SUBHASH versus STATE OF UTTAR PRADESH
[2022] 2 S.C.R. 258, Supreme Court of India, 2022
Outcome: Appeal(s) allowed (Granted)
Segment: Facts
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SUBHASH
v.
STATE OF UTTAR PRADESH
(Criminal Appeal No. 158 of 2022)
FEBRUARY 01, 2022
[DR. DHANANJAYA Y CHANDRACHUD, SURYA KANT
AND VIKRAM NATH, JJ.]
Penal Code, 1860 – s.302 r/w s.149 and s.148 – Murder –
Informant was sitting with his brother, the deceased, on a cot when
the six accused persons allegedly arrived at the scene – Allegation
that A-3 and three other accused, who were armed with pistols,
fired at the deceased, while one other accused ‘SD’, who was armed
with an axe, and A-6, who was armed with knife, assaulted deceased
on his neck – Sessions Judge convicted all six accused u/s.302 r/w
149 and 148 IPC – High Court confirmed the conviction – On appeal
by 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 material
contradictions in the evidence of both PW-1 and PW-2, which were
not noticed either by the Sessions Judge or by the High Court –
Though the prosecution is not obligated to examine every witness
who is alleged to have been present at the site or the scene of the
offence, yet in context of the facts, the failure to examine the father
of the deceased who was allegedly sitting in close proximity, assumes
significance – Appellants (A-3 and A-6) accordingly entitled to
benefit of doubt and are acquitted.
Allowing the appeals, the Court
HELD: 1. Analyzing the evidence of PW-1, it is apparent
that there are material
improvements which have been attempted
in the course of the deposition over the case as set out in the
FIR as well as in the course of the examination-in-chief. The role
which originally is attributed to all the accused who were armed
with country made pistols is of having fired upon the deceased.
Subsequently, in the course of the cross-examination, PW-1 has
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stated that insofar as A-3 is concerned, he had fired in the air
while 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 the
accused who were alleged to be wielding country made pistols
had fired upon the deceased. This case of the prosecution is
substantially diluted in the cross-examination of PW-1 as well as
in the cross-examination of PW-2. Significantly, the postmortem
report indicates only one fire arm injury, which is not consistent
with the case of the prosecution that all the accused had fired
upon the deceased. That apart, the post-mortem report indicates
one injury on the neck of the deceased which again is inconsistent
with 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 knife
had 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 is
gravely in doubt. There are material contradictions in the
evidence of both PW-1 and PW-2, which ought to have been, but
have not been noticed either by the Sessions Judge or by the
High Court. The High Court was of the view that the
contradictions which have been pointed out by the defence are of
a minor nature. Having evaluated the evidence, one is unable to
sustain that conclusion given that the contradictions were of
fundamental nature which go to the root of the case of the
prosecution. It is true that the
prosecution was not obligated to
examine every witness who is alleged to have been present at
the site or the scene of the offence, yet in the context of the
facts, the failure to examine the father of the deceased who was
allegedly sitting in the close proximity, assumes significance.
Accused-appellants A-3 and A-6 are accordingly entitled to the
benefit of doubt. [Paras 18 and 19][266-F-H; 267-A-B]
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No.158 of 2022.
From the Judgment and Order dated 11.01.2019 of the High Court
of Judicature at Allahabad in Criminal Appeal No.5307 of 2008.
SUBHASH  v. STATE OF UTTAR PRADESH
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With
Criminal Appeal No. 159 of 2022.
Ms. Manju Jetley, Chandan Mishra, Brahmadandi Ramesh, Ms.
Manisha Chava, M. Vijaya Bhaskar, Advs. for the Appellant.
Sanjay Kumar Tyagi, Ms. Harshita Raghuvanshi, Ms. Saloni Tangri
Java, Advs. for the Respondent.
The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, J.
A
Facts.........................................................................2*
B
Submissions..............................................................5*
C
Analysis....................................................................9*
1. Leave granted.
A Facts
2. These appeals arise from a judgment of a Division Bench of
the High Court of Judicature at Allahabad dated 11 January 2019 in
Criminal Appeal No 5307 of 2008.
