Karan Singh vs The State Of Uttar Pradesh

REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. ………….. OF 2022 (Arising out of SLP (Crl.) No.717 of 2020)

KARAN SINGH …Appellant(s)

Versus

THE STATE OF UTTAR PRADESH & ORS. ...Respondent(s)

JUDGMENT

Indira Banerjee, J.

Leave granted.

2. This Appeal is against a judgment and order dated 30 th July

2018 passed by a Division Bench of the Allahabad High Court,

dismissing Criminal Appeal No. 1813 of 1983 filed by the

Appellant along with other accused persons, against a judgment Signature Not Verified Digitally signed by Chetan Kumar and order of conviction dated 1 st August 1983 passed by the VI Date: 2022.03.02 17:00:31 IST Reason:

Additional District and Sessions Judge, Shahjahanpur in Sessions 2

Trial No. 268 of 1981, inter alia, convicting the Appellant of the

offences under Section 302 read with Section 149, Section 307

read with Section 149 and Section 148 of the Indian Penal Code

(hereinafter referred to as “the IPC”) and sentencing him, inter

alia, to life imprisonment for offence punishable under Section

302 read with Section 149 of the IPC.

3. It appears that the Appellant had been granted bail by the

Trial Court by an order dated 13th June 1980. The High Court

also granted bail to the Appellant during the entire period of the

appeal. The Appellant was taken into custody on 9 th September

2019 after dismissal of his appeal by the High Court.

4. It is the case of the Prosecution that on 8th April 1980, at

about 12:15 P.M., one Rati Pal arrived at Kaanth Police Station

and filed a complaint alleging that eight days before Holi, one

Rajkumar Singh had purchased a buffalo from his elder brother

Brahmapal Singh at the price of Rs. 1,900/-.

5. The said Rajkumar had promised to pay the price of the

buffalo to the complainant’s elder brother, Brahmapal Singh,

eight days after Holi.

6. Rajkumar Singh, however, did not pay the price of the

buffalo to the complainant’s elder brother, Brahmapal Singh as 3

promised. Brahmapal Singh did not permit Rajkumar Singh to

harvest his crops.

7. On 7th April 1980, Rajkumar Singh asked Brahmapal Singh

to come to Simra Khera the next day, that is, 8 th April 1980, to

collect his money.

8. On 8th April 1980, the complainant’s cousin brother,

Mahendra Singh came to the complainant’s house and asked

Brahmapal Singh to go to Simra Khera with him to collect his

money from Rajkumar Singh after settling accounts with him.

Thereafter, the complainant’s brother-in-law (Shreepal Singh),

Brahmapal Singh, the complainant, a villager Badshah Singh

and Mahendra Singh went to Simra Khera. They went to the

house of Sher Singh Thakur and sat on a cot in the sitting area.

9. Mahendra Singh called Rajkumar Singh, who came with a

rifle in his hand along with the Appellant, Karan Singh, who was

also armed with a rifle, Sukhlal armed with a single barrel gun,

Jagdish Singh armed with a single barrel gun, Harpal Singh

armed with a single barrel gun and Nankoo Singh armed with a

double barrel gun.

10. At about 9:00 A.M., Brahmapal Singh asked for his money.

Harpal Singh asked Rajkumar Singh to discharge his debt to 4

Brahmapal Singh as soon as possible. At this, Rajkumar Singh

opened fire with his rifle and shot Brahmapal Singh. The bullet

hit his head. Brahmapal Singh fell down unconscious.

11. Thereafter, the associates of Rajkumar Singh, that is,

Harpal Singh, Karan Singh, Jagdish Singh, Sukhpal Singh and

Nankoo Singh opened fire from their respective weapons. After

the associates of Rajkumar Singh opened fire, the complainant,

Badshah Singh, Shreepal Singh and Mahendra Singh ran away

from the spot. Out of the shots fired from the side of the

accused, one shot hit Mahendra Singh. The complainant and

other eyewitnesses ran into Sher Singh Thakur’s house. When

they returned to the place of occurrence, they found Brahmapal

Singh dead.

12. After the FIR was lodged, the Investigating Officer

investigated the case and after completion of investigation

submitted chargesheet against the accused persons Rajkumar

Singh, Harpal Singh, Jagdish Singh, Karan Singh, Sukhlal Singh

and Nankoo Singh under Sections 148, 302/149 and 307/149 of

the IPC.

