Basudeo Yadav Vs.
Surendra Yadav & Ors.  INSC 1413 (25 August 2008)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.687 OF 2001 Basudeo
Yadav ...Appellant Versus Surendra Yadav & Ors. ...Respondents
Dr. ARIJIT PASAYAT,
in this appeal is to the judgment of acquittal passed by a Division Bench of
the Patna High Court. 14 persons faced trial for alleged commission of offences
punishable under Section 364 read with Section 302 and Section 302 read with
Section 149 of the Indian Penal Code, 1860 (for short `IPC') and Section 201
and Section 148 IPC.
During trial two
accused persons died and two absconded. In other words, ten persons faced trial
and each one of them was convicted and sentenced to various imprisonments.
During pendency of the appeal before the High Court A1, A9 and and A10 died
and, therefore, the appeal filed by them was held to be abated.
facts in a nutshell are as follows:
On 19.3.1986 at about
8.00 p.m., Vyasdeo Yadav (hereinafter referred to as the `deceased') of village
Sheo Nagar, P.S. Kotwali (Kasim Bazar) District Munger, went towards Sheo Nagar
School to attend the call of nature with a water jug and when he reached near
Sheo Nagar School, all of a sudden, all the accused persons together with Kashi
Mahton, Ram Gulam Mehton (both died during the pendency of trial of the case),
Nageshwar Mahton and Ram Balak Mahton (absconders) came there in a group from
the northern direction and another group from the southern direction, being
armed with deadly weapons like gun, rifle etc. and they forcibly took away and
dragged Vyasdeo Yadav towards river bank. Such dragging was seen by Muneshwar
Yadav (PW1) and Shyam Yadav (PW4) who were then returning home from their Parwal
field and seeing such occurrence lest they be attached, concealed themselves
behind a ditch and therefrom they could identify all the accused persons
including absconders and the deceased. Such dragging and taking away was also
seen by another Mantu Yadav (PW3) who had also gone nearby for call of nature
at a distance of about one rassi (equal to 110 cubcs). He also became
frightened and also concealed himself and after the deceased Vyasdeo Yadav was
dragged towards river bank for considerable distance, then this Mantu Yadav
(PW3) came out and on the Patna- Munger road, he found the informant Basudeo
Yadav, the brother of the deceased Vyasdeo Yadav and gave information in
detail. Then Basudeo Yadav in companion with Mantu Yadav (PW3) and Baleshwar
Yadav (PW2) went towards the place where the deceased was dragged by the
accused- appellants but they could not find any trace of the whereabouts of the
deceased as to where he had been taken.
Then Basudeo Yadav
(PW6) accompanied by Mantu Yadav (PW3) and Baleshwar Pd. Yadav (PW-2) went to
the residence of Superintendent of Police (Munger) on a rickshaw and there, on
being directed by the Superintendent of Police concerned, (PW6) with his
companions went to Muffasil P.S. and lodged information by giving fardbeyan which
was recorded on that very night i.e. on 19.6.1993 at about 23 hours at the
Muffasil P.S. It may be mentioned here that other two eye witnesses Muneshwar
Yadav (PW1) and Shyam Yadav (PW4) after seeing the occurrence respectively went
to their homes. Shyam Yadav (PW4) went to the house of Basudeo Yadav first and
there he learnt that after knowing about this incident Basudeo Yadav had
already left for police station. In the fardbeyan, a vivid description was
given about the taking away of the deceased by the accused appellants including
their other companions as mentioned above. On the basis of such fardbeyan (Ext.
No.1) formal FIR was registered and then the same was sent to Kotwali P.S. for
investigation as the place of occurrence wherefrom the deceased was dragged
falling within the jurisdiction of Kotwali P.S. (Kasim Bazar). On the next day
of the occurrence Dhirendera Yadav (PW.5) found the dead body near Sita Charan
and from there he brought the dead body by boat to steamerghat and then
information was given to the informant and police. From the steamerghar the
deadbody was brought home at Sheonagar and inquest was held over the dead body
and then the same was sent for post mortem examination. Dr. Shashi Bhushan
(PW7) held autopsy over the dead body of Vyasdeo Yadav and found the following
injuries on his person:
1) One lacerated
circular wound 1/3" in diameter with inverted margins X brain cavity deep
on left temple.