3. The appeal before the High Court arose from a judgment of
the Sessions Judge, Badaun dated 30 July 2008 in Sessions Trial No 499
of 2002, arising out of Case Crime No 61 of 2002 registered under Section
148 and Section 302 read with Section 149 of the Indian Penal Code
18601 at Police Station Dataganj District Badaun. The Sessions Judge
convicted Rajaram, Rajesh, Subhash, Rampal, Shiv Dayal and Gyanvati
for offences punishable under Sections 148 and 302/149 of the IPC.
They were sentenced to imprisonment for life for the offences punishable
under Sections 302/149 and to rigorous imprisonment for two years for
the offence under Section 148 of the IPC.
4. The first
information report2 was registered at 1430 hours on
the complaint lodged by PW-1 Vedram on 16 February 2002. The FIR
records that at 11 am on the date of the incident, the informant was
1  “IPC’’
2  “FIR’’
* Ed. Note : Pagination is as per the original Judgment.
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sitting in proximity to the village well on a cot with his brother Surender
and his father was sitting on the terrace. At that point, Rajaram and
Rajesh who were armed with pistols, Subhash and Rampal who were
armed 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 pistols
at his brother Surender. Shiv Dayal, who was armed with an axe and
Gyanvati are alleged to have assaulted Surender on his neck. The
informant states that he then ran towards his house and informed, among
others, his father who was on the terrace. The accused upon being
challenged are alleged to have run away from the scene of incident. The
informant also stated that the deceased was accused in the murder of
the father of Rajesh, for which the trial was ongoing before the court.
5. The case of the prosecution at the trial principally rested on the
evidence of PW-1 and PW-2. The postmortem of the deceased, Surender
was conducted on 17 February 2002 by PW-4, Dr R K Rohatgi. Among
the witnesses who were examined by the prosecution, Vedram is the
informant, while PW-2, Jagdish is an alleged eye witness who is stated
to have witnessed the incident while passing by from the village pond.
6. The postmortem indicated the following nine injuries on the
deceased:
“1.
IW on posterior aspect of Rt. arm area 5.0 cm x 2.0 cm x
muscle deep just above wrist.
2.
IW on the outer aspect of mid of neck 9.0 cm x 3.0 cm x
vertebra deep.
3.
IW on the posterior aspect of left sleeve area 1.0 cm x 0.5
cm x muscle deep 11 cm below elbow.
4.
IW on the posterior aspect of left sleeve area 3.0 cm x 0.5
cm 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 1.0
cm below lip.
6.
LW on the right side upper lip 2.0 cm x 0.5 cm x muscle
deep.
7.
LW Fire arm wound of entry on the right side chest 4.0 cm
x 3.0 cm x cavity and 8.0 cm above the right nipple
blackening present around wound.
SUBHASH v. STATE OF UTTAR PRADESH
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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8.
LW on the top of right side of skull 4.0 cm x 2.0 cm x scalp
deep 10 cm above the right ear.
9.
Contusion on the left side of face 7.0 cm x 2.5 cm and 3.0
cm to ear.”
7. The Sessions Judge found the accused guilty principally on the
basis of the evidence of PW-1 and PW-2. The Sessions Judge held that:
(i)
Based on the evidence presented by the prosecution, it was
proved that the deceased was an accused in the murder of
Rajesh’s father. Since Rajesh, Subhash, Rajaram, Rampal
and Gyanvati are related and members of the same family,
the motive of the murder of the deceased was to avenge
the death of Rajesh’s father;
(ii)
The fact that PW-1 did not save his brother and suffered
no injuries, does not indicate that he was not an eye witness.
As an unarmed person, it was natural for PW-1 to not make
any attempt to save his brother; and
(iii)
The medical evidence that the deceased had suffered only
one fire arm injury was in consonance with the statement
of PW-1. PW-1 stated that Rajesh and Rajaram fired on the
deceased, while Subhash and Rampal did open firing. Thus,
it was proved that firing occurred from a close range, but the
time of firing cannot be ascertained by a normal person.
8. The findings and conviction recorded by the Sessions Judge
have been confirmed in appeal by the High Court by its impugned
judgment dated 11 January 2019.
B Submissions
9. We have heard Mr Chandan Mishra, counsel appearing on behalf
of
the appellants and Mr Sanjay Kumar Tyagi, counsel appearing on
behalf of the State of Uttar Pradesh.
10. The two appeals before this Court have been instituted by
Subhash (Accused No 3) and Gyanvati (Accused No 6).
