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

In the light of the eye witness account and the post mortem report it is quite clear that the respondents were present when Tikaram was burning alive. The sequence of narration certainly shows that they were waiting in ambush. It may be that only two of them set Tikaram afire but the others definitely ensured by surrounding Tikaram that he would not be allowed to escape. Further, throwing of burning tyre and the sword would also indicate the active role played by them. Even if one of them was ready with a sword, that is clearly indicative of the level of preparedness on their part and we see no reason how they could not be said to be members of unlawful assembly. It was a crime which was committed by all of them guided by same purpose, acting in concert achieving the result that was desired. The intent of the entire assembly was clear, eloquently established by their presence, preparedness and participation. Though we are conscious that while considering an appeal against acquittal we should be extremely slow in interfering, in our considered view the assessment made by the High Court in the present case is completely unsustainable and against the record.

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                    CRIMINAL APPEAL Nos.2096-2098 of 2009


State of M.P.                                    …. Appellant

                                   Versus

Ashok & Others etc.                                      …. 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
11.01.2007 passed by  the  High  Court  of  Judicature  of  Madhya  Pradesh,
Jabalpur bench at Jabalpur in Criminal Appeals Nos.  170  of  1995,  841  of
1995 and 369 of 1996 by which respondents Ashok s/o Banshilal  Vedehi,  Raju
@ Rajendra s/o Banshilal Vedehi, Gullu @ Rajesh s/o Banshilal Vedehi,  Gouri
Shankar s/o Banshilal Vedehi, Vidhna @ Ramdas s/o Lallulal  Kewat,  Surendra
s/o Harilal Vedehi were acquitted by the  High  Court  of  all  the  charges
leveled against them.

2.    According to the prosecution one  Tikaram  son  of  Chote  Lal  Pandey
after finishing his duty was returning home at 8:00 p.m. on  11.04.1989.  On
the way he met his younger brother PW13 Sheetal Prasad. Both were coming  on
bicycles, PW13 being 10-15 feet behind said Tikaram.  When  Tikaram  reached
Tilwaraghat he was stopped in front of the house of Hari Maharaj by Dibbu  @
Devendra by catching his bicycle. Said Dibbu then  poured  petrol  over  him
and Jittu @ Jitendra burnt him by igniting a match  stick.  Tikaram  started
burning and ran from the spot. He was surrounded by present respondents  and
two others namely Harilal and Banshilal. All of them exhorted  to  beat  him
and to burn him and that he should not be allowed  to  run  from  the  spot.
Respondent Vidhna @ Ramdas threw a burning tyre upon him. While Tikaram  was
running helter-skelter,  Harilal threw a sword at him. Tikaram  ran  to  the
house of PW3 Vinod and fell there. PW3 extinguished the fire.  The  incident
was witnessed by PW13 who ran to the house and conveyed the fact of  Tikaram
having been set afire to  the  inmates  of  the  house.  As  a  result,  PW4
Ravindra Kumar Pandey son of said  Tikaram  and  PW15  Laxmi  Prasad  Pandey
rushed to the scene of occurrence. Tikaram disclosed to both PWs  4  and  15
that he was set afire in the aforesaid manner and by the  persons  mentioned
above. Tikaram was then removed to Medical College Hospital, Jabalpur.

3.    On receiving information,  PW16  inspector  R.P.  Singh  went  to  the
casualty ward and enquired about the condition of Tikaram with letter Ext.P-
30.  PW18 Dr. A.C. Nagpal gave certificate that Tikaram  was  conscious  and
in a position to speak.  PW16  inspector  R.P.  Singh  thereafter  took  the
statement of said Tikaram, translation of which is to the following  effect:

