State of U.P. V.
Kishanpal & Ors.  INSC 1336 (8 August 2008)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 936 OF 2003 State
of U.P. .... Appellant (s) Versus Kishanpal & Ors. .... Respondent(s)
P. Sathasivam, J.
the order of the High Court of Judicature at Allahabad dated 19.9.2002 in
Criminal Appeal No. 812 of 1980 acquitting Kishanpal Singh, Suresh Singh,
Mahendra Singh @ Neksey Singh, Jaivir Singh, Sheodan Singh and Bahar Singh
(Accused Nos. 2,4,7,8,9 & 10), the State of Uttar Pradesh has filed this
case of the prosecution is as follows:
On 21.6.1978 at 3.30
p.m., the sixteen accused persons gathered at the door of Gyan Singh and made a
criminal conspiracy for killing Kaptan Singh and Raj Mahesh as they were
harassing them unnecessarily. At about 4.00 P.M., Onkar Singh, Kishanpal Singh,
Vijaipal Singh, Suresh Singh, Naresh Singh, Daulat Singh, Mahendra Singh @
Neksey Singh, Jaivir Singh, Sheodan Singh and Bahar Singh (Accused Nos. 1to10)
reached at the place of occurrence with firearms.
Onkar Singh (Accused
No.1), Naresh Singh (Accused No.5), Daulat Singh (Accused No.6) and Sheodan
Singh (Accused No.9) had guns while others had country-made pistols. When they
reached the place of occurrence, Suraj Pal Singh, Kaptan Singh and Raj Mahesh
were preparing fodder in the cattle troughs for their cattle in front of their
chaupal. Suraj Pal Singh's sister Smt. Maya Devi and mother Smt. Resham Devi
were also present there. The aforesaid accused persons challenged Raj Mahesh
and Kaptan Singh while Onkar Singh and Naresh Singh shouted that they will be
killed and the entire family be finished. Onkar Singh fired at Raj Mahesh while
Naresh Singh fired at Kaptan Singh. When the accused persons opened fire, Suraj
Pal Singh ran inside the Jhonpari to save his life and witnessed the incident.
Maya Devi and Resham Devi rushed to save Kaptan Singh, Daulat Singh fired upon
Maya Devi. Ram Autar, brother of Kaptan Singh and Ishwari Devi came there to
save Kaptan Singh and Raj Mahesh. Resham Devi, Ram Autar and Ishwari Devi were
also fired at and received injuries when they tried to save Kaptan Singh and
Raj Mahesh. On seeing the people arriving, the accused persons ran away from
the spot. Suraj Pal Singh came out of Jhonpari and found Raj Mahesh and Maya
Devi dead. Kaptan Singh was breathing his last while Resham Devi, Ishwari Devi
and Ram Autar were lying injured. Kaptan Singh died on the way to hospital.
Suraj Pal Singh did not receive any injury. Suraj Pal Singh (PW-1) sent Brajaue
Singh to call Natthu Singh, who arrived soon from his village, for escorting
the injured as he had a licence for rifle. After the arrival of Natthu Singh,
all the four injured were taken to police station, Sidhpura in a bullock-cart.
Natthu Singh also accompanied them. Natthu Singh wrote the report at the
dictation of Suraj Pal Singh. The said report was filed at 9.30 p.m. at the
police station, Sidhpura. The case was registered and the injured persons were
sent for medical examination.
Dr. S. P. Dikshit,
PW-11, examined the injured persons and prepared their injury reports. Dr. R.P.
Yadav, PW-6, conducted the postmortem examination on the dead body of Smt. Maya
Devi, Kaptan Singh and Raj Mahesh on 22.6.1978 and prepared the report. Mr.
K.P. Sharma, S.I., PW-12, took up the investigation and completed most of the
investigation was continued by his successor and charge sheet was submitted
against the accused.
State filed the case in the Court of VI Additional Sessions Judge, Etah,
against the accused persons. The trial Court, after examining the evidence and
other materials on record and after hearing the parties, held that accused Gyan
Singh, Harbir Singh, Rampal Singh, Gopal Singh, Sher Singh and Yudhishter Singh
(Accused Nos. 11 to 16), who were charged under Section 120 B I.P.C. were found
not guilty and accordingly acquitted them. The trial Court held that the
prosecution had proved its case beyond all reasonable doubt against all the
other accused persons (accused Nos. 1 to 10) and held them guilty under Section
148 I.P.C. for committing offence of rioting after forming an unlawful assembly
as they were armed with firearms, and under Section 302/149 I.P.C. for
committing the murder of Raj Mahesh, Kaptan Singh and Smt. Maya Devi and under
Section 307/149 I.P.C. for causing firearm injuries on the person of Ram Autar,
Resham Devi and Smt. Ishwari Devi. After hearing on the question of sentence as
provided under Section 235 (2) Cr.P.C., Onkar Singh, Kishanpal Singh, Vijaipal
Singh, Suresh Singh, Naresh Singh, Daulat Singh, Mahendra Singh, Jaivir Singh,
Sheodan Singh and Bahar Singh were sentenced to undergo R.I. for two years
under Section 148 I.P.C., five years R.I. under Section 307/149 I.P.C. and
imprisonment for life under Section 302/149 I.P.C. All the sentences were to
by the said judgment, the accused Nos. 1 to 10, namely, Onkar Singh, Kishanpal
Singh, Vijaypal Singh, Suresh Singh, Naresh Singh, Daulat Singh, Mahendra
Singh, Jaivir Singh, Sheodan Singh and Bahar Singh filed Criminal Appeal No.
812 of 1980 in the High Court. Accused Nos. 3, 5 and 6 (Vijaipal Singh, Naresh
Singh and Daulat Singh) died during the pendency of the appeal and the appeal
abated against them. By judgment dated 19.9.2002, the High Court dismissed the
appeal of Onkar Singh (Accused No.1) and maintained his conviction and sentence
under Sections 302/149 I.P.C., 148 I.P.C. and 307/149 I.P.C. and allowed the
appeal in respect of all other accused (Kishanpal Singh, Suresh Singh, Mahendra
Singh, Jaivir Singh, Sheodan Singh and Bahar Singh) and acquitted them. Against
the order of the High Court acquitting Kishanpal singh, Suresh Singh, Mahendra
Singh, Jaivir Singh, Sheodan Singh, and Bahar Singh, the State of U.P. has
preferred this appeal by way of special leave.
heard Mr. Pramod Swarup, learned counsel for the appellant-State of U.P. and
Mr. Arvind Singh, learned counsel for the respondents/accused.
High Court though relied on the eye-witnesses P.W.1 - Surajpal Singh, P.W.5 -
Jagdish Singh, P.W.7 - Ranbir Singh, P.W.9 - Resham Devi (injured witness) and
C.W.1 Ujagar Singh and other materials confirmed the conviction only in respect
of Onkar Singh and acquitted other accused.
The main reason for
acquitting the other accused is that even those related eye-witnesses did not
speak about the specific overt act in respect of each accused in the commission
of offence. It also observed that some of the statements made before the Court
were not stated by them when they were enquired by the Investigating Officer
under Section 161 Cr.PC.
