Holding

All members of the proven unlawful assembly are liable under Section 149 IPC, and the credible testimony of related witnesses cannot be discarded, rendering the High Court's acquittal erroneous.

Summary

The State of Uttar Pradesh appealed the acquittal of ten accused who were part of an armed unlawful assembly that shot and killed three persons and injured three others. The trial court had convicted all ten under Sections 148, 149, 302, 307 and sentenced them to life imprisonment, but the High Court set aside the convictions of all except the principal accused, Onkar Singh, relying on the fact that the prosecution witnesses were relatives of the victims. The Supreme Court held that the testimony of related eyewitnesses is admissible if credible, and that once an unlawful assembly is established, every member is liable under Section 149 IPC irrespective of specific overt acts. Consequently, the Court reinstated the convictions of the ten accused, modifying the murder conviction to culpable homicide not amounting to murder under Section 304 Part I and imposing a ten‑year rigorous imprisonment, to run concurrently with the sentences under Sections 148 and 307. The appeal was partly allowed and the High Court order set aside.

Issues considered

Whether the testimony of witnesses who are relatives of the deceased can be disregarded for other accused.
Whether conviction under Section 302 read with Section 149 IPC requires proof of a specific overt act by each accused.
Whether membership in an unlawful assembly suffices to attract liability under Sections 148, 149, 302, 307 and 304.
Whether the appropriate conviction should be under Section 304 Part I instead of murder.
Whether the High Court erred in acquitting the ten accused.

Legislation cited

Code of Criminal Procedure, 1973s. 161, s. 235
Indian Penal Code, 1860s. 120, s. 148, s. 149, s. 300, s. 302, s. 304, s. 307

Subjects

unlawful assemblySection 149 IPCrelated witnessmotivemurderculpable homicideevidence evaluationappellate reviewIndian Penal Code

Judgment

'-
[2008) 11 S.C.R. 1048 '
Y'
A STATE OF U.P.
\/.
KISHANPAL & ORS.
(Criminal Appeal No. 936 of 2003) I
I
AUGUST 8, 2008
B 'i ~
[R.V. RAVEENDRAN AND P. SATHASIVAM, JJ.]

Penal Code, 1860; Ss. 148, 302, 304 Part-/ & 307:
Murder-Accused 16 in number forming unlawful ass,em-
c bly armed with firearms shot at deceased and others - Two
persons died on the spot and ·another succumbed to injuries
- FIR - Charge sheet-Acquitting accused Nos. 11 to 16, trial
Court found accused Nos. 1 to 10 guilty of committing murder ,
of deceased, convicted and sentenced them under s. 302 rlw
D s. 149, 307 rlw s. 149 and under s. 148 /PC - On appeal, High
Court acquitted all the convicts except A 1 - Correctness of - v
Held: Object of formation of unlawful assembly proved - High
Court while accepting testimony of PWs confirmed conviction
and sentence as against A 1 but has not given due credence
E to their testimony in respect of other accused persons - When
the testimony of PWs cogent, reliable and inspiring confidence
of the Court, it cannot be discarded on ground that witnesses
·are relative of the deceased - Foundation has to be laid if
plea of false implication is made - Evidence of PWs and CW1 .
F found reliable by trial court and no reason found to disbelieve
them - Analysis of evidence of PWs clearly established the
motive behind the incident - High Court lost sight in not con-
. t
~
centrating on material evidence while acquitting all the ac-
cused persons except A 1 - Guilt of all the accused has been
established by the prosecution beyond reasonable doubt,
G
hence acquittal of all of them except A 1 resulted in miscar-
riage of justice - Case of prosecution fully corroborated by
medical evidence - Trial Court rightly held accused Nos. 1 to )I. .

10 guilty of committing the murder of deceased persons -

H 1048
'
STATE OF U.P. v. KISHANPAL & ORS. 1049
,.....,
However, in the facts and circumstances of the case, appro- A
priate conviction would be under s.304 part 1 !PC and accord-
ingly sentence reduced to 10 years - Sentencing - Relative/
interested witnesses - Testimony of.
Criminal Law:
~· )-
B
Liability of members of an unlawful assembly - Dis-
cussed.
Motive - Scope of, in proving guilt of the accused.
'
Evidence: c
Evidence of related witness - Reliance on.
Interested witness & natural witness - Meaning of.
According to the prosecution, on the fateful day, ac-
cused persons, 16 in number, hatched a conspiracy at D
the residence of one 'G' for killing the deceased 'K' and
'-f
'R' as they were allegedly harassing them. All the accused
persons reached at the place of occurrence where infor-
mant PW1 alongwith deceased 'K' and 'R' was preparing
fodder for the cattle and his sister 'M' and mother, PW9 E
were also present. Accused persons opened fire, the in-
.formant hide himself in a hut, however, 'R' and the sister
of informant 'M' died on the spot and 'K' died on the way
to hospital. PW1, with the help of others, took the injured
persons including his mother to the police station and a F
. _), report was lodged. Injured were sent for medical exami-
- nation by the police and post mortem examination was
conducted on the dead bodies of the deceased persons.
On completion of the investigation, charge sheet was filed
by the police against 16 accused persons. Trial Court G
found accused Nos.1 to 10 guilty of committing the of-
· . fence of murder punishable under s.302 r/w s.149 IPC,
-"( s.307 r/w s.149 IPC and under s.148 IPC and sentenced
them to life imprisonment, it however, acquitted accused
Nos.11 to 16, as charges were not proved against them.
H
~~

