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Saturday, July 4, 2015

We are conscious that we are considering an appeal against acquittal and that going by the law laid down by this Court, the view taken by the High Court ought not to be interfered with if it is a possible view. However, in our considered opinion, the view which weighed with the High Court cannot be termed as a possible view in the matter. It is well settled that in such circumstances it is open to an appellate court to consider the matter afresh[2]. Having undertaken such exercise, we are of definite conclusion that PW1 is a natural witness whose presence at the time and place of incident is established and is worthy of acceptance. However, mindful of the fact that in the original reporting he had attributed lalkara to respondent Basant Lal alone while the tractor was being driven by respondent Om Prakash, which meant that the other two accused, though sitting on the tractor were not attributed any overt act, we grant benefit of doubt to the other two accused, namely, Lalji and Gyan Prakash. It could possibly be put that Brahmadeen, an old man of 90 years would normally be accompanied by someone for assistance but would be unaccompanied while easing out and therefore the time and place was so deliberately chosen, in which case culpability of every occupant of the tractor would be made out. However, in the absence of any material establishing that, Lalji and Gyan Prakash are entitled to benefit of doubt.

                                        Non-Reportable


                        IN THE SUPREME COURT OF INDIA


                       CRIMINAL APPELLATE JURISDICTION


                       CRIMINAL APPEAL NO.1506 of 2009






      Kamla Kant Dubey                                   …. Appellant


                                   Versus


      State of U.P. & Others                                   ....
      Respondents
                                    WITH


                       CRIMINAL APPEAL NO.2409 of 2009


      State of U.P.                                      …. Appellant


                                   Versus


      Basant Lal Dubey and others                  …. Respondents




                               J U D G M E N T






      Uday Umesh Lalit, J.




   1. These appeals by special leave challenge the judgment and order  dated
      15.05.2009 passed by the High Court  of  Judicature  at  Allahabad  in
      Reference No.6/2008 and in Criminal (Capital) Appeal No.3588  of  2008
      acquitting the respondents accused of the charges under  Sections  302
      read with 34 IPC.


      2.    According to the case of the prosecution:-


      A)    One Brahmadeen Dubey owned lands in District Mirzapur  in  State
      of Uttar Pradesh.   Under two sale deeds, he sold two parcels of  land
      admeasuring 10 bighas and 6 bighas to Rama Kant Dubey and Sushil  Kant
      Dubey respectively.  Two registered deeds in this behalf were executed
      on 02.02.1993. However, it came to the notice that there was already a
      sale deed executed on 09.09.1992 in respect  of  very  same  lands  in
      Kolkata in favour of Basant Lal Dubey and others.  This   led  to  the
      filing  of   Civil  Suit  No.160  of  1993  by   Brahmadeen    seeking
      cancellation of sale deed dated 09.09.1992,  submitting,  inter  alia,
      that the deed in question was a sham  document which was  obtained  by
      setting up an imposter in place of the owner i.e. Brahmadeen Dubey.
      B)    On 16.11.1994, brother-in-law of  Brahmadeen  named  Kedar  Nath
      Dubey was murdered while sons of Kedar Nath were also injured  in  the
      transaction.  In respect of said incident, Basant Lal  Dubey  and  his
      three sons Lalji, Gyan Prakash and Om Prakash were  facing  trial  for
      having caused the murder of Kedar Nath and injuries to his sons.
   C) Civil Suit No.163/1993 was at an advanced stage of trial.   The matter
      depended  upon  the  testimony  of  Brahmadeen.   Around  this   time,
      Brahmadeen was assaulted with lathi and dandas by Basant Lal Dubey and
      his sons, Lalji, Om Prakash, Gyan Prakash.  In respect of said assault
      a separate case was registered and was also going on.
      D)    Brahmadeen aged about 90 years was living with the sons of Kedar
      Nath Dubey on whom  he depended because of his old age.
      E)    On 26.11.1998 at about 8.00 in the morning PW1 Kamla Kant Dubey,
      son of Kedar Nath Dubey alongwith Brahmadeen had gone to ease  out  at
      some distance from the village.  At that time Basant Lal and his  sons
      Lalji, Om Prakash and Gyan Prakash came on  a  tractor  driven  by  Om
      Prakash from a small road along side a Canal.  Lalkara  was  given  by
      Basant Lal that the old man be killed and should  not  be  allowed  to
      escape.  The tractor swerved and was driven straight in the  direction
      where Brahmadeen was easing out.  He got up in fright but the  tractor
      pushed him down and he was crushed.  The tractor took round  and  came
      back again to crush him.  PW1 who was easing  out  at  some  distance,
      raised shouts which attracted the attention  of  villagers,  whereupon
      the tractor escaped towards western side of the village.


