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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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