Kailash Nath vs State Of U.P

CRL.A. NO. 1416 OF 2008 REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1416 OF 2008

KAILASH NATH ..... APPELLANT

VERSUS

STATE OF U.P. ..... RESPONDENT

O R D E R

1. The prosecution story is as under:-

1.1 Chhoti - P.W. 1, the complainant in the case was

earlier married to Kallu Singh of village Tendwar, P.S.

Maholi, District Sitapur and had three sons from him

namely, Virendra, Surendra and Mahendra. Kallu Singh

aforesaid had an uncle named Ram Singh and Ram Singh had

a son named Lallu Singh. Kallu Singh owned a house in

village Tendwar. A short distance therefrom was the

residential house of Vikram Singh -P.W. 5 nephew of

Kallu Singh. Kallu Singh aforesaid was murdered about

12 years before the date of the present incident and as

per the prosecution story a partition had been effected

between Kallu Singh and Lallu Singh with regard to the

mango grove in Khasra No. 165 which jointly belonged to

them. The story further goes that Lallu Singh sold his

portion of the grove to Kailash, the appellant herein, CRL.A. NO. 1416 OF 2008 REPORTABLE

in the year 1970 as he was living with him at that time.

It also appears that Lallu Singh did not pay any amount

to Chhoti or the sons of Kallu Singh though they claimed

a share in this property as well. It further appears

that two years after the murder of Kallu Singh, Chhoti -

P.W. started living with Deep Singh in her house as

her second husband and it was Deep Singh who continued

to look after the properties of Kallu Singh and his sons

born from Chhoti. Deep Singh, who also happened to be a

distant cousin of Kallu Singh, had two brothers Vikram

Singh and Lakhan Singh. In the year 1976, Kallu Singh's

sons from Chhoti i.e. Virender, Surender and Mahender

had filed a suit claiming the land covered by Khasra No.

165 which Lallu Singh had sold to Kailash Nath appellant

and it was Deep Singh who had pursued the matter in

court on behalf of the plaintiffs. A few days before

the incident negotiations took place between the

appellant and Lallu Singh about the proposed sale of yet

another mango grove covered by Khasra No. 243 in which

Kallu Singh's family also claimed a share. Deep Singh,

on receiving this information, and in deep consternation

went to the appellant and protested against the proposed

sale. This fact annoyed the appellant and he told Deep

Singh that he would one day kill him as he had been an

obstacle in all his transactions. It appears that this

latest incident was the fall out of some earlier CRL.A. NO. 1416 OF 2008 REPORTABLE

incidents where the parties had quarrelled over property

or other matters and Deep Singh in fact had moved

applications before the DIG and the Superintendent of

Police apprehending danger from Kailash and his

associates.

1.2 At about 1:00a.m. on the 17th June, 1980, Deep

Singh and Chhoti were sleeping on the roof of the

Baithak in their house in village Tendwar on one cot, on

which a quilt had been spread out. A lantern was also

kept burning on the railing of the roof of the baithak.

Kallu Singh's sons Virender and Surender were sleeping

on their cots in a part of the baithak adjoining the

main residential house whereas the other ladies of the

family were sleeping inside and Vikram Singh in his home

a short distance away, Chhoti was, however, rudely

awakened on hearing the sound of a gun shot and she saw

Deep Singh lying besides her with a gun shot injury and

bleeding profusely. She immediately got up and noticed

that accused Balwant Singh (since dead) was present near

the cot and re-loading his weapon whereas Kailash Nath,

Rampal and five others were standing close by. Chhoti,

thereupon, fell to her knees and pleaded with the

appellant not to harm her husband but he nevertheless

fired a shot killing him at the spot and also caused

injuries to Chhoti. The noise which came about CRL.A. NO. 1416 OF 2008 REPORTABLE

attracted P.W.'s 4 and 5 to the place of incident on

which the accused ran away but before they did so they

were identified by the witnesses in the light of the

torch which they were carrying. Vikram, P.W. thereupon

wrote (on the dictation of Chhoti) a report Exhibit Ka-1

at about 5:00a.m. and reached the Police Station, Maholi

at about 7:15a.m. on which a formal FIR was lodged at

that time. After recording the FIR, Kesho Prasad Rai,

P.W. 8, Inspector of Police and the SHO, reached the

place of incident and sent Chhoti for her medical

examination to the Primary Health Centre, Maholi. He

also made the necessary spot investigation, recovered

one spent .12 bore cartridge, a blood stained lathi, a

blood stained quilt and also a portion of the blood

stained cot, which were duly sealed and deposited in the

Malkhana in the police station. Dr. Habib Ahmad, P.W.

3, also examined Chhoti at 10:30 a.m. on the 17th June,

1980 and detected 2 gun shot injuries with blackening

and charring thereon and on an x-ray examination found

some pellets embedded in her body as well. On the

completion of the investigation, all the accused, 8 in

number, were charged for offences punishable under

Sections 302/147/148/149 of the IPC. It appears that

accused Balwant died before commencement of the trial.