Though the High Court
relied on the evidence of very same persons and materials placed by the
prosecution to convict Onkar Singh, it refused to apply the same in the case of
other accused and acquitted them in respect of the charges leveled against them
ignoring the implication of charge under Section 149 I.P.C. In those
circumstances, we have to consider (i) whether the evidence of close relatives
P.Ws.1,5,7, and 9 are acceptable and reliable in respect of all the
respondents/accused (ii) whether the High Court is right in discarding their
evidence in the light of the corroborative evidence of C.W.1 and medical
evidence of Dr. R.P. Yadav - P.W.6, Postmortem Doctor and Dr. S. P. Dikshit -
P.W.11, who examined the injured persons and Exh. Ka 19, 20 and 21 (post mortem
reports) and Exh. Ka 22, 23 and 24 (injury reports).
was urged that the eye-witnesses relied on by the prosecution are related to
the deceased and injured Suraj Pal Singh, PW-1 is the brother of the deceased
Kaptan Singh and Maya Devi. Resham Devi (PW-9) is their mother. Jagdish, PW-5
and Ranveer Singh (PW-7) and deceased Raj Mahesh were cousins of PW-1. Ishwari
Devi, injured, is the sister of Jagdish (PW-5). Thus PW-5 is related to Suraj
Pal Singh, PW-1. Even Ujagar Singh (CW-1) is related to Suraj Pal Singh, PW-1,
from his maternal side.
observed earlier, though the High Court accepted the testimony of PWs 1, 5, 7
and 9 while confirming the conviction and sentences of Onkar Singh has not
given due credence to their testimonies in respect of other accused. This Court
has repeatedly held that if the testimony of prosecution witnesses was cogent,
reliable and confidence inspiring, it cannot be discarded merely on the ground
that the witness happened to be relative of the deceased. The plea
witness" has been succinctly explained by this Court in State of Rajasthan
vs. Smt. Kalki & Anr., (1981) 2 SCC 752. The following conclusion in
paragraph 7 is relevant:
"7. As mentioned
above the High Court has declined to rely on the evidence of PW 1 on two
grounds: (1) she was a "highly interested" witness because she
"is the wife of the deceased", and (2) there were discrepancies in
With respect, in our
opinion, both the grounds are invalid.
For, in the
circumstances of the case, she was the only and most natural witness; she was
the only person present in the hut with the deceased at the time of the
occurrence, and the only person who saw the occurrence. True, it is, she is the
wife of the deceased; but she cannot be called an "interested"
witness. She is
related to the deceased. "Related" is not equivalent to
"interested". A witness may be called "interested" only
when he or she derives some benefit from the result of a litigation; in the
decree in a civil case, or in seeing an accused person punished. A witness who
is a natural one and is the only possible eyewitness in the circumstances of a
case cannot be said to be "interested"."
From the above it is clear that "related" is not equivalent to
"interested". The witness may be called "interested" only
when he or she has derived some benefit from the result of a litigation in the
decree in a civil case, or in seeing an accused person punished. A witness, who
is a natural one and is the only possible eyewitness in the circumstances of a
case cannot be said to be `interested'.
plea of defence that it would not be safe to accept the evidence of the eye
witnesses who are the close relatives of the deceased, has not been accepted by
this Court. There is no such universal rule as to warrant rejection of the
evidence of a witness merely because he/she was related to or interested in the
parties to either side. In such cases, if the presence of such a witness at the
time of occurrence is proved or considered to be natural and the evidence
tendered by such witness is found in the light of the surrounding circumstances
and probabilities of the case to be true, it can provide a good and sound basis
for conviction of the accused. Where it is shown that there is enmity and the
witnesses are near relatives too, the Court has a duty to scrutinize their
evidence with great care, caution and circumspection and be very careful too in
weighing such evidence. The testimony of related witnesses, if after deep
scrutiny, found to be credible cannot be discarded. It is now well settled that
the evidence of witness cannot be discarded merely on the ground that he is a
related witness, if otherwise the same is found credible. The witness could be
a relative but that does not mean his statement should be rejected. In such a
case, it is the duty of the Court to be more careful in the matter of scrutiny
of evidence of the interested witness, and if, on such scrutiny it is found
that the evidence on record of such interested witness is worth credence, the
same would not be discarded merely on the ground that the witness is an
interested witness. Caution is to be applied by the court while scrutinizing
the evidence of the interested witness. It is well settled that it is the
quality of the evidence and not the quantity of the evidence which is required
to be judged by the court to place credence on the statement. The ground that
the witness being a close relative and consequently being a partisan witness,
should not be relied upon, has no substance. Relationship is not a factor to
affect credibility of a witness. It is more often than not that a relation
would not conceal actual culprit and make allegations against an innocent
person. Foundation has to be laid if plea of false implication is made. In such
cases, the Court has to adopt a careful approach and analyse the evidence to
find out whether it is cogent and credible. Vide State of A.P. vs.
Veddula Veera Reddy
& Ors. (1998) 4 SCC 145, Ram Anup Singh & Ors. vs. State of Bihar
(2002) 6 SCC 686, Harijana Narayana & Ors. vs. State of A.P. (2003) 11 SCC
681,Anil Sharma & Ors. vs. State of Jharkhand (2004) 5 SCC 679,Seeman @
Veeranam vs. State, By Inspector of Police (2005) 11 SCC 142, Salim Sahab vs.
State of M.P.
(2007) 1 SCC 699,
Kapildeo Mandal and Ors. vs. State of Bihar, AIR 2008 SC 533, D. Sailu vs.
State of A.P., AIR 2008 SC 505.
Kulesh Mondal vs. State of West Bengal, (2007) 8 SCC 578, this Court considered
the reliability of interested/related witnesses and has reiterated the earlier
rulings and it is worthwhile to refer the same which reads as under:
We may also observe that the ground that the [witnesses being close relatives
and consequently being partisan witnesses,] should not be relied upon, has no
substance. This theory was repelled by this Court as early as in Dalip Singh v.
State of Punjab, AIR 1953 SC 364 in which surprise was expressed over the
impression which prevailed in the minds of the members of the Bar that
relatives were not independent witnesses. Speaking through Vivian Bose, J. it
was observed: (AIR p. 366, para 25) `25. We are unable to agree with the
learned Judges of the High Court that the testimony of the two eyewitnesses
requires corroboration. If the foundation for such an observation is based on
the fact that the witnesses are women and that the fate of seven men hangs on
their testimony, we know of no such rule. If it is grounded on the reason that
they are closely related to the deceased we are unable to concur. This is a
fallacy common to many criminal cases and one which another Bench of this Court
endeavoured to dispel in Rameshwar v. State of Rajasthan (AIR 1952 SC 54 at p.
59). We find, however, that it 12 unfortunately still persists, if not in the
judgments of the Courts, at any rate in the arguments of counsel.'
