REPORTABLE
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)
JUDGMENT
P. Sathasivam, J.
1) Challenging 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 appeal.
2) The 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
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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
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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.
Thereafter the investigation was continued by his successor
and charge sheet was submitted against the accused.
3) The 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)
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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 run concurrently.
4) Aggrieved 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
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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.
5) We heard Mr. Pramod Swarup, learned counsel for the
appellant-State of U.P. and Mr. Arvind Singh, learned counsel
for the respondents/accused.
6) The 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.
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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
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(post mortem reports) and Exh. Ka 22, 23 and 24 (injury
reports).
7) It 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.
8) As 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 “interested witness”
“related witness” has been succinctly explained by this Court
8
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 her evidence.
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”.”
9) 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’.
10) The 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
9
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
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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
11
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.
11) In 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:
“11. “10. 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 it12
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″.
12) Keeping the above principles in mind, let us examine the
evidence of eye witnesses projected by the prosecution.
13) 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
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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.
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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 same.
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
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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.
14) Now 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 directions.
Ishwari Devi had arrived from the house of Raj Mahesh, she
17
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 platform.
Besides himself 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,
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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.
15) The 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
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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 other witnesses.
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
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motive of the occurrence. There is no valid reason to disown
his claim and the prosecution story about the incident.
16) The 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 the day.
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
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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
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convict Onkar Singh though her evidence clearly implicates
other nine accused also.
17) Apart 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
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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.
18) Regarding the motive, according to the prosecution, the
accused persons had enmity with the complainant’s party
24
including the deceased persons and their family members.
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.
Thereafter Naresh 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.
25
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.
19) The 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 the
hospital.
20) Now, 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
27
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 brow.
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.
Internal Examination
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, thereof.
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.”
21) He 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 left eye.
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.
29
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.
Internal Examination
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 No.6.
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.”
22) He 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 an30
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 deep.
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.
Internal Examination
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
person.”
31
23) It 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 by them.
“1. On 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 her person:-
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 therein.
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 correct.
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 visibility.”
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
34
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.
24) Now 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:
“149. Every 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.”
25) It is well settled that once a membership of an unlawful
assembly is established it is not incumbent on the prosecution
35
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.
26) In 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.”
36
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.
27) In 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.
28) In 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.”
37
29) In 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 place.
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.”
30) In 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
38
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 complainant’s
party.
31) In 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 of39
an offence punishable under Section 302 read with Section
149 IPC.”
32) In 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.
33) We 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
40
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 Court.
34) Inasmuch 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
41
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.”
35) In 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 an innocent.
36) In 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
42
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 set aside.
37) In 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
43
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.
38) The 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 objective investigations.
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.”
39) The learned Judge explained the third ingredient in the
following words (at page 468):
“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 inflict it.
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.”
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40) The 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.
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41) The 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.
42) In 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
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appeal filed by the State is allowed to this extent and the
judgment of the High Court is set aside.
………………………………….J.
(R.V. Raveendran)
…………………………………..J.
(P. Sathasivam)
New Delhi;
August 08, 2008.
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