STATE OF BIHAR AND ORS. Vs. MANINDRA KUMAR

Tags Murder Acquittal

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 623-24 of 2008, Judgment Date: Jul 01, 2015

Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL Nos.623-24/2008

State of U.P. …. Appellant

Versus

Satveer & Ors. …. Respondents

With Crl. A. 622 OF 2008

J U D G M E N T

Uday Umesh Lalit, J.

1. These appeals by Special Leave arise out of judgment and order dated
24.04.2007 passed by the High Court of Judicature at Allahabad in Criminal
Appeal No.7911 of 2006 and Criminal Reference No.15 of 2006. While
rejecting the Reference, the High Court allowed the Appeal and acquitted
the respondents of the charges under Section 302 read with Section 34 IPC.

2. Pursuant to the statement of PW1 Roop Basant recorded by scribe Soran
Lal at 12:45 p.m. on 24.02.2006, Crime No.23 was registered with Police
Station Khurja Dehaat, Bulandshahar against the respondents. It was alleged
that on that day Akash aged about 8 years, nephew of said PW1 was playing
near Ambedkar Park. At about 10 a.m. respondent Subhadra took said Akash to
her baithak, which was seen by villagers Mewa Ram and Vijay Pal. At that
time three sons of said Subhadra, who along with Subhadra are respondents
herein, were sitting in the Verandah. They went inside taking Akash along
with them and did not come out for about half an hour. It was alleged that
the respondents then came out with a “thaal” filled with articles of
worship (pooja samagri) and went towards Chamunda Math for worship. Since
Mewa Ram and Vijay Pal did not see Akash coming out, they suspected some
foul play and soon after the respondents had left for Chamunda Math they
went inside the baithak. As they entered, they saw dead body of Akash lying
in a pool of blood with nostrils and ears cut. They raised hue and cry,
which attracted number of villagers. When the villagers saw body of
Akash, the situation took an ugly turn and there was complete chaos. The
people then went to the Math and assaulted the respondents.

3. The police thereafter arrived in the village and Inquest Panchanama
was conducted between 2:30 p.m. to 4:00 p.m. Around this time, the
respondents were arrested at about 3:30 p.m. After the inquest, the body of
Akash was sent for post mortem. PW7 Dr. Rajesh Kumar conducted post mortem
at 4:30 p.m and found following ante mortem injuries on the body of said
Akash :-
An incised wound size 1cm X 0.5cm X muscle & cartilage deep present over
pinna of right ear.
2. A contusion 5 cms X 3 cms present over right side of face just
anterior to the right ear.
A braded contusions 5 cms X 3 cms present over left side of face 3 cms away
from nose.
4. A contusion 4 cms X 3 cms present over left side of face 3 cms away
from nose
5. An incised wound 1 cm X .5 cm X muscle & cartilage and muscle deep
present over left side of nostril.
6 An incised wound 1 cm X .5 cm X muscle & cartilage deep present over
right side of nostril.
7. An incised wound 1 cm X .5 cm X muscle deep present over tip of chin.
8. Multiple contusion in the area of 7cms X 5 cms over anterior & right
side of neck at the level of Adam’s apple
9. Abraded contusion 4 cms x 4cms present over anterior aspect of neck
over Adam’s apple and towards left side.

It was found that there was bleeding from the mouth and nostrils. As per
PW7 Dr. Rajesh Kumar, the cause of death was asphyxia resulting from
throttling. The witness stated that injury Nos.1, 5, 6 and 7 were possible
by a sharp cutting weapon.

While the respondents were arrested, on personal search of accused Sanjay,
blood stained dharati or sickle was recovered. Since the respondents were
found to be having injuries, they were referred to PW3 Dr. A. Kumar, who
found seventeen injuries on the body of respondent Sanjay, one injury on
the body of respondent Satveer and four injuries on the person of
respondent Subhadra. The injuries were fresh and in the opinion of the
witness were possibly received around 11:15 a.m. on the same day.
Investigating Officer prepared Site plan Ext.Ka-15 according to which
baithak in question was about 12’ x 12’ with one door and an adjoining
verandah in front and the baithak was bounded by a boundary wall. He
recovered blood stained earth from the baithak and blood stained cemented
portion from Chamunda Math, which blood was later found to be of human
origin.