      3.    PW1 then reached Police Station Vindhyachal,  District  Mirzapur
      with a written complaint narrating the facts about civil litigation as
      well as the fact that his father Kedar  Nath  was  done  to  death  on
      16.11.1994 and that said Brahmadeen was an important witness who could
      have proved that the alleged sale  deed  executed  in  Kolkata  was  a
      forged document. As regards the incident it was stated as under:-
           “Today dated 26.11.1998 in the morning at about 8 a.m. I and  my
           fufa had gone to ease out at some distance from the  village  in
           the orchard situated at south  direction,   then  suddenly  from
           canal patri,  Sri Basant Lal son of Radharaman Dubey,  Lalji and
           Gyan Prakash and Om Prakash Dubey all sons of Basant  Lal  Dubey
           came from  front side and Basant Lal said by giving Lalkara that
           “is budhe sale ko maro bhag na jay”,  in the meantime Om Prakash
           having brought the tractor towards my fufa  and  pushed  him  by
           tractor,  rolled over the same upon him by taking rounds.  After
           felling down of my fufa with an intention to kill him  and  also
           in order to destroy the evidence again by taken  may  rounds  of
           tractor crushed him due to which he died  on  the  spot.   After
           having eased out midway I rushed to the side of the village  and
           on raising alarm they went back from patri of  canal  by  taking
           their tractor.  This incident was witnessed by me and many other
           persons from the village.  The tractor was being  driven  by  Om
           Prakash.”




   4. Pursuant to this complaint, First Information Report was registered at
      9.30 a.m. on 26.11.1998 and  investigation  was  undertaken.   PW6  Om
      Parkash Singh, SSI went  to  the  spot  and  prepared  spot  panchnama
      Exh.Ka.14. He found marks of wheels of tractor which  as  depicted  in
      the spot panchnama showed marks of tyres in circular or round  motion.
      In the inquest it was found as under:
           “The dead body was lying in the chak of Badri Narayan  Dubey  in
           flat position,  the head  as  towards  West,  legs  were  facing
           East, right hand was on the  stomach,   left  hand  was  on  the
           earth,  the mouth was open, right eye was also open, left eye is
           closed,  left leg was straight, right leg  was  bent  upon   the
           ankle of the leg was on the mend of the chak-road,  on the  left
           side of the dead body there was  a  bamboo  Danda  and  Lota  of
           steel,  some portion of the face of the deceased was inside  the
           earth.  The description of the dead body is that he is  of  fair
           complexion, the face is round, well built body with eye, ear and
           nose and the age was about  90  years.   On  the  dead  body  of
           deceased there was a white dhoti,   a  banyan  of  brown  khakhi
           colour,  a full handed sweater of brown colour and janew of  red
           colour, gamacha of cross border,  havai chappal  but  on  search
           nothing was recovered.


                 On making inspection of the injuries on the dead body:-


        1. Towards right side the portion of head was pressed.


        2. On account of head injury the parietal bone was coming  out  and
           blood was oozing


        3. On account of injury on the left leg the skin of  the  same  was
           torn.


        4. On account of injury on right leg the skin was damaged upto knee
           and from adjacent to knee, skin of left leg was torn  and  there
           was swelling in the bottom of the right leg.


        5. Injury on the right ear.


           6.    Injury on the right eye.”



   5. The body of the deceased was then  sent  for  post  mortem  which  was
      undertaken by PW4 Dr. K.N. Mehrotra on 27.11.1998.  The features noted
       in the post mortem were as under:
           “In External Examination it was  found  that  the  body  of  the
           deceased was of average built.  After death there  was  mark  of
           contusion on back, thigh and hips. Rigor-mortis were present  in
           both the activities memos.  The head was depressed from the left
           side.  Right eye came outside and there was swelling in the left
           eye.  Red blood was  oozing  out  from  mouth,  nose  and  eyes.
           Stomach had also swelling.