11. Again in Masalti
v. State of U.P. (AIR 1965 SC 202) this Court observed: (AIR pp. 209-10, para
14) `14. But it would, we think, be unreasonable to contend that evidence given
by witnesses should be discarded only on the ground that it is evidence of
partisan or interested witnesses. ... The mechanical rejection of such evidence
on the sole ground that it is partisan would invariably lead to failure of
justice. No hard-and-fast rule can be laid down as to how much evidence should
be appreciated. Judicial approach has to be cautious in dealing with such
evidence; but the plea that such evidence should be rejected because it is
partisan cannot be accepted as correct.' 12. To the same effect is the decision
in State of Punjab v. Jagir Singh, (1974) 3 SCC 277, Lehna v. State of Haryana,
(2002) 3 SCC 76 .... As observed by this Court in State of Rajasthan v. Kalki
(1981) 2 SCC 752, normal discrepancies in evidence are those which are due to
normal errors of observation, normal errors of memory due to lapse of time, due
to mental disposition such as shock and horror at the time of occurrence and
those are always there however honest and truthful a witness may be. Material
discrepancies are those which are not normal, and not expected of a normal
person. Courts have to label the category to which a discrepancy may be
categorised. While normal discrepancies do not corrode the credibility of a
party's case, material discrepancies do so. These aspects were highlighted
recently in Krishna Mochi v. State of Bihar, (2002) 6 SCC 81".
Keeping the above principles in mind, let us examine the evidence of eye
witnesses projected by the prosecution.
Let us scan the first witness to the occurrence PW-1, Suraj Pal Singh. In his
evidence, he explained the motive for the occurrence. When he was examined as
PW-1, he identified all the accused who were present in the Court.
According to him,
accused Onkar Singh, Sheodaan Singh, Naresh Singh and Daulat Singh had been
carrying guns, in their hands, while the remaining six accused, had been
carrying country made pistols. However, the initial firing had been done by
Onkar Singh and Naresh Singh. He also asserted that the remaining accused had
fired indiscriminately, upon them in order to finish off Rajmahesh, Kaptan
Singh, himself and others. He also deposed that Rajmahesh, Kaptan Singh, Maya
Devi, Resham Devi, Ram Autar and Ishwari Devi were injured on account of the
indiscriminate firing resorted to by all the accused. According to him, Raj
Mahesh and Maya Devi died at the very spot on account of being shot at. The
remaining four had become injured on account of sustaining gun shots. He also
mentioned that Jagdish Singh, PW-5, Murari Singh, Ram Bahadur, his father Megh
Singh, Dev Singh, Baleshwar Singh and others witnessed the occurrence. It is
clear from his evidence that the victims and prosecution witnesses were not
armed and out of fear he went and took shelter in Jhonpari.
After all the accused
sped away from the scene of occurrence, he called Natthu Singh from Bhogupura,
happens to be the uncle of Rajmahesh as he has a licence of rifle, in order to
escort the injured persons to the police station and thereafter to the
hospital. On arrival of Natthu Singh, PW-1 and others arranged for a bullock
cart and taken all the four injured to the police station, Sidhpura. PW-1 had
narrated all the events to Natthu Singh and he accordingly written down the
On Natthu Singh
reading the contents of the said report, PW- 1, signed and the same was filed
in the police station. The said report is exhibited as KA-1. It was PW-1 who
took the injured to the hospital. He was also present when the sub- inspector
recovered one empty cartridge shell from the wide mouthed earthen pot and the
blood stained soil as also plain soil from the spot where the bodies of Raj
Mahesh and Maya Devi were lying. It is clear from the evidence of PW-1 that he
witnessed the occurrence, after the accused ran away from spot he took the
injured persons in a bullock-cart, reached the police station, made a complaint
Exh. Ka 1 and then went to the hospital and from there returned to the village
at about 5.00 hrs. in the morning. It further shows that again he had gone to
the Rajmau hospital. It is also clear from his evidence that at the time of the
occurrence there had been no chowkidar of their village present at the said
spot. This shows that except the accused, the deceased, injured and other
family members, none others present. Though he had taken shelter behind the
Jhonpari due to fear, he asserted that he had witnessed the entire occurrence.
He also denied the suggestion of the defence to the effect that the gang
belonging to Bhagwana Kachi village had committed dacoity at the said spot of
occurrence. Though he has not explained the specific overt act in respect of
all the ten accused, the reading of his entire evidence clearly show that he
was present on the spot at the relevant time, witnessed the incident from the
`Jhonpari', after the accused ran away he came out of Jhonpari, laid a
complaint to the police and took injured persons to the hospital. He fully
supports the prosecution case.
let us consider the evidence of PW-5, Jagdish Singh.
According to him,
when he arrived at the doorstep of the 16 house of Gyan Singh along with others
at about 3.30 P.M., he noticed all the ten accused possessing guns and pistols
with them. He specifically noted that all the accused, had been since averring,
to the effect that "Raj Mahesh and Kaptan Singh ought to be finished off
today". At the relevant point of time, Raj Mahesh, Suraj Pal and Kaptan
Singh were present at the open built up space used for knotting down cattle of
Suraj Pal. He heard that accused Onkar Singh stated to others to the effect
that, these persons have made our life miserable, we should kill them from
here. At the very moment, he had stood up and at the same moment Onkar Singh
had opened fire upon him. The said gun shot had landed on Raj Mahesh. At that
very same time Naresh Singh had opened fire which gunshot had landed upon
Kaptan Singh. At that time, Maya Devi, Resham Devi, Ram Autar, Dev Singh and
Megh Singh had arrived rushing from the chaupal. No sooner Maya Devi got down
from the chaupal Daulat Singh had opened fire which gunshot had landed upon
her. Then all these accused had resorted to indiscriminate firing from both the
Ishwari Devi had
arrived from the house of Raj Mahesh, she too had sustained gunshot bullets.
Raj Mahesh and Ram Autar had sustained resultant pallets from the gun shot
firing of the accused. At that time, Suraj Pal Singh had taken refuge and
shelter on his platform used for keeping vigil on the crops (Madhiya). In
categorical terms, P.W.5 asserted that he had witnessed the entire occurrence
by taking shelter behind a stack of bricks having been since piled up near the
Ranvir Singh, Ujagar Singh, Janey Raj Singh had witnessed the said occurrence
from the same spot. It is his claim that the occurrence had taken place at
about 4.00 O'Clock. He mentioned that Kaptan Singh too had consequently died.
He further deposed that corpses had been lying at the very spot where they had
been shot at for the entire night. Even in the cross-examination, he once again
reiterated that Maya Devi had sustained the gunshot, having been since fired by
Daulat Singh. Raj Mahesh had sustained the gun shot fired by Onkar Singh, while
Kaptan Singh had sustained the gun shot by Naresh Singh. As rightly pointed out
by counsel for the State, P.W.5 - Jagdish Singh was a person who actually
witnessed the incident at the spot, identified all the accused, disclosed the
motive for the incident and the indiscriminate firing by all the accused. There
is no reason to disbelieve his version including unlawful assembly and the
subsequent indiscriminate firing killing three persons and causing firearm
injuries to another three persons.
other eye-witness heavily relied on by the prosecution is P.W.7 Ranvir Singh.
