SUBHASH versus STATE OF UTTAR PRADESH on 1 February 2022

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SUPREME COURT REPORTS

[2022] 2 S.C.R. 258

[2022] 2 S.C.R.

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SUBHASH

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STATE OF UTTAR PRADESH

(Criminal Appeal No. 158 of 2022)

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FEBRUARY 01, 2022

[DR. DHANANJAYA Y CHANDRACHUD, SURYA KANTAND VIKRAM NATH, JJ.]

Penal Code, 1860 – s.302 r/w s.149 and s.148 – Murder –CInformant was sitting with his brother, the deceased, on a cot whenthe six accused persons allegedly arrived at the scene – Allegationthat A-3 and three other accused, who were armed with pistols,fired at the deceased, while one other accused ‘SD’, who was armedwith an axe, and A-6, who was armed with knife, assaulted deceasedDon his neck – Sessions Judge convicted all six accused u/s.302 r/w149 and 148 IPC – High Court confirmed the conviction – On appealby A-3 and A-6, held: On facts, the presence of both PW-1 and PW-2 at the spot was gravely in doubt – There were materialcontradictions in the evidence of both PW-1 and PW-2, which werenot noticed either by the Sessions Judge or by the High Court –EThough the prosecution is not obligated to examine every witnesswho is alleged to have been present at the site or the scene of theoffence, yet in context of the facts, the failure to examine the fatherof the deceased who was allegedly sitting in close proximity, assumessignificance – Appellants (A-3 and A-6) accordingly entitled toFbenefit of doubt and are acquitted.

Allowing the appeals, the Court

HELD: 1. Analyzing the evidence of PW-1, it is apparentthat there are material improvements which have been attemptedin the course of the deposition over the case as set out in theGFIR as well as in the course of the examination-in-chief. The rolewhich originally is attributed to all the accused who were armedwith country made pistols is of having fired upon the deceased.Subsequently, in the course of the cross-examination, PW-1 has H

stated that insofar as A-3 is concerned, he had fired in the airwhile two accused had actually fired at the body of the deceased.[Para 15][265-F-G]

2.1. The entire case of the prosecution was that all theaccused who were alleged to be wielding country made pistolshad fired upon the deceased. This case of the prosecution issubstantially diluted in the cross-examination of PW-1 as well asin the cross-examination of PW-2. Significantly, the postmortemreport indicates only one fire arm injury, which is not consistentwith the case of the prosecution that all the accused had firedupon the deceased. That apart, the post-mortem report indicatesone injury on the neck of the deceased which again is inconsistentwith the deposition of PW-1 and PW-2 that both accused ‘SD’armed with a farsa and A-6 who was allegedly armed with a knifehad assaulted the deceased on the neck. [Para 17][266-D-E]

2.2. The presence of both PW-1 and PW-2 at the spot isgravely in doubt. There are material contradictions in theevidence of both PW-1 and PW-2, which ought to have been, buthave not been noticed either by the Sessions Judge or by theHigh Court. The High Court was of the view that thecontradictions which have been pointed out by the defence are ofa minor nature. Having evaluated the evidence, one is unable tosustain that conclusion given that the contradictions were offundamental nature which go to the root of the case of theprosecution. It is true that the prosecution was not obligated toexamine every witness who is alleged to have been present atthe site or the scene of the offence, yet in the context of thefacts, the failure to examine the father of the deceased who wasallegedly sitting in the close proximity, assumes significance.Accused-appellants A-3 and A-6 are accordingly entitled to thebenefit of doubt. [Paras 18 and 19][266-F-H; 267-A-B]

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNo.158 of 2022.

From the Judgment and Order dated 11.01.2019 of the High Courtof Judicature at Allahabad in Criminal Appeal No.5307 of 2008.

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[2022] 2 S.C.R.

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Criminal Appeal No. 159 of 2022.

Ms. Manju Jetley, Chandan Mishra, Brahmadandi Ramesh, Ms.Manisha Chava, M. Vijaya Bhaskar, Advs. for the Appellant.

BSanjay Kumar Tyagi, Ms. Harshita Raghuvanshi, Ms. Saloni TangriJava, Advs. for the Respondent.

The Judgment of the Court was delivered by DR. DHANANJAYA Y CHANDRACHUD, J.

AFacts.........................................................................2*

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BSubmissions..............................................................5*

CAnalysis....................................................................9*

D1. Leave granted.

A Facts

2. These appeals arise from a judgment of a Division Bench ofthe High Court of Judicature at Allahabad dated 11 January 2019 inECriminal Appeal No 5307 of 2008.

