KAR!'.'ESH KUMAR SINGH & ORS.

THE STATE OF UTfAR PRADESH

April 15, 1968

[V. RAMASWAMI, J. M. SHELAT AND V. BHARGAVA, JJ.] Indian Penal Code, 1860, ss. 302, 201 and 149-Whether inconsistencies and discrepancies in evidence showed misca"iage of justice-Four out of ten appellants sentenced to death a11d others to life imprisonment- Distinction bared on the four being anned with dangerous weapons-If sustainable on evidence.

Evidence Act, 1872, s. 114(8)-Adver.ve inference when prosecution does not produce some of the eye .. witnesses--When may be drawn.

The ten appellants were convicted under ss. 302 and 20 I both read with s. 149 of the J.P.C. mainly on the evidence of four eye-witnesses who were members of the family di 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 s)'OCiaJ leave it was contended, inter alia, on behalf of the appellants that (1) there were various discrepancies and inconsistencies in the evidence showing miscarriage of justiC'e; (ii) though two iildepen• dent 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 therr non-examination an adverse inference under s. 114(g) 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 !he appellants were responsible for the deaths of the two deceased persons and were guilty di the offences they were charged with. [782 E]

(ii) The prosecutor need not examine witnesses who, in his opinion, have not witnessed the incidem. Normally, he .ought to examine alt 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 ti on 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 ino.ident 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 Al

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 a.Sk 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 prosetion had delibertely withheld these two persons for any oblique motrve or that the High Court ought to have drawn an adverse inference. (782 C-Dl .

(iii) The sentence of death on four o[ the ten appellants must be set aside and the sentence _of rigorous life imprisonment substituted therefor.

KARNESH KUMAR v. STATE (She/at, I.) 775

Jn 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 \v\lre armed with firearms and the fourth with a hatchet This reason for imposing the extreme penalty on the four appellants could not be sustam ed on the evidence as the others were also armed with equally dangerous weapons. Jn the absence of evidence as to who inflicted the 'fatal blows, the same punishment should have been imposed on all of them. [783 C-Dl

CRIMINAL APPELLATE JURISDICTION : Criminal 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, S. C. Agarwala, D. P. Singh and A. K. Gupta, for the appellants.

0. P. Rana, for the respondent.

The Judgment of the Court was delivered by

Sbelat, J.-This appeal, by special leave , is directed against the judgment of the High Court of Allahabad which confumed th.e convictions and sentences passed by the Sessions Judge, Hardru, in respect of the murders of Lal Singh and his father Harihar. The ten appellants on being convicted under ss. 302 and 201 read with s. 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 metn 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 litiaation before the incident in question being in respect of an inidcnt which took place on April 3, 1966 when appellant Ram Kumar' charged the deceased Harihar and Lal Singh, and witnesses Jiten dra an!i Virendra and two others with rioting and witness Virendra in tum; filed a cross complaint against the appellants and som~ otbers.

According to the prosecution, at about 1 p.m. on June 5, 1966, Lal Singh was irrigating his field with canal water when appellants L8 Sup. C.1./68-10

776 SUPRBMB COURT llBPOllTS•

(1968] 3 S.C.R.

Karnesh and A vdesh 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 Singb was done to de\th. At about 5.30 that even ing, Jitendra, Virendra and Girendra, P. Ws. 1, 6 and 8 were in the main room of the Chaupal where Lal *ngb lived and Lal Singb was in a room nearby. Fifty paces awat from this house is the house where the deceased Haribar lived. Suddenly, a shout was heard to the effect that Lal Singh shoul~ be dragged out. On hearing the shout; these witnesses and Lal Singb came out. The witnesses saw appellants Krishna and Chhetrapal armed with guns, appellant Karnesh with a pistol, Ram Kumar and Jugal Kishore with spears, appellants Kaushal and Mahendra •with bankas and the rest with Jathis. 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 witnosses would also be shot, they ran away and stood at some distance. Five of these appellants, namely, Chhetrapal, Kaushal, Mahendra, Kailash and Jugal Kishorc then ran to Hari bar's house where appellant Jugal Kishore struck Harihar with a spear in his face and then appelJants Kaushal an\! 1 ugal Kish ore dragged him to where Lal Singh had fallen. Chhetrapal then fired at Harihar with his gun; J ugal Ki shore gave another blow with his spear in the chest and the rest beat him with bankas and lathis.

