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 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