13. The Fifth Prosecution Witness (PW5) Dr. P. K. Gupta who

had conducted the post mortem examination of the dead body

of the deceased found several gunshot injuries on the body. 5

14. The Appellant and other accused persons were tried by the

Sessions Court. The prosecution examined six witnesses,

namely, the first Prosecution Witness, Dr. R.N. Rastogi (PW1),

Rati Pal Singh (PW2), Shreepal Singh (PW3), Mahendra Singh

(PW4), Dr. P.K. Gupta (PW5) and the Investigating Officer (IO)

Jagdish Singh (PW6).

15. By a judgment and order dated 1 st August 1983, the Trial

Court convicted the accused persons, inter alia, for murder and

sentenced them, inter alia, to undergo life imprisonment.

16. The Trial Court found the testimonies of the eye-witnesses

were reliable. The Trial Court further found there was motive to

kill the deceased and this was proved by the witnesses

produced by the Prosecution. All accused persons had come to

the spot with deadly weapons with intention to kill the

deceased. All the accused had fired on the deceased with their

firearms, as a result of which the deceased had sustained 16

bullet injuries.

17. As observed above, the Appellant along with other

convicted persons filed Criminal Appeal No. 1813 of 1983 which

has been dismissed by the High Court by the judgment and

order under appeal. While the appeal was pending before the 6

High Court, five out of six accused persons died. Only the

Appellant is alive.

18. The High Court did not find any major contradiction either

in the evidence of the witnesses or any conflict in medical or

ocular evidence, which could tilt the balance in favour of the

Appellant. The High Court observed that minor discrepancies

and/or improvements and/or embellishments were insignificant

and ought to be ignored in view of the overwhelming

corroborative evidence of the other witnesses.

19. Mr. Ajit Kumar Sinha, learned Senior Counsel appearing on

behalf of the Appellant submitted that the police recovered two

articles which were produced in evidence. They produced

blood-stained clothes of the injured witness Mahender Singh

marked as Exhibit Ka-13 and the blood-stained mud and normal

mud recovered from the alleged site of the incident which is

marked as Exhibit Ka-12. Mr. Sinha argued that there was no

recovery of the weapon of crime.

20. The 11 exhibits tendered in evidence were (i) Medical

Report of injuries sustained by the injured witness Mahender

Singh, (ii) The complaint made by the complainant to the

Investigating Officer, (iii) Post Mortem Report of the deceased,

(iv) Pallets recovered from the body of the deceased, (v) 7

Incident Report entered by the constable on the basis of the FIR,

(vi) Case diary submitted by the I.O., (vii) Panchnama etc., (viii)

Site plan of the place of occurrence, (ix) Sample of blood-stained

mud and normal mud collected from the site by the I.O., (x)

Blood-stained clothes of the injured witness Mahender Singh and

(xi) Chargesheet drawn by the police upon conclusion of

investigation, as is evident from the records.

21. The Prosecution, as observed, had examined six

Prosecution Witnesses namely, Dr. R.N. Rastogi (PW1), Ratipal

Singh (PW2), Shreepal Singh (PW3), Mahendra Singh (PW4), Dr.

P.K. Gupta (PW5) and Jagdish Singh (Investigating Officer).

22. Mr. Sinha submitted that it was the case of the Prosecution

that there was dispute between the prime accused Rajkumar

Singh and the deceased Brahmapal Singh over the price of

buffalo for which Brahmapal Singh stopped Rajkumar Singh from

harvesting his crops. There was no dispute or enmity between

the Appellant and the deceased.

23. Mr. Sinha further argued that it has been alleged that of

the six accused persons, Rajkumar Singh and Karan Singh were

carrying rifles with them, the others carried single/double guns.

However, the witnesses did not see any of the other accused 8

persons except Rajkumar Singh firing at the deceased. There

is, therefore, no eye-witness against Karan Singh.

24. Mr. Sinha argued that no weapon alleged to have been

used by the Appellant was either recovered or produced by the

police in course of trial. Mr. Sinha argued that the main injured

witness Mahendra Singh had testified that he had not seen the

Appellant at the spot when the incident took place. The

Prosecution has not declared this witness hostile but relied upon

on his evidence.