Haribar also. died on the spot. Appellants Kailash, Juga) 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 P.W. 4, Abdul Bari, and burnt it there on a heap of

cowdung cakes.

Having thus tried to do away with the dead bodies, appellants Kaushal and Mahendra scraped the blood stained earth whete Lal Singh had fallen as also the drops of blood which had fallen on the way.

P. W. 1, Jiteridra, started on cycle to the Kotwali six miles "way and lodged the F.l.R. at about 6.-45 P.M. Inspector Jaswant Singb, P. W. 17, started for the scene of offence f73Ch_!ng there at about 7.45 P, M. The fires were put out but \al Smgb s body had practically been burnt out with the rei.ult that the Inspector could G collect only his bones and ashes. But he was able to recover the half burnt body of Harihar. That nigbt he recorded the statements of P. Ws. 1, 6, 7, 8, 14 an~ of certain other persons. On the 7th and 8th he recorded further statements. On June 20, he recorded the statments of Ragbubar, P. W. 9 and Gopali, P. W. 12. It appears that statements of these witnesses were recorded late 1!5 these and other residents, presumably on account of fear of repn

Sais or to avoid. having to figure as witnesses, had fled from the village.

KARNESH KUMAR v. STATE (Shelat, /.) 777

The evidence on which the prosecution mainly reUed was that of the four eye witnesses. Of these, Jitendra, P. W. l, the son and brother of Harihar and Lal Singh respectively, Virendra, P. W. 6, his cousin, and Girendra, P. W. s, a boy of 14 years of age and the yoimger 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 neighboqrs of the d119eased, who in one part or the other corroborated the eye witnesses. Gopali's evidenee 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 F.I.R. 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

mar~. he noti<:ed that the earth at that plaee 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 strategem 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 fited at and fell at or near the intersection of the toads 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 fhe F.I.R. mentions a number of persons whom P. W. l thought to be eye-witnesses.

There is evidenee tha\ the incident had created panic in the village and a number of residents. had lied 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

reas~ of their being .m7ffibers of the family and their g the hostility of the tw!> VIClims towards lhe appellants, thenevidence

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 long standing enmity be!Wcen the parties, (2) the incident having taken place at about 5-~0 P.M., (3) the burning of the two bodies by the appel

778 SUPUMJI COtlaT UtOl.TS

[1968} 3 S.C.R.

lants, ( 4) the scrapping of the earth to wipe out the blood-stains A

(5) P. Ws. 6 and 8 having run to the house of Surat Singh, P. W. 14, the village Pradhan and having informed 1iim of the incidel).t,

(6) P.W. 1 lodging the F.I.R. without any ay and giving themn the details of the incident, thenames of the appellants and of witnesses whom he thought to be eye witncases .and (7) the injuries on Harihar'& body which could still be seen by Dr.

B Srivutava though it had been burnt, indicating three types ef Weapol!S having been deployed against him, namely, a fire-arm, a spear and. a sharp cutting instrument.

The trial court and the High Court found fro)ll this evidence that the account of the incident given by the witnesses was acceptable despite certain discrepancies therein, that it occurred at about C 5-30 P.M., that Lal Singh was shot at and killCJ!I just outside his house, that Harihar was first attacked inside his house and "then dragged to where Lal Singh's 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 D where blood had fallen, that they formed an unlawful assembly of which the common ol?iect was to murder the father and the son and that they attacked and killed both in furtherance of that common obiect and then tried t~ do away wi~ the evidence of t!ieir acts and burnt the two b<)cbes. These being COii.current findings of fact, we would not normally proceed to review tfie evidence unleu 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 rule1 of natural justice or the judgment under appeal has resulted in gross miscarriage of justice : (cf. Kirpal Singh v. State of

U.P.).(1)

Counsel for the appellants, however, contended that such a miscarriago of justice has ted in the present case. He argued that

the trial court and the High Court failed to appiate from the evidence on record that the prosecution had dell'1erately. tried to shift the time of the incident at S-30 that eVeni!J.g though the incideat must have taken place subsequently, in Oider to enable the four witnesses to pose as eye witnesaes. The evidence of Jitendra G and the Investigating Olftcer was that the F.l.R. was lodged at 6-45 P.M. and that Jitendra had started from the village at 6 P.111.0ll cycle for the police station. The evi~ of _the Investi gatiag Officer also is that he reached the spot soon thereafter, that the body of Harihar was not fully burnt out and tliat he could manage to extract the half burnt body ham the lire. T!ie evidence of Dr. Srivastava .supp0rts this evidence in a large measure. It is manife&U that if the incident took place at nigh~ and P. W. 1 had

. (I)· [\964] 3 S.C.R. 992, 996.

