IMPORTANT POINT
Even if there is improvement over FIR but this improvement is not going to the core of the matter then it is not fatal to prosecution.
Strong established motive for committing the crime cannot be ignored.
If the court below has taken a view which is not possible, it should be set aside.

Headnote:(a) Criminal trial – Appreciation of evidence – Improvement over FIR in deposition – Giving more details in deposition in court than stated in FIR – FIR need not contain all details – Such deposition even if considered improvements, instantly not going to the core of the matter – Not fatal Evidence of the witness trustworthy – His presence at the place of occurrence natural – (Para 14, 15, 17)
       (2012) 4 SCC 257; (2003) 1 SCC 465; (2002) 9 SCC 537 – Relied upon
       (b) Criminal trial – Motive – Accused persons had strong motive for murdering the deceased – High Court not even touching this aspect while acquitting the accused persons – Not proper. (Para 17)
       (c) Administration of Justice – Judicial propriety – View taken by High Court – Not a possible view – Cannot be sustained. (Para 18)
       (1996) 9 SCC 225 – Relied upon
       Facts of the case:
       One Brahmadeen Dubey owned lands in District Mirzapur in State of Uttar Pradesh. Under two sale deeds, he sold two parcels of land to Rama Kant Dubey and Sushil Kant Dubey respectively. Two registered deeds in this behalf were executed on 02.02.1993. However, it came to the notice that there was already a sale deed executed on 09.09.1992 in respect of very same lands in Kolkata in favour of Basant Lal Dubey and others. This led to the filing of Civil Suit No.160 of 1993 by Brahmadeen seeking cancellation of sale deed dated 09.09.1992.
       On 16.11.1994, brother-in-law of Brahmadeen named Kedar Nath Dubey was murdered while sons of Kedar Nath were also injured in the transaction. In respect of said incident, Basant Lal Dubey and his three sons Lalji, Gyan Prakash and Om Prakash were facing trial for having caused the murder of Kedar Nath and injuries to his sons.
       The Civil Suit No.163/1993 depended upon the testimony of Brahmadeen. Around this time, Brahmadeen was assaulted with lathi and dandas by Basant Lal Dubey and his sons, Lalji, Om Prakash, Gyan Prakash. In respect of said assault a separate case was registered and was also going on.
       On 26.11.1998 at about 8.00 in the morning PW1 Kamla Kant Dubey, son of Kedar Nath Dubey alongwith Brahmadeen had gone to ease out at some distance from the village. At that time Basant Lal and his sons Lalji, Om Prakash and Gyan Prakash came on a tractor driven by Om Prakash from a small road along side a Canal. On lalkara given by Basant Lal the tractor crushed Brahmadeen.
       The trial court convicted all the accused under Section 302 read with 34 IPC. By its subsequent order, it observed that a 90 year old infirm man was done to death in a gruesome manner purely on account of greed for property and as such the case called for extreme punishment. It therefore imposed death penalty on the accused, subject to confirmation by the High Court.
       The High Court thus gave benefit of doubt to the accused and allowed their appeal acquitting them of all the charges leveled against them.
       Finding of the Court:
       Judgment of High Court qua Basant Lal Dubey and Om Prakash and order of their acquittal cannot be sustained.

JUDGMENT

Uday Umesh Lalit, J.

1. These appeals by special leave challenge the judgment and order dated 15.05.2009 passed by the High Court of Judicature at Allahabad in Reference No.6/2008 and in Criminal (Capital) Appeal No.3588 of 2008 acquitting the respondents accused of the charges under Sections 302 read with 34 IPC.

