Karnesh Kumar Singh & Ors Vs. The
State of Uttar Pradesh  INSC 105 (15 April 1968)
15/04/1968 SHELAT, J.M.
CITATION: 1968 AIR 1402 1968 SCR (3) 774
Indian Penal Code, 1860, ss. 302, 201 and
149--Whether inconsistencies and discrepancies in evidence showed miscarriage
of justice--Four out of ten appellants sentenced to death and others to life
imprisonment--Distinction based on the four being armed with dangerous
weapons--If sustainable on evidence.
Evidence Act, 1872, s. 114(8)--Adverse
inference when prosecution does not produce some of the eye-witnesses--When may
The ten appellants were convicted under ss.
302 and 201 both read with s. 149 of the I.P.C. mainly on the evidence of four
eye-witnesses who were members of the family of the two murdered persons. Four
of the appellants were sentenced to death and the rest to imprisonment for
life. The High Court confirmed the convictions and sentences. in appeal to this
Court by special leave it was contended, inter alia, on behalf of the
appellants that (i) there were various discrepancies and inconsistencies in the
evidence showing miscarriage of justice; (ii) though two independent eyewitnesses
were available they were purposely excluded and only the family members were
examined as eye-witnesses; and the High Court had wrongly refused to draw from
their nonexamination an adverse inference under s. 114(g) of the Evidence Act;
and (iii) the sentences on the appellants were wrongly confirmed by the High
HELD : (i) There was no reason to interfere
with the concurrent findings of the trial court and the, High Court that the
appellants were responsible for the deaths of the two deceased persons and were
guilty of ,the offences they were charged with. [782 E] (ii) The prosecutor
need not examine witnesses who, in his opinion, have not witnessed the
incident. Normally, he ought to examine all the eye-witnesses in support of his
case. But in a case where a large number of persons have witnessed the
incident, it is open to him to make a selection which must, however, be fair
and honest and not with a view to suppress inconvenient witnesses. If it is
shown that persons who had witnessed the incident have been deliberately kept
back, the court may draw an adverse inference and in a proper case record such
failure. as constituting a serious infirmity in the proof of the prosecution
case. [781 G-H; 782 A] In the present case, the prosecution had explained that
the two independent eye-witnesses were not necessary. The defence remained
content with that explanation and did not ask the other concerned witnesses any
questions to elicit why these two persons were considered unnecessary
Furthermore, there was nothing in the
evidence to suggest that they were not produced because they would have turned
out to be inconvenient witnesses. It was not therefore possible to say that the
prosecution had deliberately withheld these two persons for any oblique motive
or that the High Court ought to have drawn an adverse inference.
[782 C-D] (iii) The sentence of death on four
of the ten appellants must be set aside and the sentence of rigorous life
imprisonment substituted therefore.
775 In imposing the sentence of death on four
of the appellants the trial court made a distinction between them and the
others as three of them were armed with firearms and the fourth with a hatchet.
This reason for imposing the extreme penalty on the four appellants could not
be sustained on the evidence as the others were also armed with equally,
dangerous weapons. In the absence of evidence as to who inflicted the fatal
blows, the same punishment should have been imposed on all of them. [783 C-D]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 213 of 1967.
Appeal by special leave from the, judgment
and order, dated May 19, 1967 of the Allahabad High Court (Lucknow Bench) at
Lucknow in Criminal Appeal No. 118 of 1967 and capital sentence No. 11 of 1967.
R. K. Garg, S. C. Agarwala, D. P. Singh and
A. K. Gupta, for the appellants.
O. P. Rana, for the respondent.
The Judgment of the Court was delivered by
Shelat, J.-This appeal, by special leave is directed against the judgment of
the High Court of Allahabad which confirmed the convictions and sentences
passed by the Sessions Judge, Hardoi, in respect of the murders of Lal Singh
and his father Harihar. The ten appellants on being convicted under ss. 302 and
201 read with S. 149 of the Penal Code were awarded various sentences. Four of
them, namely, Karnesh Kumar, Krishna Kumar, Kaushal Kumar and Chhetrapal were
awarded death sentence and the rest imprisonment for life.
