STATE OF U.P.versusSATVEER & ORS.

                          [2015] 8 S.C.R. 306


A                           STATE OF U.P.
                                   v.
                          SATVEER & ORS.

               (Criminal Appeal Nos.623-624 of2008)
B
                            JULY01, 2015

                  [PINAKI CHANDRA GHOSE AND
                      UDAY UMESH LAUT, JJ.]
c
          Penal Code, 1860: s.302 rlw s.34- Conviction by trial
     court-High Court ordered acquittal- State's appeal against
     acquittal - Prosecution case was that the respondents were
     indulging in Tantrism and for the said purpose killed 8 years
D.   old boy - PW-2 saw respondents taking the boy inside the
     baithak and coming out after half hour without the boy and
     going towards Chamunda Math with a thaal filled with articles
     of worship- Thereafter, PW-2 went along with another person
     inside baithak and saw the dead body of the boy in pool of
E    blood - The villagers caught hold of respondents and beat
     them up - Trial Court held respondents guilty u/s.302 rlw
     s.34 - High Court acquitted the respondents on the ground
     that the prosecution had failed to prove their complicity in
     the offence- On State's appeal, held: There was no evidence
F    to prove presence of sole eye witness at the spot - Place
     from where he allegedly witnessed the incident was not a
     natural place where either witness resided or .carried on
     vocation - The witness also could not give reason of his
     presence at the spot and his continuing to be there for 20-25
G    minutes - The family members of the boy were not examined
     - Moreover, no blood stained clothes were recovered from
     any of (he respondents though they were allegedly to be
     authors of t;,e crime which left body of the deceased boy in a
H                                306
           STATE OF U.P. v. SATVEER & ORS.                    307


· pool of blood- Case against respondents not made out and A
  therefore, entitled to benefit of doubt.

    Appeal: Appeal against acquittal- Scope of interference
- Discussed - Penal Code, 1860.
                                                               B
    Dismissing the appeals, the Court

     HELD: 1. It is the case of the prosecution that the
victim was last seen in the company of the respondents.
The last seen theory having dimensions in terms of time
as well place, would certainly clinch the matter if the C
testimony of PW2 is accepted. Everything hinges on his
testimony as he is the sole witness. The evidence of the
sole witness thus needs to be considered with caution
and after testing it against other material and further, such D
evidence must inspire confidence and ought to be
beyond suspici9n. [Paras 10, 11] [315-F; 316-C; 317-A]
     2. ·According to PW2, he was sitting on a bench in
front of the clinic of a doctor with 'V' when he saw the
deceased being led inside the baithak by the                   E
respondents. Apart from his own testimony, nothing was
placed on record by the prosecution wh_ich could lend
corroboration to his own presence and the content of
his version. First, no reason was given why PW-2 and
'V' were sitting on the bench outside the_ clinic of the       F
doctor. Neither the doctor nor 'V' were examined.
Beyond the testimony of the witness himself there was
nothing to indicate whether PW2 was actually there at
the relevanttime or not. Secondly, the place from where        G
he allegedly witnessed the occurrence was not a natural
place where either the witness resides or carries on any
vocation. The reason for his being there was not placed
on record. Again the reason for his contir:iuing to be
there for 20-25 minutes was also not spelt out. Thirdly,       H
none from the house of the deceased was examined nor
308      SUPREME COURT REPORTS                 (2015] 8 S.C.R.