11. Mr Chandan Mishra, appearing on behalf of the appellants
has urged that there are serious contradictions in the evidence which
would warrant the acquittal of the accused-appellants. The following
submissions have been urged in support of the appeals:
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(i)
PW-1, Vedram was an accused in the murder of the father
of accused Rajesh. PW-1 is alleged to be an eye witness
who was present at the scene of offence when the deceased
Surender was assaulted. PW 1 together with the deceased
were accused in the murder of Rajesh’s father it is unlikely
that he would have been spared when a large group of
persons belonging to the other side assaulted Surender with
fire arms, an axe and a knife;
(ii)
There are material improvements which have been made by
PW-1 which would be apparent on a comparison of his
complaint, statement under Section 161 of the Code of
Criminal Procedure 1973 and the deposition, both in the course
of the examination-in-chief and the cross-examination;
(iii)
PW-2, Jagdish was a chance witness who is alleged to have
witnessed the offence while he was returning from the
village pond. The deposition of PW-2 would similarly
indicate that he was unaware of the factual details of the
incident, and as a matter of fact, has substantially improved
upon his case in the course of his deposition;
(iv)
The injuries which have been recorded in the course of the
postmortem report demonstrate that there is only one fire
arm injury and one injury which has been sustained by the
deceased on the neck. The case of the prosecution that
both Shiv Dayal and Gyanvati assaulted the deceased on
the neck is therefore belied by the nature of the solitary
injury which was sustained on the neck;
(v)
The fact there was only one
fire arm injury which has been
noticed on the body of the deceased in the course of the
postmortem would belie the case of the prosecution
witnesses that as many as five of the accused had fired at
the body of the deceased;
(vi)
There is serious doubt about whether PW-1 is an eye witness
at all and PW-2 who is a chance witness ought not to be
believed for the simple reason that his testimony is subject
to grave doubt; and
(vii)
The failure of the prosecution to examine Chetram, the father
of the deceased who was allegedly present at the scene of
offence, would therefore assume some significance.
SUBHASH v. STATE OF UTTAR PRADESH
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12 On the other hand, Mr Sanjay Kumar Tyagi, Standing Counsel
appearing on behalf of the State of Uttar Pradesh has made an attempt
to emphasize the findings which have been recorded by the High Court
in the course of its impugned judgment. Counsel submitted that the alleged
contradictions which have been adverted to on behalf of the appellants
are minor in nature, as held by the High Court while affirming the judgment
of conviction. The High Court in the impugned judgment had observed
that:
(i)
The statement of PW-1 was consistent with the FIR. In
the FIR, PW-1 stated that all four accused fired their
weapons, however in his cross-examination, he stated that
only Rajesh and Rajaram fired at the deceased while
Subhash and Rampal fired in the air. These are minor
inconsistencies which cannot affect the credibility of PW-
1;
(ii)
PW-1 had stated that the accused had fired from a distance
of five to six steps, while PW-2 stated that they fired from
a distance of 20 yards. In view of the medical evidence,
the statement of PW-2 is not reliable, however, PW-2 is a
rustic villager who was examined four years after the
incident. Thus, these contradictions are not material enough
to reject the deposition of PW-2 in its entirety;
(iii)
The evidence of PW-1- that the shots were fired from a
distance of five to six steps - is in consonance with the
medical evidence as there was blackening around the fire
arm injury which
indicates that the injury was caused by
firing from close range;
(iv)
Although no weapon was recovered from the scene of
crime, it is not a sine qua non for sustaining the conviction;
and
(v)
The participation of accused Gyanvati in the crime cannot
be doubted merely on the ground that she being a lady would
not have joined the other accused persons. The statement
of the two witnesses that she was armed with a knife and
struck the deceased at his neck is consistent with the
medical evidence.