2. According to the case of the prosecution:-

A) One Brahmadeen Dubey owned lands in District Mirzapur in State of Uttar Pradesh. Under two sale deeds, he sold two parcels of land admeasuring 10 bighas and 6 bighas to Rama Kant Dubey and Sushil Kant Dubey respectively. Two registered deeds in this behalf were executed on 02.02.1993. However, it came to the notice that there was already a sale deed executed on 09.09.1992 in respect of very same lands in Kolkata in favour of Basant Lal Dubey and others. This led to the filing of Civil Suit No.160 of 1993 by Brahmadeen seeking cancellation of sale deed dated 09.09.1992, submitting, inter alia, that the deed in question was a sham document which was obtained by setting up an imposter in place of the owner i.e. Brahmadeen Dubey.

B) On 16.11.1994, brother-in-law of Brahmadeen named Kedar Nath Dubey was murdered while sons of Kedar Nath were also injured in the transaction. In respect of said incident, Basant Lal Dubey and his three sons Lalji, Gyan Prakash and Om Prakash were facing trial for having caused the murder of Kedar Nath and injuries to his sons.

C) Civil Suit No.163/1993 was at an advanced stage of trial. The matter depended upon the testimony of Brahmadeen. Around this time, Brahmadeen was assaulted with lathi and dandas by Basant Lal Dubey and his sons, Lalji, Om Prakash, Gyan Prakash. In respect of said assault a separate case was registered and was also going on.

D) Brahmadeen aged about 90 years was living with the sons of Kedar Nath Dubey on whom he depended because of his old age.

E) On 26.11.1998 at about 8.00 in the morning PW1 Kamla Kant Dubey, son of Kedar Nath Dubey alongwith Brahmadeen had gone to ease out at some distance from the village. At that time Basant Lal and his sons Lalji, Om Prakash and Gyan Prakash came on a tractor driven by Om Prakash from a small road along side a Canal. Lalkara was given by Basant Lal that the old man be killed and should not be allowed to escape. The tractor swerved and was driven straight in the direction where Brahmadeen was easing out. He got up in fright but the tractor pushed him down and he was crushed. The tractor took round and came back again to crush him. PW1 who was easing out at some distance, raised shouts which attracted the attention of villagers, whereupon the tractor escaped towards western side of the village.

3. PW1 then reached Police Station Vindhyachal, District Mirzapur with a written complaint narrating the facts about civil litigation as well as the fact that his father Kedar Nath was done to death on 16.11.1994 and that said Brahmadeen was an important witness who could have proved that the alleged sale deed executed in Kolkata was a forged document. As regards the incident it was stated as under:-

“Today dated 26.11.1998 in the morning at about 8 a.m. I and my fufa had gone to ease out at some distance from the village in the orchard situated at south direction, then suddenly from canal patri, Sri Basant Lal son of Radharaman Dubey, Lalji and Gyan Prakash and Om Prakash Dubey all sons of Basant Lal Dubey came from front side and Basant Lal said by giving Lalkara that “is budhe sale ko maro bhag na jay”, in the meantime Om Prakash having brought the tractor towards my fufa and pushed him by tractor, rolled over the same upon him by taking rounds. After felling down of my fufa with an intention to kill him and also in order to destroy the evidence again by taken may rounds of tractor crushed him due to which he died on the spot. After having eased out midway I rushed to the side of the village and on raising alarm they went back from patri of canal by taking their tractor. This incide

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2015 Supreme(SC) 707

SUPREME COURT OF INDIAPinaki Chandra Ghose, Uday Umesh Lalit, JJ. Kamla Kant Dubey – AppellantVersusState of U.P. & Others – RespondentsWITH State of U.P. – Appellant Versus Basant Lal Dubey and others – RespondentsCRIMINAL APPEAL NO.1506, 2409 of 2009 Decided on : 01.07.2015

Cases Referred (3)

SUPREME COURT OF INDIA
Pinaki Chandra Ghose, Uday Umesh Lalit, JJ.
Kamla Kant Dubey – Appellant
Versus
State of U.P. & Others – Respondents
WITH
State of U.P. – Appellant
Versus
Basant Lal Dubey and others – Respondents
CRIMINAL APPEAL NO.1506, 2409 of 2009
Decided on : 01.07.2015