Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 235 OF 2006

Kirpal Singh ... Appellant

Versus

State of U.P. ..Respondent

J U D G M E N T

J.M. PANCHAL, J.

This  appeal,  by  special  leave,  is  directed  

against judgment dated July 11, 2005, rendered by the  

High  Court  of  Judicature  at  Allahabad  in  Criminal  

Appeal No. 2402 of 1985 by which the conviction of the  

appellant  recorded  under  Section  302  IPC  and  

imposition of sentence of life imprisonment on him by  

learned V Additional Sessions Judge, Moradabad in ST  

No. 622 of 1983, is confirmed

2. The facts emerging from the record of the case are  

as under: -

Deceased Ram Kumar Singh was resident of  

village Dudaila, District Muradabad.  Some six months  

prior  to  the  incident  in  question,  some  dispute  had  

taken place between Ram Kumar Singh who lost his life  

in  the  incident  and Kallu  Singh,  i.e.  original  accused  

No.3 over the question of digging and lifting of the earth  

from the land of accused No.3 for the purpose of raising  

of  level  of  a village pathway which was decided to be  

constructed by village people at a Shramdan Yojna held  

in the village.  Ever since the said dispute, the parties  

were not on the talking terms with each other.  On May  

30,  1983 at  about  2.00 pm,  some quarrel  had taken  

place between the grandsons of original accused No. 3,  

i.e., Kallu Singh and children of Ram Kumar Singh.  The  

appellant,  i.e.,  Kirpal  Singh who was original  accused  

No.1, Vijay Pal Singh, who was original accused No. 2  

and Devender Kumar, who was original accused No. 4,  

are  sons  of  original  accused  No.  3,  i.e.,  Kallu  Singh.  

Ram Kumar Singh went to the house of original accused  

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No. 3, i.e., Kallu Singh for getting the quarrel settled but  

Kallu Singh and his sons not only abused him but were  

found to be ready to assault him.  At that point of time  

Ram  Swarup  and  others,  who  were  present  there,  

intervened.  At about 7.00 pm on the same day, Ram  

Kumar  Singh,  his  wife  Mrs.  Jishna  and  his  son  

Rupender Kumar were returning home from the jungle.  

Ram Kumar Singh was slightly ahead of his wife and  

son.  Whey they reached near the house of the accused,  

who were standing in front of their house, Kallu Singh is  

said to have exhorted his sons to kill Ram Kumar Singh  

and finish the dispute for ever, whereupon the appellant  

fired a shot from his gun at Ram Kumar Singh which hit  

his  chest.   On  sustaining  the  gunshot  injury,  Ram  

Kumar Singh tumbled down on the road.  On hearing  

the cries of Mrs. Jishna, wife of Ram Kumar Singh and  

noise of the gun shot, Hari Raj Singh, Rattu Singh and  

others reached the place of incident.  Another shot at  

Ram Kumar Singh was fired by original accused No. 2,  

i.e., Vijay Pal Singh from his country made pistol, which  

hit Mrs. Shanti Devi, wife of Nathu Singh.  As the people  

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gathered at the place of incident, Kallu Singh and his  

sons made their escape good.  Ram Kumar Singh, who  

had  sustained  fire  arm  injuries,  was  removed  to  

Government  Hospital,  Kanth  in  a  tractor,  which  was  

arranged by his wife Mrs. Jishna.  Injured Ram Kumar  

Singh succumbed to his injuries at the hospital and was  

declared dead by the Medical Officer at about 10.15 pm.  

Mrs. Jishna thereafter got a report scribed through one  

Anand Kumar in the hospital premises and lodged the  

same at the police outpost Kanth, at 10.50 pm.  On the  

basis  of  the  First  Information  Report,  offences  

punishable  under  Sections  302  and  307  read  with  

Section  34  of  the  Indian  Penal  Code  were  registered  

against the four accused.  After necessary investigation,  

charge-sheet  was  submitted  in  the  court  of  learned  

Chief Judicial Magistrate, Moradabad.  As the offences  

punishable under Sections 302 and 307 are exclusively  

triable by a court of Sessions, the case was committed  

to  the  Court  of  learned  V Additional  Sessions  Judge,  

Moradabad for trial.