f

1050 SUPREME COURT REPORTS [2008] 11 S.C.R.
"(. ,•

A The convicts preferred appeal. During pendency of ap-
peal, A3, AS and AG died, appeal abated as against them. i-
The High Court acquitted all the convicts except A-1.
Hence, the present appeal preferred by the State.
~
Partly allowing the appeal, the Court
B ~ .
HELD: 1.1 Though the High Court accepted the tes-
timony of PWs 1, 5, 7 and 9 while confirming the convic-
tion and sentences of accused No.1 but has not given
due credence to their testimonies in respect of other ac-
c cused. This Court has repeatedly held that if the testimony
of prosecution witnesses was cogent, reliable and confi-
dence inspiring, it cannot be discarded merely on the
ground that the witness happened to be relative of the
deceased. The witness may be called "interested" only
when he or she has derived some benefit from the result
D 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'. (Paras - 8 & 9) r
[1063-E; 1064-C] r-
E
State of Rajasthan vs. Smt. Kalki & Anr., (1981) 2 SCC
752 - relied on.
1.2 There is no such universal rule as to warrant re-
jection of the evidence of a wi~ness merely because he/
F 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
.G case to be true, it can provide a good and sound basis for
·1

conviction of the accused. (Para - 10) [1064-D-F] ~
I
1.3 ,Where it is shown that there is enmity and the )ii-

witnesses are near relatives too, the Court has a duty to
scrutinize their evidence with great care, caution and cir-
H cumspection and be very careful too in weighing such
STATE OF U.P. v. KISHANPAL & ORS. 1051

.... "' evidence. The testimony of related witnesses, if after deep A
scrutiny, found to be credible cannot be discarded. (Para-
10) [1064-F-G]
1.4 It is well settled that the evidence of witness can-
not be discarded merely on the ground that he is a re-
... ,_
lated witness, if otherwise the same is found credible . 8
(Para -10) [1064-G]
1.5 It is the quality of the evidence and not the quan-
tity of the evidence which is required to be judged by the
court to place credence on the statement. The ground that c
the witness being a close relative and consequently being
a partisan witness, should not be relied upon, has no sub-
stance. 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 in-
D
nocent 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. (Para - 10) [1065-B-D]
State of A.P vs. Veddu/a Veera Reddy & Ors. (1998) 4 E
SCC 145, Ram Anup Singh & Ors. vs. State of Bihar (2002) 6
SCC 686, Harijana Narayana & Ors. vs. State of A. P (2003)
11SCC681, Anil Sharma & Ors. vs. State of Jharkhand (2004)
5 SCC 679, Seeman @ Veeranam vs. State, By Inspector of
Police (2005) 11 SCC 142, Salim Sahab vs. State of M. P F
(2007) 1 SCC 699, Kapildeo Manda/ and Ors. vs. State of
.... Bihar, AIR 2008 SC 533, 0. Sailu vs. State of A.P, AIR 2008
SC 505, Kulesh Monda! vs. State of West Bengal, (2007) 8
sec 578 - relied on.
2.1 It is clear from the evidence of PW1, the informant, G
'that the victims and prosecution witnesses were not
armed and he himself, out of fear, went and took shelter
~ in a Jhonpari. After all the accused sped away from the
I
scene of occurrence, he called one 'N', uncle of one of
the deceased, in order to escort the injured persons to H
;-

1052 SUPREME COURT REPORTS [2008] 11 S.C.R.

'T--
A the police station and thereafter to the hospital. On arr:ival ·;-
of 'N', PW-1 and others arranged for a bullock cart and }

taken all the four injured to the police station. PW-1 had I
narrated all the events to 'N' and he accordingly written r
I-
down the same. PW-1, signed the report and the same was .
B filed in the police station. (Para - 13) [1067-F-H; 1068-A-B]
2.2 It is clea.r from the evidence of PW-1 that he wit-
'<( f
,_
I
nessed the occurrence, after the accused ran away from I
)
spot he took the injured persons in a bullock-cart,
reached the police station, made a complaint and then
c went to the hospital and from there returned to the village I
at about 5.00 firs. in the ·morning. It further shows that ~
I-
again· he had gone to ~he 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
D shows that except the accu.sed, the deceased, injured and
other family members, none others present. Though he r
had taken shelter behind the Jhonpari due to fear, he as- ~

serted that he had witnessed the entire occurrence. He
also denied the suggestion of the defence to the effect
f
E that the dacoity· had been committed by a gang at the 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 ,.r
the spot at the relevant time, witnessed the incident from
F 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 prosecu-
tion case. (Para -13) [1068-8-F]
~

2.3 PW5 in categorical terms asserted that he had
G witnessed the entire occurrence by taking shelter behind
a stack of bricks having been since piled up near the plat-
form. Besides himself three others had witnessed the said
occurrence from the same spot. It is his claim that the ~ 'r
occurrence had taken place at about 4.00 O'Clock; that
H the deceased 'K' too had consequently died; that corpses
STATE OF U.P. v. KISHANPAL & ORS. 1053
~.,,

had been lying at the very spot where they had been shot A
at for the entire night. Even in the cross-examination, he
reiterated that 'M' had sustained the gunshot, having been
since fired by accused No.6. The deceased 'R' had sus-
tained the gun shot fired by accused No.1, while 'K' had
.,. )- sustained the gun shot by AS. As rightly pointed out by B
counsel for the State, P.W.5 was a person who actually
witnessed the incident at the spot, identified all the ac-
cused, disclosed the motive and the indiscriminate firing
by all the accused. There is no reaso[! to disbelieve his
version about formation of unlawful assembly by the ac- c
cused persons and the subsequent indiscriminate firing
killing three persons and causing firearm injuries to oth-
ers. (Para-14) [1069-D-H; 1070 A]
2.4 Like other witnesses, PW 7 also informed the court
about the occurrence and reiterated that he had not seen D
'-1 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 als~ mentioned E
about the motive of the occurrence. There is no valid rea-
son to disown his claim and the prosecution story about
the incident. (Para - 15) [1070-G-H; 1071-A]
.2.5 PW 9, an iojured witness, mother of the deceased
'K' and 'M' explained to the court about the accident, was F
one among the victims suffered at the hands of accused,
there is no reason to believe her version only to convict
A1 though her evidence clearly implicates other nine ac-
cused also. (Para - 16) [1071-A-B,G,H; 1072-A]
G
2.6 Apart from the evidence of P.Ws. 1, 5, 7 and 9, on
the direction of the Court, CW 1 was also examined. The
-')(
trial Court heavily relied on his evidence. On going through
the same, there is no reason found to disbelieve his ver-
sion. (Para - 17) [1072-B; 1073-A]
H
1054 SUPREME COURT REPORTS [2008) 11 S.C.R.