           INJURIES PRIOR TO HIS DEATH:


           (1)    5cm.x2cm.  lacerated  wounds  on  right  eye  and   right
                 forehead.  Eye ball is protruded and  bursted.   Skull  was
                 laterally compressed.  All skull bones are  protruded  into
                 pieces:


           (2)   7cm.x7cm. contusion with swelling over left eye;


           (3)   19cm.x4cm. abrasion on front side of right leg;  knee  and
                 upper leg;


           (4)   9cm.x7cm. abrasion left upper leg at medial  aspect  13cm.
                 below the knee joint;


           (5)   3cm.x1cm. abrasion over posterior of right lower arm;
           (6)   5cm.x7cm. contused swelling on left chest  and  underlying
                 ribs are fractured.


                 In Internal Examination the  Doctor  has  found  that  all
                 bones of skull were broken in pieces.  Membranes and  brain
                 were busted.  All bones of left  chest  were  broken.   Air
                 pipe of nostril Tricia Kleenex  and  brachia  were  broken.
                 Left lungs were protruded and left lung  became  yellowish.
                 Both the chambers of the heart were  empty.  Teeth  of  the
                 deceased was missing.  Pancreas was empty.  There was gases
                 in small intestine and gases and waste were also  found  in
                 the large intestine.  Lever, spleen and both kidneys became
                 yellow and urinary bladder was empty.”




   6. Accused Gyan Prakash was arrested on 27.11.1998.   Accused Basant  Lal
      and Lalji surrendered in Court on 04.12.1998 while  proceedings  under
      Section 83 of  Code  of  Criminal  Procedure  were  initiated  against
      accused Om  Prakash  who  was  later  arrested.  After  conclusion  of
      investigation charge sheet was filed and charges were  framed  against
      the respondents  under  Section  302  read  with  34  IPC  for  having
      committed the murder of Brahmadeen in the manner as stated above.


   7. During the trial, prosecution examined six witnesses. PW1  Kamla  Kant
      Dubey, an eye witness reiterated his assertions made in the  complaint
      and stated, inter alia,  (i)  about  the  civil  litigation  and  that
      Brahmadeen had filed civil suit seeking cancellation of sale  deed  in
      favour of Basant Lal,  submitting that  was  obtained  fraudulently  ;
      (ii) that his father Kedar Nath Dubey was murdered in respect of which
      said Basant Lal Dubey and his sons Lalji, Om Prakash and Gyan  Prakash
      were facing trial;  (iii) that the accused  had  assaulted  Brahmadeen
      with lathies and dandas in respect of which a separate case  was  also
      going on; and  (iv) regarding  the present incident in question  which
      resulted in  the death of Brahmadeen.


           In his testimony he also stated that as a result of  his  shouts
      other villagers including PW3 Shyam Narayan had reached the  place  of
      occurrence.  In his cross examination,  the assertions that there  was
      a civil litigation initiated by Brahmadeen,   that  the  accused  were
      also facing charge of having caused the murder of Kedar Nath Dubey and
      that  a separate case  for having  assaulted  Brahmadeen  was  pending
      against them, were not challenged.


   8. The prosecution also examined PW3 Shyam Narayan who stated that  as  a
      result of shouts of PW1 he had arrived at the site of  occurrence  and
      seen the accused making  good  their  escape.   Medical  evidence  was
      unfolded through PW4 Dr. K.N. Mehrotra.  The Investigating Officer PW6
      Om Prakash  Singh,  inter  alia,  stated  about  preparation  of  spot
      panchnama and the inquest undertaken  by  him.   In  their  statements
      under Section 313 the accused submitted that Brahmadeen had executed a
      valid sale deed in their favour and denied  rest  of  the  allegations
      claiming themselves to be innocent.  However no witness  was  examined
      in defence.


