REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 936 OF 2003

State of U.P.       .... Appellant (s)

Versus

Kishanpal & Ors.             .... Respondent(s)

JUDGMENT

P. Sathasivam, J.

1) Challenging the order of the High Court of Judicature at

Allahabad  dated  19.9.2002  in  Criminal  Appeal  No.  812  of

1980  acquitting  Kishanpal  Singh,  Suresh  Singh,  Mahendra

Singh  @  Neksey  Singh,  Jaivir  Singh,  Sheodan  Singh  and

Bahar Singh (Accused Nos. 2,4,7,8,9 & 10), the State of Uttar

Pradesh has filed this appeal.

2) The case of the prosecution is as follows:

On  21.6.1978  at  3.30  p.m.,  the  sixteen  accused  persons

gathered  at  the  door  of  Gyan  Singh  and  made  a  criminal

conspiracy for killing Kaptan Singh and Raj Mahesh as they

were  harassing  them  unnecessarily.   At  about  4.00  P.M.,

Onkar Singh, Kishanpal Singh, Vijaipal Singh, Suresh Singh,

Naresh  Singh,  Daulat  Singh,  Mahendra  Singh  @  Neksey

Singh, Jaivir Singh, Sheodan Singh and Bahar Singh (Accused

Nos. 1to10) reached at the place of occurrence with firearms.

Onkar  Singh (Accused  No.1),  Naresh  Singh (Accused  No.5),

Daulat  Singh  (Accused  No.6)  and  Sheodan  Singh  (Accused

No.9) had guns while others had country-made pistols.  When

they reached the place of occurrence, Suraj Pal Singh, Kaptan

Singh  and  Raj  Mahesh  were  preparing  fodder  in  the  cattle

troughs for their cattle in front of their  chaupal.   Suraj Pal

Singh’s sister Smt. Maya Devi and mother Smt. Resham Devi

were  also  present  there.  The  aforesaid  accused  persons

challenged Raj Mahesh and Kaptan Singh while Onkar Singh

and Naresh Singh shouted  that  they  will  be  killed  and the

entire family be finished.  Onkar Singh fired at Raj Mahesh

while Naresh Singh fired at Kaptan Singh.  When the accused

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persons opened fire, Suraj Pal Singh ran inside the Jhonpari

to save his life and witnessed the incident.  Maya Devi and

Resham Devi rushed to save Kaptan Singh, Daulat Singh fired

upon Maya Devi.   Ram Autar, brother of Kaptan Singh and

Ishwari  Devi  came  there  to  save  Kaptan  Singh  and  Raj

Mahesh. Resham Devi, Ram Autar and Ishwari Devi were also

fired at and received injuries when they tried to save Kaptan

Singh and Raj Mahesh.   On seeing the people  arriving,  the

accused  persons  ran away from the  spot.   Suraj  Pal  Singh

came out of Jhonpari and found Raj Mahesh and Maya Devi

dead.   Kaptan  Singh was  breathing  his  last  while  Resham

Devi, Ishwari Devi and Ram Autar were lying injured. Kaptan

Singh died on the way to hospital.  Suraj Pal Singh did not

receive any injury.  Suraj Pal Singh (PW-1) sent Brajaue Singh

to call  Natthu Singh, who arrived soon from his village,  for

escorting the injured as he had a licence for rifle.  After the

arrival  of  Natthu  Singh,  all  the  four  injured  were  taken  to

police station, Sidhpura in a bullock-cart.  Natthu Singh also

accompanied  them.   Natthu  Singh  wrote  the  report  at  the

dictation of Suraj Pal Singh.  The said report was filed at 9.30

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p.m. at the police station, Sidhpura.  The case was registered

and the injured persons were sent for medical  examination.