2) Lacerated wound
=" x =" x brain cavity deep with everted margins on right side of
head 1' above the prinna of right ear.
3) One desection left
temporal and right pertial bones found fractured-both injuries communicating
with laceration and haemorrhage in both brain cavities.
4) Lacerated wound
circular 1/3" in diameter with inverted margins with left thorasic cavity
deep with everted margins on back of right upper chest.
On desection both
wounds were found communicating with each other fracture of 3rd and 4th ribs of
left side with laceration of lung and plurra both right and left. Both chest
cavities were full of blood clots.
5) Lacerated would
circular 1/3" in diameter with inverted margins on back of left chest on
coastal border x abdominal cavity deep.
On desection spleen
found lacerated and multiple perporation in small intestine. A bullet was found
lodged in the paritonial cavity which was full of blood and clot. The bullet
was preserved and sent with the constable in a sealed container.
According to the
doctor, all the injuries were caused by fire arm and were anti mortem in nature
and death was caused due to shock and Haemorrhage resulting from the above
Kameshwar Pd. Sinha
(PW 8) took up the charge of the case after the investigation was over and he
only submitted chargesheet. PWs. 9 and 10 are formal witnesses proving formal
FIR and inquest report etc.
accused persons pleaded that they have been falsely implicated because of land
dispute, though they did not deny the homicidal death of the deceased. It was
defence version that he was murdered near Saheb Diara at Jafar Nagar while he
was returning from the house of the relations between 4/5 p.m. on the day of
occurrence. After concocting a story at the P.S, the FIR was lodged with the
motivated purpose. One witness was examined who happened to be a Priest and according
to him he had seen from a distance that the deceased and his relatives were
surrounded by unknown persons with armed weapons and deceased was killed. PWs.
1, 3 and 4 were stated to be eye witnesses along with PW 6 7 who was the
informant. The Trial Court accepted the prosecution version and convicted the
appeal, before the High Court it was contended that the whole prosecution case
is based on surmises and conjectures except the so called taking away by the
accused- appellant of the deceased. There is no other material to show as to
who had been the deceased, and whether there was a consensus of taking away of
the deceased by the accused- appellant. Further, the so called eye witnesses
PWs. 3 and 4 are got up witnesses and they were inimical to the accused
persons. Additionally, they stated that the identification from the long
distance in the night hours was impossible and, therefore, the prosecution
version is without any foundation.
The High Court found
that there was no direct evidence and the case was based on circumstantial
evidence. The High Court found that identification was not possible. The High
Court noted that instead of filing the FIR at the correct police station, it
was filed at a different police station and that gives an impression that the
genesis of the occurrence has been twisted. It was held that the evidence
relating to kidnapping was inadequate. Accordingly, acquittal was directed.
counsel for the appellant submitted that the Trial Court has dealt each of the
factors which the High Court found to be vulnerable. So far as distance is
concerned, it is to be noted that the occurrence took place in the month of
June in the evening when the accused persons were last seen in the company of
the deceased. The evidence is clear and cogent about the role played by the
accused persons. So far as the question of filing of FIR at wrong police
station is concerned, it has been categorically stated by the witnesses that
they went to the Superintendent of Police who had directed them to file the
same at a particular police station. It is also submitted that the High Court
erroneously stated that the witnesses are not stating as to which of the
accused came from which direction. It is factually incorrect.
response, leaned counsel for the respondents submitted that the view taken by
the High Court is a reasonable one. PW3 specifically admitted that he was at a
distance from the place of occurrence. The dead body was found at a distance of
about 10 Kms. There were improvements in the evidence of the PWs. It is also
submitted that conduct of the witnesses is unusual and immaterial.