      “Sir, I am residing at Ramnagra. Today I was going to  Ramnagra  after
performing my duty on Petrol Pump. This  incident  occurred  at  Tilwaraghat
opposite the house of Hari Maharaj. I was going  by  my  cycle.  My  brother
Sheetal Prasad was following me. Dibbu caught hold my cycle and  stopped  me
and poured petrol on me from a Jug and Jeetu set fire on me by a Match  Box.
My body started burning. Hari, Surendra, Bigna, Ashok, Bansi, Raju  and  the
son of sister of Bansi Maharaj who lives in Kamla Nagar who has  beard,  the
younger son of Bansi Gullu and 2-3 other persons from city their names I  do
not know, surrounded me. I ran away and entered into  a  room  of  house  of
Vinod Kumar situated nearest and they all were crying “Maaro Maaro Sale  Ko,
Bachne Na Paye” and I fell down there. There were so  many  persons  present
who have seen this incident. There is an old enmity and  quarrel  was  going
on between us and Dibbu etc. For taking revenge from the said  enmity  today
they poured petrol on me and set on fire, in order  to  kill  me.  My  whole
body has been burnt. My clothes also have been burnt. Report has  been  read
over and the same has been written as stated by me. Please  investigate  the
matter.”


4.    Pursuant to the aforesaid  statement  recorded  at  8:30  p.m.  Dehati
Nalishi Ext. P-20 was lodged and crime was registered. Tikaram  was  shifted
to ward no. 11 for further  treatment.  On  the  same  night  panchnama  was
prepared by said PW16.  In  the  night  of  11.04.1989  and  12.04.1989  PW5
Executive Magistrate S.P. Meshram  recorded  statement  Ext.  P-17  of  said
Tikaram. The statement was recorded  after  due  certification  from  doctor
about consciousness and fitness of said  Tikaram.  The  translation  of  the
statement Ext. P-17 is as under:-

“On 11.04.1989 at about 8 O’clock in the evening I was going to my  home  in
Ramnagra from Jabalpur. Near Tilwaraghat Dibbu alias Devendra poured  petrol
on my body and Jittu alias Jitendra burnt me by igniting the matchstick.  At
that time I was going on a bicycle on the road.  They  stopped  me  and  did
this act. My younger brothers Sheetal and Manohar were about 15  Ft.  behind
me. I had enmity with Dibbu and Jittu from before. So they did this  to  me.
Hari, Banshi, Ashok, Raju, Gaurishankar, Gullu,  Surendra  and  Vidhna  were
the persons who assaulted me.”


5.    On 12.04.1989 at about 8:15 p.m. Tikaram succumbed  to  his  injuries.
On 13.04.1989 at 10:30 a.m. post mortem on the  body  of  said  Tikaram  was
conducted by PW17 Dr. D.K. Sakalle. According to the post  mortem  following
facts were noticed:
      “There were third degree burns on the body  of  the  deceased  on  the
scalp, all around neck, face, ears, lips, all  over  the  trunk  except  the
upper joint of the thighs, over scrotum and  penis  all  around  both  upper
limbs except tips and nails of fingers on right  side.  Third  degree  burns
present all around left thigh, on right thigh all  around  except  the  back
part and over upper part of the left leg and the middle part  of  the  right
leg. There were blisters in some  parts  of  the  left  leg  due  to  burns.
Similarly there were some blisters on the back of the right leg.  There  was
inflammation around the burn injuries. The deceased  was  burnt  about  90%.
Apart from the burn injuries the following injuries were also there  on  the
body of the deceased. Incised wound obliquely on back of chest.  It  was  4”
long, 1” broad and maximum depth was 3/4". It contained a clot of blood  and
there was an abrasion on its left side. There was no injury in any  internal
organ of the deceased.”