The trial was, accordingly, held with respect to the

remaining 7 accused, who were convicted for offences CRL.A. NO. 1416 OF 2008 REPORTABLE

punishable under Sections 302/149 of the IPC and

sentenced to life imprisonment and under Section 307/149

IPC to three years rigorous imprisonment. An appeal was

thereafter filed in the High Court. During its

pendency, appellant Ratnu also died. The High Court

went into the matter with respect to five of the

appellants and observed that as four out of them had

caused no injuries to the deceased and as there was a

long history of animosity between the parties it could

be a case of false implication of some of them. The

High Court, accordingly, gave the benefit of doubt to

four but dismissed the appeal of the appellant herein,

Kailash Nath, who is now the only person left in the

fray.

2. Mr. K.V. Vishwanathan, the learned senior counsel

for the appellant has raised three basic arguments

during the course of hearing. He has first pointed out

that in the light of the fact that Chhoti P.W. 1 had not

seen the shot being fired by Balwant as she had been

asleep at that time and had woken up in alarm and seen

that Deep Singh had already been injured and as only one

injury had been suffered by the deceased as per the

prosecution, the story of a second shot by the appellant

was not believable. Elaborating this argument, Mr.

Vishwanathan has pointed out that the fact whether one CRL.A. NO. 1416 OF 2008 REPORTABLE

shot or two shots had been fired had to be determined

from the pellet holes in the clothes that the deceased

and the injured had been wearing but as the clothes had

not been taken into possession, a presumption should be

drawn against the prosecution and it must be held that

one and not two shots had been fired which would clear

the appellant. It has also been pleaded that there

appeared to be no apparent motive for the incident and

the suggestion with regard to the animosity on account

of the various land transactions etc. which had been

spelt out by the prosecution, had been found by the High

Court to be unacceptable and the High Court had accepted

the story given in Ex Ka. 5 to K. 7. He has also pointed

out that as the complaints allegedly made by Deep Singh

long before his death that he apprehended danger at the

hands of the appellant and his associates had seen the

light of the day for the first time in court, their

veracity was doubtful. It has finally been pleaded by

Mr. Vishwanathan that animosity between the parties was

admitted and in the light of the observations of the

High Court, the appellant too was entitled to the

benefit of doubt which had been given to the other

accused.

3. Mr. Ratnakar Dash, the learned senior counsel

representing the State of Uttar Pradesh has, however, CRL.A. NO. 1416 OF 2008 REPORTABLE

controverted the arguments raised by Mr. Vishwanathan.

He has pointed out that though the motive had been

proved beyond doubt but in the face of the direct

evidence in the person of Chhoti, P.W. 1 who was also

an injured eye witness, the absence of motive would have

no effect on the prosecution story. He has pleaded in

elaboration that the place of incident, the time of the

incident and the weapons used in the crime have not been

disputed by the defence and in the light of the fact

that the FIR had been recorded by 7:15a.m. at the

Police Station which was situated 12 miles away from the

place of the incident, supported the prosecution story

in its entirety. He has also pointed out that as per

the doctor's evidence the injuries had been caused with

a shotgun.

4. We have heard the learned counsel for the parties

at great length and gone through the record very

carefully.

5. It would be relevant that Chhoti, P.W. 1, is an

injured witness. She is also the wife of the deceased.

We see from the record that in the course of her

extensive cross examination Chhoti was not in any way,

fazed. She gave a long description of the incident and

despite her cross-examination she stood by the story of CRL.A. NO. 1416 OF 2008 REPORTABLE

the shot fired by the appellant. We also observe that

the time and place of incident and the weapon used have

not been controverted by the defence. Even otherwise,

we notice that the medical evidence clearly supports the

prosecution version. Dr. M.M. Gupta - P.W. 6 found the

following injuries on the dead body:

"1. Injury No. 1 firearm entry wound 8cms from up to downward X 5cms side to side on the head towards front sid eof forehead in the central line above the root of the nose. Around this injury up to the neck in the area of 29 cms up to down and 18 cms side to side blackening signs and tatooing were present.

2. Fire arm exit wound measuring 2cms X 2cms on the head 7 cms above the ear 11 cms above the outer portion of the eye brow and on the backside.

On dissection I found that frontal bone had got fractured below the injury No. 1 in which a hole measuring 5 cms side to side X 4.5 cms upto downward was available. Fracture of size 3 cms X 2.5 cms. Was found in the parietal bone which was apparent below the Injury No. 2. A fracture measuring 9cms. Long X linear was found in parietal bone which was commencing from the entry wound. Fracture in the -- --- bone measuring 6 cms X linear was available which was radiating from the exist wound.

3. Entry shadow of four pellets on the shoulder at deltoid region just below the shoulder lip in the area of 9 cms X 8 cms an size measuring 0.4 cm X 0.4 cm X ski deep.

No tattooing or blackening signs were available. The distance of two wounds was 1.5 cms to 1.09 cms.

4. Abrasion in the area of 2 cms X 0.2 cm. Towards hair backside on the upper CRL.A. NO. 1416 OF 2008 REPORTABLE

portion of the arm 7.5 cms above the tip of the elbow.

