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,

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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

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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

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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

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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

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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,

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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

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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

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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

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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.

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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

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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

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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.

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