6.    After due investigation charge sheet was filed and 10 accused  persons
were sent for trial. The prosecution examined twenty witnesses  while  three
witnesses were examined in defence.  Dying  declarations  namely  statements
Exts.P-20 and P-17, so also oral declarations as deposed by  PWs  4  and  15
and the eye-witness account through PW13 were  principally  relied  upon  by
the  prosecution.  Accepting  the  case  of  prosecution,  the  trial  court
convicted all the accused. Accused Dibbu @  Devendra  and  accused  Jittu  @
Jitendra were found guilty under section 302 I.P.C. and section  148  I.P.C.
while  others  namely  the  present  respondents  along  with  Harilal   and
Banshilal were found guilty under section 302 read with section  149  I.P.C.
Accused Dibbu @ Devendra and accused Jittu  @  Jitendra  were  sentenced  to
life imprisonment under section 302 I.P.C. and to rigorous  imprisonment  of
one year under section 148 I.P.C. All the other accused  were  sentenced  to
life imprisonment under section 302 read with  section  149  I.P.C.  and  to
rigorous imprisonment for 6 month under section 147 I.P.C.

7.     All  convicted  accused  persons  challenged  their  conviction   and
sentence by filing Criminal Appeal Nos. 170 of 1995, 841 of 1995 and 369  of
1996. During the pendency of said  appeals  it  was  reported  that  accused
Harilal and Banshilal had died and as such their appeals  were  declared  to
have abated. The High Court after going through the record  found  that  the
case of the prosecution was fully established as  against  accused  Dibbu  @
Devendra and accused Jittu @ Jitendra. The High Court however  gave  benefit
of doubt to the respondents on the premise that they had  reached  the  spot
after the commission of offence and as  such  the  charge  of  formation  of
unlawful assembly by them was not established. The observations by the  High
Court in that behalf were as under:
      “Considering the over-all evidence on  record,  it  is  proved  beyond
reasonable doubt that Dibbu alias Devendra and  Jittu  alias  Jitendra  have
committed the offence. The case of Dibbu and Jittu  is  established  by  the
prosecution beyond reasonable doubt in commission  of  offence.  As  regards
other appellants in all  the  connected  appeals  are  concerned,  they  are
entitled for the benefit of doubt. It is narrated in the  dying  declaration
and Dehati Nalishi that they  reached  the  spot  after  the  commission  of
offence.  Therefore,  formation  of  unlawful  assembly  by  them   is   not
established.”

The judgment of the High Court affirming their conviction and  sentence  has
not been challenged by the accused Jittu @ Jitendra and  Dibbu  @  Devendra.
The judgment to the extent it acquitted the present respondents of  all  the
offences is presently under challenge  at  the  instance  of  the  State  of
Madhya Pradesh in these appeals by special leave.

8.     Ms.  Vanshaja  Shukla,  learned  advocate  appearing  for  the  State
submitted that the role of the present  respondents  in  the  commission  of
crime was clearly made out from the dying declarations as well as  from  the
testimony of the eye witness. The Injury as found in the  post  mortem  also
supported the eye witness account, which in turn indicated the  role  played
by accused other than those who stand convicted by the High  Court.  In  her
submission, the view taken by the High Court was  completely  unsustainable.
Mr.  Akshat  Srivastava  learned  advocate  appearing  for  the   respondent
supported the judgment  of  the  High  Court.  It  was  submitted  that  the
principal role as alleged in the dying declarations was not as  regards  the
present respondents and as such they were rightly granted benefit  of  doubt
by the High Court.

      During the course of hearing it was  submitted  that  respondent  no.6
namely Surendra s/o Harilal Vedehi had died during  the  pendency  of  these
appeals. The learned  counsel  appearing  for  the  State  was  directed  to
ascertain the fact. Accordingly death certificate of  said  respondent  no.6
has been  filed  on  record  indicating  that  he  died  on  01.10.2014.  We
therefore  direct  that  the  proceedings  stand  abated  as  against   said
respondent no.6.

9.    Statement Ext. P-20 leading to the registration of crime  as  well  as
statement  Ext.  P-17  recorded  by  the  Executive  Magistrate  are   dying
declarations by Tikaram. Both these statements are consistent and  name  the
present respondents and  state  the  role  played  by  them  in  surrounding
Tikaram and giving cries that he be beaten and should not be  left.  In  the
face of such assertions, it is impossible to accept that  these  respondents
arrived at the scene of occurrence after  the  crime  was  completed.  Their
role is that of participants in the crime  who  did  not  allow  Tikaram  to
escape by encircling him. The finding rendered by the High Court is  against
the record.