In his evidence he has stated that at about 3.30 P.M. when he had been
proceeding to his fields, Jagdish Singh, Ujagar Singh and Janey Raj Singh had
accompanied him. When they had arrived at the door steps of the house of Gyan
Singh, they had seen 16 accused persons sitting there. He also identified all
the accused when he deposed before the Court. By mentioning specific names, he
pointed out that some of them had been possessing guns and country made pistols
at the relevant time. Similar to P.W.5, he also informed the Court that all
these accused had been since averring to the effect that Raj Mahesh and Kaptan
Singh had made their lives miserable and they ought to be got finished off
today. On hearing the statement from the accused Onkar Singh, Naresh Singh and
Daulat Singh had started firing. Raj Mahesh had sustained the gun shot having
been fired by Onkar Singh, Kaptan Singh had sustained gun shot fired by Naresh
Singh. He asserted that the remaining accused too had started firing. Maya Devi
and Resham Devi had arrived from the sitting room (baithak) of surai house of
Raj Mahesh in order to save them. However, due to the gun shot of Daulat Singh,
Megh Singh @ Megh Raj Singh and Maya Devi had sustained injuries, the gun shot
injuries had been caused to Resham Devi, Ram Autar, Ishwari Devi. Raj Mahesh
and Maya Devi had died at the spot. He asserted that he had witnessed the said
occurrence from near the stack of bricks, having been piled up. He also
informed the Court that Jagdish Singh P.W.5, Ujagar Singh and Janey Ram Singh
had witnessed the said occurrence besides himself from the same spot. Like
others, he also reiterated that he had not seen anybody else in the scene of
occurrence at the relevant point of time except the accused, the injured and
Though he had not
gone to the Police Station or to the Hospital, when the Sub-inspector arrived,
he made all arrangements for enquiry. He also mentioned about the motive of the
occurrence. There is no valid reason to disown his claim and the prosecution
story about the incident.
other important eye witness is P.W.9 Smt. Resham Devi. She is an injured
witness. Her husband is Megh Singh and resident of village Khajura. She
explained that at the time of the accident, it was approximately 4 0'Clock in
She had been cleaning
Moong pulse stalks, at their open assembly venue (chaupal). Her daughter Maya
Devi too had been present there along with her. Her son Kaptan Singh and Suraj
Pal had been busy in mixing fodder for the cattle. She noticed that accused
Nos. 1, 5, 6 and 9 - Onkar Singh, Naresh Singh, Daulat Singh and Sheodan Singh
had been carrying guns with them while six others (Accused Nos. 2, 3, 4, 7, 8
and 10) had been in possession of a country-made pistol. She also identified
all the 10 accused in the Court. Like P.Ws.1, 5 and 7, she also reiterated that
Onkar Singh and Naresh Singh declared that they have to kill all of them along
with their kith and kin. By saying so, they fired upon Kaptan Singh. At that
very moment, her daughter rushed in order to save Kaptan Singh. Her son Ram
Autar had also rushed in order to save Kaptan Singh while Ishwari Devi rushed
in order to save Raj Mahesh. At the very moment, Daulat Singh had opened fire
upon Maya Devi, thereafter all the aforesaid ten accused had started
indiscriminate firing due to which Resham Devi, Ishwari Devi and Ram Autar
sustained gun shot injuries.
Both Maya Devi as
well as Raj Mahesh had died at the very spot as a result of gun shots.
Thereafter, all the aforesaid ten accused had escaped from the spot. She also
mentioned the presence of Jagdish Singh, P.W.5 and Ranvir Singh, P.W.7.
She had then gone to
Police Station Sidhpura along with Suraj Pal Singh, P.W.1. She also deposed
that due to sustaining of injuries, she had become hard of hearing, pellets had
landed on her neck. According to her, pallets are still present within her
body. In respect of a question posed to her, she asserted that she had not felt
scared of sustaining gun shot fire since her daughter had already sustained gun
shot fire. She being injured witness (the details regarding her injuries and
the evidence of doctor will be discussed at the later point of time) and she
was one among the victims suffered at the hands of accused, there is no reason
to believe her version only to convict Onkar Singh though her evidence clearly
implicates other nine accused also.
from the evidence of P.Ws. 1, 5, 7 and 9, on the direction of the Court one
Ujagar Singh was examined as C.W.1. According to him, while he was returning
after purchasing tobacco around 3.00 P.M. and when he reached Gyan's house, he
noticed presence of 16 men. He mentioned all the names. He also referred to the
statement of Onkar Singh that "these people were harassing us, let us kill
them today" and the statement of Naresh Singh accused "let us finish
their family." Immediately, Naresh Singh shot at Kaptan Singh. Onkar Singh
shot at Raj Mahesh. When Maya Devi, sister of Kaptan Singh reached the scene of
occurrence, Daulat Singh shot at her. On hearing the commotion, Resham Devi,
mother of Kaptan Singh and brother of Ram Autar reached there and Ishwari Devi,
sister of Jagdish Singh also arrived there. Then all the ten accused fired at
them indiscriminately. Thereafter, all the accused ran away towards east. When
he and others reached the verandah, they found that Maya Devi and Raj Mahesh
had died and Kaptan Singh, Resham Devi, Ishwari Devi and Ram Autar were lying
injured. He also stated that the said incident took place around 3.00 P.M. He
also confirmed the presence of other witnesses including P.W.5 and P.W.7 in the
scene of occurrence. He specified that out of ten men involved in the shooting,
four were armed with guns and remaining six with pistols. Though he did not go
with the injured persons to the hospital after the incident, however, according
to him, he reached the hospital around 9 `O'clock in the morning. He also
disclosed that at the time of incident particularly when the shots were fired,
he did hide behind brick kiln. It is seen from his evidence that his field is
about one furlong away from his house and his house is around 16 paces from the
incident and two houses are between them. As stated earlier, C.W.1 though
resident of the same village is not related to the other eye witnesses,
deceased and injured persons. The trial Court heavily relied on his evidence.
On going through the same, there is no reason to disbelieve his version.
the motive, according to the prosecution, the accused persons had enmity with
the complainant's party including the deceased persons and their family
There was an
ancestral land of Surajpal Singh, Raghubir Singh and Jograj Singh. A sheesham
tree was standing therein. The Chak of Daulat Singh - accused is adjacent to
the said land. Daulat Singh and Yudhishtir Singh wanted to cut the said tree
but they were not permitted and Raghubir Singh lodged a report against Daulat
Singh, Yudhishtir Singh, Onkar Singh, Kishanpal, Naresh Singh, Suresh Singh,
Gyan Singh, Sher Singh, Mahendra and Amol Singh. The said report dated 9.3.1978
has been marked as Ex. KA-15.
Singh and Onkar Singh got a false report lodged by Tok Singh under Section 392
IPC against Ranvir Singh, Balbir Singh and Rambir Singh on 6.5.1978. Onkar
Singh and Daulat Singh, accused persons in the case on hand, were cited as
prosecution witnesses. This is evident from Ex. KA-17. The police, however,
submitted final report which infuriated Daulat Singh and Onkar Singh. Further
two days prior to the present occurrence when Raj Mahesh and Kaptan Singh were
going in front of the shop of Onkar Singh, the latter extended threat to them
of dire consequences.