5. Abrasions in the area of 0.5 cm X 0.5 cm. On the left forearm outside portion 6 cms. Below the tip of the elbow.

6. Abrasion in the area of 1 cm XC 0.5 cm on the backside of the left forearm 6.5 cms. above the ankle on the radial side.

7. On the backside of index finger and left thumb blackening and tatooing was available in the area of 13 cms X 7.5. cms 3 cms from the ankle.

On internal examination I found that upper membrances of the brain had burst and the brain was in liquid in connection. From here I found 5 Tiklis and 20 small pellets and having taken them out, it had been sent to S.P. Sitapur in sealed condition. About

6 ozs semi-digested food material has been found in his abdomen. Excrement had been filled here and there in the small intestine. Excrement in the upper portiion of the large intestine had been filed and Readini was lying empty."

6. Injury No. 1 is the wound of entry with charring

and blackening and injury no. 2 of the exit of injury

no. 1. Injury Nos. 3-7 appear to be by an independent

shot as they are placed far apart from injury no. 1

which is from point blank range. It is also clear from

the evidence that 12 small pellets and 5 wads were

found embedded in the head of the deceased. Further in

his cross examination, the Doctor has stated that even

injury Nos. 3,4,5 and 6 could be caused with a fire arm.

If that be so, the spread of the injuries would clearly

reveal that not one but two shots had hit Deep Singh as CRL.A. NO. 1416 OF 2008 REPORTABLE

he lay on the bed. The statement of the doctor also

reveals the presence of two gun shot injuries on the

person of Chhoti and after a radiological examination

radio opaque shadows were seen on her person confirming

the prosecution story that these too had been caused by

a shot gun.

7. The fact that the incident happened on the roof

of the baithak is also borne out from the statement of

the Investigating Officer, P.W. 8, Kesha Prasad Rai. He

deposed that on reaching the place of incident he had

picked up an empty cartridge, various weapons and other

items already referred to above from near the dead body

on the roof itself. As a matter of fact the defence has

not challenged the fact that incident had happened in

the house but it has been argued that the injuries had

been sustained by Chhoti in the house though not on the

roof. We find no basis for this suggestion which

needs to be rejected straightaway.

8. We are also of the opinion that statement of P.W.

5 Vikram Singh, the scribe of the FIR, also merits

acceptance. Undoubtedly he had not been injured but it

has come in evidence that he had been sleeping on the

ground floor of his house a very short distance away.

CRL.A. NO. 1416 OF 2008 REPORTABLE

9. Mr. Vishwanathan has, however, dwelt very

extensively on the lack of motive and on the contrary

the motive for false implication. He has pointed out

that there was no categoric evidence to show (apart from

the mere ipse dixit of the Pws') that the relations

between the parties prior to the incident were strained

and on the contrary it appears that some quarrel between

the groups had taken place and as the deceased belonged

to the opposite group it had been thought proper to sort

him out once and for all and Chhoti had been used as a

willing tool. It has been pointed out that the High

Court itself had not believed the story of the mango

groves and had per force fallen back on the documents

Ex. Ka, 5 to K. 7 to show motive but as these documents

had been produced in the court for the first time during

trial, their veracity was clearly in doubt. It is true

that the High Court has given a finding showing an

absence of motive. The fact, however, remains that de

hors these documents the other evidence reveals the

extent of animosity between the parties with murders and

counter murders and litigations going back to the 1960s.

It has also come in evidence that Kallu Singh, the first

husband of Chhoti had been murdered and one of the P.W.

was Vikram Singh who also testified that on account of

various issues there was much animosity between the

parties. We are further of the opinion that in a case CRL.A. NO. 1416 OF 2008 REPORTABLE

of direct evidence, any uncertainty as to the motive

could not be said to be fatal to the prosecution story.

10. Mr. Vishwanathan has also submitted that as the

High Court had itself opined on the possibility of false

implication of several persons who had not caused any

injuries, the same yard stick should apply to the

appellant as well as the evidence against him was much

to the same effect.

11. It is true that some of the observations made by

the High Court do appear to suggest that the prosecution

story was not categoric and could have been concocted.

We are of the opinion that these observations are way

beyond the record and merely because some of the accused

who had not caused any injuries to the deceased or the

witnesses would not mean that they were not present and

it is only as a matter of abundant caution that the

benefit has been given to those accused. Further, it

cannot be ignored that an attack made at dead night in a

residential house, where several inmates are present and

a possibility of a swift counter attack by the inmates

cannot be ruled out, the entire incident had to be well

arranged and organised and could not be made by one or

two persons. It has come in the evidence that Chhoti's

house was being used by three of her grown up sons as CRL.A. NO. 1416 OF 2008 REPORTABLE

well. In any case, the High Court has, by way of

abundant caution, given the benefit of doubt to those

who had not caused any injury and on the same yard

stick, the appellant who is stated to have caused a gun

shot wound to the deceased and to Chhoti P.W., cannot

be treated in the same manner.

12. We, accordingly, dismiss the appeal.

..................J [HARJIT SINGH BEDI]

..................J [J.M. PANCHAL]

NEW DELHI DECEMBER 10, 2009.

CRL.A. NO. 1416 OF 2008 REPORTABLE