10.   Both the statements clearly referred to the presence of PW13.  It  was
PW13 who immediately ran home and intimated the fact that  Tikaram  was  set
afire, to the inmates of the house. Consequently PW4  and  PW15  arrived  at
the scene of occurrence. Tikaram was then removed to the  hospital.  In  his
testimony PW13 stated that while Tikaram was burning,  respondent  Vidhna  @
Ram Das threw a burning tyre upon him and original accused Harilal  threw  a
sword at him. The post mortem clearly shows an incised injury  in  the  back
suffered by said Tikaram, which completely supports such  assertion.  Having
gone through the record  we  find  the  presence  of  said  PW13  completely
established and accept him to be  eye  witness  to  the  occurrence.  It  is
relevant to note that the High Court has also not disbelieved the  testimony
of PW13.

11.   In the light of the eye witness account and the post mortem report  it
is quite clear that the respondents were present when  Tikaram  was  burning
alive. The sequence of narration certainly shows that they were  waiting  in
ambush. It may be that only two of them set Tikaram  afire  but  the  others
definitely ensured by surrounding Tikaram that he would not  be  allowed  to
escape. Further, throwing of burning tyre and the sword would also  indicate
the active role played by them. Even if one of them was ready with a  sword,
that is clearly indicative of the level of preparedness on  their  part  and
we see no reason how they could not  be  said  to  be  members  of  unlawful
assembly. It was a crime which was committed by all of them guided  by  same
purpose, acting in concert  achieving  the  result  that  was  desired.  The
intent of the entire assembly was clear,  eloquently  established  by  their
presence, preparedness and  participation.  Though  we  are  conscious  that
while considering an appeal against acquittal we should  be  extremely  slow
in interfering, in our considered view  the  assessment  made  by  the  High
Court in the present  case  is  completely  unsustainable  and  against  the
record.

12.   We therefore allow these appeals, set-aside the judgment and order  of
acquittal rendered by the High Court and restore the judgment of  conviction
and sentence as recorded by the trial Court  against  the  respondents.  The
respondents shall be taken  in  custody  forthwith  to  serve  the  sentence
awarded to them.


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



                                                                …………………………J.
                                        (Uday Umesh Lalit)

New Delhi,
July 01, 2015
-----------------------
11

whether the PW1. Siddaramaiah was eye witness to the occurrence, in our opinion, is definitely a possible view. The presence of PW2 Savitha as well as PW13 Parwathamma is also doubtful for the reasons mentioned by the High Court. The testimony of PW15 reveals that a telephone call was received in the police station from PW7 Jagadamba about the incident of assault. Having reached the village by 7.15 a.m., it was logically expected of him to start making inquires about the crime and the identity of alleged assailants. Additionally, if out of two constables present in the village, one of them was injured, this by itself was one good source of information. According to the witness, he had spoken to those two constables and yet no steps were taken to register the crime. The witness further accepted that he had seen Shivarudraiah writhing in pain. In the circumstances, it would also be expected of him either to ask him or accompany him to the hospital, he being primary source of information. The conduct in the matter exhibited by PW15 is completely unexplainable. Similarly, it also does not stand to reason why PW1 Siddaramaiah did not approach the police when they were present in the village soon after the transaction and chose to make a written complaint scribed by PW11 and thereafter lodge it in the police station 10 kms. away. He himself later accepted that in the complaint, he had added two names by mistake. Secondly, the attribution to one of the accused having given blow by a sickle was also not mentioned in the complaint. The injuries found in the post mortem also do not support such assertion about injury by a sickle. In the circumstances, the assessment made by the High Court expressing serious doubts whether the PW1. Siddaramaiah was eye witness to the occurrence, in our opinion, is definitely a possible view. The presence of PW2 Savitha as well as PW13 Parwathamma is also doubtful for the reasons mentioned by the High Court. 11. Having analyzed the facts on record, the reasons stated by the High Court while acquitting the respondent are quite possible from the evidence on record. While considering this appeal against acquittal, the view expressed by the High Court being a possible view, we do not see any reason to interfere in the matter. We, thus, affirm the judgment and order of acquittal passed by the High Court and dismiss the present appeal.