A did PW1 throw any light as to when the deceased 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
B question. Fourthly, there was nothing to indicate how
  far was the house of the deceased and whether that was
  the normal place where the deceased would always be
  playing. Lastly, ifthe incident created chaos in the village
  so much so that the villagers went and thrashed the
C respondents, there was no reason why none of them
  was examined. [Para 12] [317-B-G]
        3. It is doubtful whether PW2 could be called a natural
   and truthful witness and could be completely relied upon.
D The movements of the deceased are also not established
   to show that he was actually there as suggested by the
   witness. The assessment of the entire material has left
   many doubts and questions unanswered. Two facts,
   that the baithak was of ownership of the respondents
E and .that the body of the deceased 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
F some or all of them, was not fully established. [Para 13]
   [318-B-E]
         4. The respondents were apprehended the same day
    when one of them i.e. respondent 'Sa' was allegedly
G . 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
    'Sa'. However, no such blood stained dhoti of 'Sa' was
   recovered. For that matter no blood stained clothes were
H recovered from any of the respondents though they were
    supposed to be authors of the crime which left body of
           STATE OF U.P. Y. SATVEER & ORS.                     309


the deceased in a pool of blood. Even the blood stains A.
found on the cemented portion from Chamunda Math,
though of human origin, were quite disintegrated as per
FSL examination. The material on record definitely fell
short and the respondents are entitled to benefit of doubt
[Paras 14, 15] [318-F-H; 319-C]                            B
  · State of U.P. v. Satish 2005 (2) SCR 1132: (2005) 3
SCC 114; Joseph v. State of Kera/a 2002 (4) Suppl. SCR
439: (2003) 1 SCC 465; State of Haryana v. lnder Singh
(2002) 9 SCC 537; Ramnaresh v. State ofChhattisgarh 2012        c
(3) SCR 630: (2012) 4 sec 257 - relied on.
                  Case Law Reference
 2005 (2) SCR 1132             Relied on         Para 10
 2002 (4) Suppl. SCR 439       Relied on         Para 11        D

 (2002) 9 sec 537              Relied on         Para 1.1

  2012 (3) SCR 630             Relied on         Para 11

    CRIMINALAPPELLATE JURISDICTION: Criminal Appeal             E
Nos. 623-624 of 2008
    From the Judgment and Order dated 24.04.2007 of the
High Court of Judicature at Allahabad in Criminal Appeal No.
7911 of 2006 and Criminal Reference No. 15 of 2006. ·           F
                       WITH
    Criminal Appeal No. 622 of 2008.

   'Kamlendra Mishra, Ranbir Singh Yadav for the Appellant.
                                                                G
    Rani Chhabra, Raj Singh Rana for the Respondents.

    The Judgment of the Court was delivered by

    UDAY UM ESH LALIT, J. 1. These appeals by Special           H
Leave arise out of judgment and order dated 24.04.2007
310         SUPREME COURT REPORTS                  (2015] 8 S.C.R.


A     passed by the High Court of Judicature atAllahabad in Criminal
      Appeal No.7911 of2006 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.
B
        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
C 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
D 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
E Vijay Pal did not seeAkash 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
F 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
G 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
H 4:30 p.m and found following ante mortem injuries on the body
           STATE OF U.P. v. SATVEER & ORS.                   311
               (UDAY UMESH LAUT, J.]

of said Akash :-                                              A

      1. An incised wound size 1cm X 0.5cm X muscle &
cartilage deep· present over pinna of right ear.

    2. Acontusion 5 ems X 3 ems pr.esent over right side of
                                                            8
face just anterior to the right ear.

    3. A braded contusions 5 ems X 3 ems present over left
side of face 3 ems away from nose.

    4. A contusion 4 ems X 3 .ems present over left side of C
face 3 ems away from nose

    5. An incised wound 1 cm X .5 cm X muscle & cartilage
and muscle deep present over left side of nostril.
                                                              D
   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.
                                                              E
    8. Multiple contusion in the area of 7cms X 5 ems over
anterior & right side of neck at the level of Adam's apple

    9. Abraded contusion 4 ems x 4cms present over anterior
aspect of neck over Adam's apple and towards left side.     F

     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 G
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 H
312         SUPREME COURT REPORTS                  [2015] 8 S.C.R.


A injuries, they were referred to PW3 Dr. A. Kumar, who found
  seventeen iniuries 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
B 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 baithakwas bounded by a boundary wall. He
  recovered blood stained earth from the baithak and blood
C stained cemented portion from Chamunda Math, which blood
  was later found to be of human origin.