After completing investigation, charge sheet was filed against the
respondents and they were tried in the court of Additional Sessions Judge
(Fast Track Court), Bulandshahar in Sessions Trial No.516 of 2006 for
having committed the offences under Section 302 read with Section 34 IPC
and Section 7 of Criminal Law Amendment Act. The prosecution in support of
its case examined seven witnesses including two Doctors namely PWs3 and 7
and Informant Roop Basant as PW1. Mewa Ram was examined as PW2. In his
testimony PW2 stated that on 21.02.2006 at about 10:00 a.m. while he was
sitting in front of Ambedkar Park on a bench outside the clinic of a doctor
along with Vijay Pal, he saw respondent Subhadra take Akash to the baithak
by holding his arm, where respondents Satveer, Sanjay and Shishpal were
already present. All the respondents then went inside along with Akash and
did not come out for about half an hour. Thereafter the respondents came
out with a “thaal” with “pooja samagri” and went towards Chamunda Math.
Since Akash was nowhere to be seen, the witness and Vijay Pal suspected
foul play. They immediately went inside the baithak and saw the dead body
of Akash lying in a pool of blood. He further stated that in Chamunda Math
he could see stains of blood on cemented portion and according to the
witness the respondents were indulging in Tantrism. The witness stated that
the injuries on the person of respondents were as a result of beating given
by the villagers and that the respondents had thereafter fled away. In the
cross examination of the witness nothing was suggested to the effect that
said baithak was not of the ownership and control of the respondents.

The Trial Court after considering the material on record found the eye
witness account coming from PW2 Mewa Ram to be trustworthy and that the
case was fully established against the respondents. It recorded findings;
a) That on 24.02.2006 at about 10:00 O’clock accused Subhadra took the
deceased Akash by holding his hand to their baithak. b) That the accused
Satveer, Sanjay and Shishpal also accompanied Subhadra while going inside
the baithak. c) That all the accused Subhadra, Sanjay, Shishpal and Satveer
came out of baithak after 20-25 minutes. d) That they were holding the
Pooja Samagiri. e) That all the accused offered prayer at Chamunda Math and
offered flowers, batasa and lit the lamp there. f) That PW2 Mewa Ram had
seen the dead body of Akash and found that ears and nose of Akash were cut
and he was in pool of blood. g) That PW2 Mewa Ram was sitting on the bench
near the clinic of a doctor which was 10-12 feet away from the place of
incident. h) That the dead body of deceased Akash was found in the baithak
of accused persons which proved the death or human sacrifice by all the
accused persons.

The Trial Court convicted the respondents under Section 302 read with
Section 34 IPC. After considering the submissions advanced on behalf of the
prosecution and the respondents on the issue of punishment, the Trial Court
by its further order found the case to be rarest of rare warranting extreme
punishment of death penalty. It thus imposed death penalty on the
respondents subject to confirmation by the High Court.

7. The matter reached the High Court upon Reference so made by the Trial
Court. The respondents also preferred Crl. Appeal No.7911 of 2006
challenging their conviction and sentence. By its judgment under appeal the
High Court rejected the Reference and allowed the Appeal acquitting the
respondents of the charges leveled against them. The High Court accepted
that the prosecution had proved that Akash a boy of eight years was done to
death at about 10 a.m. on 24.02.2006 in the baithak owned by respondents.
It however took the view that the prosecution had failed to prove the
complicity of the respondents in the offence. It observed that looking to
its contents and language, the First Information Report did not appear to
be a genuine document and the scribe Soran Lal was also not examined.
According to the High Court it did not stand to reason that large number of
villagers had apprehended the respondents and given them thrashing and yet
allowed them to escape, that respondent Subhadra, a lady of 58 years, would
so succeed in running away. It also found force in the contention of the
respondents that the place of occurrence was an open place and accessible
to all.