At the material time, the two deceased, along
with the members of their family, and the appellants lived in village Nir in
District Hardoi, and, except for appellants Jugal Kishore and his brother
Kailash Narain, they are close relations, their common ancestor being one
The evidence, however, shows a long-standing
enmity between the members of the branch of Sobaran Singh, one of the sons of
Jhabha Singh, on the one hand and the rest of the descendants of Jhabha Singh
on the other. It also shows that since 1950, there has been intermittently
civil and criminal litigation between the parties, the last of such litigation
before the incident in question being in respect of an incident which took
place on April 3, 1966 when appellant Ram Kumar charged the deceased Harihar
and Lal Singh, and witnesses Jitendra and Virendra and two others with rioting
and witness Virendra, in turn, filed a cross complaint against the appellants
and some others.
According to the prosecution, at about 1 p.m.
on June 5, 1966, Lal Singh was irrigating his field with canal water when
appellants L8 Sup. C.1.168-10 776 Karnesh and Avdesh diverted the water into
There was an exchange of abuses between them
in the course of which appellant Karnesh was said to have threatened that he
would not rest until Lal Singh was done to death. At about 5.30 that evening,
Jitendra, Virendra and Girendra, P.
Ws. 1, 6 and 8 were in the main room of the
Chaupal where Lal Singh lived and Lal Singh was in a room nearby. Fifty paces
away from this house is the house where the deceased Harihar lived, Suddenly, a
shout was heard to the effect that Lal Singh should be dragged out. On hearing
the shout, these witnesses and Lal Singh came out. The witnesses saw appellants
Krishna and Chhetrapal armed with guns, appellant Karnesh with a pistol, Rain
Kumar and Jugal Kishore with spears, appellants Kaushal and Mahendra with banks
and the rest with lathis. As soon as Lal Singh came out, appellants Krishna,
Chhetrapal and Karnesh simultaneously fired at him whereupon Lal Singh fell on
the ground. On being threatened that the witnesses would also be shot, they ran
away and stood at some distance. Five of these appellants, namely, Chhetrapal,
Kaushal, Mahendra, Kailash and Jugal Kishore then ran to Harihar's house where
appellant Jugal Kishore struck Harihar with a spear in his face and then
appellants Kaushal and Jugal Kishore dragged him to where Lal Singh had fallen.
Chhetrapal then fired at Harihar with his gun;
Jugal Kishore gave another blow with his
spear in the chest and the rest beat him with bankas and lathis. Harihar also
died on the spot. Appellants Kailash, Jugal Kishore, Kaushal and Mahendra
followed by Chhetrapal with his gun, lifted Harihar's body to the field of one
Sita Ram where they set fire to it. The other five appellants took Lal Singh's
body to the Bathis of P.W. 4, Abdul Bari, and burnt it there on a heal) of
cowdung cakes. Having thus tried to do away with the dead bodies, appellants
Kaushal and Mahendra scraped the blood.stained earth where Lal Singh had fallen
as also the drops of blood which had fallen on the way.
P. W. 1, Jitendra, started on cycle to the
Kotwali six miles away and lodged the F.I.R. at about 6-45 P.M.
Inspector Jaswant Singh, P. W. 17, started
for the scene of offence reaching there at about 7-45 P.M. The fires were put
out but Lal Singh's body had practically been burnt out with the result that
the Inspector could collect only his bones and ashes. But he was able to
recover the half burnt body.
of Harihar. That night he recorded the
statements of P. Ws. 1, 6, 7, 8, 14 and of certain other persons. On the 7th
and 8th he recorded further statements. On June 20, he recorded the statements
of Raghubar, P. W. 9 and Gopali, P. W. 12.