           5. After completing investigation, charge sheet was filed
      against the respondents and they were tried in the court of
D     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
E     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
F     clinic of a doctor along with Vijay Pal, he saw respondent
      Subhadra takeAkash to the baithak by holding his arm, where
      respondents Satveer, Sanjay and Shishpal were already
      present. All the respondents then went inside along withAkash
      and did not come out for about half an hour. Thereafter the
G     respondents came out with a "thaal" with "pooja samagri" and
      went towards Chamunda Math. SinceAkash 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
H     Chamunda Math he could see stains of blood on cemented
              STATE OF U.P. v. SATVEER & ORS.                         313
                  [UDAY UMESH LAUT, J.]

 portion and according to the witness the respondents were A
 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 B
 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    C
  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              D
  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              E
  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 doctorwhich was 10-12 feet away from the place
  of incident. h) That the dead body of deceased Akash was             F.
  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
 3ff2 read with Section 34 IPC. After considering the
 submissions advanced on behalf of the prosecution and the G
 respondents on the issue of pu!"lishment, 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 H
 Court.
314        SUPREME COURT REPORTS                 [2015] 8 S.C.R.


 A      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
 B respondents of the charges leveled against them. The High
   Court accepted that the prosecution had proved thatAkash 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
 C 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 itdid not stand to reason that large number of villagers
 0
   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
 E 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
. F No.622 of2008. 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
  G 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
  H accused. Though separate appeal was preferred by informant
               STATE OF U.P. v. SATVEER & ORS.              315
                   [UDAY UMESH LAUT, J.]

Roop Basant, none appeared in support thereof. Mrs. Rani A
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.       B

     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. C
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, D
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 res·pondents were inside
the baithak for some 20-25 minutes, and when they went E
towards Chamunda Math i.e. to the other side of the road, he
and Vijaypal could immediately enterthe baithak and see the
dead body lying in a pool of blood.which meantthat the baithak
was not locked at all.
                                                              F
     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 ofAshok was found from the very same place where G
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:
1
    c2oos) 3 sec 114                                          H
316          SUPREME COURT REPORTS               [2015] 8 S.C.R.


A         "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
B         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 ifthe testimony of PW2 Mewa Ram is accepted.
C Everything hinges on his testimony. He is the sole witness. It
  was stated by this Court in Joseph v. State of Kerafa 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.
D lnder 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
  Chhattisgarh' summed up the principles as under:
E
       "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
F      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 prosec;ution in relation to commission of the crime and
G      involvement of the accused in committing such a crime."

          The evidence of the sole witness thus needs to be

             sec 465
      2 (2003) 1


H ' c2002) 9 sec 537
  • c2012) 4 sec 251
             STATE OF U.P. v. SATVEER & ORS.                          317
                 [UDAY UMESH LAUT, J.]

considered with caution and after testing it against other A
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         B
PW2 Mewa Ram he was sitting on a bench in front of the clinic
of a doctor with Vijaypal when he ~aw Akash being led inside
the baithak by the respondents. Apart from his own testimony
nothing has been placed on record by the prosecutionwhich
could lend corroboration to his own presence and the content           C
 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               D
 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        E
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          F
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                G
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.
                                                                       H
    13. As regards his version about the incident, the manner
318       SUPREME COURT REPORTS                  [2015] 8 S.C.R.


A 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
B and could be completely relied upon. The movements ofAkash
  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
C 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
D 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 ofAkash
  was found there, though very crucial, cannot by themselves be
  sufficient to fix the liability. The baithak was not part of the
E 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.
F 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
G 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
H Math, though of human origin, were quite disintegrated as per
                STATE OF U.P. v. SATVEER & ORS.                    319
                    [UDAY UMESH LAUT, J.]

FSL examination.                                                    A
     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 B
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, C
affirm the view taken by the High Court and dismiss the state
appeals. The appeal preferred by the Complainant is also
dismissed.

Devika Gujral                                 Appeals dismissed.