A 3.1 Regarding the motive, according to the prosecu-
tion, the accused persons had enmity with the
complainant's party including the deceased persons and
their family members. One of the members of prosecu-
tion party lodged a report against members of complain-
s ant party in the police station. Thereafter, accused per-
sons got a false report lodged by one 'T' under Section
392 IPC against the members of prosecution party. The
police, however, submitted final report which infuriated
accused persons. J;'urther two days prior to the occur-
C rence when the deceased 'R' and 'K' were going in front
of the shop of A 1, the latter extended threat to them of
dire consequences. Though it was pointed out that for
'
r-
such a serious crime, the said motive was highly insuffi-
cient, as rightly observed by the trial Judge, the motive is
a thing which is primarily known to the accused them-
0
selves and it is not possible for the prosecution to ex-
plain what actually prompted 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 cir-
E cumstances prove the guilt of the accused, the same is
not weakened even if the motive is not a very strong one.
(Para - 18) [1073-8-G]
3.2 It is settled law that the motive looses all its im-
F portance 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
G 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 enmity,
in such circumstances, it cannot be said that the accused
H
STATE OF U.P. v. KISHANPAL & ORS. 1055
.. .,.
persons had no motive to commit the crime in question. A
In fact, the prosecution witnesses have specifically ad-
verted 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. (Para - 18) [1073-G-H; 1074-A-C] B
~ ;-
3.3 The analysis of evidence of P.Ws 1, 5, 7, 9 and
C.W.1 clearly shows 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 c
police without any delay which is reasonable consider-
ing the distance of Police Station from the place of occur-
rence and taking all the injured immediately to the hospi-
tal. (Para -19) [1074-D]
D
4. Though the High Court has commented that the
'"-1 prosecution has not collected the pellets from the gun
shots from the walls, the evidence of the two doctors
proye that several pellets struck the three dead persons
and three injured persons. The evidence of two doctors
and Post Mortem certificates, injury report amply prove E
that not only A1, A5 and AG fired but also all the ten ac-
' cused fired indiscriminately by using guns and pistols
which resulted in three deaths and fire arm injuries to three
persons. The evidence.of PWs 1, 5, 7, 9 and CW-1 and the
evidence of two doctors and their reports clearly support F
r),
the case of the prosecution that all the accused had a role
in the incident and were rightly charged under Sections
148, 149, 307 and 302. The High Court lost sight in not
concentrating the relevant material evidence while acquit-
ting all the accused except A1. (Para - 23) [1081-E-G] G
5. It is well settled that once a membership of an un-
lawful assembly is established it is not incumbent on the
prosecution to establish whether any specific overt act
has been assigned to any accused. (Para - 25) [1082-0]
H
1056 SUPREME COURT REPORTS [2008) 11 S.C.R.

"_,
A Bhagwan Singh and Others vs. State of M.P, (2002) 4
SCC 85; State of A. P vs. Veddula. Veera Reddy and Others
(1998) 4 SCC 145 and Sahdeo and Others vs. State [!f UP
(2004) 1o sec 682 - relied on.
6.1 The facts and circumstances of the case un-
B equivocally 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 pre-
cious lives were lost and another three sustained firearm
c injuries. (Para - 27) [1083-C-D]
6.2 The prosecution witn~sses have clinchingly dem-
onstrated 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
D
the deceased. The number of injuries on the deceased as f.-
per the Post Mortem report as well as the firearm injuries ~-

sustained by the three injured persons clearly demon-
strate that the common object of accused Nos. 1 to 10
was to kill the complai'nant's party. (Para - 30) [1085-E]
E
State of Rajasthan vs. Nathu and Others, (2003) 5 SCC
~37 and Rachamreddi Chenna Reddy and Others vs. State f·
of A.P, (1999) 3 sec 97 - relied on.
6.3 Even though specific overt act had been attrib-
F uted 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
~ave to be held guilty of offence charged against them.
G (Para - 32) [1085-D-E]

Yunis@ Kariya vs. State of M.P (2003) 1 SCC 425 and
Jaishree Yadav vs.. State of UP, (2005) 9 SCC 788 - relied on.
6.4 In the facts and circumstances of the case, the
H High Court has committed an error in acquitting all the
1058 SUPREME COURT REPORTS [2008] 11 S.C.R.

A 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
B · of nature to cause death. It must be proyed that there was
an intention to inflict that particular bodily injury which, in
the ordinary course of nature, was sufficient to cause
death. Thus, according to the rule laid down in Virsa Singh
case even if the intention of the accused was limited to
C 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.
(Para - 40) [1089-8-E]
Virsa Singh v. State of Punjab (AIR 1958 SC 465) - re-
D lied on.
7. The fact that the incident had occurred 30 years ago .,.
and of the fact that all the prosecution witnesses referred
to gun shots and bullet injuries in general, when all the fac-
tual scenario is considered in the background of legal prin-
E ciples, the inevitable conclusion is that the appropriate
conviction in so far as the respondents would be under
Section 304 Part I l.P.C. and custodial sentence of 10 years
should meet the ends of justice. (Para - 41) [1089-E-F]

F Case Law Reference
(1981) 2 sec 752 Relied on. Para 8
(1998) 4 sec 145 Relied on. Para 10
(2002) s sec 686 Relied on. Para 10
G (2003) 11 sec 681 Relied on. Para 10
(2004) s sec 679 Relied on. Para 10
(2005) 11 sec 142 Relied on. Para 10
(2007) 1 sec 699 Relied on. Para 10
H
STATE OF U.P. v. KISHANPAL & ORS. 1059
~ '¥

AIR 2008 SC 533 Re.lied on. Para 10 A
AIR 2008 SC 505 Relied on. Para 10
(2001) 8 sec 578 Relied on. Para 11
(2002) 4 sec 85 Retied on Para 26
j. ")'

(1998) 4 sec 145 Relied on Para 26 B

(2004) 1o sec 682 Relied on. Para 26
(2003) 5 sec 537 Relied on Para 28
(1999) 3 sec 97 Relied on. Para 29
c
(2003) 1 sec 425 ·Relied on. Para 31
(2005) 9 sec 788 Relied on Para 31
(1981) 2 sec 752 Relied on. Para 34
(AIR 1958 SC 465) Relied on. Para 37
D
..... CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No. 936 of 2003
From the Judgment and final Order dated 19.9.2002 of
the High Court of Judicature at Allahabad in Crl. Appeal No.
812 of 1980 E

Pramod Swarup, Vandana Mishra, Alka Sinha and Anuvrat

.. ~
Sharma for the Appellant.