With reference to the
medical evidence it was submitted that the defence version is more probable. It
is pointed out that time of death has not been specifically fixed. The presence
of undigested food is a pointer in that regard.
counsel for the appellant on the other hand submitted that the judgment of
acquittal passed by the High Court is not sustainable. While dealing with the
question of identification, the High Court referred to some irrelevant material
like the evidence of DW1. It is strange that DW1 did not inform anybody about
the occurrence. If exception could be taken to the witnesses going to the house
of the informant without going to the police station, the same logic is equally
applicable to DW1. The High Court held that at the most PWs stated to have seen
the dragging and they have not stated to have seen the killing.
is no embargo on the appellate court reviewing the evidence upon which an order
of acquittal is based. Generally, the order of acquittal shall not be
interfered with because the presumption of innocence of the accused is further
strengthened by acquittal. The golden thread which runs through the web of
administration of justice in criminal cases is that if two views are possible
on the evidence adduced in the case, one pointing to the guilt of the accused
and the other to his innocence, the view which is favourable to the accused
should be adopted. The paramount consideration of the court is to ensure that
miscarriage of justice is prevented. A miscarriage of justice which may arise
from acquittal of the guilty is no less than from the conviction of an
innocent. In a case where admissible evidence is ignored, a duty is cast upon
the appellate court to re-appreciate the evidence where the accused has been
acquitted, for the purpose of ascertaining as to whether any of the accused
really committed any offence or not. (See Bhagwan Singh v. State of M.P, 2003
(3) SCC 21).
The principle to be
followed by the appellate court considering the appeal against the judgment of
acquittal is to interfere only when there are compelling and substantial
reasons for doing so. If the impugned judgment is clearly unreasonable and
relevant and convincing materials have been unjustifiably eliminated in the
process, it is a compelling reason for interference. These aspects were
highlighted by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra
(1973 (2) SCC 793), Ramesh Babulal Doshi v. State of Gujarat (1996 (9) SCC
225), Jaswant Singh v. State of Haryana (2000 (4) SCC 484), Raj Kishore Jha v.
State of Bihar (2003 (11) SCC 519), State of Punjab v. Karnail Singh (2003 (11)
SCC 271), State of Punjab v. Phola Singh (2003 (11) SCC 58), Suchand Pal v.
Phani Pal (2003 (11) SCC 527) and Sachchey Lal Tiwari v. State of U.P. (2004
(11) SCC 410).
far as identification is concerned, a few decisions of this Court need to be
noted. In S. Sudershan Reddy and Ors. v. State of A.P. (2006 (10) SCC 163) it
was noted as follows:
"19. In Nathuni
Yadav and Others v. State of Bihar and Another (1998 (9) SCC 238) this Court
observed that under what circumstances the lack of moon light or artificial
light does not per se preclude identification of the assailants. It was noted
as follows :- "Even assuming that there was no moonlight then, we have to
gauge the situation carefully. The proximity at which the assailants would have
confronted with the injured, the possibility of some light reaching there from
the glow of stars, and the fact that the murder was committed on a roofless terrace
are germane factors to be borne in mind while judging whether the victims could
have had enough visibility to correctly identify the assailants. Over and above
those factors, we must bear in mind the further fact that the assailants were
no strangers to the inmates of the tragedy- bound house, the eyewitnesses being
well acquainted with the physiognomy of each one of the killers. We are,
therefore, not persuaded to assume that it would not have been possible for the
victims to see the assailants or that there was possibility for making a wrong
identification of them. We are keeping in mind the fact that even the
assailants had enough light to identify the victims whom they targeted without
any mistake from among those who were sleeping on the terrace. If the light
then available, though meager, was enough for the assailants why should we
think that the 13 same light was not enough for the assailants why should we
think that the same light was not enough for the assailants why should we think
that the same light was not enough for the injured who would certainly have
pointedly focused their eyes on the faces of the intruders standing in front of
them. What is sauce for the goose is sauce for the gander."
20. In the instant
case, the time was about 7 P.M. in the evening in the month of April. The
position was again reiterated in Bharasi and others v. State of M.P. (2002(7)
SCC 239). It was inter alia noted as follows :
"In relation to
the identification of the accused in the darkness, the High Court has clearly
stated that in the month of April, the sun sets at about 7.00 p.m. in the
evening, the accused were known to the witnesses and could be identified even
in faint darkness. Here again, the High Court has relied upon the decision of
this Court in the case of Nathuni Yadav v. State of Bihar (1998 (9) SCC 238).
The High Court has also noticed that the enmity between the deceased and the
appellants was not disputed."