                                                  Non-Reportable




                        IN THE SUPREME COURT OF INDIA


                       CRIMINAL APPELLATE JURISDICTION


                       CRIMINAL APPEAL NO.1611 of 2009




      State of Karnataka                                       …. Appellant


                                   Versus


      Sateesh & Others                                         ....
      Respondents




                               J U D G M E N T


      Uday Umesh Lalit, J.




   1. This appeal by special leave is  directed  against  the  judgment  and
      order dated 22.01.2009 passed  by  the  High  Court  of  Karnataka  at
      Bangalore allowing Criminal Appeal  No.  1696/2005  preferred  by  the
      respondents herein and setting aside their conviction as  recorded  by
      the trial court and acquitting them of all the charges leveled against
      them.


   2. On 06.09.2000, PW15 M.N. Somashekharaih, then working as ASI  in  Kota
      Police Station, reached the  Police  Station  at  6.55  a.m.  and  was
      informed  by  Head  Constable-37  that  PW7   Jagadamba,  daughter  of
      Shivarudraiah of  Mavukere  village had  informed  on  telephone  that
      persons of Nayaka community  had smashed her father  with  stones  and
      were  attacking  the  police  personnel.   PW15  instructed  that   an
      ambulance be sent to Mavukere village and left along with some  police
      personnel for Mavukere.  According to PW15 when he reached the spot at
       about 7.15 a.m. he saw Shivarudraiah having received serious injuries
      on his head, hand and legs and was writhing in pain and shouting  “Ayo
      Ayo”.  He made arrangements to send  said  Shivarudraiah  for  medical
      attention to hospital  at  Tumkur.   According  to  him,  out  of  two
      constables, namely Jayaram and Rajanna, one had received injuries  and
      PW15 made inquiries with them.   His  superior  reached  the  spot  at
      about 9.30 a.m. and therefore said PW15 left for the Police Station.


