minal Appeal No 213 of 1967
Appeal by special leave from the judgment and order dated May 19 1967 of the Allahabad High Court Lucknow Bench at Lucknow in Criminal Appeal No 118 of 1967 and capital sen tence No 11 of 1967
R K Garg section C Agarwala D P Singh and A K Gupta for the appellants
O P Rana for the respondent
The Judgment of the Court was delivered by Shelat J
This appeal by special leave is directed against the judgment of the High Court of Allahabad which confirmed the convictions and sentences passed by the Sessions Judge Hardoi in respect of the murders of Lal Singh and his father Harihar
The ten appellants on being convicted under sections 302 and 201 read with section 149 of the Penal Code were awarded various sentences
Four of them namely Karnesh Kumar Krishna Kumar Kaushal Kumar and Chhetrapal were awarded death sentence and the rest imprisonment for life
At the material time the two deceased along with the mem bers of their family and the appellants lived in village Nir in District Hardoi and except for appellants Jugal Kishore and his brother Kailash Narain they are close relations their common ancestor being one Jhabha Singh
The evidence however shows a long standing enmity between the members of the branch of Sobaran Singh one of the sons of Jhabha Singh on the one hand and the rest of the descendants of Jhabha Singh on the other
It also shows that since 1950 there has been intermittently civil and criminal litigation between the parties the last of such litigation before the incident in question being in respect of an incident which took place on April 3 1966 when appellant Ram Kumar charged the deceased Harihar and Lal Singh and witnesses Jitendra and Virendra and two others with rioting and witness Virendra in turn filed a cross complaint against the appellants and some others
According to the prosecution at about 1 pm on June 5 1966 Lal Singh was irrigating his field with canal water when appellants L8 Sup
C1168 10 776 Karnesh and Avdesh diverted the water into their field
There was an exchange of abuses between them in the course of which appellant Karnesh was said to have threatened that he would not rest until Lal Singh was done to death
At about 530 that evening Jitendra Virendra and Girendra P Ws 1 6 and 8 were in the main room of the Chaupal where Lal Singh lived and Lal Singh was in a room nearby
Fifty paces away from this house is the house where the deceased Harihar lived Suddenly a shout was heard to the effect that Lal Singh should be dragged out
On hearing the shout these witnesses and Lal Singh came out
The witnesses saw appellants Krishna and Chhetrapal armed with guns appellant Karnesh with a pistol Rain Kumar and Jugal Kishore with spears appellants Kaushal and Mahendra with banks and the rest with lathis
As soon as Lal Singh came out appellants Krishna Chhetrapal and Karnesh simultaneously fired at him whereupon Lal Singh fell on the ground
On being threatened that the witnesses would also be shot they ran away and stood at some distance
Five of these appellants namely Chhetrapal Kaushal Mahendra Kailash and Jugal Kishore then ran to Harihar s house where appellant Jugal Kishore struck Harihar with a spear in his face and then appellants Kaushal and Jugal Kishore dragged him to where Lal Singh had fallen
Chhetrapal then fired at Harihar with his gun Jugal Kishore gave another blow with his spear in the chest and the rest beat him with bankas and lathis
Harihar also died on the spot
Appellants Kailash Jugal Kishore Kaushal and Mahendra followed by Chhetrapal with his gun lifted Harihar s body to the field of one Sita Ram where they set fire to it
The other five appellants took Lal Singh s body to the Bathis of PW 4 Abdul Bari and burnt it there on a heal of cowdung cakes
Having thus tried to do away with the dead bodies appellants Kaushal and Mahendra scraped the bloodstained earth where Lal Singh had fallen as also the drops of blood which had fallen on the way
P W 1 Jitendra started on cycle to the Kotwali six miles away and lodged the FIR at about 6 45 PM Inspector Jaswant Singh P W 17 started for the scene of offence reaching there at about 7 45 PM The fires were put out but Lal Singh s body had practically been burnt out with the result that the Inspector could collect only his bones and ashes
But he was able to recover the half burnt body
of Harihar
That night he recorded the statements of P Ws 1 6 7 8 14 and of certain other persons
On the 7th and 8th he recorded further statements
On June 20 he recorded the statements of Raghubar P W 9 and Gopali P W 12
It appears that statements of these witnesses were recorded late as these and other residents presumably on account of fear of reprisals or to avoid having to figure as witnesses had fled from the village
777 The evidence on which the prosecution mainly relied was that of the four eye witnesses
of these Jitendra P W 1 the son and brother of Harihar and Lal Singh respectively Virendra P W 6 his cousin and Girendra P W 8 a boy of 14 years of age and the younger brother of Lal Singh deposed to the assault by the appellants on both the deceased
Santosh Kumari P W 7 the daughter of Harihar deposed only to the assault on Harihar in the house
Besides this evidence the prosecution examined Raghubar Jeet Gopali and Surat Singh P Ws 9 11 12 and 14 the neighbours of the deceased who in one part or the other corroborated the eye witnesses