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3. The  learned  Judge  framed  charge  against  the  

appellant under Section 302 of Indian Penal Code  

whereas other accused were charged under Section  

302 read with Section 34 of Indian Penal Code.  All  

the  four  accused,  including  the  appellant,  were  

also charged under Section 307 read with Section  

34 of the Indian Penal Code.  The Charge was read  

over  and explained to  the  accused,  who pleaded  

not guilty to the same and claimed to be tried.  The  

prosecution,  therefore,  examined  witnesses  and  

also produced documentary evidence in support of  

its  case against  the  appellant  and others.   After  

recording of  evidence of  prosecution witness was  

over, the learned Judge explained to the accused  

the circumstances appearing against them in the  

evidence  of  prosecution  witnesses  and  recorded  

their  further  statements  as  required  by  Section  

313  of  the  Code  of  Criminal  Procedure.   In  the  

further  statement  the  case  of  the  appellant  and  

others was that they were implicated falsely in the  

case  due  to  enmity.   On  behalf  of  the  accused  

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witness  Pooran  Singh  was  examined  as  DW-1,  

whereas  Mr.  Harish  Chander,  a  fire  arm dealer,  

was  examined  as  DW-2  and  Mr.  Nihal  Chand,  

arms clerk, was examined as DW-3.

4. On appreciation of evidence adduced by the parties  

the  learned  Judge  held  that  it  was  proved  

satisfactorily  by  the  prosecution  that  deceased  

Ram  Kumar  Singh  died  a  homicidal  death  and  

Mrs. Shanti Devi was injured in the incident.  The  

learned Judge noticed that both, i.e., Kallu Singh,  

original accused No. 3 and Ram Kumar Singh, the  

deceased, were brothers-in-law and wives of both  

of them were cousins.  The learned Judge found  

that accused Devendra Kumar had not committed  

any offence and was entitled to be acquitted.  On  

scrutiny of evidence the learned Judge found that  

the  evidence  tendered  by  Mrs.  Jishna,  widow of  

Ram  Kumar  Singh,  was  trustworthy  as  well  as  

reliable  and  the  same  was  corroborated  by  her  

complaint,  which  was  neither  ante-dated  nor  

delayed  and  was  filed  promptly.   Similarly,  the  

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learned  Judge  found  that  the  testimony  of  

Rupender  Kumar,  son  of  the  deceased,  was  

trustworthy and reliable.  After placing reliance on  

the evidence of  these two witnesses,  the  learned  

Judge  held  that  it  was  established  that  the  

appellant had fired a shot at the deceased because  

of  which  the  deceased  had  fallen  down  and  

ultimately died.  After analysis of evidence of PW-3  

Mishri  Singh,  the  learned  Judge  held  that  the  

motive,  which prompted the appellant  to kill  the  

deceased was dispute  between the deceased and  

original accused No.3 relating to the digging and  

lifting of the earth from the field of original accused  

No.3 for the purpose of raising level of the road to  

be constructed for people of the village and quarrel  

which  took  place  between  the  grandsons  of  the  

deceased  and  accused  No.3  on  the  date  of  the  

incident.   On  assessment  of  evidence  of  DW-1,  

DW-2 and DW-3, the learned Judge found that the  

defence that the accused were falsely implicated in  

the case due to enmity, was not probablized at all.  

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By judgment dated September 9, 1985 the learned  

Judge convicted the appellant under Section 302  

of Indian Penal Code whereas accused Kallu Singh  

and accused Vijay Pal Singh were convicted under  

Section 302 with the aid of Section 34 of Indian  

Penal Code and accused Vijay Pal Singh was also  

convicted under  Section 323 of  the  Indian Penal  

Code  for  causing  injuries  to  Mrs.  Shanti  Devi.  

Thereafter,  learned  counsel  on  behalf  of  the  

accused  and  the  learned  Additional  Public  

Prosecutor were heard by the learned Judge with  

reference  to  the  sentence  to  be  imposed  on  the  

accused and by order dated September 9, 1985 the  

appellant  was  sentenced  to  R.I.  for  life  for  

commission  of  offence  punishable  under  Section  

302 of Indian Penal Code whereas accused Kallu  

Singh and Vijay Pal Singh were sentenced to life  

imprisonment  for  commission  of  offence  

punishable  under  Section 302 read with Section  

34 of Indian Penal Code.  Further, accused Vijay  

Pal Singh was sentenced to R.I. for six months for  

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commission  of  offence  punishable  under  Section  

323 of Indian Penal Code.