   3. At about 10.00 a.m., PW1 Siddaramaiah came to the Police Station  with
      a written complaint which was registered as First Information  Report,
      on the basis of which Crime No.135 of 2000 came  to  be  lodged.   The
      relevant assertions in the written complaint were as under:
           “About one month ago, there was a quarrel in  our  village  with
           regard to 5 acres land in  Sy.  No.135/1  and  129  between  the
           members  of  Naik  community,  Uppara  community  and   Lingayat
           community.  In respect of the  same,  on  5.8.2000  Shekhar  and
           others belonging to Naik  community  quarreled  with  us.   With
           regard to this enmity has arisen between us and members of  Naik
           community and petty quarrels were  taking  place  from  time  to
           time.    In  these  circumstances  on  06.09.2000   morning   at
           6.00a.m.,  I was standing on his cycle towards his land and came
           on the road opposite the house of Shivaramaiah, s/o  Nanjundaiah
           and at that time residents of our village viz. (1) Sateesh,  s/o
           Siddagangaiah (2) Siddaiah, s/o Sunnarangaiah   (3)  Lakshmaiah,
           s/o  Sunnarangaiah  (4)  Suresh,  s/o  Late  Chikkarangaiah  (5)
           Shekaraiah, s/o  Late  Chikkarangaiah  (6)  Nanjaiah,  s/o  Late
           Chikkarangaiah (7)  Shanakariah,  s/o  Late  Chikkarangaiah  (8)
           Kaluvaiah, s/o Late Chikkarangaiah  (9)  Shankaraiah,  s/o  Late
           Chikkarangaiah (10) Nanjundaih,  s/o  Late  Chikkarangaiah  (11)
           Manjukumar, s/o Kaluvaiah, (12) HMT Shivanna,  s/o   Nanjundaiah
           (13) Ramesh, s/o Nanjundaiah (14) Jagadish,  s/o   Shivananjaiah
           (15)  Manjunath,  s/o  Shivananjaiah   (16)   Jayaramaiah,   s/o
           Ramakrishnaiah   (17)   Shrirangaiah,    s/o     Puttiah    (18)
           Rangandhamaiah,   s/o   Lakshmirangaiah   (19)   Nanjaiah,   s/o
           Nanjundaiah (20) Ishwariah, s/o  Nanjundaiah,   all  had  formed
           unlawful assembly and were  armed  with  clubs  in  their  hands
           passed me on the road and  unlawfully  obstructed  Shivarudraiah
           who was coming on the  cycle.   They  stopped  him  and  Shekhar
           pushed the cycle down and as soon as Shivarudraiah fell  on  the
           ground, Suresh, s/o Late Chikkaraingaiah said that, “one of  the
           two has to happen today, we will finish this fellow”.   As  soon
           as he uttered this, all of them made Shivarudraiah  sit  on  the
           ground, held his hands and  legs  and  made  him  sleep  on  the
           ground.  They placed his legs on a flat stone  and  smashed  his
           legs with size  stones  (boundary  marker  stones)  (Talakuttu).
           Shivarudraiah started screaming.   They did not  leave  him  and
           some of them relentlessly started beating Shivarudraiah with the
           clubs held by them  in  their  hands.   Hearing  the  screaming,
           Shivarudraiah’s wife came  running  and  embraced  her  husband.
           They  pulled  parvatamma  and  pushed  her  aside.   Later  they
           repeatedly kicked him with their legs.  At that time, I screamed
           saying that,  “they are going to kill Shivarudraiah”.   They saw
           people coming from the village side and  threw  away  the  clubs
           which they were holding in their  hands  there  itself  and  ran
           away.  Myself, Parvatamma and  Jagadamma  lifted  Shivarudraiah.
           His left leg was smashed and  was  bleeding.   There  were  open
           wounds on the right side of the head, right hand, forearm,  left
           knee, right feet and left leg and blood was  oozing  out.   This
           incident was witnessed by Chandrashekaraiah,  s/o  Gurulingaiah,
           Nanjegowda,  s/o  Shivanna,   Narasimhaiah,  s/o  Chikkappa   by
           standing in their respective lands.  All of them were afraid  of
           the members of the Naik community and did not  come  forward  to
           help.”




      4.    Shivarudraiah was  admitted  to  Tumkur  district  hospital  for
      treatment and while undergoing treatment,  he died at 10.25  a.m.   on
      06.09.2000.  Post Mortem was conducted by PW19 Dr. K.G. Shivamurthy on
      the dead body of Shivarudraiah at  District  hospital,  Tumkur.   Post
      Mortem revealed following injuries:-
           “1. Lacerated wound of 3”x1” present over the frontal region.


        2. An aberration of 1/½”x1” present over the anterior middle of the
           nose.


        3. Lacerated wound of 1/½”x1” present over the back  of  the  right
           elbow.


        4. Lacerated wound of 3”x1” present in between right  index  finger
           and thumb extending to the palmer aspect with bone deep.


        5. Contusion of 4”x3” present over the left wrist  and  dislocation
           of the proximal phalanx of the index and middle finger.


        6. There is fracture of the  right  upper  1/3  of  the  tibia  and
           fibula.


        7. Contusion of 2½” x1” present over the  anterior  aspect  of  the
           right knee.


        8. Lacerated wound of 4”x5” present over  the  deep  of  the  right
           foot.  In between 4th and 5th tow and there  is  dislocation  of
           the 4th and 5th metatarsal joints.