Gopali s evidence was however the only direct evidence as to the scrapping of the blood stained earth by two of the appellants but that evidence was not relied upon by the High Court on the ground that his name was not mentioned in the FIR and his statement was recorded late
There was however the evidence of the eye witnesses that blood had dropped where Lal Singh had fallen and of the Investigating Officer that when he inspected the site that night though he found no blood marks he noticed that the earth at that place had been scrapped
It is clear that no one except the assailants who had burnt of the dead bodies of Harihar and Lal Singh to do away with evidence as to the two murders would be interested also in doing away with an equally important evidence as to the place where Lal Singh had been killed by scrapping off the blood where he had fallen
Scrapping of blood from that place was thus in line with and part of the stratagem of burning the bodies of the victims so as not to leave any evidence of the killing of the two men
This part of the evidence lends support to Jitendra s case that Lal Singh was fired at and fell at or near the intersection of the roads just outside his house
It is true that only these four members of the family figured as eye witnesses
But that fact alone cannot mean that P W 1 or the investigating agency excluded other available independent witnesses
This is clear from the fact that the FIR mentions a number of persons whom P W 1 thought to be eye witnesses
There is evidence that the incident had created panic in the village and a number of residents had fled and had stayed away possibly with a view to avoid having to figure as witnesses
It is therefore hardly surprising that only the members of the family came forward as eye witnesses
But as they were interested witnesses both by reason of their being members of the family and their sharing the hostility of the two victims towards the appellants their evidence had to be examined with care and caution
But there was circumstantial evidence to lend support to their account of the incident
That evidence established the following facts 1 the Ion standing enmity between the parties 2 the incident having taken place at about 5 30 Pm 3 the burning of the two bodies by the appel 778 lants 4 the scrapping of the earth to wipe out the blood stains 5 P Ws 6 and 8 having run to the house of Surat Singh P W 14 the village Pradhan and having informed him of the incident 6 PW 1 lodging the FIR without any delay and giving therein the details of the incident the names of the appellants and of witnesses whom he thought to be eye witnesses and 7 the injuries on Harihar s body which could still be seen by Dr Srivastava though it had been burnt indicating three types of weapons having been deployed against him namely a fire arm a spear and a sharp cutting instrument
The trial court and the High Court found from this evidence that the account of the incident given by the witnesses was acceptable despite certain discrepancies therein that it occurred at about 5 30 Pm that Lal Singh was shot at and killed just outside his house that Harihar was first attacked inside his house and then dragged to where Lal Singhs body lay and was there killed that the appellants were responsible for the assault and the consequent deaths of the two victims that in order to leave no trace of the two assaults they burnt the bodies of the victims and scrapped the earth where blood had fallen that they formed an unlawful assembly of which the common object was to murder the father and the son and that they attacked and killed both in furtherance of that common object and then tried to do away with the evidence of their acts and burnt the two bodies
These being concurrent findings of fact we would not normally proceed to review the evidence unless it is shown that the trial is vitiated by some illegality or irregularity of procedure or that it was held in a manner contrary to rules of natural justice or the judgment under appeal has resulted in gross miscarriage of justice  cf
Kirpal Singh vs State of UP Counsel for the appellants however contended that such a miscarriage of justice has resulted in the present case
He argued that the trial court and the High Court failed to appreciate from the evidence on record that the prosecution had deliberately tried to shift the time of the incident at 5 30 that evening though the incident must have taken place subsequently in order to enable the four witnesses to pose as eye witnesses
The evidence of Jitendra and the Investigating Officer was that the FIR was lodged at 6 45 Pm and that Jitendra had started from the village at 6 Pm on cycle for the police station
The evidence of the Investigating
Officer also is that he reached the spot soon thereafter that the body of Harihar was not fully burnt out and that he could manage to extract the half burnt body from the fire
The evidence of Dr Srivastava supports this evidence in a large measure
It is manifest that if the incident took place at night and P W 1 bad 1   996
779 not seen it he could not have reported it to the police officer in time to enable the police officer to arrive at the scene and extract the half burnt body of Harihar from the fire
