeal  No.7911   of   2006
challenging their conviction and sentence. By its judgment under appeal  the
High Court rejected the Reference and  allowed  the  Appeal  acquitting  the
respondents of the charges leveled against them.  The  High  Court  accepted
that the prosecution had proved that Akash a boy of eight years was done  to
death at about 10 a.m. on 24.02.2006 in the baithak  owned  by  respondents.
It however took the view that  the  prosecution  had  failed  to  prove  the
complicity of the respondents in the offence. It observed  that  looking  to
its contents and language, the First Information Report did  not  appear  to
be a genuine document and the  scribe  Soran  Lal  was  also  not  examined.
According to the High Court it did not stand to reason that large number  of
villagers had apprehended the respondents and given them thrashing  and  yet
allowed them to escape, that respondent Subhadra, a lady of 58 years,  would
so succeed in running away. It also found force in  the  contention  of  the
respondents that the place of occurrence was an open  place  and  accessible
to all.

8.     The  State  being  aggrieved  has  preferred   the   instant   appeal
challenging the order of acquittal passed by the High Court.  The  informant
Roop Basant also filed Crl.  Appeal  No.622  of  2008.  Mr.  Ratnakar  Dash,
learned Senior Advocate appearing for the State contended that the  evidence
on record clearly established that PW2 Mewa Ram had seen Akash  being  taken
inside the baithak by the respondents, that the respondents came  out  after
about 25 minutes without said Akash and proceeded towards Chamunda Math  and
that being suspicious the witness and Vijay  Pal  entered  the  baithak  and
found the body lying in a pool of blood. It was submitted that  nothing  was
brought in the cross examination of the witness that  the  baithak  was  not
under the control of the respondents accused.  Though  separate  appeal  was
preferred by informant Roop Basant, none appeared in support  thereof.  Mrs.
Rani Chabra appeared for the respondents and supported the  assessment  made
and conclusions drawn by the High Court. It was submitted that there was  no
direct evidence regarding murder by the  respondents  and  that  except  PW2
Mewa Ram none of the villagers was examined by the prosecution.

9.    In the instant case two facts were accepted to  have  been  proved  on
record by the trial court as well as the High Court, namely,  (a)  the  dead
body of Akash was found inside the baithak and (b) said baithak belonged  to
the respondents.  The prosecution has examined only  one  witness  i.e.  PW2
Mewa Ram who can throw some light. The spot panchnama Ext. Ka-15 shows  that
on one side of the road is the house of the respondents  next  to  which  is
Chamunda Math and on the other side of the road is the baithak in  question.
 Thus, according to the sole witness he saw respondent Subhadra coming  from
her house on one side of the  road  and  then  proceeding  across  the  road
towards the baithak  holding  the  arm  of  Akash.   According  to  him  the
respondents were inside the baithak for some 20-25 minutes,  and  when  they
went towards Chamunda Math i.e. to the  other  side  of  the  road,  he  and
Vijaypal could immediately enter the baithak and see the dead body lying  in
a pool of blood, which meant that the baithak was not locked at all.

10.   It is the case of the prosecution that the victim  was  last  seen  in
the company of the respondents.  The “last seen” theory in the present  case
has two facets, (i) in terms of proximity of time and (ii)  as  regards  the
place itself, as the dead body of Ashok was found from the very  same  place
where the victim was seen to have been taken by the  respondents.   The  law
on the point is summed up by this Court in State of  U.P.  v.  Satish[1]  as
under:
“The last seen theory comes into play where the time-gap between  the  point
of time when the accused and the deceased were seen last alive and when  the
deceased is found dead is so small that  possibility  of  any  person  other
than the accused being the author of the crime becomes impossible.”

11.   The last seen theory in the present case having  dimensions  in  terms
of time as well place, would certainly clinch the matter  if  the  testimony
of PW2 Mewa Ram is accepted.  Everything hinges on his testimony. He is  the
sole witness. It was stated by this Court in Joseph v.  State  of  Kerala[2]
that where there is a sole witness his evidence has to be accepted  with  an
amount of caution and after testing it on the touchstone of  other  material
on record.  Further, in State of Haryana v. Inder Singh[3] it was laid  down
that the testimony of a  sole  witness  must  be  confidence  inspiring  and
beyond suspicion,  thus,  leaving  no  doubt  in  the  mind  of  the  Court.
Noticing  these  two  Judgments  this  Court  in  Ramnaresh  v.   State   of
Chhattisgarh[4] summed up the principles as under:
“The principles stated in these judgments are indisputable.  None  of  these
judgments say that the testimony of the sole  eyewitness  cannot  be  relied
upon or conviction of an accused cannot be based upon the statement  of  the
sole eye-witness to the crime. All that is needed is that the  statement  of
the sole eye-witness should be reliable, should not leave any doubt  in  the
mind of the Court and has to be corroborated by other evidence  produced  by
the prosecution in relation to commission of the crime  and  involvement  of
the accused in committing such a crime.”