3. The appeal before the High Court arose from a judgment ofthe Sessions Judge, Badaun dated 30 July 2008 in Sessions Trial No 499of 2002, arising out of Case Crime No 61 of 2002 registered under Section148 and Section 302 read with Section 149 of the Indian Penal CodeF1860[1] at Police Station Dataganj District Badaun. The Sessions Judgeconvicted Rajaram, Rajesh, Subhash, Rampal, Shiv Dayal and Gyanvatifor offences punishable under Sections 148 and 302/149 of the IPC.They were sentenced to imprisonment for life for the offences punishableunder Sections 302/149 and to rigorous imprisonment for two years forthe offence under Section 148 of the IPC.

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4. The first information report[2] was registered at 1430 hours onthe complaint lodged by PW-1 Vedram on 16 February 2002. The FIRrecords that at 11 am on the date of the incident, the informant was 1 “IPC’’

2 “FIR’’

H* Ed. Note : Pagination is as per the original Judgment.

sitting in proximity to the village well on a cot with his brother Surenderand his father was sitting on the terrace. At that point, Rajaram andRajesh who were armed with pistols, Subhash and Rampal who werearmed with country made pistols, Shiv Dayal with an axe and Gyanvati,wife of Rajaram, armed with a knife arrived at the scene. Rajaram,Rajesh, Subhash and Rampal are alleged to have fired from their pistolsat his brother Surender. Shiv Dayal, who was armed with an axe andGyanvati are alleged to have assaulted Surender on his neck. Theinformant states that he then ran towards his house and informed, amongothers, his father who was on the terrace. The accused upon beingchallenged are alleged to have run away from the scene of incident. Theinformant also stated that the deceased was accused in the murder ofthe father of Rajesh, for which the trial was ongoing before the court.

5. The case of the prosecution at the trial principally rested on theevidence of PW-1 and PW-2. The postmortem of the deceased, Surenderwas conducted on 17 February 2002 by PW-4, Dr R K Rohatgi. Amongthe witnesses who were examined by the prosecution, Vedram is theinformant, while PW-2, Jagdish is an alleged eye witness who is statedto have witnessed the incident while passing by from the village pond.

6. The postmortem indicated the following nine injuries on thedeceased:

“1.IW on posterior aspect of Rt. arm area 5.0 cm x 2.0 cm xmuscle deep just above wrist.

2. IW on the outer aspect of mid of neck 9.0 cm x 3.0 cm xvertebra deep.

3. IW on the posterior aspect of left sleeve area 1.0 cm x 0.5cm x muscle deep 11 cm below elbow.

4. IW on the posterior aspect of left sleeve area 3.0 cm x 0.5cm x muscle deep 6.0 cm above wrist.

5. IW on the left side 8.0 cm x 8.0 cm x muscle deep and 1.0cm below lip.

6. LW on the right side upper lip 2.0 cm x 0.5 cm x muscledeep.

7. LW Fire arm wound of entry on the right side chest 4.0 cmx 3.0 cm x cavity and 8.0 cm above the right nippleblackening present around wound.

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8. LW on the top of right side of skull 4.0 cm x 2.0 cm x scalpdeep 10 cm above the right ear.

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9. Contusion on the left side of face 7.0 cm x 2.5 cm and 3.0cm to ear.”

7. The Sessions Judge found the accused guilty principally on theBbasis of the evidence of PW-1 and PW-2. The Sessions Judge held that:

(i) Based on the evidence presented by the prosecution, it wasproved that the deceased was an accused in the murder ofRajesh’s father. Since Rajesh, Subhash, Rajaram, Rampaland Gyanvati are related and members of the same family,the motive of the murder of the deceased was to avengethe death of Rajesh’s father; C

(ii) The fact that PW-1 did not save his brother and sufferedno injuries, does not indicate that he was not an eye witness.As an unarmed person, it was natural for PW-1 to not makeDany attempt to save his brother; and

(iii) The medical evidence that the deceased had suffered onlyone fire arm injury was in consonance with the statementof PW-1. PW-1 stated that Rajesh and Rajaram fired on thedeceased, while Subhash and Rampal did open firing. Thus,Eit was proved that firing occurred from a close range, but thetime of firing cannot be ascertained by a normal person.

8. The findings and conviction recorded by the Sessions Judgehave been confirmed in appeal by the High Court by its impugnedjudgment dated 11 January 2019.FB Submissions

9. We have heard Mr Chandan Mishra, counsel appearing on behalfof the appellants and Mr Sanjay Kumar Tyagi, counsel appearing onbehalf of the State of Uttar Pradesh.