This fact clearly supports the prosecution that the incident took place that evening and not at night
But reliance was placed on the fact that postmortem examination on Harihar s body was made by Dr Srivastava at 5 Pm on June 6 1966
The argument was that if the body had been dispatched to the mortuary soon after it was recovered by the police officer it would have reached the mortuary earlier and the postmortem examination would have been carried out earlier
But the evidence of Maqbool Khan P W 15 shows that the body was given to him at 10 that night that he carried it in a bullock cart that he started at about 1 Am
but on the way he feared that the body might be taken away from him and therefore he stopped at an intervening village till sunrise and reached the mortuaryat 6 30AM
It is true that the doctor said that he performed the post mortem examination at 5 Pm and not at 1 pm as the constable deposed
Obviously the constable appears to have delayed in his mission and there was a gap of time between the body reaching the mortuary and the time when the postmortem examination was performed
But the delay in the postmortem examination does not mean that the Investigating Officer had not handed over the body to the constable that night or that the incident did not take place in the evening of the 5th of June or that the FIR was not lodged at 6 45 Pm as testified by P W 1
Reliance was next placed on the evidence of the Magistrate at Hardoi that he received the special report about the incident on June 6 1966
The contention was that if the Investigating Officer had sent the special report before he started for the scene of the offence as stated by him the Magistrate was bound to receive it on the night of the 5th and not on the 6th of June
But the Magistrate admitted that he had not noted the time when he received it on the 6th
He also admitted that he could not say whether he was in Hardoi on the 5th of June it being a Sunday and that it was possible that his peon might have received it in the evening of the 5th and placed it before him on the 6th of June when he noted the date of its receipt
There is also evidence of the Reader to the Superintendent of Police Hardoi that his office had received the General Diary of the 5th on the 6th and of the 6th on the 7th June
This controversy is set at rest by the evidence of the Head Constable PW 13 that he had sent constable Abdul Hafir at 7 30 Pm on the 5th June to the Magistrate with the special report and that Abdul Hafiz had returned to the police station at 9 3O that night after delivering it and that this fact was noted by him in Ext
This evidence establishes that the Investigating Officer had sent the special report on the 5th of June and that report was carried to Hardoi that very night
Consequently it must be held that the incident took 780 place in the evening of the 5th of June and that P W 1 was right when he claimed that he had given the FIR at 6 45 PM
The next contention was that the place of attack on Lal Singh was not on the road but in Harihar s house
We find no basis for this contention
The evidence of witnesses on the other hand is clear and there is no reason to disbelieve it
That evidence is supported by the evidence of the Police Officer that he found signs of scrapping of the earth at the place where according to the prosecution Lal Singh had fallen
The next contention was that witnesses Jitendra and Santosh Kumari had tried to make improvements in their evidence the former by stating that the three accused who were armed with firearms had shot simultaneously at Lal Singh though in the FIR he had only said that three shots were fired without stating who had fired them and the latter by stating that Jugal Kishore had struck his spew in the eye of Harihar which allegation was not borne out by the medical testimony
These infirmities no doubt are in their evidence
But they were considered by the High Court and yet on an examination of the entire evidence it accepted their evidence as reliable
That three shots were fired was stated by witness Jitendra both in the FIR and in evidence
It may be that from that fact coupled with the fact that the three appellants were armed with fire arms he might have inferred that all the three had fired
For a witness like him it was possible not to be able to distinguish between a fact seen by him and an inference drawn by him
Failure to appreciate such a distinction cannot mean that he was deliberately improving upon his original version
As regards Santosh Kumari a spear injury was inflicted on Harihar s face and that injury must have covered his face with blood
It is possible that she mistook that injury to be one in the eye especially as it in her evidence that appellant Jugal Kishore had at that time said that Harihar should be struck in his eyes
These infirmities even if they can rightly be so termed cannot discredit their testimony so as to render it unacceptable
Counsel then argued that though P Ws 9 and 11 were referred to in the FIR as eye witnesses they did not come out in their evidence as eye witnesses and that fact showed that P W 1 had tried to introduce them falsely as eye witnesses