25. Mr. Sinha further argued that it is alleged that injured

witness Mahender Singh is a relative of the Appellant Karan

Singh. This is contrary to the admission of the complainant as

contained in the FIR itself. Mr. Sinha argued that Mahender

Singh is not a relative of Karan Singh but a close relative of Rati

Pal and Brahmapal Singh.

26. Mr. Sinha further argued that medical examination of the

injured witness Mahender Singh and the post mortem report of

the deceased Brahmapal Singh revealed that all the injuries

inflicted on both the persons were gunshot injuries. No injury

has been caused from the rifle. The body of the deceased

contained pellets fired from the gun. There is no injury caused

by bullets fired from rifle.

9

27. Mr. Sinha argued that the Investigating Officer had stated

that there was no recovery of any empty cartridge or bullet from

the site. No scattered gun pellets were recovered from the site.

There was no witness from the village even though the village

had a population of 700-800 people. The villagers had only

stated that they had heard of the incident.

28. Mr. Sinha argued that the Trial Court had in its judgment

recorded that “since Raj Kumar fired a shot from rifle & his

companions were armed with guns, therefore the witnesses got

panicked & they never tried to know the truth that whether in

reality the bullet of rifle ever hit Brahmapal or not. The best

witness to state this reality could have been deceased

Brahmapal himself that whether the bullet fired by Rajkumar

ever hit him or not, or did he fell on the takht just because he

got panicked since the bullet merely travelled from near his

head. Since Brahmapal is dead therefore in this situation there

is no witness left to prove this fact that whether the bullet fired

by Rajkumar ever hit Brahmapal or not. Therefore, even in this

situation where there is no injury mark of bullet rifle on the head

of deceased Brahmapal, no effect is caused on the case of the

prosecution because under panic nobody is in this situation

where he can assess the reality.” 10

29. According to Mr. Sinha, this establishes that the conviction

made by the Trial Court was only based on

assumption/presumption. Mr. Sinha argued that all the

prosecution witnesses namely, PW2, PW3 and PW4 had stated

that, as soon as the first shot was fired by Rajkumar Singh from

his rifle towards Brahmapal Singh, they all ran away with their

back towards the accused and they did not see who had fired

but had nevertheless heard gun shots. Hence, none of the

witnesses had deposed as to which of the accused was involved

in firing apart from Rajkumar Singh.

30. Mr. Sinha argued that the Trial Court erred in holding that

the aforesaid material factors were minor contradictions and

minor lapses on the part of the Prosecution and proceeded to

convict all the accused persons guilty beyond doubt. Mr. Sinha

argued that the Trial Court had completely ignored the chain of

evidence to wrongly conclude that the accused persons were

guilty, particularly the Appellant Karan Singh.

31. Mr. Sinha further argued that as per settled law, the

doctrine of severability does not apply in the case of a

statement of a witness in a criminal trial. Either the whole

statement has to be discarded by declaring the witness hostile

or else the entire statement has to be relied upon. In this 11

context Mr. Sinha cited Palvinder Kaur v. State of Punjab 1,

and Hanumant Govind Nargundkar v. State of Madhya

Pradesh2. In Palvinder Kaur (supra) this court held that a

statement that contains self-exculpatory matter cannot amount

to a confession, if the exculpatory statement is of some fact,

which if true, would negative the offence alleged to be

confessed. In Hanumant (supra) this Court held:-

“…It is settled law that an admission made by a person whether amounting to a confession or not cannot be split up and part of it used against him. An admission must be used either as a whole or not at all. If the statement of the accused is used as a whole, it completely demolishes the prosecution case and, if it is not used at all, then there remains no material on the record from which any inference could be drawn that the letter was not written on the date it bears.”

32. The judgments of this Court in Palvinder Kaur (supra)

and in Hamunant (supra), which pertain to confession and/or

admission are distinguishable on facts. On the other hand, in

Mrinal Das and Others v. State of Tripura 3, this Court held

that it is well settled that in a criminal trial, credible evidence of

even hostile witnesses can form the basis of conviction.

1 AIR 1952 SC 354 2 AIR 1952 SC 343 3 AIR 2011 SC 3753 12

33. Mr. Sinha also referred to Navaneethakrishnan v. State

By Inspector of Police4, where this Court re-affirmed: -

“…every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible.”

34. Mr. Sinha concluded by submitting that the Prosecution has

failed to prove Appellant’s guilt beyond reasonable doubt.

There were clear discrepancies in evidence visible on the face of

the record. The appeal therefore ought to be allowed.