Arvind Singh, Indra Raghuvanshi, Viond Jindal and Dr.
Kailash Chand for the Respondents. F
The Judgment of the Court was delivered by

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 G
,_, 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:
H
1060 SUPREME COURT REPORTS [2008] 11 S.C.R.

A On 21.6.1978 at 3.30 p.m., the sixteen accused persons
gathered at the door of Gyan Singh and made a criminal con-
spiracy for killing Kaptan Singh and Raj Mahesh as they were
harassing them unnecessarily. At about4.00 P.M., Onkar Singh,
Kishanpal Singh, Vijaipal Singh, Suresh Singh, Naresh Singh,
B 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), Dau lat Singh (Accused
No.6) and Sheodan Singh (Accused No.9) had guns while oth-
C ers had country-made pistols. When they reached the place of
oc~urrence, Suraj Pal Singh, Kaptan Singh and Raj Mahesh
Ne're preparing fodder in the cattle troughs for their cattle in front
of their chaupal. Su raj Pal 'singh's sister Smt. Maya Devi and
mother Smt. Resham Devi were also present there. The afore-
D said 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 persons opened fire, Suraj Pal Singh ran inside
the Jhonpari to save his life and witnessed the incident. Maya
E Devi and Resham Devi rushed to save Kaptan Singh, Daulat
Singh fired upon Maya Devi. Ram Autar, brother of Kaptan Singh
and lshwari Devi came there to save Kaptan Singh and Raj
Mahesh. Resham Devi, RamAutar and lshwari Devi were also
fired at and received injuries when they tried to save_ Kaptan
F Singh and Raj Mahesh. On seeing the people arriving, the ac-
cused 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, lshwari
Devi and Ram Autar were lying injured. Kaptan Singh died on
G 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-
H cart. Natthu Singh also accompanied them. Natthu Singh wrote
STATE OF U.P. v. KISHANPAL & ORS. 1061
[P. SATHASIVAM, J.]
~)'

the report at the dictation of Suraj Pal Singh. The said report A
was filed at 9.30 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 B
;. ) 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. There-
after the investigation was continued by his successor and
charge sheet was submitted against the accused. c
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 D
and Yudhishter Singh (Accused Nos. 11 to 16), who were
.,.,., charged under Section 120 B l.P.C. were found not guilty and
accordingly acquitted them. The tri9I Court held that the pros-
ecution had proved its case beyond all reasonable doubt against
all the other accused persons (accused Nos. 1 to 10) and held E
them guilty under Section 148 l.P.C. for committing offence of
rioting after forming an unlawful assembly as they were ·armed
with firearms, and under Section 302/149 l.P.C. for committing
the murder of Raj Mahesh, Kaptan Singh and Smt. Maya Devi
and under Section 307/149 l.F;>..C. for causing firearm injuries F
on the person of Ram Autar, Resham Devi and Smt. lshwari
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
G
were sentenced to undergo R.I. for two years under Section 148
l.P.C., five years R.I. under Section 307/149 1.P.C. and impris-
-¥ onment for life under Section 302/149 l.P.C. All the sentences
were to run concurrently.
4. Aggrieved by the said judgment, the accused Nos. 1 to H
1062 SUPREME COURT REPORTS [2008] 11 S.C.R.
'

A 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
B 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 main-
tained his conviction and sentence under Sections 302/149
l.P.C., 148 l.P.C. and 307/149 l.P.C. and allowed the appeal in
c respect of all other accused (Kishanpal Singh, Suresh Singh,
Mahendra Singh, Jaivir Singh, Sheodan Singh and Bahar Singh)
and acquitted them. Ar;ainst the order of the High Court acquit-
ting 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.
0
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
E -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. The main reason for
acquitting the other accused is that even those related eye-wit-
F nesses 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
G on the evidence of very same persons and materials placed by
the prosecution to convict Onkar Singh, it refused tc;> apply the
same in the case of other accused and acquitted them in re-
spect of the charges leveled against them ignoring the implica- ,,_.
tion of charge under Section 1491.P.C. In those circumstances,
H we have to consider (i) whether the evidence of close relatives
STATE OF U.P. v. KISHANPAL & ORS. 1063
"I'-'¥
[P. SATHASIVAM, J.]

P.Ws.1,5,7, and 9 are acceptable and reliable in respect of all A
the respondents/accused (ii) whether the High Coµrt is right in
disc;arding their evidence in the light of the corroborative evi-
. dence 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 exam-
ined the injured persons and Exh. Ka 19, 20 and 21 (post mortem B
... "' reports) and Exh. Ka 22, 23 and 24 (injury reports).