He forgets however that there are two distinct alternatives 1 that he saw them at the scene of the offence after the incident and believed they had seen it and 2 that though the witnesses had seen it like the other neighbours they preferred not to figure as eye witnesses and circumscribed the scope of their evidence to what they had seen after the assault
In either event P W 1 cannot be said to have falsely tried to usher them in the FIR as eyewitnesses
781 The argument which counsel strenuously urged was that though independent eye witnesses were available they were pur posely excluded and only the family members were examined as eye witnesses
In this connection he relied on the FIR where P Ws 9 and 11 one Chhuta Bhurji Alha Singh Lakhan Singh Paragu Parsadi Sishupal Girdhari Kachhi and some other men were said to be witnesses
In his evidence also P W 1 has mentioned that these persons and a few others were present at the time of the incident
And yet these persons were not examined
The prosecution however did explain that these persons were not examined either because they had been won over by the opposite side or because some of them had failed to identify the appellants from the identification parades held for them which according to the prosecution indicated that they had been won over
The explanation however does not apply to two persons viz Parsadi and Paragu for whose non examination the only explanation given was that they were not necessary witnesses
The High Court does not appear to have been satisfied with this explanation and therefore has observed that it would have been better if these two persons had been examined
At the same time it refused to draw from their non examination an adverse inference under section 114g of the Evidence Act
Counsel argued that the High Court erred in declining to do so and relied on Habeeb Mohammed V State of Hyderabad1 where it has been observed that it is the bounded duty of the prosecution to examine a material witness particularly when no allegation has been made that if produced he would not speak the truth
The decision further observes that not only does an adverse inference arise against the prosecution case from his nonproduction as a witness in view of illustration g to section 114 but that the circumstance of his being withheld from the court would cast a serious reflection on the fairness of the trial
In Darya Singh vs State of Punjab1 also this Court has observed that a prosecutor should never adopt the device of keeping back eye witnesses only because their evidence is likely to go against the prosecution and that the duty of the prosecutor is to assist the Court in reaching a proper conclusion
It is open however to the prosecutor not to examine witnesses who in his opinion have not witnessed the incident but normally he ought to examine all the eye witnesses in support of his case
But in a case where a large number of persons have witnessed the incident it is open to him to make a selection
The selection must however be fair and honest and not with a view to suppress inconvenient witnesses
Therefore if it is shown that persons who had witnessed the incident have been deliberately kept back the court may draw an 1 A I R 2  408 782 adverse inference and in a proper case record such failure as constituting a serious infirmity in the proof of the prosecution case
As stated earlier it appears that the persons mentioned by P W 1 were not examined either because the prosecution believed that they had been won over by the opposite side or because in the parades held for them they had not identified the appellants or committed errors
If that was so it is manifest that no useful purpose would have been served by examining the persons who had failed to identify the appellants
But then neither Parsad nor Paragu falls in this category of persons for the explanation given in regard to them was that they were not necessary
For one reason or the other the defence seems to have remained content with that explanation for they asked no question either to PW 1 or to the Investigating Officer to elicit why these two persons were considered unnecessary witnesses
 It may be that if a clarification had been demanded they would have given some explanation
Besides there is nothing in the evidence to suggest that they were not produced because they would have turned out to be inconvenient witnesses
The High Court on an examination of the evidence held that it was not possible to say that the prosecution had delibe rately withheld these two persons for any oblique motive
In these circumstances it is difficult to persuade ourselves to take the view pressed upon us by counsel that the High Court ought to have drawn an adverse inference
For the reasons aforesaid the contentions of Mr Garg cannot be sustained
Consequently we do not find any reason to interfere with the concurrent findings of the trial court and the High Court that the appellants were responsible for the deaths of Lal Singh and Harihar and were guilty of the offences charged against them
As regards the sentence of death imposed on appellants Karnesh Krishna Kaushal and Chhetrapal it is difficult for us to agree with that order passed by the trial court and confirmed by the High Court
In imposing the sentence of death on these four appellants the trial court made a distinction between them on the one hand and the rest of the appellants on the other