5. Feeling aggrieved, the accused preferred Criminal  

Appeal  No.  2402  of  1985  in  the  High  Court  of  

Judicature at Allahabad.  The High Court noticed  

that Kallu Singh, who was rightly convicted under  

Section  302  read  with  Section  34  of  the  Indian  

Penal  Code,  had expired during the pendency of  

the appeal and, therefore, the appeal by him had  

abated whereas there was no evidence to establish  

that  accused  Vijay  Pal  Singh  had  committed  

offence  punishable  under  Section  302  read  with  

Section 34 of Indian Penal Code, but his conviction  

under Section 323 of the Indian Penal Code was  

eminently  just.   The  High  Court,  therefore,  by  

judgment  dated  July  11,  1985,  dismissed  the  

appeal filed by the appellant and partly allowed the  

appeal  filed by Vijay Pal  Singh,  which has given  

rise to the instant appeal.

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6. This Court has heard the learned counsel for the  

parties  at  length  and  considered  the  documents  

forming part of the appeal.

7. The fact, that deceased Ram Kumar Singh died a  

homicidal death, is not disputed before this Court  

by the learned counsel for the appellant.  The said  

fact amply stands approved by the testimony of Dr.  

D.N.  Sharma,  who  was  examined  by  the  

prosecution  as  Prosecution  Witness  No.  7.   The  

injuries, which were noticed by the Medical Officer  

while performing autopsy on the dead body of the  

deceased,  have  been  mentioned  by  him  in  his  

substantive evidence before the court.  The injuries  

are  also  mentioned  by  him  in  the  post  mortem  

notes prepared by him.  It is nobody’s case that the  

deceased died an accidental death or natural death  

or had committed suicide.  Therefore, the finding  

recorded by the Sessions Court and the High Court  

that  the  deceased  had  died  a  homicidal  death  

deserves to be upheld and is hereby upheld.

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8. Mrs.  Jishna,  who  is  the  first  informant,  was  

examined  as  PW-1.   She  asserted  in  her  sworn  

testimony  that  on  the  date  of  incident  at  about  

2.00 pm a quarrel had ensued between children of  

the two families and, therefore, Ram Kumar Singh  

had gone to the house of Kallu Singh with a view to  

get  the  matter  reconciled  amicably  but  the  

deceased was abused.  It is further asserted by her  

that at about 7.00 pm on May 30, 1983, when she  

along  with  her  deceased  husband  and  son  

Rupender Kumar was returning from jungle, they  

were accosted near the house of Kallu Singh, who  

with his sons, was standing on the road in front of  

his house and that the appellant, who was having  

a gun, had fired a shot at the deceased as a result  

of which the deceased had fallen down on the road.  

Though  this  witness  was  cross-examined  

searchingly, nothing could be elicited to establish  

that  the  appellant  and  others  were  falsely  

implicated  in  the  case  because  of  enmity.   Her  

testimony  gets  complete  corroboration  from  the  

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contents of FIR lodged by her.  The courts below,  

on appreciation of evidence, have held that the FIR  

was neither ante-timed nor delayed and that the  

same was filed  promptly.   It  is  well  settled  that  

when soon after the occurrence the FIR is lodged  

at the police station, false story being cooked up  

and/or false  implication of  accused stands ruled  

out.   The testimony of  wife  of  the deceased also  

gets complete corroboration from the testimony of  

witness  Rupender  Kumar,  who  is  son  of  the  

deceased  and  examined  as  PW-2.   Witness  

Rupender  Kumar  has  also  stated  that  the  

appellant  had  fired  a  shot  from  his  gun  at  the  

deceased as  a  result  of  which the  deceased had  

died.  Though this witness was cross-examined at  

length,  no  dent  could  be  made  in  the  assertion  

made by him that the deceased had died because  

of the gun shot fired by the appellant.  It is well to  

remember that Mrs. Jishna PW-1 is the wife of the  

deceased whereas Rupender Kumar, examined as  

PW-2, is the son of the deceased.  They, being the  

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close relatives of the deceased, would not allow the  