8. The State being aggrieved has preferred the instant appeal
challenging the order of acquittal passed by the High Court. The informant
Roop Basant also filed Crl. Appeal No.622 of 2008. Mr. Ratnakar Dash,
learned Senior Advocate appearing for the State contended that the evidence
on record clearly established that PW2 Mewa Ram had seen Akash being taken
inside the baithak by the respondents, that the respondents came out after
about 25 minutes without said Akash and proceeded towards Chamunda Math and
that being suspicious the witness and Vijay Pal entered the baithak and
found the body lying in a pool of blood. It was submitted that nothing was
brought in the cross examination of the witness that the baithak was not
under the control of the respondents accused. Though separate appeal was
preferred by informant Roop Basant, none appeared in support thereof. Mrs.
Rani Chabra appeared for the respondents and supported the assessment made
and conclusions drawn by the High Court. It was submitted that there was no
direct evidence regarding murder by the respondents and that except PW2
Mewa Ram none of the villagers was examined by the prosecution.

9. In the instant case two facts were accepted to have been proved on
record by the trial court as well as the High Court, namely, (a) the dead
body of Akash was found inside the baithak and (b) said baithak belonged to
the respondents. The prosecution has examined only one witness i.e. PW2
Mewa Ram who can throw some light. The spot panchnama Ext. Ka-15 shows that
on one side of the road is the house of the respondents next to which is
Chamunda Math and on the other side of the road is the baithak in question.
Thus, according to the sole witness he saw respondent Subhadra coming from
her house on one side of the road and then proceeding across the road
towards the baithak holding the arm of Akash. According to him the
respondents were inside the baithak for some 20-25 minutes, and when they
went towards Chamunda Math i.e. to the other side of the road, he and
Vijaypal could immediately enter the baithak and see the dead body lying in
a pool of blood, which meant that the baithak was not locked at all.

10. It is the case of the prosecution that the victim was last seen in
the company of the respondents. The “last seen” theory in the present case
has two facets, (i) in terms of proximity of time and (ii) as regards the
place itself, as the dead body of Ashok was found from the very same place
where the victim was seen to have been taken by the respondents. The law
on the point is summed up by this Court in State of U.P. v. Satish[1] as
under:
“The last seen theory comes into play where the time-gap between the point
of time when the accused and the deceased were seen last alive and when the
deceased is found dead is so small that possibility of any person other
than the accused being the author of the crime becomes impossible.”

11. The last seen theory in the present case having dimensions in terms
of time as well place, would certainly clinch the matter if the testimony
of PW2 Mewa Ram is accepted. Everything hinges on his testimony. He is the
sole witness. It was stated by this Court in Joseph v. State of Kerala[2]
that where there is a sole witness his evidence has to be accepted with an
amount of caution and after testing it on the touchstone of other material
on record. Further, in State of Haryana v. Inder Singh[3] it was laid down
that the testimony of a sole witness must be confidence inspiring and
beyond suspicion, thus, leaving no doubt in the mind of the Court.
Noticing these two Judgments this Court in Ramnaresh v. State of
Chhattisgarh[4] summed up the principles as under:
“The principles stated in these judgments are indisputable. None of these
judgments say that the testimony of the sole eyewitness cannot be relied
upon or conviction of an accused cannot be based upon the statement of the
sole eye-witness to the crime. All that is needed is that the statement of
the sole eye-witness should be reliable, should not leave any doubt in the
mind of the Court and has to be corroborated by other evidence produced by
the prosecution in relation to commission of the crime and involvement of
the accused in committing such a crime.”

The evidence of the sole witness thus needs to be considered with
caution and after testing it against other material and further, such
evidence must inspire confidence and ought to be beyond suspicion.

