State Of U.P vs Kishanpal & Ors

"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

10 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 it

12 unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel.'

11. Again in Masalti v. State of U.P. (AIR 1965 SC 202) this Court observed: (AIR pp. 209-10, para 14) `14. But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. ... The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard-and-fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.'

12. To the same effect is the decision in State of Punjab v. Jagir Singh, (1974) 3 SCC 277, Lehna v. State of Haryana, (2002) 3 SCC 76 .... As observed by this Court in State of Rajasthan v. Kalki (1981) 2 SCC 752, normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorised. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. These aspects were highlighted recently in Krishna Mochi v. State of Bihar, (2002) 6 SCC 81".

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

13 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.

14 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

15 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,

18 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

19 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

20 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

21 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

22 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

23 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 an

30 inter-alia distance of 5 Cms., from each other. Each of the said wound had, been admeasuring > Cms. X = Cms. X chest cavity deep.

2. 2 Gun shot wounds of entry, on the front left side of stomach, near the umbilicus, each of them admeasuing > Cms. X = Cms. X stomach cavity deep.

3. Gun shot wound of entry, on the lower portion of, left side of stomach, situated at a distance of 10 Cms., from the umbilicus admeasuring > Cms. X = Cms. X stomach cavity 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 of

39 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."

45 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. 46

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

47 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.

48