Though it was pointed
out that for such a serious crime, the said motive was highly insufficient, as
rightly observed by the trial Judge, the motive is a thing which is primarily
known to the accused themselves and it is not possible for the prosecution to
explain what actually promoted or excited them to commit the particular crime.
The motive may be considered as circumstance which is relevant for assessing
the evidence but if the evidence is clear and unambiguous and the circumstances
prove the guilt of the accused, the same is not weakened even if the motive is
not a very strong one. It is also settled law that the motive looses all its
importance in a case where direct evidence of eye-witnesses is available,
because even if there may be a very strong motive for the accused persons to
commit a particular crime, they cannot be convicted if the evidence of
eye-witnesses is not convincing.
In the same way, even
if there may not be an apparent motive but if the evidence of eye-witnesses is
clear and reliable, the absence or inadequacy of motive cannot stand in the way
of conviction. As pointed out, even the accused persons have stated that they
have been falsely implicated due to previous 26 enmity, in such circumstances,
it cannot be said that the accused persons had no motive to commit the crime in
question. In fact, the prosecution witnesses have specifically adverted to this
without any contradiction and all of them denied the suggestion that the
alleged incident was due to attack by the dacoits and the accused persons have
nothing to do with it.
analysis of evidence of P.Ws 1, 5, 7,9 and C.W.1 clearly show the motive behind
the incident, place of occurrence, participation of all the accused carrying
guns and pistols, indiscriminate firing killing three and causing firearm
injuries to other three, complaining to the police without any delay i.e. at
9.30 P.M. which is reasonable considering the distance of Police Station, i.e.
10 kms. from the place of occurrence and taking all the injured immediately to
let us consider the medical evidence in respect of three deaths and three
injured persons and how it corroborate the statement of eye-witnesses. Dr.R.P.
Yadav, who conducted the Post Mortem examination upon the dead body of Smt.
Maya Devi, noted the following Ante Mortem injuries:- "1. Gun shot wound
of entry = Cms. X 1/3 Cms. X flesh deep, on the forehead 3 Cms. Above the left
2. 4 Gun shot wounds
of entry, in an area admeasuing 5= Cms. X 4= Cms., on the left side of face.
All the wounds had been = Cms. To 1/3 Cms., skin deep, to flesh deep. 1 wound
had been present, on the lip, 1 had been under the eye, and 1 had been present,
in front of the left ear and one over middle of the cheek.
3. Gun shot wound of
entry = Cms. X 1/3 Cms. X skin deep on the scalp, on the left hand side of
skull 8 Cms. above the ear.
4. Gun shot wound of
entry = Cms. X 1/3 Cms. X flesh deep, at the back of, the left ear.
5. Gun shot wound of
entry = Cms. X 1/3 Cms. X skin deep, on the left lower portion of, the neck.
6. 4 Gun shot wounds
of entry, in an area admeasuring 8 Cms. X 6 Cms. X flesh deep had been present,
on the upper portion of back. One wound had been = Cms. X 1/3 Cms. X skin deep
to flesh deep.
7. 4 Gun shot wounds
of entry, in an area admeasuring 10 Cms. X 8 Cms., had been present, on the
left side of back below wounds, had been = Cms. X 1/3 Cms flesh deep.
8. Gun shot wound of
entry = Cms. X 1/3 Cms. X flesh deep, on the left side, at the back of waist.
9. 2 Gun shot wound
of entry, on the left side of chest near the area of the left arm-pit = Cms. X
1/3 Cms. X flesh deep.
The edges of all the
aforesaid wounds had, been swollen up and had been inverted and protruding,
inwards. No blackening and tattooing however had been present, on the same. All
the aforesaid wounds had, been caused, on account of fire-arm.
3 pellets had, been recovered from under injury No. 6 from under the left
shoulder bone. Upon opening wound No. 7 it 28 however had, been revealed, to
the effect that, the bullet while the left portion of the heart and had stopped
within the left side of the chest. However, 3 pellets had, been recovered from
within the said spot. The direction of this wound had been, from the rear, to
the front going a little bit, in the upward direction. The direction of injury
Nos. 1 to 5 had been from the left, to the right and sideways. 1 pellet had,
been recovered, from under injury No.1, while two pallets had, been accordingly
recovered from under injury No.2. One pellet had been recovered, under injury
No.9, while the direction thereof had, been from the left, to the right. Left
lung and left portion of the heart, under injury No.7, stood lacerated, while
blood had been accordingly present, in the cavity of chest, on the left side,
The stomach had, been
empty. The peritoneum had, been OK. The small intestine had been empty, while
faecal matter had, been present, in the large intestine.
In my opinion the
death of the deceased had as a result of Ante Mortem fire-arm injuries, having
since caused, on her person."
also conducted the Post Mortem examination upon the dead body of the deceased
Kaptan Singh and noted the following Ante Mortem injuries:
"1. Gun shot
wound of entry = Cms. X 1/3 Cms. X flesh deep, on the upper eye-lid of, the
2. 3 Gun shot wounds
of entry, each admeasuing = Cms.
X 1/3 Cms. X through
and through, on the upper portion of, left lip. The incisor teeth, on broken,
while blood stood deposited, in the buccal cavity therein.
3. 4 Gun shot wounds
of entry, each admeasuring = Cms. X 1/3 Cms. X flesh deep, in an area of 7 Cms.
X 5 Cms., on the left side of neck.
4. 3 Gun shot wounds
of entry, each admeasuring = Cms. X 1/3 Cms. X skin deep, in an area
admeasuring 6 Cms. X 4 Cms., on the left front side of chest, pointing
outwards, from the right nipple.
5. 2 Gun shot wounds
of entry 1/3 Cms. X 1/3 Cms. X skin deep, on the outer side of the left arm,
pointing outwards, thereof.
6. Gun shot wound of
entry = Cms. X 1/3 Cms. X skin deep, on the front lumbar region of, stomach.
7. 2 Gun shot wounds
of exit > Cms. X = Cms. X on the inner side of, the left arm. These wounds
had been the exit wounds of, injury No.5.
All the aforesaid
wounds had, been caused, on account of, fire-arm.
Two large size pellets had, been recovered from the skin, under injury No.7.
Upon probing injury No.4 it had been so revealed, to the effect that, the
bullet had, since lacerated the skin and had made an entry, on the left side of
chest and while puncturing the left lung and the surrounding membranes had
ultimately stooped, within the left chest cavity. 3 pallets had, been
recovered, from the said relevant spot. = pound of blood had, been present, in
the left chest cavity. The direction of injury No.2 too, had been from the
left, to the right. 2 Ozs. Of blood had, been present, in the stomach cavity.