        9. There is fracture of the lower 1/3 of the left labia and fibula.




       10.  Lacerated wound 6”x2” present over the  middle  border  of  the
           left foot and bone deep.


       11.  Lacerated wound of 3”x2” present over the dorsum  of  the  left
           foot.


       12.  Lacerated wound of 2½”x2” present in between the left  3rd  and
           4th toe.


       13.  Contusion of 1”x3” present over the right zygote of the  acetyl
           region.


       14.  Lacerated wound of 2”x1” and skull bone deep present  over  the
           occipital region.”

                    The cause of death was said to be  hemorrhage resulting
           from aforesaid injuries.


      5.    During investigation  statement  of  PW2  Savitha,  daughter  of
      Shivarudraiah  was  recorded  on  07.09.2000,  while  that   of   PW13
      Parwathamma wife of Shivarudraiah was  recorded  two  days  after  the
      incident.    After due investigation 19 persons were  sent  for  trial
      vide S.C. No. 71/2000 before the Fast Track Court No.III at Tumkur.


      6.    The prosecution principally  relied  on  the  testimony  of  PW1
      Siddaramaiah, PW2 Savitha and PW13 Parwathamma who were stated  to  be
      eye-witnesses to the incident while other daughter  of  Shivarudraiah,
      namely, PW7 Jagadamba, PW3 Nanjegouda and PW4  M.G.  Chandrashekaraiah
      were the witnesses who had arrived at the  scene  of  occurrence  soon
      after  the  incident.  PW1  Siddaramaiah    accepted  that  names   of
      Manjukumar and Shrirangaiah, s/o Puttiah were wrongly mentioned in the
      FIR.    Though it was not so asserted in the  FIR,  PW1  in  his  oral
      testimony stated that accused Manjunath  had  assaulted  Shivarudraiah
      with a sickle.   PW2 Savitha stated  that  she  was  accompanying  her
      father Shivarudraiah on the relevant day  when  they  were  proceeding
      from their house to go to their  farm  land.   According  to  her  she
      started screaming soon  after  the  assault  began.   PW13  Parvatamma
      deposed  that  shouts  and  screams  of  her  daughter  attracted  her
      attention and she came running from the house  and  saw  the  assault.
      According to the witness she had tried to intervene and  as  a  result
      had received simple injuries and  had  tried  to  cover  her  bleeding
      husband.


      7.    The trial court while accepting the case of the prosecution came
      to the conclusion that the case  against  the  respondents  was  fully
      proved.  However, giving benefit of doubt to original  accused  Nos.12
      and 13, it acquitted them of all the offences  alleged  against  them.
      It convicted and sentenced original accused Nos.1  to  11,  14  to  19
      under Sections 148, 341, 302 read with  149  IPC  sentencing  them  to
      undergo sentences including the imprisonment for life. Accused Nos.  4
      to 6 were also additionally convicted and sentenced under Sections 114
      read with 302 IPC while original accused No.16 was  further  convicted
      and sentenced for the offences under Section 324  IPC  read  with  506
      IPC.   Thus, out of 19  persons  who  were  tried,  17  accused  stood
      convicted by the  Trial  Court  vide  its  judgment  and  order  dated
      21.07.2005.


      8.    The convicted accused i.e. the respondents  herein  carried  the
      matter further by filing Criminal Appeal No.1656 of 2005 in  the  High
      Court.  The High Court found the conduct of PW15 unexplainable in that
      he had chosen not to record the statements of  two  police  constables
      who were present at the site and one of them was injured and also  had
      chosen not to ask questions to injured Shivarudraiah.  The High  Court
      further found it completely unexplainable that PW15 had not  made  any
      inquiry in the village itself.  The ultimate registration of crime  on
      the basis of a written FIR which was scribed by PW11  and  brought  to
      the Police Station by PW1 was not found to be  bona  fide.   The  High
      Court observed that there was unexplained  delay  in  registering  the
      crime and it was extremely doubtful whether PW1 was an eye witness  to
      the occurrence.   It further observed that in the  original  FIR,  the
      name of  PW2  Savitha  was  not  mentioned  at  all,  creating  doubts
      regarding her presence.  Furthermore, if PW13 had tried to  cover  her
      bleeding husband, her blood stained sari should have been produced  on
      record.   Her statement was also recorded two days after the incident,
      again creating a situation of doubt.  With  these  reasons,  the  High
      Court observed that the possibility of innocents being  implicated  in
      the matter could not be ruled out.  Giving benefit  of  doubt  to  the
      convicted accused the High Court thus acquitted all  of  them  of  the
      offences  alleged  against  them.   The  State  being  aggrieved   has
      approached this Court by filing this appeal by special leave.