It appears that statements of these witnesses
were recorded late as these and other residents, presumably on account of fear
of reprisals or to avoid having to figure as witnesses, had fled from the
777 The evidence on which the prosecution
mainly relied was that of the four eye witnesses. of these, Jitendra, P. W. 1,
the son and brother of Harihar and Lal Singh respectively, Virendra, P. W. 6,
his cousin, and Girendra, P. W. 8, a boy of 14 years of age and the younger
brother of Lal Singh deposed to the assault by the appellants on both the
deceased. Santosh Kumari, P. W. 7, the daughter of Harihar, deposed only to the
assault on Harihar in the house.
Besides this evidence, the prosecution
examined Raghubar, Jeet, Gopali and Surat Singh, P. Ws. 9, 11, 12 and 14, the
neighbours of the deceased, who in one part or the other corroborated the eye
witnesses. Gopali's evidence was, however, the only direct evidence as to the
scrapping of the blood-stained earth by two of the appellants but that evidence
was not relied upon by the High Court on the ground that his name was not mentioned
in the F.I.R. and his statement was recorded late. There was, however, the
evidence of the eye witnesses that blood had dropped where Lal Singh had fallen
and of the Investigating Officer that when he inspected the site that night,
though he found no blood marks, he noticed that the earth at that place had
been scrapped. It is clear that, no one except the assailants, who had burnt of
the dead bodies of Harihar and Lal Singh to do, away with evidence as to the
two murders, would be interested also in doing away with an equally important
evidence as to the place where Lal Singh had been killed by scrapping off the
blood where he had fallen.
Scrapping of blood from that place was thus
in line with and part of the stratagem of burning the bodies of the victims so
as not to leave any evidence of the killing of the two men. This part of the
evidence lends support to Jitendra's case that Lal Singh was fired at and fell
at or near the intersection of the roads just outside his house.
It is true that only these four members of
the family figured as eye-witnesses. But that fact alone cannot mean that P. W.
1 or the investigating agency excluded other available independent witnesses.
This is clear from the fact that the F.I.R. mentions a number of persons whom
1. thought to be eye-witnesses. There is
evidence that the incident had created panic in the village and a number of
residents had fled and had stayed away possibly with a view to avoid having to
figure as witnesses. It is, therefore hardly surprising that only the members
of the family came forward as eye-witnesses. But as they were interested
witnesses both by reason of their being members of the family and their sharing
the hostility of the two victims towards the appellants, their evidence had to
be examined with care and caution. But there was circumstantial evidence to
lend support to their account of the incident.
That evidence established the following facts
(1) the Ion standing enmity between the parties, (2) the incident having taken
place at about 5-30 P.m., (3) the burning of the two bodies by the appel778
lants, (4) the scrapping of the earth to wipe out the bloodstains (5) P. Ws. 6
and 8 having run to the house of Surat Singh, P. W. 14, the village Pradhan and
having informed him of the incident, (6) P.W. 1 lodging the F.I.R.
without any delay and giving therein the
details of the incident, the names of the appellants and of witnesses whom he
thought to be eye witnesses and (7) the injuries on Harihar's body which could
still be seen by Dr. Srivastava though it had been burnt, indicating three
types of weapons having been deployed against him, namely, a fire-arm, a spear
and a sharp cutting instrument.
The trial court and the High Court found from
this evidence that the account of the incident given by the witnesses was
acceptable despite certain discrepancies therein, that it occurred at about
5-30 P.m., that Lal Singh was shot at and killed just outside his house, that
Harihar was first attacked inside his house and then dragged to where Lal
Singhs body lay and was there killed, that the appellants were responsible for
the assault and the consequent deaths of the two victims, that in order to
leave no trace of the, two assaults they burnt the bodies of the victims and
scrapped the earth where blood had fallen, that they formed an unlawful
assembly of which the common object was to murder the father and the, son and
that they attacked and killed both in furtherance of that common object and
then tried to do away with the evidence of their acts and burnt the two bodies.
These being concurrent findings ,of fact, we would not normally proceed to
review the evidence unless it is shown that the trial is vitiated by some
illegality or irregularity of procedure or that it was held in a manner contrary
to rules of natural justice or the judgment under appeal has resulted in gross
miscarriage of justice : (cf. Kirpal Singh v. State of U.P.) Counsel for the
appellants, however, contended that such a miscarriage, of justice has resulted
in the present case.