The stomach had been empty and the peritoneum had, been alright. The small
intestine had, been empty, while faecal matter had, been present, in the large
intestine. However, the large intestine stood cut and segregated, below injury
In my opinion, the
death of the deceased had occurred, on account of shock and haemorrhage as a result
of Ante Mortem fire-arm injuries, having since caused, on his person."
also conducted the Post Mortem examination upon which dead body of deceased Raj
Mahesh and noted the following Ante Mortem injuries:- "1. 2 Gun shot
wounds of entry, on the front left side of, chest. One wound had, been O'clock
position, from the nipple thereof. Both the said wounds had been, at an 30
inter-alia distance of 5 Cms., from each other. Each of the said wound had,
been admeasuring > Cms. X = Cms. X chest cavity deep.
2. 2 Gun shot wounds
of entry, on the front left side of stomach, near the umbilicus, each of them
admeasuing > Cms. X = Cms. X stomach cavity deep.
3. Gun shot wound of
entry, on the lower portion of, left side of stomach, situated at a distance of
10 Cms., from the umbilicus admeasuring > Cms. X = Cms. X stomach cavity
4. Gun shot wound of
entry admeasuring > Cms. X = Cms. X bone deep, on the front of, the left
elbow. The humorous bone stood, fractured.
5. Gun shot wound of
exit admeasuring = Cms. X 1 Cm.
on the left side of
back, in the waist area, thereof.
All the aforesaid
wounds had, been caused, on account of, fire-arm.
Upon opening injury No.1 it had been so revealed, to the effect that, the
bullet had entered lacerating the skin of the chest, while it had punctured
through and through, the left lung within the chest cavity, the membrane
thereof, as well as, the heart and had consequently, stopped within the flesh,
in the left central portion of the back, while 2 pellets had, been recovered,
from the said relevant part of the body of, the said corpse. The direction of
the said bullet had, been from the front, towards the back and had been almost,
in a straight line. One large size pellet, had been accordingly recovered, from
under injury No.4. The entry pallet of injury No.3 had protruding a little bit,
towards the top. The pellet of injury No.2 had, been strangled somewhere, in
the small intestine and however, the same could not be recovered even upon
probing for the same.
The stomach had, been
empty. Blood had, been present, in the left lung cavity and the stomach cavity.
The small intestine stood lacerated, at several places. Faecal matter had been
present, in the large intestine.
In my opinion, the
death of the deceased had occurred, on account of shock and haemorrhage, as a
result of Ante Mortem fire-arm injuries, having since caused, on his
is also relevant to mention the evidence of P.W.11 Dr. S. P. Dikshit who
treated the three injured persons and his evidence about the injuries sustained
21.06.1968 I had, been the Medical Officer Incharge, at Sidhpura and I
continue, to remain, as such.
This hospital remains
situated, within the ambit of the boundaries of, village Rajmau. Resham Devi,
wife of Megh Singh, resident of village Khajura, Police Station Sidhpura,
District Etah. I had detected the following injuries, upon her person:-
1. Punctured wound 2
Cms., below the right ear and 10 Cms. From the right hand corner, towards the
mouth admeasuring 1 Cm. X 2 Cms. X 0.2 Cm. Small amount of blood oozing had,
been present therein.
2. Punctured wound 4
Cms., away from the right ear, on the neck, at a distance of 4 Cms., from the
Medieval angle, pointing downwards admeasuring 1 Cm. X 2 Cms. X 0.2 Cm. Small
amount of blood oozing had, been present therein. The aforesaid injuries, had
been simple in nature, while the same had been caused by some fire-arm. The
duration of the said injuries, at the time of Medical Examination had, been
about < day old.
On that day, at 11=
O'clock, in the night, I had examined the injuries, on the person of Smt.
Ishwari Devi, wife of Chandra Pal Singh, resident of village Khajura, Police
Station Sidhpura, District Etah. I had detected the following injuries, upon
1. Punctured wound,
on the right cheek 5 Cms., away from the nose and 6 Cms., above the Medieval
end, admeasuring 1 Cm. X 2 Cms. X 0.2 Cm. Small amount of blood oozing had,
been present therein.
2. Punctured wound 1
Cm, below the lower eye-lid of the right eye and at a distance of 4 Cms., from
the nose, 1 Cm. X 2 Cms. X 0.2 Cm. in an area admeasuring 3 Cms. X 3 Cms.
Swelling had, since been present 32 therein. Small amount of blood oozing had,
been present therein.
3. All the aforesaid
injuries had, been duration of the said injuries, at the time of Medical
Examination had, been about < day old.
On that day, at 11.55
PM, in the night, I had examined the injuries, on the person of, Shri Ram Autar,
son of Megh Singh, resident of village Khajura, Police Station Sidhpura,
District Etah. I had detected the following injuries, upon his person:-
1. Punctured wound
0.2 Cm X 0.2 Cm on the right side of stomach 10 Cms, away from the Elite Crest
10 Cms., towards the top and 10 Cms., away from the Meridian line. Small amount
of blood stood oozing, from therein.
2. Punctured wound
0.2 Cm X 0.2 Cm., on the front side of left forearm [fire-arm] 6 Cms., away and
towards the top of the writ joint. Small amount of blood stood oozing, from
3. Punctured wound
0.2 Cm X 0.2 Cm., on the front side of left elbow joint, in the middle thereof.
Small amount of blood stood oozing, from therein.
4. Punctured wound
0.2 Cm X 0.2 Cm., on the back of left elbow joint, on the outer side thereof.
Small amount of blood stood oozing, from therein.
5. X-ray had been
advised for all the injuries of this injured. All the said injuries had, been
caused, by some fire-arm. The duration of the said injuries, at the time of
Medical Examination had, been about < day old.
6. I had prepared the
respective Injury Reports pertaining, to all the respective injured, at the
relevant points of time, while conducting their respective Medical
Examinations. All the said Injury Reports are true and correct, having been
since prepared, under my handwriting and bear my signatures, on each of them.
All the said three Exbt. Ka-24 respectively. The same are however, true and
7. Constable 272 Ram
[sic], from Police Station Sidhpura had, brought all the said three injured for
the 33 purposes of conducting Medical Examination upon their respective
persons, while he had, identified each of the respective injured as such.
8. All the aforesaid
injuries of, all the respective injured might have been possibly caused, on
21.06.1978, at about 4 O'clock, in the day. The same are results, on account of
gun shots resulting either, from a gun or a country made pistol."