   9. The trial court observed that the name of PW3 was not mentioned in the
      original complaint and it would be doubtful to accept him  as  witness
      who had seen the accused making good their escape.   The  trial  court
      accepted that the first information report was lodged with promptitude
      and was well supported by the inquest and spot panchnama.  It observed
      that  the  motive  alleged  by  the  prosecution  was  proved   beyond
      reasonable doubt. The trial court accepted the eye witness account  of
      PW1 and considered whether the testimony  of  sole  witness  could  be
      relied upon. Having found corroboration to  the  version  of  the  eye
      witness on material particulars, it accepted such  testimony  and  the
      case of the prosecution.  It convicted all the accused  under  Section
      302 read with 34 IPC.  By its subsequent order, it observed that a  90
      year old infirm man was done to death in a gruesome manner  purely  on
      account of greed for property and as such the case called for  extreme
      punishment.   It therefore  imposed  death  penalty  on  the  accused,
      subject to confirmation by the High Court.


  10. The death sentence so imposed led to
      Reference No.6/2000 in the High Court.   The  convicted  accused  also
      preferred Criminal (Capital) Appeal No.3588/2008.   The  matters  were
      considered together.  The High Court found three  infirmities  in  the
      version of PW 1 (a) He had  attributed  role  of  exhortation  to  two
      accused which was not so stated specifically in the first  information
      report.   (b)  The trial court having refused to rely on the testimony
      of PW3, it left no manner of doubt that PW1 had introduced PW3 as  eye
      witness to lend cogency to  the  case  of  prosecution.  (c)   He  had
      changed the place of occurrence inasmuch as the occurrence as shown in
      the FIR had taken place when he and the deceased were  going  to  Chak
      road whereas the situation was now improved upon by  stating  that  he
      had gone for answering the call of nature.
           It was also observed that the ocular  account  was  in  conflict
      with the medical opinion.  It stated as under:
           “The counsel for the appellant submits that ante mortem injuries
           are in conflict with ocular account.  In this connection, we may
           advert again to the prosecution  case  according  to  which  the
           deceased was repeatedly crushed under the wheels of the tractor.
            Our particular attention was drawn to injury No.1  which  could
           be result of the crushing by the wheel of tractor but in so  far
           as injury No.6 is concerned, it is only  on  the  left  part  of
           chest resulting in internal damage to the ribs but had  he  been
           crushed under the tyres,  then  right  chest  should  have  also
           sustained similar injuries.   By  this  reckoning,  the  medical
           evidence belies the  prosecution  case  that  the  deceased  was
           repeatedly crushed under the wheels  of  the  tractor.   In  the
           circumstances the submission of the learned counsel gains ground
           that the deceased came  under  the  wheel  of  the  unidentified
           tractor by accident and the version of PW1 with regard  to  this
           vital fact appears to be inherently improbable and intrinsically
           incredible and therefore, the same cannot be accepted.”


      11.    The High Court thus gave benefit of doubt to  the  accused  and
      allowed their appeal  acquitting  them  of  all  the  charges  leveled
      against them.    In the light of its discussion,  Reference  No.6/2008
      was also rejected.   These appeals  by  special  leave  filed  by  the
      informant and the State seek to challenge the correctness of the  view
      taken by the High Court in acquitting the respondents accused.


      12.   Shri T.N. Singh, learned Advocate appearing for the  complainant
      in Criminal Appeal No.1506 of 2009 and  Shri  Ratnakar  Dash,  learned
      Senior Advocate appearing for the State in Criminal Appeal No.2409  of
      2009 submitted that the  High  Court  erred  in  concluding  that  the
      medical evidence on record belied the case  of  prosecution  that  the
      deceased was repeatedly crushed under the wheels of the  tractor.   It
      was submitted that the alleged infirmities in  the  testimony  of  PW1
      were not infirmities at all and in any case were not of the  magnitude
      which could call for rejection of his evidence in toto, specially when
      the evidence regarding motive as placed by the  prosecution  was  very
      strong.  Mr. Manoj Prasad, learned Senior Advocate appearing  for  the
      respondents accused in both the appeals supported the  view  taken  by
      the High Court.  In his submission, the post  mortem  report  did  not
      indicate injuries  by  repeated  crushing  under  the  wheels  of  the
      tractor.  It was further submitted that the testimony of  PW1  was  so
      intermixed with falsehood and exaggeration that it would be  hazardous
      to rely on such testimony, more particularly,  in  an  appeal  against
      acquittal.