Dr. S. P. Dikshit, PW-11, examined the injured persons and

prepared  their  injury  reports.   Dr.  R.P.  Yadav,  PW-6,

conducted the postmortem examination on the dead body of

Smt. Maya Devi, Kaptan Singh and Raj Mahesh on 22.6.1978

and prepared the report.  Mr. K.P. Sharma, S.I., PW-12, took

up the investigation and completed most of the investigation.

Thereafter  the investigation was continued by his successor

and charge sheet was submitted against the accused.   

3) The  State  filed  the  case  in  the  Court  of  VI  Additional

Sessions  Judge,  Etah,  against  the accused persons.     The

trial Court, after examining the evidence and other materials

on record and after hearing the parties,    held that accused

Gyan Singh, Harbir Singh, Rampal Singh, Gopal Singh, Sher

Singh and  Yudhishter  Singh (Accused  Nos.  11  to  16),  who

were charged under Section 120 B I.P.C. were found not guilty

and accordingly acquitted them. The trial Court held that the

prosecution had proved its case beyond all reasonable doubt

against all the other accused persons (accused Nos. 1 to 10)

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and held them guilty under Section 148 I.P.C. for committing

offence of rioting after forming an unlawful assembly as they

were armed with firearms, and under Section 302/149 I.P.C.

for committing the murder of Raj Mahesh, Kaptan Singh and

Smt. Maya Devi and under Section 307/149 I.P.C. for causing

firearm injuries on the person of Ram Autar, Resham Devi and

Smt. Ishwari Devi.    After hearing on the question of sentence

as  provided  under  Section  235  (2)  Cr.P.C.,  Onkar  Singh,

Kishanpal Singh, Vijaipal Singh, Suresh Singh, Naresh Singh,

Daulat Singh, Mahendra Singh, Jaivir Singh, Sheodan Singh

and Bahar Singh were sentenced to undergo R.I. for two years

under  Section  148  I.P.C.,  five  years  R.I.  under  Section

307/149  I.P.C.  and  imprisonment  for  life  under  Section

302/149 I.P.C. All the sentences were to run concurrently.   

4) Aggrieved by the said judgment, the accused Nos. 1 to

10,  namely,  Onkar  Singh,  Kishanpal  Singh,  Vijaypal  Singh,

Suresh Singh, Naresh Singh, Daulat Singh, Mahendra Singh,

Jaivir Singh, Sheodan Singh and Bahar Singh filed Criminal

Appeal No. 812 of 1980 in the High Court.  Accused Nos. 3, 5

and 6 (Vijaipal Singh, Naresh Singh and Daulat Singh) died

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during  the  pendency  of  the  appeal  and  the  appeal  abated

against them. By judgment dated 19.9.2002, the High Court

dismissed  the  appeal  of  Onkar  Singh  (Accused  No.1)  and

maintained  his  conviction  and  sentence  under  Sections

302/149 I.P.C., 148 I.P.C. and 307/149 I.P.C.  and allowed

the appeal in respect of all  other accused (Kishanpal Singh,

Suresh Singh, Mahendra Singh, Jaivir Singh, Sheodan Singh

and Bahar Singh) and acquitted them.  Against the order of

the  High  Court  acquitting  Kishanpal  singh,  Suresh  Singh,

Mahendra  Singh,  Jaivir  Singh,   Sheodan  Singh,  and Bahar

Singh,   the State of U.P. has preferred this appeal by way of

special leave.   

5) We heard Mr. Pramod Swarup, learned counsel for the

appellant-State of U.P. and Mr. Arvind Singh, learned counsel

for the respondents/accused.  

6) The High Court though relied on the eye-witnesses P.W.1

–  Surajpal  Singh,  P.W.5  -  Jagdish  Singh,  P.W.7  –  Ranbir

Singh,  P.W.9  –  Resham  Devi  (injured  witness)  and  C.W.1

Ujagar  Singh  and  other  materials  confirmed  the  conviction

only in respect of Onkar Singh and acquitted other accused.

