STATE OF BIHAR Vs MANINDRA KUMAR
Bench: PINAKI CHANDRA GHOSE,UDAY UMESH LALIT
Case number: SLP(C) No.-004033-004033 / 2000
Diary number: 16499 / 1999
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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.
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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.
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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 :-
1. 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.
3. 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.
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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.
4. 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.
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5. 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
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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.
6. 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
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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
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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
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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
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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. Satish1 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 Kerala2 that where there is a sole witness his evidence has
to be accepted with an amount of caution and after testing it on the 1 (2005) 3 SCC 114 2 (2003) 1 SCC 465
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touchstone of other material on record. Further, in State of Haryana
v. Inder Singh3 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 Chhattisgarh4 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 3 (2002) 9 SCC 537 4 (2012) 4 SCC 257
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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
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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
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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
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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
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