The distinction was made on the ground that three of them were armed with fire arms and that they all fired at Lal Singh simultaneously that appellant Chhetrapal had shot at Harihar also and finally that appellant Kaushal had given a hatchet blow to Harihar
In our view the evidence on which this distinction was made cannot be said to be fully satisfactory
It is true that P W 1 while giving evidence stated that the three appellants had fired simultaneously at Lal Singh that Chhetrapal had also fired at Harihar and that Kaushal had given a hatchet blow to him
But the FIR merely states that three shots were fired at Lal Singh but does not state that they were fired by the three appellants simultaneously nor does it state that Chhetrapal had fired at Harihar after he had been 783 dragged out on the road
It is hardly conceivable that if P W 1 had seen these appellants firing either at Lal Singh or at Harihar he would have forgotten to make a positive statement about it in the FIR
In view of this omission it is difficult to build the conclusion with any certainty on his subsequent statement that the three appellants had simultaneously fired at Lal Singh and that Chhetrapal had shot at Harihar after he had been brought out of the house
The possibility of any one or two of them having fired the three shots in quick succession cannot therefore be ruled out
In that case the distinction made on the basis that all the three of them had fired at Lal Singh cannot be sustained
Therefore the reason given by the trial judge for imposing the extreme penalty on these four appellants as against the rest becomes difficult to sustain
It is true that these four appellants were armed with firearms and a hatchet
But the others also were armed with equally dangerous weapons such as spears and bankas
The said distinction being not sustainable the proper punishment that should have been awarded to the four appellants in the absence of clear evidence as to who inflicted the fatal blows should have been the same punishment as imposed on the rest
 We have therefore to set aside the sentence of death imposed on the aforesaid four appellants and impose on them the sentence of rigorous imprisonment for life
Except for this modification the appeal fails and is dismissed
RKPS Appeal dismissed


Summary:
The ten appellants were convicted under sections 302 and 201 both read with section 149 of the IPC mainly on the evidence of four eye witnesses who were members of the family of the two murdered persons
Four of the appellants were sentenced to death and the rest to imprisonment for life
The High Court confirmed the convictions and sentences
in appeal to this Court by special leave it was contended inter alia on behalf of the appellants that i there were various discrepancies and inconsistencies in the evidence showing miscarriage of justice ii though two independent eye witnesses were available they were purposely excluded and only the family members were examined as eye witnesses and the High Court had wrongly refused to draw from their non examination an adverse inference under section 114g of the Evidence Act and iii the sentences on the appellants were wrongly confirmed by the High Court
HELD  i There was no reason to interfere with the concurrent findings of the trial court and the High Court that the appellants were responsible for the deaths of the two deceased persons and were guilty of the offences they were charged with
782 E ii The prosecutor need not examine witnesses who in his opinion have not witnessed the incident
Normally he ought to examine all the eye witnesses in support of his case
But in a case where a large number of persons have witnessed the incident it is open to him to make a selec tion which must however be fair and honest and not with a view to suppress inconvenient witnesses
If it is shown that persons who had witnessed the incident have been deliberately kept back the court may draw an adverse inference and in a proper case record such failure
as constituting a serious infirmity in the proof of the prosecution case
781 G H 782 A In the present case the prosecution had explained that the two independent eye witnesses were not necessary
The defence remained content with that explanation and did not ask the other concerned witnesses any questions to elicit why these two persons were considered unnecessary witnesses
Furthermore there was nothing in the evidence to suggest that they were not produced because they would have turned out to be inconvenient witnesses
It was not therefore possible to say that the prosecution had deliberately withheld these two persons for any oblique motive or that the High Court ought to have drawn an adverse inference
782 C D iii The sentence of death on four of the ten appellants must be set aside and the sentence of rigorous life imprisonment substituted therefore
775 In imposing the sentence of death on four of the appellants the trial court made a distinction between them and the others as three of them were armed with firearms and the fourth with a hatchet
This reason for imposing the extreme penalty on the four appellants could not be sustained on the evidence as the others were also armed with equally dangerous weapons
In the absence of evidence as to who inflicted the fatal blows the same punishment should have been imposed on all of them
783 C D