"In my opinion,
the said injuries of, each of the respective injured, was only possible, on
account of some fire-arm, because the edges of all of them had been, in
circular shape, while the skin stood punctured. Even the depth of every injury
was equal, in measurement. On account of the said reason I hereby state to the
effect that, all the said respective injuries had, been a result of shots,
having been since fired from some fire-arm. However, I had neither, mentioned
that the respective shapes thereof had been circular in appearance and
Though the High Court
has commented that the prosecution has not collected the pellets from the gun
shots from the walls, the evidence of the two doctors prove that several
pellets struck the three dead persons and three injured persons. The evidence
of two doctors and Post Mortem certificates Ex Ka 19, 20 and 21, injury report
Ex. Ka 22, 23 and 24 amply prove that not only Onkar Singh, Naresh Singh and
Daulat Singh fired but also all the ten accused fired indiscriminately by using
guns and pistols which resulted in three deaths and fire arm injuries to three
persons. The evidence of PWs 1, 5, 7, 9 and CW-1 and the evidence of two
doctors and their reports clearly support the case of the prosecution that all
the accused had a role in the incident and rightly charged under Sections 148,
149, 307 and 302. The High Court lost sight in not concentrating the above
relevant material evidence while acquitting all the accused except Onkar Singh.
let us consider the other relevant issue, namely, allegation of absence of
evidence relating to the specific overt act or role attributed to each accused
as well as the evidence of the prosecution in respect of a charge under Section
149 IPC. Before going into the merits of the above issue, it is useful to refer
to Section 149 which reads thus:
member of unlawful assembly guilty of offence committed in prosecution of
common object.- If an offence is committed by any member of an unlawful
assembly in prosecution of the common object of that assembly, or such as the
members of that assembly knew to be likely to be committed in prosecution of
that object, every person who, at the time of the committing of that offence,
is a member of the same assembly, is guilty of that offence."
is well settled that once a membership of an unlawful assembly is established
it is not incumbent on the prosecution to establish whether any specific overt
act has been assigned to any accused. In other words, mere membership of the
unlawful assembly is sufficient and every member of an unlawful assembly is
vicariously liable for the acts done by others either in the prosecution of the
common object of the unlawful assembly or such which the members of the
unlawful assembly knew were likely to be committed.
Bhagwan Singh and Others vs. State of M.P., (2002) 4 SCC 85, this Court while
considering unlawful assembly/sharing of common object held as under:- "9.
Common object, as contemplated by Section 149 of the Indian Penal Code, does
not require prior concert or meeting of minds before the attack. Generally no direct
evidence is available regarding the existence of common object which, in each
case, has to be ascertained from the attending facts and circumstances. When a
concerted attack is made on the victim by a large number of persons armed with
deadly weapons, it is often difficult to determine the actual part played by
each offender and easy to hold that such persons who attacked the victim had
the common object for an offence which was known to be likely to be committed
in prosecution of such an object. It is true that a mere innocent person, in an
assembly of persons or being a bystander does not make such person a member of
an unlawful assembly but where the persons forming the assembly are shown to be
having identical interest in pursuance of which some of them come armed, others
though not armed would, under the normal circumstances, be deemed to be the
members of the unlawful assembly."
The same principle
has been stated in State of A.P. vs. Veddula Veera Reddy and Others, (supra)
and Sahdeo and Others vs. State of U.P. (2004) 10 SCC 682.
the case on hand, the accused persons have been proved to be in inimical terms
with the complainant party, the accused persons who came on the spot are shown
to have armed with deadly weapons i.e. guns and pistols. The facts and
circumstances of the case unequivocally prove the existence of the common
object of such persons forming the unlawful assembly who had come on the spot
with weapons and attacked the complainant's party. In consequence of which
three precious lives were lost and another three sustained firearm injuries.
State of Rajasthan vs. Nathu and Others, (2003) 5 SCC 537, this Court held:
"If death had
been caused in prosecution of the common object of an unlawful assembly, it is
not necessary to record a definite and specific finding as to which particular
accused out of the members of the unlawful assembly caused the fatal injury.
Once an unlawful assembly has come into existence, each member of the assembly
becomes vicariously liable for the criminal act of any other member of the assembly
committed in prosecution of the common object of the assembly."
Rachamreddi Chenna Reddy and Others vs. State of A.P., (1999) 3 SCC 97, with
reference to common object and how the same has to be interfered with, this
Court held thus:
"7. .... ....
The question whether the group of persons can be made liable for having caused
murder of one or two persons by virtue of Section 149 IPC depends upon the
facts and circumstances under which the murder took place. Whether the members
of an unlawful assembly really had the common object to cause the murder of the
deceased has to be decided on the basis of the nature of weapons used by such
members, the manner and sequence of attack made by those members on the
deceased and the settings and surroundings under which the occurrence took
9. In Bolineedi case
(1994 Supp (3) SCC 732) this Court held that for arriving at a conclusion of
constructive liability, what the courts have to see is whether they had the
common object and members of the assembly knew it likely to be committed in
prosecution of that object. In the aforesaid case, the fact that all the
accused persons chased and surrounded the deceased and inflicted injuries with
their respective weapons was held to be sufficient to conclude that they had
the common object to kill the deceased."
the case on hand, the prosecution witnesses have clinchingly demonstrated how
the accused persons formed an unlawful assembly at a particular spot with
deadly weapons like guns and pistols and that all had fired at the injured and
deceased. The number of injuries on the deceased as per the Post Mortem report
as well as the firearm injuries sustained by the three injured persons clearly
demonstrate the common object of accused Nos. 1 to 10 was to kill the
Yunis @ Kariya vs. State of M.P. (2003) 1 SCC 425, this Court held:
"Even if no
overt act is imputed to a particular person, when the charge is under Section
149 IPC, the presence of the accused as part of an unlawful assembly is
sufficient for conviction. The fact that the accused was a member of the
unlawful assembly is sufficient to hold him guilty."
Following the above
principle, in Jaishree Yadav vs. State of U.P., (2005) 9 SCC 788, in an
identical circumstance, this Court interfered with the acquittal of the High
Court. It is relevant to refer to para 28 of the said decision.
"28. In view of
the above principle in law, since the trial court has found these
respondent-accused guilty of being members of an unlawful assembly with the
common object of causing the murder of the deceased, and the High Court having
not differed from the said finding, it erred in acquitting these
respondent-accused solely on the ground that there is no evidence to show that
they had taken part in the actual assault. In our opinion, assuming that the
High Court was correct in coming to the conclusion that these
respondent-accused have not taken part in the attack even then they having come
together with the other accused armed, and having been members of the unlawful
assembly and having shared the common object, they will be guilty of 39 an offence
punishable under Section 302 read with Section 149 IPC."
the earlier part of our discussion, we referred to the evidence of P.Ws. 1,5,7
and 9 and C.W.1 as well as the two Doctors and the Post Mortem Report Exh. Ka
19, 20 21 and Injury Report Exh. Ka 22, 23 and 24. As observed in the above
decisions, even though specific overt act had been attributed only to accused
Nos. 1, 5 and 6 and not to each of the other accused in view of the fact that
there is ample evidence for the presence of all the accused as part of unlawful
assembly and firing by all of them, all of them have to be held guilty of
offence charged against them.
are satisfied that the High Court has committed an error in acquitting all the
accused except Onkar Singh only on the ground that specific overt act or
involvement had not been highlighted by the prosecution witnesses. The High
Court has observed that the testimony of PW-9, Resham Devi, inspires their
confidence fully. PW-9 has given evidence of the unlawful assembly of ten
accused and indiscriminate firing by the ten accused, apart from referring to
the specific acts of accused Nos. 1, 5 and 6. Therefore, the High Court could
not have acquitted accused Nos. 2, 4, 7, 8, 9 and 10. The observation of High
Court that some of the witnesses stated all the relevant information before the
Court, they did not inform the same to P.W.1 who made a complaint to the Police
or to the Investigating Officer who visited the spot, on verification of the
entire evidence, we are of the view that the observation may not be sound. In
fact, P.Ws. 5, 7 and 9 explained that in view of the fact that the three
persons died and three sustained firearm injuries either some went to the
hospital along with the injured persons and others stayed back at the place of
occurrence. The said explanation cannot be rejected as unacceptable
particularly when they are illiterate villagers.
