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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

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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

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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

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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.”

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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

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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;

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(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.

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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.  

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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

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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.

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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.

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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.

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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.    

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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

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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

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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 particulars1.  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

1Ramnaresh 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

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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

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appellate court  to consider the matter  afresh2.    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

2 Ramesh Babulal Doshi vs. State of Gujarat : (1996) 9 SCC 225  

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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

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