He argued that the trial court and the High
Court failed to appreciate from the evidence on record that the prosecution had
deliberately tried to shift the time of the incident at 5-30 that evening
though the incident must have taken place subsequently, in order to enable the
four witnesses to pose as eye witnesses. The evidence of Jitendra and the
Investigating Officer was that the F.I.R. was lodged at 6-45 P.m. and that
Jitendra had started from the village at 6 P.m. on cycle for the police station.
The evidence of the Investigating. Officer also is that he reached the spot
soon thereafter, that the body of Harihar was not fully burnt out, and that he
could manage to extract the half burnt body from the fire. The evidence of Dr.
Srivastava supports this evidence in a large measure. It is manifest that if
the incident took place at night and P. W. 1 bad (1)  3 S.C.R. 992, 996.
779 not seen it, he could not have reported
it to the police officer in time to enable the police officer to arrive at the
scene and extract the half burnt body of Harihar from the fire. This fact
clearly supports the prosecution that the incident took place that evening and
not at night. But reliance was placed on the fact that postmortem examination
on Harihar's body was made by Dr. Srivastava at 5 P.m. on June 6, 1966. The
argument was that if the body had been dispatched to the mortuary soon after it
was recovered by the police officer, it would have reached the mortuary earlier
and the postmortem examination would have been carried out earlier. But the
evidence of Maqbool Khan, P.
W. 15, shows that the body was given to him,
at 10 that night, that, he carried it in a bullock cart, that he started at
about 1 A.m. but on the way he feared that the body might be taken away from
him and, therefore, he stopped at an intervening village till sunrise and
reached the mortuaryat 6-30A.M. It is true that the doctor said that he
performed the post-mortem examination at 5 P.m. and not at 1 p.m. as the
constable deposed. Obviously, the constable appears to have delayed in his
mission and there was a gap of time between the body reaching the mortuary and
the time when the postmortem examination was performed. But the delay in the
postmortem examination does not mean that the Investigating Officer had not
handed over the body to the constable that night or that the incident did not
take place in the evening of the 5th of June or that the F.I.R. was not lodged
at 6-45 P.m. as testified by P. W. 1. Reliance was next placed on the evidence
of the Magistrate at Hardoi that he received the special report about the
incident on June 6, 1966. The contention was that if the Investigating Officer
had sent the special report before he started for the scene of the offence, as
stated by him, the Magistrate was bound to receive it on the night of the 5th
and not on the 6th of June. But the Magistrate admitted that he had not noted
the time when he received it on the 6th. He also admitted that he could not say
whether he was in Hardoi on the 5th of June, it being a, Sunday, and that it
was possible that his peon might have received it in the evening of the 5th and
placed it before him on the 6th of June when he noted the date of its receipt.
There is also evidence of the Reader to the Superintendent of Police, Hardoi
that his office had received the General Diary of the 5th on the 6th and of the
6th on the 7th June. This controversy is set at rest by the evidence of the
Head Constable, P.W. 13, that he had sent constable Abdul Hafir at 7-30 P.m. on
the 5th June to the Magistrate with the special report and that Abdul Hafiz had
returned to the police station at 9-3O that night after delivering it and that
this fact was noted by him in Ext.
ka-6. This evidence establishes that the
Investigating Officer had sent the special report on the 5th of June and that
report was carried to Hardoi that very night.
Consequently, it must be held that the
incident took 780 place in the evening of the 5th of June, and that P. W. 1.
was right when he claimed that he had given
the F.I.R. at 645 P.M.
The next contention was that the place of
attack on Lal Singh was not on the road but in Harihar's house. We find no
basis for this contention. The evidence of witnesses on the other hand, is
clear and there is no reason to disbelieve it. That evidence is supported by
the evidence of the Police Officer that he found signs of scrapping of the
earth at the place where, according to the prosecution, Lal Singh had fallen.