It is also settled
law that there is no need to inform everything either to the complainant or in
the complaint. In such circumstances, we reject the reasoning of the High
as the present appeal by the State is against an order of acquittal, learned
counsel for the respondents submitted that the appeal involved only
appreciation of evidence and this Court may not interfere with the findings of
facts resulting from appreciation of evidence. In State of Rajasthan vs. Smt.
Kalki and Another, (supra), similar contention was raised before a three-Judge
Bench of this Court. Rejecting the said contention, the Bench held:
".....It is true
that in an appeal under Article 136 of the Constitution this Court normally
does not interfere with findings of facts arrived at by the High Court. But
when it appears that the findings of facts arrived at are bordering on
perversity and result in miscarriage of justice, this Court will not decline to
quash such findings to prevent the miscarriage of justice."
our opinion, the guilt of the respondents has been established by the
prosecution beyond reasonable doubt and their acquittal resulted in grave
miscarriage of justice. The paramount consideration of the Court is to ensure
that miscarriage of justice is avoided. The miscarriage of justice which may
arise from the acquittal of the guilty is no less than from the conviction of
the light of the above discussion, we find that the High Court has not assigned
any good reason for acquitting Kishan Pal Singh, Suresh Singh, Mahendra Singh @
Neksey Singh, Jaivir Singh, Sheodan Singh and Bahar Singh. Further, the
materials placed by the prosecution clearly show that the acquitted-accused
along with convict-accused Onkar Singh and three others (who died after the
trial) have formed unlawful assembly and all came with fire arm and caused fire
arm injuries on the deceased persons as well as on the injured persons and the
case of the prosecution was fully corroborated by medical evidence. In our
considered view, the trial Court rightly held that the accused persons had
formed unlawful assembly and committed murders by going at the place of
incident with fire arm and causing fire arm injuries.
On the other hand,
the High Court erred in acquitting those persons and the same deserves to be
this regard, it is relevant to note that the incident occurred as early as on
21.06.1978, though the learned Trial Judge convicted these persons on 8.4.1980,
the High Court set aside the conviction and acquitted them on 19.09.2002.
We have to see whether
the respondents/accused persons are to be awarded life sentence as imposed by
the Trial Court. It is relevant to mention in Virsa Singh v. State of Punjab
(AIR 1958 SC 465) Vivian Bose, J speaking for the Court, explained the meaning
and scope of clause (3) of Section 300 I.P.C. It was observed that the
prosecution must prove the following facts before it can bring a case under
Section 300 "thirdly".
First, it must
establish quite objectively, that a bodily injury is present; secondly, the
nature of the injury must be proved.
These are purely
objective investigations. Thirdly, it must be proved that there was an
intention to inflict that particular injury, that is to say, that it was not
accidental or unintentional or that some other kind of injury was intended.
Once these three
elements are proved to be present, the enquiry proceeds further, and fourthly,
it must be proved that the inquiry of the type just described made up of the
three elements set out above was sufficient to cause death in the ordinary
course of nature. This part of the enquiry is purely objective and inferential
and has nothing to do with the intention of the offender.
ingredients of clause "thirdly" of Section 300 IPC were brought out
by Bose, J. which reads as under:
"12. To put it
shortly, the prosecution must prove the following facts before it can bring a
case under Section 300 "thirdly";
44 First, it must
establish, quite objectively, that, a bodily injury is present;
Secondly, the nature
of the injury must be proved;
These are purely
Thirdly, it must be
proved that there was an intention to inflict that particular bodily injury,
that is to say, that it was not accidental or unintentional, or that some other
kind of injury was intended.
Once these three
elements are proved to be present, the enquiry proceeds further and, Fourthly,
it must be proved that the injury of the type just described made up of the
three elements set out above is sufficient to cause death in the ordinary
course of nature. This part of the enquiry is purely objective and inferential
and has nothing to do with the intention of the offender."
learned Judge explained the third ingredient in the following words (at page
"The question is
not whether the prisoner intended to inflict a serious injury or a trivial one
but whether he intended to inflict the injury that is proved to be present. If
he can show that he did not, or if the totality of the circumstances justify
such an inference, then, of course, the intent that the section requires is not
proved. But if there is nothing beyond the injury and the fact that the
appellant inflicted it, the only possible inference is that he intended to
Whether he knew of
its seriousness, or intended serious consequences, is neither here nor there.
The question, so far as the intention is concerned, is not whether he intended
to kill, or to inflict an injury of a particular degree of seriousness, but
whether he intended to inflict the injury in question; and once the existence
of the injury is proved the intention to cause it will be presumed unless the
evidence or the circumstances warrant an opposite conclusion."
test laid down by Virsa Singh case (supra) for the applicability of clause
"thirdly" is now ingrained in our legal system and has become part of
the rule of law. Under clause thirdly of Section 300 IPC, culpable homicide is
murder, if both the following conditions are satisfied i.e. (a) that the act
which causes death is done with the intention of causing death or is done with
the intention of causing a bodily injury;
and (b) that the
injury intended to be inflicted is sufficient in the ordinary course of nature
to cause death. It must be proved that there was an intention to inflict that
particular bodily injury which, in the ordinary course of nature, was
sufficient to cause death viz. that the injury found to be present was the
injury that was intended to be inflicted. Thus, according to the rule laid down
in Virsa Singh case (supra) even if the intention of the accused was limited to
the infliction of a bodily injury sufficient to cause death in the ordinary
course of nature, and did not extend to the intention of causing death, the
offence would be murder. Illustration (c) appended to Section 300 clearly
brings out this point.
fact that the incident had occurred 30 years ago namely 1978, and of the fact
that all the prosecution witnesses referred to gun shots and bullet injuries in
general, when we consider all the factual scenario in the background of legal
principles set out above, the inevitable conclusion is that the appropriate
conviction in so far as the respondents herein would be under Section 304 Part
I I.P.C. Custodial sentence of 10 years should meet the ends of justice.
the result, the judgment of the High Court dated 19.09.2002 acquitting Kishan
Pal Singh, Suresh Singh, Mahendra Singh @ Neksey Singh, Jaivir Singh, Sheodan
Singh and Bahar Singh is set aside. Consequently each of the accused
persons/respondents herein namely Kishan Pal Singh, Suresh Singh, Mahendra
Singh @ Neksey Singh, Jaivir Singh, Sheodan Singh and Bahar Singh is sentenced
to undergo RI for two years under Section 148, to five years RI under Section
307/149 I.P.C. and imprisonment for 10 years RI under Section 304 Part I I.P.C.
All the sentences are to run concurrently. The respondents shall surrender to
custody forthwith to serve the remaining period of sentence. The appeal filed
by the State is allowed to this extent and the judgment of the High Court is