SUBHASH versus STATE OF UTTAR PRADESH

Citation: [2022] 2 S.C.R. 258 · Decided: 01-02-2022 · Supreme Court of India · Bench: D.Y. CHANDRACHUD · Disposal: Appeal(s) allowed

Judgment (excerpt)

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SUPREME COURT REPORTS
[2022] 2 S.C.R.
[2022] 2 S.C.R. 258
258
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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SUPREME COURT REPORTS
[2022] 2 S.C.R.
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.
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Facts.........................................................................2*
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Submissions......................................

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