35. On the other hand, on behalf of the State, Mr. Sanjay

Kumar Tyagi, Advocate on Record, submitted that this Court

should not interfere with a concurrent finding of the Trial Court

and the High Court.

36. On post mortem, the dead body of the deceased was

found to have a large number of gun shots, multiple shot

wounds. Some bullets penetrated and exited the body. The

injured Mahender Singh had medically been examined by Dr. R.

N. Rastogi, who had found gunshot wounds, pellet injuries etc.

4 (2018) 16 SCC 161 13

37. Mr. Tyagi argued and rightly that the Prosecution case was

proved from the statements of three eye witnesses namely, Rati

Pal (PW2), Shivpal (PW3) and Mahender Singh (PW4), apart

from PW1 being the Doctor who had examined injured witnesses

and PW5 being the Doctor who had conducted the post mortem.

38. As argued by Mr. Tyagi, there may have been some minor

discrepancies in the evidence of the PW’s. However, all material

particulars have been corroborated. PW2 and PW3 more or less

corroborated the prosecution story. They both said that the

Appellant Karan Singh was there at the place of occurrence with

a rifle. They said the accused Raj Kumar Singh opened fire first,

after which all the others started firing. PW2 said he did not

actually see the others firing, but he heard the sound of firing

from which he knew that the others were firing bullets.

However, PW2 categorically stated that all the others had

opened fire. When the accused opened fire all these three PWs

ran away. They went inside the house of Sher Singh. When

they came out after a few minutes they found Brahmapal dead.

PW4, Mahender Singh, the injured witness has not, however,

named Karan Singh. No question was put to him as to whether

he had seen Karan Singh.

14

39. PW1, Dr. R.N. Rastogi who had examined Mahender Singh

said that he had been hit on the back. This tallies with the

version of the PWs that he was hit by bullet while they were all

running away. PW5, being the Doctor who conducted the post

mortem on the body of the deceased said he found gunshot

injury on the center of the forehead, 3 centimetre above the

nose. Many bones of the head were fractured. He described

various other gunshot wounds. There were multiple gunshot

wounds. There were also gunshot wounds of exit of bullets

apart from gunshot wounds of entry. The thigh bone was

fractured. Upon internal examination, brain was ruptured, right

and left membrane were ruptured, lungs were ruptured. 45

pellets, small and large were recovered. The Doctor opined that

the cause of death was bleeding and shock caused by the

injuries. He opined that all the injuries were sufficient to cause

death.

40. The tenor of the evidence of the Doctor who conducted the

post mortem tends to support the case of the prosecution

witnesses that all the accused persons, who were present,

carrying arms had fired. The injured witness Mahender Singh

may not have specifically named the Appellant Karan Singh.

However, two of the other eye-witnesses, that is, PW2 and PW3 15

confirmed that he was present at the place of occurrence and

was carrying rifle. PW3 had seen the Appellant Karan Singh fire.

41. From the evidence of Mahender Singh, PW-4, it appears

that no specific question was put to him as to whether the

Appellant was present at the place of occurrence or not. This

Court, in Rohtash Kumar v. State of Haryana5 held:-

“24. ... The court has to examine whether evidence read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witnesses and whether the earlier evaluation of the evidence is shaken, as to render it unworthy of belief. Thus, the court is not supposed to give undue importance to omissions, contradictions and discrepancies which do not go to the heart of the matter, and shake the basic version of the prosecution witness...”

42. Referring to Narayan Chetanram Chaudhary and

Another v. State of Maharashtra6, Mr. Tyagi argued that

minor discrepancies caused by lapses in memory were

acceptable, contradictions were not. In this case, there was no

contradiction, only minor discrepancies.

43. In Kuriya and Anr. v. State of Rajasthan7, this Court

held:

5 (2013) 14 SCC 434 6 AIR 2000 SC 3352 7 (2012) 10 SCC 433 16

“30. This Court has repeatedly taken the view that the discrepancies or improvements which do not materially affect the case of the prosecution and are insignificant cannot be made the basis for doubting the case of the prosecution. The courts may not concentrate too much on such discrepancies or improvements. The purpose is to primarily and clearly sift the chaff from the grain and find out the truth from the testimony of the witnesses. Where it does not affect the core of the prosecution case, such discrepancy should not be attached undue significance. The normal course of human conduct would be that while narrating a particular incident, there may occur minor discrepancies. Such discrepancies may even in law render credential to the depositions. The improvements or variations must essentially relate to the material particulars of the prosecution case. The alleged improvements and variations must be shown with respect to material particulars of the case and the occurrence. Every such improvement, not directly related to the occurrence, is not a ground to doubt the testimony of a witness. The credibility of a definite circumstance of the prosecution case cannot be weakened with reference to such minor or insignificant improvements.