The next contention was that witnesses
Jitendra and Santosh Kumari had tried to make improvements in their evidence,
the former by stating that the three accused who were armed with firearms had
shot simultaneously at Lal Singh though in the F.I.R. he had only said that
three shots were fired without stating who had fired them, and the latter by
stating that Jugal Kishore had struck his spew in the eye of Harihar, which
allegation was not borne out by the medical testimony.
These infirmities, no doubt, are in their
evidence. But they were considered by the High Court and yet on an examination
of the entire evidence, it accepted their evidence as reliable. That three
shots were fired was stated by witness Jitendra both in the F.I.R. and in
evidence. It may be that from that fact coupled with the fact that the three
appellants were armed with fire-arms, he might have inferred that all the three
had fired. For a witness like him, it was possible not to be able to
distinguish between a fact seen by him and an inference drawn by him. Failure
to appreciate such a distinction cannot mean that he was deliberately improving
upon his original version. As regards Santosh Kumari, a spear injury was
inflicted on Harihar's face and that injury must have covered his face with
blood. It is possible that she mistook that injury to be one in the eye,
especially as it in her evidence that appellant Jugal Kishore had at that time
said that Harihar should be struck in his eyes. These infirmities, even if they
can rightly be so termed, cannot discredit their testimony so as to render it unacceptable.
Counsel then argued that though P. Ws. 9 and
11 were referred to in the F.I.R. as eye witnesses, they did not come out in
their evidence as eye witnesses and that fact showed that P. W. 1 had tried to
introduce them falsely as eyewitnesses. He forgets, however, that there are two
distinct alternatives, (1) that he saw them at the scene of the offence after
the incident and believed they had seen it and (2) that though the witnesses
had seen it, like the other neighbours, they preferred not to figure as eye
witnesses and circumscribed the scope of their evidence to what they had seen
after the assault. In either event, P.
W. 1 cannot be said to have falsely tried to
usher them in the F.I.R. as eyewitnesses.
781 The argument which counsel strenuously
urged was that though independent eye witnesses were available, they were purposely
excluded and only the family members were examined as eye witnesses. In this
connection he relied on the F.I.R.
where P. Ws. 9 and 11, one Chhuta Bhurji,
Alha Singh, Lakhan Singh, Paragu, Parsadi, Sishupal, Girdhari Kachhi and
"some other men" were said to be witnesses. In his evidence also P.
W. 1 has mentioned that these persons and a few others were present at the time
of the incident. And yet these persons were not examined. The prosecution,
however, did explain that these persons were not examined either because they
had been won over by the opposite side or because some of them had failed to
identify the appellants from the identification parades held for them, which,
according to the prosecution, indicated that they had been won over. The
explanation, however, does notapply to two persons, viz., Parsadi and Paragu,
for whose non-examination the only explanation given was that they were not
necessary witnesses. The High Court does not appear to have been satisfied with
this explanation and, therefore, has observed that it would have been better if
these two persons had been examined. At the same time it refused to draw from
their non-examinationan adverse inference under s. 114(g) of the Evidence Act.
Counsel argued that the High Court erred in
declining to do so and relied on Habeeb Mohammed V. State of Hyderabad(1),
where it has been observed that it is the bounded duty of the prosecution to
examine a material witness particularly when no allegation has been made that,
if produced, he would not speak the truth. The decision further observes that
not only does an adverse inference arise against the prosecution case from his
nonproduction as a witness in view of illustration (g) to section 114, but that
the circumstance of his being withheld from the court would cast a serious
reflection on the fairness of the trial. In Darya Singh v. State of Punjab(1)
also this Court has observed that a prosecutor should never adopt the device of
keeping back eye witnesses only because their evidence is likely to go against
the prosecution and that the duty of the prosecutor is to assist the Court in
reaching a proper conclusion. It is open, however, to the prosecutor not to
examine witnesses who in his opinion have not witnessed the incident, but
normally, he ought to examine all 'the eye witnesses in support of his case.
