Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.687 OF 2001

Basudeo Yadav …Appellant

Versus

Surendra Yadav & Ors. …Respondents

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Challenge 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.

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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.   

2. Background 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

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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.

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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

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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 ½” x ½” 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.

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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

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caused  due  to  shock  and  Haemorrhage  resulting  from  the

above injuries.

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.

3. The 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

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who  was  the  informant.   The  Trial  Court  accepted  the

prosecution version and convicted the persons.

4. In 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

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twisted.  It was held that the evidence relating to kidnapping

was inadequate. Accordingly, acquittal was directed.      

5. Learned  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.             

6. In  response,  leaned  counsel  for  the  respondents

submitted  that  the  view  taken  by  the  High  Court  is  a

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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.    

7. Learned  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

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stated to have seen the dragging and they have not stated to

have seen the killing.            

8. There 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

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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).  

9. So 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:

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“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

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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 :

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“After 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 ground.”

10. Again in Israr v. State of U.P. (2005 (9) SCC 616), it was

observed as follows:

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“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  others. Evidence  of  PWs  3  to  5  proves  that identification was possible.”   

11. Therefore,  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.  

12. So 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

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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.”      

13. Similarly, 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.

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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.”  

14. So  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.

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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.

15. Above being the position, the judgment of the High Court

is set aside and the judgment of the Trial Court is restored.

16. The appeal is allowed.

………………………….…………J. (Dr. ARIJIT PASAYAT)

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………………………….…………J. (Dr. MUKUNDAKAM SHARMA)

New Delhi:  August 25, 2008

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