      13.   We have gone through the record and considered the  submissions.
      At the outset, it must be stated that PW4 Dr. K.N.  Mehrotra,  in  his
      examination clearly stated that the injuries in question were possible
      because of crushing by a tractor.  In the cross examination, all  that
      was suggested was that such injuries could also be possible by a  jeep
      or a truck.  We have seen the observations in the  post  mortem  which
      indicate that on internal examination it was found that all  bones  of
      the skull were broken in pieces, membrane and  brain  were  burst  and
      that eye ball had come out.  Further, all bones on the  left  side  of
      the chest were broken,  left  lung  was  protruding  out.   Air  pipe,
      trachea lerenex  were  also  broken.   The  external  examination  and
      injuries indicated in the post mortem suggest  crushing  injuries.  At
      least two areas, the left side of the skull and the left side  of  the
      chest appear to be crushed under the impact, which is consistent  with
      ocular version.  The spot panchnama Ext.Ka.14 shows tyre marks  having
      round or circular motion which indicate that  the  vehicle  must  have
      been brought back and used for repeated crushing. In the face of these
      facts, the assessment  that  the  medical  evidence  belies  that  the
      deceased was repeatedly crushed under the wheels of  the  tractor,  is
      completely incorrect.  Further, the area where the  incident  occurred
      is such where a vehicle would not enter by mistake causing an accident
      but the attempt was definitely deliberate.


      14.   We now proceed to consider the reasons which  weighed  with  the
      High Court while discarding the evidence  of  the  eye  witness.   The
      complaint Ext.P1 shows that  PW1  and  the  deceased  had  gone  at  a
      distance from the village for easing  themselves.   Narrative  clearly
      shows that it was at that stage that the tractor was  driven  straight
      towards the deceased.  We do not see how there was an  improvement  in
      the version in court as against the one which  finds  mention  in  the
      complaint Ext.P1 or that the place of occurrence was changed.  In  the
      very same complaint PW1 had said that after the incident he had raised
      alarm whereupon many persons from the village had arrived at the scene
      of occurrence.  It is true that he had not named PW3 as one  of  those
      persons in the complaint.   That  factor  may  certainly  weigh  while
      appreciating the testimony of witnesses.  Similarly, if as against the
      role of exhortation which was attributed to only  one  person  in  the
      complaint, if there is subsequent improvement in the oral testimony in
      court, that aspect of the matter can  also  be  taken  care  of  while
      appreciating the evidence and grain could  be  separated  from  chaff.
      But the question is whether these two reasons  are  strong  enough  to
      discard the testimony of the eye witness in toto. In our view, even if
      there were some improvements on part of PW1, these matters are not  so
      fundamental affecting the  very  core  to  such  an  extent  that  his
      testimony needs to be discarded completely.


      15.   It has come on record that deceased Brahmadeen was 90  years  of
      age and was living with the family of PW1 because of his old  age.   A
      man of such advanced age can reasonably be expected to depend upon the
      assistance of the inmates of the house.  It would not be unnatural  in
      such circumstances for somebody from the house to  accompany  the  old
      man when he is required to answer the call of nature.  The  fact  that
      Brahmadeen was done to death while he had gone  to  ease  himself  and
      that his body was found in such area, is clear from the record and not
      disputed at all.  At the spot, a lathi, a lota and his hawaai  chappal
      were found  which  again  lend  support.   In  the  circumstances  the
      presence of PW1 at the relevant time and place is quite natural.


      16.   The record further indicates that soon after  the  incident  PW1
      rushed to the police station and  the  first  information  report  was
      registered in an hour and a half. The investigator rushed to the  spot
      where spot panchnama revealed tyre marks of the tractor in circular or
      round motion.  He also found lathi, lota and  hawaai  chappal  of  the
      deceased next to the body. The status of the body as disclosed in  the
      inquest also showed that it was run over by a vehicle which was  later
      substantiated by post  mortem.   Consequently,  we  find  the  version
      coming  from  PW1  to  be  consistent,  supported  by   all   relevant
      circumstances and lodged with promptitude.  Having found his  presence
      to be natural and his version getting  complete  support  on  material
      particulars,  in  our  considered  view,  the  witness  is  completely
      trustworthy.