7. It was urged that the eye-witnesses relied on by the pros-
ecution 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 c
Ranveer Singh (PW-7) and deceased Raj Mahesh were cous-
ins of PW-1. lshwari 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 Su raj Pal Singh, PW-1, from his
maternal side. D
8. As observed earlier, though the High Court accepted
the testimony of PWs 1, 5, 7 and 9 while confirming the convic-
tion 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 E
was cogent, reliable and confidence inspiring, it cannot be dis-
carded 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 in State of
Rajasthan vs. Smt. Kalki & Anr, (1981) 2 SCC 752. The fol- F
lowing conclusion in paragraph 7 is relevant:
"7. As mentioned above the High Court has declined to rely
on the evidence of PW t 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. G
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 H
.:

1064 SUPREME COURT REPORTS [2008] 11 S:C.R.
'(-<

A 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
B
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 "intere$ted" only when
c 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 pos-
sible eyewitness in .the circumstances of~ case cannot be said 1.-
\.-
to be 'interested'.
D 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
,,.,
no such universal rule as to warrant rejection of the evidenc~ of
a witness merely because he/she was related to or interested
E in the parties to either side. In such cases, if the presence of
~
such a witness at the time of occurrence is proved or consid-
ered to be natural and the evidence tendered by such witness
'
is found in the light of the surrounding circumstances and prob-
a
abilities of the case to be true, it can provide good and sound
F basis for conviction of the accu~ed. Where it is shown that there
is enmity and the witnesses are near relatives too, the Court -4.
has a duty to scrutinize their evidence with great care, caution
and circumspection and be very careful too in weighi.ng such
evidence. The testimony of related witnesses, if after deep scru-
G tiny, found to be credible cannot be discarded. It is now well r
~
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 bu.t thatdoes "!-
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
H
STATE OF U.P. v. KISHANPAL & ORS. 1065
~ '¥ [P. SATHASIVAM, J.]

of evidence of the interested witness, and if, on such scrutiny it A
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
+- y interested witness. It is well settled that it is the quality of the B
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 conse-
quently being a partisan witness, should not be relied upon, has
no substance. Relationship is not a factor to affect credibility of c
a witness. It is more often than not that a relation would not con-
ceal 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
D
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) 11SCC681,Ani/ Sharma & Ors. vs. State of Jharkhand
(2004) 5 SCC 679,Seeman@ Veeranam vs. State, By lnspec-
tor of Police (2005) 11 SCC 142, Salim Sahab vs. State of E
M.P. (2007) 1 SCC 699, Kapiideo Manda/ and Ors. vs. Stale
of Bihar, AIR 2008 SC 533, D. Sai/u vs. State of A.P., AIR 2008
SC 505.

11. In Kulesh Monda/ vs. State of West Bengal. (200 7) 8
~>
F
SCC 578, this Court considered the reliability of interested/re-
lated 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 G
partisan witnesses,] should not be relied upon, has no
substance. This theory was repelled by this Court as early as
. -r 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
H
1066 SUPREME COURT REPORTS [2008] 11 S.C.R.
v -f

A independent witnesses. Speaking through Vivian Bose, J. it I
was observed: (AIR p. 366, para 25) f-

'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
'-1~
B 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
c many criminal cases and one which another Bench of
this Court endeavoured to dispel in Rameshwarv. State
of Rajasthan (AIR 1952 SC 54 at p.59). We find, however,
that it unfortunately still persists, if not in the judgments
of the Courts, at any rate in the arguments of counsel.' )

'
D 11. Again in Masalti v. State of UP (AIR 1965 SC 202) this ,t-
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
E 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 .,
F such evidence should be rejected because it is partisan l.~

cannot be accepted as correct.' t
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
...\·
G '
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,
"i- ,1
.
due to mental disposition such as shock and horror at the
time of occurrence and those are alwaysthere however honest
H and truthful a witness may be. Material discrepancies are
STATE OF U. P. v. KISHANPAL & ORS. 1067
. ,_ '1 [P. SATHASIVAM, J.]

those which are not normal, and not expected of a normal A
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 Machi v. State of Bihar, (2002) 6 SCC 81 ".
..__,, B
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 identified all c
I

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 pis-
tols. However, the initial firing had been done by Onkar Singh D
~..., 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 de-
posed that Rajmahesh, Kaptan Singh, Maya Devi, Resham Devi,
Ram Autar and lshwari Devi were injured on account of the in- E
discriminate firing resorted to by al! the accused. According to
him, Raj Mahesh and Maya Devi died at the very spot on ac-
count 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 F
~
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. After all the accused sped away
from the scene of occurrence, he called Natthu Singh from
G
Bhogupura, happens to be the uncle of Rajmahesh as he has a
_.,. licence of rifle, in order to escort the injured persons to the po-
lice station and thereafter to the !1ospital. 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
H
1068 SUPREME COURT REPORTS [2008] 11 S.C.R.
y -f

A narrated all the events to Natthu Singh and he accordingly writ-
ten down the same .. On Natthu Singh reading the contents of
the said report, PW-1, signed and the same was filed in the t'
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
B the sub-inspector recovered one empty cartridge shell from the "(4
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
c spot he took the injured persons in a bullock-cart, reached the I-
I-
police station, made a complaint Exh. Ka 1 and then went to the
hospital and from there returned to the village at about 5.00 hrs. "I-
in the morning. It further shows that again he had gone to the f
Rajmau hospital. It is also clear from his evidence that at the
D
time of the occurrence there had been no chowkidar of their
village present at the said spot. This shows that except the ac-
l
~
..
cused, 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 hacfwitnessed the entire occur-
rence. He also denied the suggestion of the defence to the ef-
E feet that the gang belonging to Btfagwana Kachi village had r
·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 inci- ~
F dent from the 'Jhonpari', after the accused ran away he came
,{..
out of Jhonpari, laid a complaint to the police and took injured r
persons to the hospital. He fully supports the prosecution case. ~

I•
14. Now let us consider the evidence of PW-5, Jagdish
Singh. According to him, when he arrived at the doorstep of the
G
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,
H
STATE OF U.P. v. KISHANPAL & ORS. 1069
~ )' [P. SATHASIVAM, J.]