real  culprits  to  go  scot  free  and  implicate  the  

appellant  falsely  in the case.   As noticed by the  

High Court,  Kallu Singh was brother-in-law,  i.e.,  

husband of the sister of Mrs. Jishna.  Therefore,  

she would never make an attempt to implicate the  

appellant  falsely  in the  case,  as the appellant  is  

closely  related  to  her.   It  was  easy  for  her  to  

mention in her FIR and before the court that the  

shot  was  fired  either  by  Kallu  Singh,  i.e.,  her  

brother-in-law  or  by  Vijay  Pal  Singh  or  by  

Devender Kumar.  But she has not made any such  

attempt and attributed the firing of the shot only to  

the  appellant.   The  trial  court,  which  had  

advantage  of  observing  demeanour  of  the  

witnesses,  has  rightly  placed  reliance  on  the  

testimony of Mrs. Jishna and Rupender Kumar for  

the purpose of coming to the conclusion that the  

appellant had fired a shot at the deceased due to  

which the deceased lost his life.  The appreciation  

of evidence by the trial court and the High Court is  

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neither perverse nor unreasonable.  It could not be  

pointed  out  by  the  learned  counsel  for  the  

appellant  that  any material  piece  of  evidence  on  

record was ignored either by the trial court or by  

the  High  Court  before  coming  to  the  conclusion  

that the appellant was guilty under Section 302 of  

the Indian Penal Code.  Therefore, the finding that  

the  appellant  caused  death  of  the  deceased  

deserves to be upheld.

9. The  contention,  that  after  drawing  adverse  

inference  against  the  prosecution  for  not  

examining  injured witness  Mrs.  Shanti  Devi,  the  

prosecution story should have been disbelieved as  

improbable has no substance.  As observed earlier,  

the prosecution has satisfactorily established that  

a quarrel between the children of the two families,  

i.e., family of the deceased and the family of Kallu  

Singh, had ensued on the day of the incident at  

about 2.00 pm and, therefore, in order to see that  

the disputes were settled amicably,  the deceased  

had gone to the house of Kallu Singh, but he was  

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humiliated  by  Kallu  Singh  and  his  sons  and  

invectives were  hurled  at  him and,  therefore,  he  

had to  come back.   The  evidence  further  shows  

that  the  accused  had  decided  to  liquidate  Ram  

Kumar Singh and were, therefore, standing in the  

front  of  their  house  with  weapons  and  the  

appellant  had  killed  the  deceased  by  firing  shot  

from the gun at him.  The eye witnesses, i.e., Mrs.  

Jishna and Rupender  Kumar,  have  narrated  the  

whole incident before the court on oath in a simple  

manner without any material  improvement.   The  

testimony  tendered  by  the  eye  witnesses  was  

subjected  to  great  care,  caution  and  

circumspection by the High Court as well as by the  

trial court because the eye witnesses were found to  

be closely related to the deceased as well  as the  

accused.  No major discrepancy could be brought  

to the notice of the court by the learned counsel for  

the appellant, which would make the testimony of  

the eye witnesses unreliable.  The finding recorded  

by the trial court as well as by the High Court on  

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the  question of  motive  could not  be successfully  

assailed by the learned counsel for the appellant.  

Though the defence had examined three witnesses,  

the evidence of none of them was of any assistance  

for  establishing  the  innocence  of  the  appellant.  

DW-1 Pooran Singh had tried to suggest that there  

was  no  way  for  coming  to  the  house  of  the  

deceased from his chak, but to a court question he  

had to admit that the deceased Ram Kumar Singh  

was going to his field from his open land, which  

was situated in the front of house of the appellant.  

Similarly,  the  evidence  of  DW-2 Harish  Chander  

was  of  little  assistance  to  the  defence.   The  

evidence tendered by DW-3 Nihal Chand that the  

deceased  was  also  having  a  gun  licence  has  no  

consequence  whatsoever  because  it  is  nobody’s  

case that the appellant had fired a shot from the  

gun  belonging  to  the  deceased.   Thus,  the  

examination  of  defence  witnesses  was  futile  and  

could  not  probablize  the  defence  of  the  accused  

that  they  were  innocent  and  were  falsely  

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implicated.

10. On the facts and in the circumstances of the case,  

this  Court  finds  that  the  conviction  of  the  

appellant under Section 302 of Indian Penal Code  

as  well  as  imposition  of  sentence  of  life  

imprisonment is well-founded and no case is made  

out  by  the  learned  counsel  for  the  appellant  to  

interfere with the same.  The appeal, which lacks  

merit, deserves to be dismissed.

11. For the foregoing reasons the appeal fails and is  

dismissed.

…………………………J. [B. Sudershan Reddy]

…………………………J. [J.M. Panchal]

New Delhi; February 23, 2010.

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