      17.   It is settled principle that a conviction can well be founded on
      the testimony of a single witness if the court finds his version to be
      trustworthy and corroborated by record on material particulars[1].  We
      find on the touchstone of these principles the  testimony  of  PW1  is
      completely trustworthy.  Out of three infirmities found  by  the  High
      Court, one regarding place of occurrence is not correct  at  all.   So
      far as other two  infirmities  are  concerned,  it  is  well  accepted
      principle that the first information report  need  not  contain  every
      single detail and every part of the case of the prosecution.  However,
      assuming them to be improvements, in our view the basic substratum  of
      the matter does not get affected by such improvements  at  all.   Even
      after  segregating  the  part  which  appears  to  be  introduced   as
      improvement, the testimony of PW1  is  clear  and  creditworthy.   The
      feature that there was strong motive for the respondents to commit the
      murder in question is also clear from the record and the  trial  court
      had accepted that the respondents had  strong  motive  to  commit  the
      crime. The finding as regards motive has not even been touched by  the
      High Court. While PW1 narrated facts regarding civil  litigation,  the
      fact that the respondents accused were being tried for the  murder  of
      his father and that there was a separate case instituted against  them
      for having assaulted  Brahmadeen,  he  was  not  countered  in  cross-
      examination.  The motive therefore lends  complete  corroboration  and
      assurance while appreciating the version of PW1.


      18.   We are conscious that  we  are  considering  an  appeal  against
      acquittal and that going by the law laid down by this Court, the  view
      taken by the High Court ought not to be interfered with  if  it  is  a
      possible view.  However, in our considered  opinion,  the  view  which
      weighed with the High Court cannot be termed as a possible view in the
      matter.  It is well settled that in such circumstances it is  open  to
      an  appellate  court  to  consider  the  matter  afresh[2].     Having
      undertaken such exercise, we are of definite conclusion that PW1 is  a
      natural witness whose presence at the time and place  of  incident  is
      established and is worthy of acceptance.  However, mindful of the fact
      that in the original reporting he had attributed lalkara to respondent
      Basant Lal alone while the tractor was being driven by  respondent  Om
      Prakash, which meant that the other two accused, though sitting on the
      tractor were not attributed any overt act, we grant benefit  of  doubt
      to the other two accused, namely, Lalji and Gyan Prakash.    It  could
      possibly be put that Brahmadeen, an old man of 90 years would normally
      be accompanied by someone for assistance but  would  be  unaccompanied
      while easing out and therefore the time and place was so  deliberately
      chosen, in which case culpability of every  occupant  of  the  tractor
      would  be  made  out.   However,  in  the  absence  of  any   material
      establishing that, Lalji and Gyan Prakash are entitled to  benefit  of
      doubt.


      19.   We therefore set aside  the  acquittal  of  Basant  Lal  and  Om
      Prakash and restore the order of conviction as recorded  against  them
      by the trial court for the offences punishable under Section 302  read
      with 34 IPC.  However, we do not deem it appropriate  to  restore  the
      sentence of death.  In our  view,  the  appropriate  sentence  in  the
      matter ought to be  sentence  for  imprisonment  for  life,  which  we
      proceed to impose on said Basant Lal and  Om  Prakash.   Consequently,
      the appeals are partly allowed.   The  acquittal  of  Lalji  and  Gyan
      Prakash as recoded by the High Court  is  affirmed.   The  appeals  as
      regards Basant Lal and Om Prakash are allowed and their  acquittal  is
      set aside.  Accused Basant Lal and  Om  Prakash  are  convicted  under
      Sections 302 read with Section 34 IPC and  sentenced  to  suffer  life
      imprisonment.  They are directed to be taken into custody forthwith to
      suffer the sentence awarded to them.






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



                                   ………………………..J.
                                              (Uday Umesh Lalit)
      New Delhi,
      July 01, 2015
-----------------------
      Ramnaresh vs. State of Chhattisgarh reported in (2012) 4 SCC 257 which
      in turn relied upon Joseph vs. State of Kerala : (2003) 1 SCC 465 and
      State of Haryana vs. Inder Singh : (2002) 9 SCC 537
      [1] Ramesh Babulal Doshi vs. State of Gujarat : (1996) 9 SCC 225

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