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The main reason for acquitting the other accused is that even

those related eye-witnesses did not speak about the specific

overt  act  in  respect  of  each  accused  in  the  commission  of

offence.  It  also observed that some of the statements made

before  the  Court  were  not  stated  by  them when they  were

enquired by the Investigating Officer under Section 161 Cr.PC.

Though the High Court relied on the evidence of very same

persons and materials  placed by the prosecution to convict

Onkar Singh, it  refused to apply the same in the case of other

accused and acquitted them in respect of the charges leveled

against them ignoring the implication of charge under Section

149 I.P.C.   In  those  circumstances,  we have  to  consider  (i)

whether the evidence of close relatives P.Ws.1,5,7, and 9 are

acceptable  and  reliable  in  respect  of  all  the

respondents/accused (ii)  whether the High Court  is right in

discarding  their  evidence  in  the  light  of  the  corroborative

evidence of C.W.1 and medical  evidence of Dr. R.P. Yadav -

P.W.6,  Postmortem Doctor  and Dr.  S. P.  Dikshit  -  P.W.11,

who examined the injured persons and Exh. Ka 19, 20 and 21

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(post  mortem  reports)  and  Exh.  Ka  22,  23  and  24  (injury

reports).

7) It  was  urged  that  the  eye-witnesses  relied  on  by  the

prosecution are related to the deceased and injured Suraj Pal

Singh, PW-1 is the brother of the deceased Kaptan Singh and

Maya Devi.   Resham Devi  (PW-9) is their  mother.   Jagdish,

PW-5 and Ranveer  Singh (PW-7)  and deceased  Raj  Mahesh

were cousins of PW-1. Ishwari Devi,  injured, is the sister of

Jagdish (PW-5).   Thus PW-5 is related to  Suraj  Pal  Singh,

PW-1.  Even Ujagar Singh (CW-1) is related to Suraj Pal Singh,

PW-1, from his maternal side.   

8) As observed earlier, though the High Court accepted the

testimony of PWs 1, 5, 7 and 9 while confirming the conviction

and sentences of Onkar Singh has not given due credence to

their testimonies in respect of other accused.  This Court has

repeatedly held that if the testimony of prosecution witnesses

was  cogent,  reliable  and  confidence  inspiring,  it  cannot  be

discarded merely on the ground that the witness happened to

be  relative  of  the  deceased.   The  plea  “interested  witness”

“related witness” has been succinctly explained by this Court

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in State of Rajasthan vs. Smt. Kalki & Anr., (1981) 2 SCC

752.  The following conclusion in paragraph 7 is relevant:

“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

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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

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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

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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

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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

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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.

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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

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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

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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

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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,

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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

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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

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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

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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

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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

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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

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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.

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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

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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

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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 ½ 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 5½ Cms. X 4½ Cms., on the left side of face.  All the wounds had been ½ 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 ½ 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 ½ Cms. X 1/3 Cms. X flesh deep, at the back of, the left ear.   

5. Gun shot wound of entry ½ 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 ½ 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 ½ Cms. X 1/3 Cms flesh deep.     

8. Gun shot wound of entry ½ 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 ½ 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

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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 ½ 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 ½ 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  ½ 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  ½ 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 ½ Cms. X 1/3 Cms. X skin deep, on the front lumbar region of, stomach.  

7. 2 Gun shot wounds of exit ¾ Cms. X ½ 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.  ½ 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 ¾ Cms. X ½ 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 ¾ Cms. X ½ 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 ¾ Cms. X ½  Cms. X stomach cavity deep.  

4. Gun shot wound of entry admeasuring ¾ Cms. X ½ Cms. X bone deep, on the front of, the left elbow.  The humorous bone stood, fractured.  

5. Gun shot wound of exit admeasuring ½ 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.”  

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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 ¼ day old.  

On  that  day,  at  11½ 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 ¼ 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 ¼ 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

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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

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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.”

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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.”

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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

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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

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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

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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

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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

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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

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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”;

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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.”

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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.

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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

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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.    

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