Suraj Pal and Kaptan Singh were present at the open built up A
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 B
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 c
had opened fire which gunshot had landed upon her. Then all
-(
these accused had resorted to indiscriminate firing from both
the directions. lshwari Devi had arrived from the house of Raj
Mahesh, she too had sustained gunshot bullets. Raj Mahesh
and Ram Autar had sustained resultant pallets from the gun shot
D
firing of the accused. At that time, Suraj Pal Singh had taken
J~
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 E
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 cofpses had been lying at the very spot
where they had been shot at for the entire night. Even in the F
->
cross-examination, he -once again reiterated that Maya Devi
-j 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 - G
Jagdish Singh was a person who actually witnessed the inci-
-(
-., dent at the spot, identified all the accused, disclosed the mo-
tive for the incident and the indiscriminate firing by all the ac-
cused. There is no reason to disbelieve his version including
unlawful assembly and the subsequent indiscriminate firing kill- H
1070 SUPREME COURT REPORTS [2008] 11 S.C.R.
-'< . . .
....
r-
A ing three persons and causing firearm injuries to another three
persons.
15. The other eye-witness heavily relied on by the pros-
ecution is P.W.7 Ranvir Singh. In his evidence he has stated
r-
that at about 3.30 P.M. when he had been proceeding to his
B 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
c that some of them had been possessing guns and country made
..
pistols at the relevant time. Similar to P.W.5, he also informed J
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 hear-
D ing the statement from the accused Onkar Singh, Naresh Singh
and Daulat Singh had started firing. Raj Mahesh had sustained ~<-I

the gun shot having been fired by Onkar Singh, Kaptan Singh
bar' -:ustained gun shot fired by Naresh Singh. He asserted that
th~: . .;"!main•:1g accused too had started firing. Maya Devi and
E 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 caµsed to Resham Devi, Ram Autar, lshwari Devi. Raj
F Mahesh and Maya Devi had died at the spot. He asserted that {-
he had witnesf:.ed 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
spct Lil<2 others, he also reiterated that he had not seen any-
G
body else in the scene of occurrence at the relevant point of
time except the accused, the injured and other witnesses.
1-
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 motive of the occurrence.
H
STATE OF U.P. v. KISHANPAL & ORS. 1071
[P. SATHASIVAM, J.]
>rj

There is no valid reason to disown his claim and the prosecu- A
tion 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
t- ,. of the accident, it was approximately 4 O'Clock in the day. She B
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 ac-
cused Nos. 1, 5, 6 and 9 - Onkar Singh, Naresh Singh, Daulat c
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
1O accused in the Court. Like P.Ws.1, 5 and 7, she also reiter-

. ..,..
ated that Onkar Singh and Naresh Singh declared that they have D
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 Kaptan Singh while lshwari Devi
rushed in order to save Raj Mahesh. At the very moment, Daulat E
Singh had opened fire upon Maya Devi, thereafter all the afore-
said ten accused had started indiscriminate firing due to which
Resham Devi, lshwari 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 F
_,_ 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
G
on her neck. According to her, pallets are still present within her
· body. In respect of a question posed to her, she asserted that
: ... lf 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
H
1072 · SUPREME COURT REPORTS [2008] 11 S.C.R.

A 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 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
8 direction of the Court one Ujagar Singh was examined as C.W.1 .
.According to him, while he was returning after purchasing to-
bacco 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
C people were harassing us, let us kill them today" and the state-
ment of Naresh Singh accused "let us finish their family." Imme-
diately, 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
D hearing the commotion, Resham Devi, mother of Kaptan Singh
and brother of Ram Autar reached there and lshwari Devi, sis-
ter 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,
E they found tnat Maya Devi and Raj Mahesh had died and Kaptan
Singh, Resham Devi, lshwari 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
inciuding P.VV.5 and P.W.7 in the scene of occurrence. He speci-
F tied that out of ten men involved in the shooting, four were armed
with guns arid remaining six with pistols. Though he did not~
_ with the injL::·eJ persons to the hospital after the incident, how~
ever, according to him, he reached the hdspital 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
G kiin. It is seen from his evidence that his field is about one fur-
long 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
H
STATE OF U.P. v. KISHANPAL & ORS. 1073
)r- y [P. SATHASIVAM, J.]
trial Court heavily relied on his evidence. On going through the A
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
including the deceased persons and their family members.
.- ~' There was an ancestral land of Surajpal Singh, Raghubir Singh B
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 re-
port against Daulat Singh, Yudhishtir Singh, Onkar Singh, c
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 D
, 'f
Rambir Singh on 6.5.1978. Onkar Singh and Daulat Singh, ac-
cused persons in the case on hand, were cited as prosecution
witnesses. This is evident from Ex. KA-17. The police, how-
ever, submitted final report which infuriated Daulat Singh and
Onkar Singh. Further two days prior to the present occurrence E
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. Though it was pointed out that for such a seri-
ous crime, the said motive was highly insufficient, as rightly ob-
served by the trial Judge, the motive is a thing which is primarily F

-· 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 circum-
G
stances prove the guilt of the accused, the same is not weak-
ened 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
ti.
.,.
:"•-.t;
1074 SUPREME COURT REPORTS [2008] 11 S.C.R.
.,., -.(.

A commit a particular crime, they cannot be convicted if the evi-
dence 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 convictlCm. As pointed out,
B even the accused persons have stated that they have been '( _.,
falsely implicated due to previous 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
c all of them denied the suggestion that the alleged incident was
due to attack by the dac0its 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,
D participation of all the accused carrying guns and pistols, indis-
criminate 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
E 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 corrobo-
rate the statement of eye-witnesses. Dr. R. P. Yadav, who con-
ducted the Post Mortem examination upon the dead body of
F Smt. Maya Devi, noted the following Ante Mortem injuries:-
~ -
"1. Gun shot wound of entry Yi 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 5Yi
G Cms. X 4Yi Cms., on the left side of face. All the wounds
had been Yi 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 )(.-4.

ear and one over middle of the cheek.

H 3. Gun shot wound of entry Yi Cms. X 1/3 Cms. X skin
STATE OF U.P. v. KISHANPAL & ORS. 1075
r 'r [P. SATHASIVAM, J.]
deep on the scalp, on the left hand side of skull 8 Cms. A
above the ear.