      9.     Appearing in support of the appeal,  Mr. Parikshit  P.  Angadi,
      learned Advocate submitted that  three eye witnesses, namely,  PWs  1,
      2 and 13 were  completely  consistent in their  assertions  about  the
      involvement of  the respondents herein and that the  FIR  having  been
      lodged  at 10.30a.m. there was absolutely no delay in registration  of
      crime and that the reasons which weighed  with  the  High  Court  were
      completely incorrect.   Appearing  for  the  respondents,  Mr.  Rajesh
      Mahale, learned Advocate submitted that if PW15  was  present  in  the
      village immediately after the incident, it does not  stand  to  reason
      why he did not make any  inquiry  and  register  the  crime.   If  two
      constables were present in the village, one  of  them  being  injured,
      that source was a better one to gather information  and  register  the
      crime.   Furthermore, the place  of  occurrence  being  surrounded  by
      various houses in the village, none of the inmates of those houses was
      examined as witness.  In his submission, the reasons given by the High
      Court while acquitting the respondents were absolutely correct and  in
      any case was a possible view in the matter.


      10.   We have gone though the  record  carefully  and  considered  the
      submissions.  The testimony of PW15 reveals that a telephone call  was
      received in the police station from PW7 Jagadamba about  the  incident
      of assault.  Having reached the village by 7.15 a.m., it was logically
      expected of him to start making  inquires  about  the  crime  and  the
      identity  of  alleged  assailants.   Additionally,  if  out   of   two
      constables present in the village, one of them was  injured,  this  by
      itself was  one  good  source  of  information.     According  to  the
      witness, he had spoken to those two constables and yet no  steps  were
      taken to register the crime.  The witness further accepted that he had
      seen Shivarudraiah writhing in pain.  In the circumstances,  it  would
      also be expected of him either to ask him  or  accompany  him  to  the
      hospital, he being primary source of information.  The conduct in  the
      matter exhibited by PW15 is completely unexplainable.   Similarly,  it
      also does not stand to reason why PW1 Siddaramaiah  did  not  approach
      the police when they were  present  in  the  village  soon  after  the
      transaction and chose to make a written complaint scribed by PW11  and
      thereafter lodge it in the police station 10 kms.  away.   He  himself
      later accepted that in the  complaint,  he  had  added  two  names  by
      mistake.  Secondly, the attribution to one of the accused having given
      blow by a sickle was  also  not  mentioned  in  the  complaint.    The
      injuries found in the post mortem also do not support  such  assertion
      about injury by a sickle.   In the circumstances, the assessment  made
      by  the  High  Court  expressing  serious  doubts  whether  the   PW1.
      Siddaramaiah was eye witness to the occurrence,  in  our  opinion,  is
      definitely a possible view.   The presence of PW2 Savitha as  well  as
      PW13 Parwathamma is also doubtful for the  reasons  mentioned  by  the
      High Court.

      11.   Having analyzed the facts on record, the reasons stated  by  the
      High Court while acquitting the respondent are quite possible from the
      evidence on record.   While considering this appeal against acquittal,
      the view expressed by the High Court being a possible view, we do  not
      see any reason to interfere  in  the  matter.  We,  thus,  affirm  the
      judgment and order of acquittal passed by the High Court  and  dismiss
      the present appeal.



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





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