G10. The two appeals before this Court have been instituted bySubhash (Accused No 3) and Gyanvati (Accused No 6).

11. Mr Chandan Mishra, appearing on behalf of the appellantshas urged that there are serious contradictions in the evidence whichwould warrant the acquittal of the accused-appellants. The followingHsubmissions have been urged in support of the appeals:

[DR. DHANANJAYA Y CHANDRACHUD, J.]

(i) PW-1, Vedram was an accused in the murder of the fatherof accused Rajesh. PW-1 is alleged to be an eye witnesswho was present at the scene of offence when the deceasedSurender was assaulted. PW 1 together with the deceasedwere accused in the murder of Rajesh’s father it is unlikelythat he would have been spared when a large group ofpersons belonging to the other side assaulted Surender withfire arms, an axe and a knife;

(ii) There are material improvements which have been made byPW-1 which would be apparent on a comparison of hiscomplaint, statement under Section 161 of the Code ofCriminal Procedure 1973 and the deposition, both in the courseof the examination-in-chief and the cross-examination;

(iii) PW-2, Jagdish was a chance witness who is alleged to havewitnessed the offence while he was returning from thevillage pond. The deposition of PW-2 would similarlyindicate that he was unaware of the factual details of theincident, and as a matter of fact, has substantially improvedupon his case in the course of his deposition;

(iv) The injuries which have been recorded in the course of thepostmortem report demonstrate that there is only one firearm injury and one injury which has been sustained by thedeceased on the neck. The case of the prosecution thatboth Shiv Dayal and Gyanvati assaulted the deceased onthe neck is therefore belied by the nature of the solitaryinjury which was sustained on the neck;

(v) The fact there was only one fire arm injury which has beennoticed on the body of the deceased in the course of thepostmortem would belie the case of the prosecutionwitnesses that as many as five of the accused had fired atthe body of the deceased;

(vi) There is serious doubt about whether PW-1 is an eye witnessat all and PW-2 who is a chance witness ought not to bebelieved for the simple reason that his testimony is subjectto grave doubt; and

(vii) The failure of the prosecution to examine Chetram, the fatherof the deceased who was allegedly present at the scene ofoffence, would therefore assume some significance.

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A12 On the other hand, Mr Sanjay Kumar Tyagi, Standing Counselappearing on behalf of the State of Uttar Pradesh has made an attemptto emphasize the findings which have been recorded by the High Courtin the course of its impugned judgment. Counsel submitted that the allegedcontradictions which have been adverted to on behalf of the appellantsare minor in nature, as held by the High Court while affirming the judgmentBof conviction. The High Court in the impugned judgment had observedthat:

(i) The statement of PW-1 was consistent with the FIR. Inthe FIR, PW-1 stated that all four accused fired theirweapons, however in his cross-examination, he stated thatConly Rajesh and Rajaram fired at the deceased whileSubhash and Rampal fired in the air. These are minorinconsistencies which cannot affect the credibility of PW-1;

(ii) PW-1 had stated that the accused had fired from a distanceDof five to six steps, while PW-2 stated that they fired froma distance of 20 yards. In view of the medical evidence,the statement of PW-2 is not reliable, however, PW-2 is arustic villager who was examined four years after theincident. Thus, these contradictions are not material enoughEto reject the deposition of PW-2 in its entirety;

(iii) The evidence of PW-1- that the shots were fired from adistance of five to six steps - is in consonance with themedical evidence as there was blackening around the firearm injury which indicates that the injury was caused byFfiring from close range;

(iv) Although no weapon was recovered from the scene ofcrime, it is not a sine qua non for sustaining the conviction;and

(v) The participation of accused Gyanvati in the crime cannotGbe doubted merely on the ground that she being a lady wouldnot have joined the other accused persons. The statementof the two witnesses that she was armed with a knife andstruck the deceased at his neck is consistent with themedical evidence.