4. Gun shot wound of entry Yi Cms. X 1/3 Cms. X flesh
deep, at the back of, the left ear.

~· ,. 5. Gun shot wound of entry Yi Cms. X 1/3 Cms. X skin
deep, on the left lower portion of, the neck.
B

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 Yi Cms. X
1/3 Cms. X skin deep to flesh deep. c
7. 4 Gun shot wounds of entry, in an area ad measuring 10
Cms. X 8 Cms., had been present, on the left side of
back below wounds, had been Yi Cms. X 1/3 Cms flesh
deep.
8. Gun shot wound of entry Yi Cms. X 1/3 Cms. X flesh D
~ ..,, 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 Yi Cms. X 1/3 Cms. X flesh
deep.
E
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 F
->
3 pellets had, been recovered from under injury No. 6 from
under the left shoulder bone. Upon opening wound No. 7 it
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 G
within the said spot. The direction of this wound had been,
... y from the rear, to the front going a little bit, in the upward
direction. The direction of injury Nos. 1 to 5 had been fmm the
left, to the right and sideways. 1 pellet had, been recovered,
from under injury No.1, while two pallets had, been accordingly
H
1076 SUPREME COURT REPORTS [2008] 11 S.C.R.
-< -('
A 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.
B "(-..
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
c 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 Kaplan Singh and noted the
following Ante Mortem injuries:
D
"1. Gun shot wound of entry Yi 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 Yi Cms.
X 1/3 Cms. X through and through, on the upper portion
E 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 Yi Cms.
X 1/3 Cms. X flesh deep, in an area of 7 Cms. X 5 Cms.,
on the left side of neck.
F
4. 3 Gun shot wounds of entry, each admeasuring Yi 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
o.utwards, from the right nipple.

G 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 Yi Cms. X 1/3 Cms. X skin
deep, on the front lumbar region of, stomach.
H
STATE OF U.P. v. KISHANPAL & ORS. 1077
).- ~
[P. SATHASIVAM, J.]

7. 2 Gun shot wounds of exit% Cms. X Yi Cms. X on the A
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.
rr B
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 lacerate_d th13
skin and had made an entry, on the left side of chest and whih3 c
puncturing the left lung and the surrounding membranes had
ultimately stooped, within the left chest cavity. 3 pallets had,
been recovered, from the said relevant spot. % pound of
blood had, been present, in the left chest cavity. The direction
of injury No.2 too, had been from the left, to the right. 2 Ozs.
Of blood had, been present, in the stomach cavity. Thei D
; ~ stomach had been empty and the peritoneum had, been
alright. The smafl 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.
E
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 fol- F
-f lowing 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
inter-alia distance of 5 Cms., from each other. Each of G
the said wound had, been admeasuring % Cms. X %
Cms. X chest cavity deep.
~ '>\

2. 2 Gun shot wounds of entry, on the front left side of
stomach, near the umbilicus, each of them admeasuing
% Cms. X Yi Cms. X stomach cavity deep. H
1078 SUPREME COURT REPORTS [2008] 11 S.C.R.
""f ....

A 3. Gun shot wound of entry, on the lower portion of, left
side of stomach, situated at a distance of 10 Cms.,
from the umbilicus admeasuring % Cms. X % Cms. X
stomach cavity deep.
4. Gun shot wound of entry admeasuring % Cms. X %
B Cms. X bone deep, on the front of, the left elbow. The "'( ...
humorous bone stood, fractured.
5. Gun shot wound of exit admeasuring % Cms. X 1 Cm.
on the left side of back, in the waist area, thereof.

c 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,
D
while it had punctured through and through, the left lung within
the chest cavity, the membrane thereof, as well as, the heart "I"'"'
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.
E 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
F
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.
G
In my opinion, the death of the deceased had occurred, on
account of shock and haemorrhage, as a result of Ante Mortem
)(-4.
fire-arm injuries, having since caused, on his person."

23. It is also relevant to mention the evidence of P.W.11
H
STATE OF U.P. v. KISHANPAL & ORS. 1079
[P. SATHASIVAM, J.]

Dr. S. P. Dikshit who treated the three injured persons and his A
evidence about the injuries sustained by them.
"1. On 21.06.1968 I had, been the Medical Officer lncharge,
at Sidhpura and I continue, to remain, as such. This hospital
remains situated, within the ambit of the boundaries of, village
.,. r Rajmau. Resham Devi, wife of Megh Singh, resident of village B
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 c
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, D
f ,. been present therein. The aforesaid injuries, had been
simple in nature, while the same had been caused by
some fire-arm. The duration of the said injuries, at the
time of Medical Examination had, been about% day old.
On that day, at 11 ~ O'clock, in the night, I had .axamined the
E
injuries, on the person of Smt. /shwari Devi, wife of Chandra
Pal Singh, resident of village Khajura, Police Station Sidhpura,
District Etah. I had detected the following injuries, upon her
person:-
F
-;>- 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 G
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 CrT)s. Swelling had, since been present therein.
Small amount of blood oozing had, been present therein.

3. All the aforesaid injuries had, been duration of the said H
1080 SUPREME COURT REPORTS [2008] 11 S.C.R.
~ <
A injuries, at the time of Medical Examination had, been
about 'Y4 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
B 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.
c
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. t-
D 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. v·-<i

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
E 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 'Y4 day old.
F
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
G 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 purposes
H of conducting Medical Examination upon their respective
STATE OF U.P. v. KISHANPAL & ORS. 1081
[P. SATHASIVAM, J.]

persons, while he had, identified each of the respective A
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 8
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 C
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 0
and visibility."
Though the High Court has commented that the prosecu-
tion 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 E
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 F
to three persons. The 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 G
relevant material evidence while acquitting all the accused ex-
cept 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 H
1082 SUPREME COURT REPORTS [2008] 11 S.C.R.
"(