12. We now proceed to examine the testimony of the sole witness in the
context of the material on record. According to PW2 Mewa Ram he was
sitting on a bench in front of the clinic of a doctor with Vijaypal when he
saw Akash being led inside the baithak by the respondents. Apart from his
own testimony nothing has been placed on record by the prosecution which
could lend corroboration to his own presence and the content of his
version. First, no reason has been given why Mewa Ram and Vijaypal were
sitting on the bench outside the clinic of the doctor. Neither the doctor
nor Vijaypal were examined. Beyond the testimony of the witness himself
there is nothing to indicate whether PW2 Mewa Ram was actually there at the
relevant time or not. Secondly, the place from where he allegedly
witnessed the occurrence is not a natural place where either the witness
resides or carries on any vocation. The reason for his being there is not
placed on record. Again the reason for his continuing to be there for 20-
25 minutes is also not spelt out. Thirdly, none from the house of Akash
was examined nor did PW1 Roop Basant throw any light as to when Akash left
the house and in whose company was he playing. Neither has the prosecution
given the names of those children nor has anybody else been examined to say
that he had seen the children playing at the place in question. There is
nothing on record which could corroborate that Akash was actually present
with other children. Fourthly, there is nothing to indicate how far was
the house of Akash and whether that was the normal place where Akash would
always be playing. Lastly, if the incident created chaos in the village so
much so that the villagers went and thrashed the respondents, there is no
reason why none of them was examined.

13. As regards his version about the incident, the manner in which it
statedly occurred, the involvement of the respondents--whether all or some
of them, we have nothing on record which could possibly allow us to test
the veracity of the version of the sole witness. To us, it is doubtful
whether PW2 Mewa Ram could be called a natural and truthful witness and
could be completely relied upon. The movements of Akash are also not
established to show that he was actually there as suggested by the witness.
Since PW2 Mewa Ram is the sole witness and the entire case depends on his
testimony, we have looked for even minutest detail which could possibly
lend corroboration. We have however not been able to locate any such
material. In order to evoke confidence and place intrinsic reliance on the
testimony of this sole witness, we tried to find some corroboration on
material particulars, which unfortunately is lacking. The assessment of the
entire material has left many doubts and questions unanswered. Two facts,
that the baithak was of ownership of the respondents and that the body of
Akash was found there, though very crucial, cannot by themselves be
sufficient to fix the liability. The baithak was not part of the house,
was across the road and apparently accessible to others. And importantly,
presence of respondents--whether some or all of them, has not been fully
established.

14. Now the other features on record need consideration. The respondents
were apprehended the same day when one of them i.e. respondent Sanjay was
allegedly found to be in possession of blood stained dharati or sickle.
According to the prosecution the weapon was blood stained and was kept in
the folds of dhoti by said Sanjay. However, no such blood stained dhoti of
respondent Sanjay was recovered. For that matter no blood stained clothes
were recovered from any of the respondents though they were supposed to be
authors of the crime which left body of Akash in a pool of blood. Even the
blood stains found on the cemented portion from Chamunda Math, though of
human origin, were quite disintegrated as per FSL examination.

15. In the circumstances and particularly when we are considering an
appeal against acquittal, the interference in the present case would be
justified and called for, only if we were to find the testimony of the sole
witness of such character that it could be fully relied upon. In the
present matter where the accused are being tried for an offence punishable
with capital punishment, the scrutiny needs to be stricter. In our view
the material on record definitely falls short and the respondents are
entitled to benefit of doubt. We, therefore, affirm the view taken by the
High Court and dismiss the state appeals. The appeal preferred by the
Complainant is also dismissed.

………………………J.
(Pinaki Chandra Ghose)

………………………J.
(Uday Umesh Lalit)
New Delhi
July 01, 2015

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[1] (2005) 3 SCC 114
[2] (2003) 1 SCC 465
[3] (2002) 9 SCC 537
[4] (2012) 4 SCC 257

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