21. In Krishnan and
Another v. State of Kerala (1996(10) SCC 508 ) it was observed as follows :
giving our careful consideration to the facts and circumstances of the case and
the evidence adduced, we do not find any reason to interfere with the
well-reasoned judgment passed by the High Court in convicting appellant-2
Vijaykumar. So far as the contention of insufficient light is concerned, we may
indicate that in an open field on a cloudless starry night, there was no
difficulty in identifying the victim by the assailants because of existence of
some light with which identification was possible. PW1 being a close relation
of both the accused, there was no difficulty for PW 1 to identify them. The
accused were also known to the other witness for which he could also identify
them. So far as appellant- Vijaykumar is concerned, PW1 had physically
prevented him from causing further injury on the deceased and there was a
tussle between the two.
Hence there was no
difficulty for PW1 to identify Accused 2- Vijaykumar. His deposition gets
corroboration from the deposition of PW3 who had seen Vijaykumar at the place
of occurrence. PW3 had not seen Vijaykumar causing any injury on the deceased
because by the time PW3 came near the place of the incident and noticed the
incident, Vijaykumar had been prevented by PW1 and his knife had fallen on the
in Israr v. State of U.P. (2005 (9) SCC 616), it was observed as follows:
15 "Coming to
the plea relating to non- probability of identification, the evidence of PW-3
is very relevant. He has stated that the occurrence took place at the time of
isha prayers which are concluded at about 9.30 p.m. There was light of the moon
as well as of the neighbouring houses and the electric poles in the lane. The
date of occurrence was 11th day of Lunar month and the place of occurrence is
near the mosque as well as many houses close by. Therefore, identification was
possible. Further a known person can be identified from a distance even without
much light. The evidence of PW-3 has also been corroborated by the evidence of
Evidence of PWs 3 to
5 proves that identification was possible."
the Trial Court was justified in holding that identification was possible. The
hypothetical conclusions of the High Court which are based on surmises and
conjectures on the other hand are unsupportable.
far as aspect of last seen is concerned, in Munivel v. State of T.N. (2006 (9)
SCC 394) this Court has held as under:
"27. Doctor, PW
11, examined them at about 1 a.m. on 17.3.1994, that is, immediately after 16
the incident took place. We do not find any material contradiction between the
ocular evidence and medical evidence. The genuineness or otherwise of the said
accident registers is not in question. Correctness of the entries made therein
is not in issue. Even no suggestion has been given to the doctor that the
entries made in the said accident registers were not correct."
28. Only because the
investigating officer was negligent and did not make any attempt to recover the
cut fingers of PW 3, the same by itself would not be sufficient to discard the
consistent evidence of all the eyewitnesses."
in State of U.P. v. Satish (2005 (3) SCC 114) it was noted as follows:
"22. 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. It would be difficult in some
cases to positively establish that the deceased was last seen with the accused
when there is a long gap and possibility of other persons coming in between
exists. In the absence of any other positive evidence to conclude that the
accused and the deceased were last seen together, it would be hazardous to come
to a conclusion of guilt in those cases.
17 In this case
there is positive evidence that the deceased and the accused were seen together
by witnesses PWs. 3 and 5, in addition to the evidence of PW-2."
far as the finding relating to undigested food is concerned, the doctor said
that death had occurred within 24 hours of the consumption. Since the time is
not given, the presence of undigested food is of no consequence. So far as
going to wrong police station is concerned, the witness categorically as to why
they went to the particular police station. Their specific stand was that they
had gone to the Superintendent of Police who had asked them to go to the
particular police station, because the occurrence relating to kidnapping had
taken place within the jurisdiction of that police station. In any event
immediately after the FIR was lodged at the police station the same was sent to
the correct police station. Therefore, there was no question of delay in
lodging of FIR as held by the High Court. PW1 specifically stated about the
injuries sustained by pistol. Doctor's evidence shows that the injuries were
caused by firearms.
One thing is
significant that the High Court has no where stated that the analysis of
evidence and the conclusions arrived at by the Trial Court were erroneous.
Without recording such a finding, the High Court was not justified in drawing
different conclusions without indicating any reason to justify the same. Such a
course is impermissible. Even if a different view is possible to be drawn, it
should be specifically held that the view taken by the Trial Court was not
supportable by evidence. It would not be possible for the High Court to act on
surmises and conjectures and disturb the findings recorded by the Trial Court.
being the position, the judgment of the High Court is set aside and the
judgment of the Trial Court is restored.
appeal is allowed.
(Dr. ARIJIT PASAYAT)
(Dr. MUKUNDAKAM SHARMA)