Reference in this regard can be made to the judgments of this Court in Kathi Bharat Vajsur v. State of Gujarat 8, Narayan Chetanram Chaudhary v. State of Maharashtra 9, Gura Singh v. State of Rajasthan10 and Sukhchain Singh v. State of Haryana 11.

31. What is to be seen next is whether the version presented in the Court was substantially similar to what was said during the investigation. It is only when exaggeration fundamentally changes the nature of the case, the Court has to consider whether the witness was stating the truth or not. [(Ref. Sunil Kumar v. State (Govt. of NCT of Delhi)]12.

32. These are variations which would not amount to any serious consequences. The Court has to accept the normal conduct of a person. The witness who is watching the murder of a person being brutally beaten by 15 persons can hardly be expected to a state a minute by minute description of the event. Everybody, and more particularly a person who is known to or is related to the deceased, would give all his attention to take steps to prevent the assault on the victim and then to make every effort to provide him with the medical aid and inform the police. The statements which are recorded immediately upon the incident would have to be given a little leeway with regard to the statements being made and recorded with utmost exactitude. It is a settled principle of law that every improvement or variation cannot be treated as an attempt to falsely implicate the accused by the witness. The approach of the court has to be reasonable and practicable. Reference in this regard can be made to

8 (2012) 5 SCC 724 9 (2000) 8 SCC 457 10 (2001) 2 SCC 205 11 (2002) 5 SCC 100 12 (2003) 11 SCC 367 17

Ashok Kumar v. State of Haryana13 and Shivlal v. State of Chhattisgarh14.”

44. In Shyamlal Ghosh v. State of West Bengal 15, this

Court held:

“46. Then, it was argued that there are certain discrepancies and contradictions in the statement of the prosecution witnesses inasmuch as these witnesses have given different timing as to when they had seen the scuffling and strangulation of the deceased by the accused. ………… Undoubtedly, some minor discrepancies or variations are traceable in the statements of these witnesses. But what the Court has to see is whether these variations are material and affect the case of the prosecution substantially. Every variation may not be enough to adversely affect the case of the prosecution.

49. It is a settled principle of law that the court should examine the statement of a witness in its entirety and read the said statement along with the statement of other witnesses in order to arrive at a rational conclusion. No statement of a witness can be read in part and/or in isolation. We are unable to see any material or serious contradiction in the statement of these witnesses which may give any advantage to the accused.”

45. In Rohtash Kumar v. State of Haryana16, this Court

held:-

“24. ... The court has to examine whether evidence read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witnesses and whether the earlier evaluation of the evidence is shaken, as to render it unworthy of belief. Thus, the court is not supposed to give undue importance to omissions, contradictions and discrepancies which do not go to the heart of the matter, and shake the basic version of the prosecution witness...”

46. As argued by Mr. Tyagi, appearing for the State both PW2

and PW3 had clearly mentioned that the Appellant and PW4

13 (2010) 12 SCC 350 14 (2011) 9 SCC 561 15 (2012) 7 SCC 646 16 (2013) 14 SCC 434 18

Mahender Singh were both present at the place of occurrence.

The Appellant’s presence has been proved by two eye

witnesses. It has been proved by the eye witnesses, that the

Appellant carried a rifle. But PW2 and PW3 deposed that all the

accused had opened fire. The prosecution was required to

prove its case beyond reasonable doubt, which it has done, and

not beyond all iota of doubt. The fact that one of the injured

witnesses may not have mentioned the name of Appellant Karan

Singh does not demolish the evidence of the other witnesses.

47. We find no grounds to interfere with the concurrent

findings of the Trial Court and the High Court. The fact that the

trial/appeal should have taken years and that other accused

should have died during the appeal cannot be a ground for

acquittal of the Appellant. The appeal is thus dismissed.

.………………………………….J. [ INDIRA BANERJEE ]

…………………………………..J. [ V. RAMASUBRAMANIAN ]

NEW DELHI;

MARCH 02, 2022