          The evidence of the sole witness thus needs to be considered  with
caution and after testing  it  against  other  material  and  further,  such
evidence must inspire confidence and ought to be beyond suspicion.

12.   We now proceed to examine the testimony of the  sole  witness  in  the
context of the material on  record.   According  to  PW2  Mewa  Ram  he  was
sitting on a bench in front of the clinic of a doctor with Vijaypal when  he
saw Akash being led inside the baithak by the respondents.  Apart  from  his
own testimony nothing has been placed on record  by  the  prosecution  which
could lend corroboration  to  his  own  presence  and  the  content  of  his
version.  First, no reason has been given why Mewa  Ram  and  Vijaypal  were
sitting on the bench outside the clinic of the doctor.  Neither  the  doctor
nor Vijaypal were examined.  Beyond the testimony  of  the  witness  himself
there is nothing to indicate whether PW2 Mewa Ram was actually there at  the
relevant  time  or  not.   Secondly,  the  place  from  where  he  allegedly
witnessed the occurrence is not a natural place  where  either  the  witness
resides or carries on any vocation.  The reason for his being there  is  not
placed on record.  Again the reason for his continuing to be there  for  20-
25 minutes is also not spelt out.  Thirdly, none from  the  house  of  Akash
was examined nor did PW1 Roop Basant throw any light as to when  Akash  left
the house and in whose company was he playing.  Neither has the  prosecution
given the names of those children nor has anybody else been examined to  say
that he had seen the children playing at the place in  question.   There  is
nothing on record which could corroborate that Akash  was  actually  present
with other children.  Fourthly, there is nothing to  indicate  how  far  was
the house of Akash and whether that was the normal place where  Akash  would
always be playing. Lastly, if the incident created chaos in the  village  so
much so that the villagers went and thrashed the respondents,  there  is  no
reason why none of them was examined.

13.   As regards his version about the incident,  the  manner  in  which  it
statedly occurred, the involvement of the respondents--whether all  or  some
of them, we have nothing on record which could possibly  allow  us  to  test
the veracity of the version of the sole  witness.  To  us,  it  is  doubtful
whether PW2 Mewa Ram could be called a  natural  and  truthful  witness  and
could be completely relied upon.   The  movements  of  Akash  are  also  not
established to show that he was actually there as suggested by the  witness.
 Since PW2 Mewa Ram is the sole witness and the entire case depends  on  his
testimony, we have looked for even  minutest  detail  which  could  possibly
lend corroboration.  We have however  not  been  able  to  locate  any  such
material. In order to evoke confidence and place intrinsic reliance  on  the
testimony of this sole witness, we  tried  to  find  some  corroboration  on
material particulars, which unfortunately is lacking. The assessment of  the
entire material has left many doubts and questions unanswered.   Two  facts,
that the baithak was of ownership of the respondents and that  the  body  of
Akash was  found  there,  though  very  crucial,  cannot  by  themselves  be
sufficient to fix the liability.  The baithak was not  part  of  the  house,
was across the road and apparently accessible to others.   And  importantly,
presence of respondents--whether some or all of them,  has  not  been  fully
established.

14.   Now the other features on record need consideration.  The  respondents
were apprehended the same day when one of them i.e.  respondent  Sanjay  was
allegedly found to be in possession of  blood  stained  dharati  or  sickle.
According to the prosecution the weapon was blood stained and  was  kept  in
the folds of dhoti by said Sanjay.  However, no such blood stained dhoti  of
respondent Sanjay was recovered. For that matter no  blood  stained  clothes
were recovered from any of the respondents though they were supposed  to  be
authors of the crime which left body of Akash in a pool of blood.  Even  the
blood stains found on the cemented portion from  Chamunda  Math,  though  of
human origin, were quite disintegrated as per FSL examination.

15.   In the circumstances and  particularly  when  we  are  considering  an
appeal against acquittal, the interference in  the  present  case  would  be
justified and called for, only if we were to find the testimony of the  sole
witness of such character that it  could  be  fully  relied  upon.   In  the
present matter where the accused are being tried for an  offence  punishable
with capital punishment, the scrutiny needs to be  stricter.   In  our  view
the material on record  definitely  falls  short  and  the  respondents  are
entitled to benefit of doubt. We, therefore, affirm the view  taken  by  the
High Court and dismiss the  state  appeals.  The  appeal  preferred  by  the
Complainant is also dismissed.



                                  ………………………J.
                                  (Pinaki Chandra Ghose)



                                  ………………………J.
                                  (Uday Umesh Lalit)
New Delhi
July 01, 2015






                           -----------------------
[1]    (2005) 3 SCC 114
[2]    (2003) 1 SCC 465
[3]    (2002) 9 SCC 537
[4]     (2012) 4 SCC 257

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