But in a case where a ,large number of persons have witnessed the incident, it
is open to him to make a selection. The selection must, however, be fair and
honest and not with a view to suppress inconvenient witnesses. Therefore, if it
is shown that persons who had witnessed the incident have been deliberately
kept back, thecourt may draw an (1) A. I. R. 1954 S.C. 51.
(2)  3 S.C.R. 397, 408, 782 adverse
inference and in a proper case record such failure as constituting a serious
infirmity in the proof of the prosecution case.
As stated earlier, it appears that the
persons mentioned by P. W. 1 were not examined either because the prosecution
believed that they had been won over by the opposite side or because in the
parades held for them they had not identified the appellants or committed
errors. If that was so, it is manifest that no useful purpose would have been
served by examining the persons who had failed to identify the appellants. But
then neither Parsad nor Paragu falls in this category of persons for the
explanation given in regard to them was that they were not necessary. For one
reason or the other the defence seems to have remained content with that
explanation, for they asked no question either to P.W. 1 or to the
Investigating Officer to elicit why these two persons were considered
unnecessary witnesses. , It may be that if a clarification had been demanded,
they would have given some explanation. Besides, there is nothing in the
evidence to suggest that they were not produced because they would have turned
out to be inconvenient witnesses. The High Court on an examination of the evidence
held that it was not possible to say that the prosecution had deliberately
withheld these two persons for any oblique motive.
In these circumstances it is difficult to
persuade ourselves to take the view pressed upon us by counsel that the High
Court ought to have drawn an adverse inference.
For the reasons aforesaid, the contentions of
Mr. Garg cannot be sustained. Consequently, we do not find any reason to
interfere with the concurrent findings of the trial court and the High Court
that the appellants were responsible for the deaths of Lal Singh and Harihar
and were guilty of the offences charged against them.
As regards the sentence of death imposed on
appellants Karnesh, Krishna, Kaushal and Chhetrapal, it is difficult for us to
agree with that order passed by the trial court and confirmed by the High
Court. In imposing the sentence of death on these four appellants, the trial
court made a distinction between them on the one hand and the rest of the
appellants on the other. The distinction was made on the ground that three of
them were armed with fire-arms and that they all fired at Lal Singh
simultaneously, that appellant Chhetrapal had shot at Harihar also and finally,
that appellant Kaushal had given a hatchet blow to Harihar. In our view, the evidence
on which this distinction was made cannot be said to be fully satisfactory. It
is true that P. W. 1 while giving evidence stated that the three appellants had
fired simultaneously at Lal Singh, that Chhetrapal had also fired at Harihar
and that Kaushal had given a hatchet blow to him. But the F.I.R. merely states
that three shots were fired at Lal Singh but does not state that they were
fired by the three appellants simultaneously, nor does it state that Chhetrapal
had fired at Harihar after he had been 783 dragged out on the road. It is
hardly conceivable that if P. W. 1 had seen these appellants firing either at
Lal Singh or at Harihar, he would have forgotten to make a positive statement
about it in the F.I.R. In view of this omission, it is difficult to build the
conclusion with any certainty on his subsequent statement that the three
appellants had simultaneously fired at Lal Singh and that Chhetrapal had shot
at Harihar after he had been brought out of the house.
The possibility of any one or two of them
having fired the three shots in quick succession cannot, therefore, be ruled
out. In that case the distinction made on the basis that all the three of them
had fired at Lal Singh cannot be sustained. Therefore, the reason given by the
trial judge for imposing the extreme penalty on these four appellants as
against the rest becomes difficult to sustain. It is true that these four
appellants were armed with firearms and a hatchet. But the others also were
armed with equally dangerous weapons, such as spears and bankas. The said
distinction being not sustainable, the proper punishment that should have been
awarded to the four appellants in the absence of clear evidence, as to who
inflicted the fatal blows, should have been the same punishment as imposed on
the rest. , We have,; therefore, to set aside the sentence of death imposed on
the aforesaid four appellants and impose on them the sentence of rigorous
imprisonment for life.
Except for this modification the appeal fails
and is dismissed,.
R.K.P.S. Appeal dismissed.