13. We shall now consider the rival submissions.
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C Analysis
14. The entire case of the prosecution essentially rests on the
deposition of PW-1 and PW-2. PW-1, Vedram who is the informant has
stated in the course of his deposition that before the incident, there was
a case involving the murder of the father of accused Rajesh. In that
case, 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 on
the date of the incident, when he was sitting on a cot near the village
well together with the deceased, Rajaram, Rajesh, Subhash and Rampal
fired from their country made pistols and that the bullets had hit his
brother Surender. Moreover, he stated that both Shiv Dayal who was
armed with a farsa and Gyanvati (Rajaram’s wife) who was armed with
a knife, had assaulted the deceased on his neck. In the course of the
examination-in-chief, it was also stated that both Shiv Dayal and Gyanvati
had assaulted the deceased on his neck. Though in the course of the
examination-in-chief, PW-1 adverted to the fact that the deceased was
a co-accused in the case involving the murder of the father of the accused
Rajesh, the fact that he was also a co-accused emerged during the course
of cross-examination. In the course of cross-examination, PW-1 was
specifically questioned about the fact the he had not sustained any injury
in the course of the occurrence nor was any effort made by the accused
to assault or kill him. In his cross-examination, PW-1 however
stated
that the accused persons “2-1” fired upon his brother while some of the
other accused fired in the air. As regards the role which is attributed to
A-3, PW-1 stated in the course of his cross-examination that he had
fired in the air together with Rampal, while Rajaram and Rajesh had
fired upon his brother.
15. Analyzing the evidence of PW-1, it is apparent that there are
material improvements which have been attempted in the course of the
deposition over the case as set out in the FIR as well as in the course of
the examination-in-chief. The role which originally is attributed to all the
accused who were armed with country made pistols is of having fired
upon 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 air
while two accused had actually fired at the body of the deceased.
16. Having analyzed the evidence of PW-1, it would be material
to advert to the evidence of PW-2, Jagdish. In the course of his
examination-in-chief, PW-2 has adverted to A-3, who was wielding a
SUBHASH v. STATE OF UTTAR PRADESH
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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country made gun, and that Gyanvati (A-6) together with Shiv Dayal
assaulted the deceased on his neck with a knife and a farsa respectively.
PW-2 is evidently a chance witness who is alleged to have witnessed
the incident while returning from the village pond. During the course of
his cross-examination however, PW-2 stated that Vedram, PW-1 was
sitting about two cubits away from the cot of Surender, the deceased.
He stated that he is unable to state as to who had fired earlier and who
had last fired at the deceased. PW-2 also admitted during the course of
his cross-examination that he was unable to specify whose fire had hit
the deceased. He stated that the accused were about 20 yards from the
deceased during the course of the incident and he was unable to state as
to how many injuries were caused by the farsa. PW-2 was unable to
state how many injuries were caused by the knife. These aspects of the
cross-examination of PW-2 assume crucial significance from more than
one perspective.
17. The entire case of the prosecution, as noticed earlier, was that
all the accused who were alleged to be wielding country made pistols
had fired upon the deceased. This case of the prosecution is substantially
diluted in the cross-examination of PW-1 as well as in the cross-
examination of PW-2. Significantly, the postmortem report indicates only
one fire arm injury, which is not consistent with the case of the prosecution
that all the
accused had fired upon the deceased. That apart, the
postmortem report indicates one injury on the neck of the deceased
which again is inconsistent with the deposition of PW-1 and PW-2 that
both Shiv Dayal armed with a farsa and Gyanvati (A-6) who was allegedly
armed with a knife had assaulted the deceased on the neck.
18. On this state of the record, we are of the considered view
that the presence of both PW-1 and PW-2 at the spot is gravely in
doubt. There are material contradictions in the evidence of both PW-1
and PW-2, which ought to have been, but have not been noticed either
by the learned Sessions Judge or by the High Court. The High Court
was of the view that the contradictions which have been pointed out
by the defence are of a minor nature. Having evaluated the evidence,
we are unable to sustain that conclusion given that the contradictions
were of fundamental nature which go to the root of the case of the
prosecution. It is true that the prosecution was not obligated to examine
every witness who is alleged to have been present at the site or the
scene of the offence, yet in the context of the facts as they have
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emerged before this Court, the failure to examine Chetram, who was
the father of the deceased and was allegedly sitting in the close
proximity, 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 benefit
of doubt. We accordingly allow the appeals and set aside the impugned
judgment and order of the High Court of Judicature at Allahabad dated
11 January 2019 in Criminal Appeal No 5307 of 2008. The appellants
are accordingly acquitted and they shall be released from custody unless
they are wanted in connection with any other case.
20. Pending applications, if any, stand disposed of.
Bibhuti Bhushan Bose
Appeals allowed.
SUBHASH v. STATE OF UTTAR PRADESH
[DR. DHANANJAYA Y CHANDRACHUD, J.]