13. We shall now consider the rival submissions.H

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14. The entire case of the prosecution essentially rests on thedeposition of PW-1 and PW-2. PW-1, Vedram who is the informant hasstated in the course of his deposition that before the incident, there wasa case involving the murder of the father of accused Rajesh. In thatcase, Surender, the deceased, was an accused as was PW-1, Vedram.Vedram’s narration of the incident in the FIR is that at about 11 am onthe date of the incident, when he was sitting on a cot near the villagewell together with the deceased, Rajaram, Rajesh, Subhash and Rampalfired from their country made pistols and that the bullets had hit hisbrother Surender. Moreover, he stated that both Shiv Dayal who wasarmed with a farsa and Gyanvati (Rajaram’s wife) who was armed witha knife, had assaulted the deceased on his neck. In the course of theexamination-in-chief, it was also stated that both Shiv Dayal and Gyanvatihad assaulted the deceased on his neck. Though in the course of theexamination-in-chief, PW-1 adverted to the fact that the deceased wasa co-accused in the case involving the murder of the father of the accusedRajesh, the fact that he was also a co-accused emerged during the courseof cross-examination. In the course of cross-examination, PW-1 wasspecifically questioned about the fact the he had not sustained any injuryin the course of the occurrence nor was any effort made by the accusedto assault or kill him. In his cross-examination, PW-1 however statedthat the accused persons “2-1” fired upon his brother while some of theother accused fired in the air. As regards the role which is attributed toA-3, PW-1 stated in the course of his cross-examination that he hadfired in the air together with Rampal, while Rajaram and Rajesh hadfired upon his brother.

15. Analyzing the evidence of PW-1, it is apparent that there arematerial improvements which have been attempted in the course of thedeposition over the case as set out in the FIR as well as in the course ofthe examination-in-chief. The role which originally is attributed to all theaccused who were armed with country made pistols is of having firedupon the deceased. Subsequently, in the course of the cross-examination,PW-1 has stated that insofar as A-3 is concerned, he had fired in the airwhile two accused had actually fired at the body of the deceased.

16. Having analyzed the evidence of PW-1, it would be materialto advert to the evidence of PW-2, Jagdish. In the course of hisexamination-in-chief, PW-2 has adverted to A-3, who was wielding a A

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Acountry made gun, and that Gyanvati (A-6) together with Shiv Dayalassaulted the deceased on his neck with a knife and a farsa respectively.PW-2 is evidently a chance witness who is alleged to have witnessedthe incident while returning from the village pond. During the course ofhis cross-examination however, PW-2 stated that Vedram, PW-1 wassitting about two cubits away from the cot of Surender, the deceased.BHe stated that he is unable to state as to who had fired earlier and whohad last fired at the deceased. PW-2 also admitted during the course ofhis cross-examination that he was unable to specify whose fire had hitthe deceased. He stated that the accused were about 20 yards from thedeceased during the course of the incident and he was unable to state asCto how many injuries were caused by the farsa. PW-2 was unable tostate how many injuries were caused by the knife. These aspects of thecross-examination of PW-2 assume crucial significance from more thanone perspective.

17. The entire case of the prosecution, as noticed earlier, was thatDall the accused who were alleged to be wielding country made pistolshad fired upon the deceased. This case of the prosecution is substantiallydiluted in the cross-examination of PW-1 as well as in the cross-examination of PW-2. Significantly, the postmortem report indicates onlyone fire arm injury, which is not consistent with the case of the prosecution that all the accused had fired upon the deceased. That apart, theEpostmortem report indicates one injury on the neck of the deceasedwhich again is inconsistent with the deposition of PW-1 and PW-2 thatboth Shiv Dayal armed with a farsa and Gyanvati (A-6) who was allegedlyarmed with a knife had assaulted the deceased on the neck.

18. On this state of the record, we are of the considered viewFthat the presence of both PW-1 and PW-2 at the spot is gravely indoubt. There are material contradictions in the evidence of both PW-1and PW-2, which ought to have been, but have not been noticed eitherby the learned Sessions Judge or by the High Court. The High Courtwas of the view that the contradictions which have been pointed outGby the defence are of a minor nature. Having evaluated the evidence,we are unable to sustain that conclusion given that the contradictionswere of fundamental nature which go to the root of the case of theprosecution. It is true that the prosecution was not obligated to examineevery witness who is alleged to have been present at the site or thescene of the offence, yet in the context of the facts as they haveH

SUBHASH v. STATE OF UTTAR PRADESH[DR. DHANANJAYA Y CHANDRACHUD, J.]

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emerged before this Court, the failure to examine Chetram, who wasthe father of the deceased and was allegedly sitting in the closeproximity, assumes significance.

19. For the above reason, we are of the view that the accused-appellants Subhash (A-3) and Gyanvati (A-6) are entitled to the benefitof doubt. We accordingly allow the appeals and set aside the impugnedBjudgment and order of the High Court of Judicature at Allahabad dated11 January 2019 in Criminal Appeal No 5307 of 2008. The appellantsare accordingly acquitted and they shall be released from custody unlessthey are wanted in connection with any other case.

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20. Pending applications, if any, stand disposed of.

Bibhuti Bhushan Bose

Appeals allowed.

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