A 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 memper of unlawful assembly guilty of offence
committed in prosecution of common object.- If an offence is
B committed by any member of an unlawful assembly in
prosecution of the common object of that assembly, or such "" .... ' '
as the members of that ass~mbly 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
c same assembly, is guilty of that offence."
I
25. It is we.II settled that once a membership of an unlawful '~
assembly is established it is not incumbent on the prosecution
to establish whether any specific overt act has been assigned
to any accused. In other words, mere membership of the unlaw-
D ful assembly is sufficient and every member of an unlawful as-
sembly 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.
E ';
26. In Bhagwan Singh and Others vs. State of M.P., (2002) >
4 SCC 85, this Co.urtwhile considering unlawful assembly/shar-
ing of common object held as under:-
"9. Common object, as contemplated by Section 149 of the
F Indian Penal Code, does not require prior concert or meeting
of minds before the attack. Generally no direct evjdence 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
G 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
-)If,_.-
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
H assembly of persons or being a bystander does not make
STATE OF U.P. v. KISHANPAL & ORS. 1083
'
/ )' [P. SATHASIVAM, J.]

such person a member of an unlawful assembly but where A
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."
.. ): B
The same principle has been stated in State of A. P vs.
Veddu/a Veera Reddy and Others, (supra) and Sahdeo and
Others vs. State of UP (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 c
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 as-
sembly who had come on the spot with weapons and attacked D
~--. 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:
E
"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 ofthe members of the unlawful assembly caused the fatal
injury. Once an unlawful assembly has come into existence,
F
-> 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."

29. In Rachamreddi Chenna Reddy and Others vs. State G
of A.P, (1999) 3 sec 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 H
1084 SUPREME COURT REPORTS [2008] 11 S.C.R.
"f '-

A 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
B ....
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
c committed in prosecution of that object. In the aforesaid case,
the fact that all the accused persons chased and surrounded
the dece~sed and inflicted injuries with their respective
weapons was held to be sufficient to conclude that they had ~
the common object to kill the deceased."
D
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 de-
ceased. The number of injuries on the deceased as per the
E
Post Mortem report as well as the firearm injuries sustained by
the three injured persons clearly demonstrate the common ob-
ject 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
F 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
G unlawful assembly is sufficient to hold him.guilty."
Following the above principle, in Jaishree Yadav vs. State
of UP, (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.
H

>
STATE OF U. P. v. KISHANPAL & ORS. 1085
~ 'y [P. SATHASIVAM, J.]
'
I
,' "28. In view of the above principle in law, since the trial court A
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
'!A
B
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, c
they will be guilty of 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 D
,. ,,.. 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 E
firing by all of them, all of them have to be held guilty of offence
i,.
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
F
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 accused G
Nos. 1, 5 and 6. Therefore, the High Court could not have ac-
~~
quitted 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 lnves~igat- H
1086 SUPREME COURT REPORTS [2008) 11 S.C.R.

l
A ing Officer who visited the spot, on verification of the entire evi- I
dence, 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 an·d
B others stayed back at the place of occurrence. The said expla-
nation 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 com-
plaint. In such circumstances, we reject the reasoning of the High
i\.
c Court.
\'
34. Inasmuch as the present appeal by the State is against
an order of acquittal, learned counsel for the respondents sub-
mitted that the appeal involved only appreciation of evidence
and this Court may not interfere with the findings of facts result-
D ing 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
E Constitution this Court normally does not in~erfere 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."
F 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 para-
mount consideration of the Court is to ensure that miscarriage
of justice is avoided. The miscarriage of justice which may arise
G 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
H Kishan Pal Singh, Suresh Singh, Mahendra Singh @ Neksey
STATE OF U.P. v. KISHANPAL & ORS. 1087
y [P. SATHASIVAM, J.]
.
Singh, Jaivir Singh, Sheodan Singh and Bahar Singh. Further, A
the_ 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 as-
sembly and all came with fire arm and caused fire arm injuries
t ~ on the deceased persons as well as on the injured persons and B
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 com-
mitted murders by ·going at the place of incident with fire arm
and causing fire arm injuries. On the other Hand, the High Court c
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 D
l "'
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 the E
meaning and scope of clause (3) of Section 300 l.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 F
_)._
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,
G
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

-
m-·.-:
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.
H
1088 SUPREME COURT REPORTS [2008] 11 S.C.R.
~

A 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";

8 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
c 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,
D
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."
E
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
F ....__
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
G 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 ::-:4-
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
H
STATE OF U.P. v. KISHANPAL & ORS. 1089
' r [P. SATHASIVAM, J.]

of the injury is proved the intention to cause it will be presumed A
unless the evidence or the circumstances warrant an opposite
conclusion."
40. The test laid down by Virsa Singh case (supra) for the
applicability of clause "thirdly" is now ingrained in our legal sys-
,, J(
tern and has become part of the rule of law. Under clause thirdly B
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 c
of nature to cause death. It must be proved that there was an
intention to inflict that particufar bodily injury which, in the ordi-
nary 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 D
,., 'y 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) ap-
pended to Section 300 clearly brings out this point. E
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 prin-
- ~
ciples set out above, the inevitable conclusion is that the appro-
priate conviction in so far as the respondents herein would be
F

under Section 304Part11.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, G
Mahendra Singh@ Neksey Singh, Jaivir Singh, Sheodan Singh
- f. and Bahar Singh is set aside. Consequently each of the ac-
cused persons/respondents herein namely Kishan Pal Singh,
Suresh Singh, Mahendra S~ngh@ Neksey Singh, Jaivir Singh,
H
1090 SUPREME COURT REPORTS [2008] 11 S.C.R.

A Sheodan Singh and Bahar Singh is sentenced to undergo RI
for two years under Section 148, to five years RI under Section
307/1491.P.C. and imprisoriment for 10 years RI under Section
304 Part I l.P.C. All the sentences are to run concurrently. The
respondents shall surrender to custody forthwith to serve the
B remaining period of sentence. The appeal filea by the State is :.: _,,
allowed to this extent and the judgment of the 1-figh Court is set
aside.
S.K.S. Appeal partly allowed.

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