XARNESH l:UMA!l V. STATE (She/at, /.) 779

A 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 m:act the half burnt body of Harihar from the fiie. 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. Srivaatava 1 at 5 P.M. on June 6, 1966. The argument was that il' the~ had been despatched to the mortuary soon after i_t was recovered by the police officer, it would have reached the mortuary earr and the post-mortem 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, tha~ he carried it in a C bullock cart, that be started at about 1 A.M. but on the way he

feared that the body might be taken away from him and, theore.

he stopped at an intervening village till sunrise and reached the mortuary at, 6-30 A.M. It is true that the doctor said that be performed the post-mortem examination at 5 P.M. and not at 1 P.M. as the constable deposed.

Obviously, the constable appears to have delayed in his mission and there was a gap Of time tict, reen D 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 banded over th~ body to the constable that night or tilat the incident did not takt:1 place in the evening of _the 5th of June or that the F.I.R. was not lodged at 6-45 P.M. as testified by P. W.

E I . Reliance was next placed on the evidence of the Magistrate at Hardoi that he received the special re_\1?I_t 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 F received it on the 6th. He also adIµitted 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 fith 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 G had received the General Diary of the 5th ou the 6th and of the 6th on the 7th June. This controversy is set at rest by the evidence of the Head Constable, P.W. 13, that he had sent constable Abdul Hafi.2' at 7-30 P.M. on the 5th June to tl!e Magistrate with the special report and that Abdul Hafiz had returned to the police station at 9-30 that night after delivering 8 it and that this fact was noted by him in Ext. Ka-6. This evidence establishes that the Investigating Officer had sent the special report on the 5th of June and that that report was carried to Hardoi that very night. Consequently, it must be held that the incident took

780 [1968] 3 S.C.ll.

place in the evening of the 5th of June and that P, W. 1 was right A when he claimed that he bad given the F.I.R. at 6-45 P.M'..

The next contention was that the place of attac_k on Lal Singh was not on the road but in Harihar's house. We find llO' basis for this contention. The evidence. of witnesses on the other hand, is clear and there no reason to disbelieve it. That eviilence is sup- B ported by the evidence of the Police Officer that he found signs of scrapping of the earth at the place where, according to tJi, c prosecution, Lal Singh bad fallen.

The next contention was that witnesses Jitendra and Smtosh Kumari bad tried to ml!ke improvements in their evidence, the former by stating that the three accused who were armed with fire. arms bad shot simultaneously at Lal Singh though in the F.I.R. he bad only said that three shots were fired without stating who had fired them, and the latter by stating that Jugal Kisbore bad struck his spear in the eye of Haribar, 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 F.I.R. and in evidence. It may be l!hat from that fact coupled with the fact that the three appellants were anned with fiN>-aims, he might have inferred that all the three had fired. For a witness like him, it was ible 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 p06Sible that she mistook that injury to be one in the eye, especially as it in her evidence that appellant Jugal Kisbore had at that time F said that Harihar should be struck in his eyes. These infinnities, even if they can rightly be so tenned, 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 F.I.R. as eye witnesses, they did not come out in their G evidence as eye witnesses and that that fact showed that P. W; 1 had tried to introduce them falsely as eye witnesses. He forgets, b<>Wever, that there are two distinct alternatives, ( l) that be saw them at the scene of the offence after the incident and believed they had seen it and ( 2) that thoug!i the witnesses had seen it, like the other neighbours, they preferred not to figure as eye witnesses H and circumscribed the scope of thcir 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 F.I.R. as eye witnesses.

KARNESH KUMAR v. STATE (Shelat, J.) 781

The argument which counsel strenuously .urged was that though independent .eye witnesses were available, they were purposely excluded and only the family members were examined as eye witnesses. In this connection he relied on the F.I.R. 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 f 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-exrumnation 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, hasobserved that it would have been better if these twopersons

had been examined. At the same time it refused to draw from their non-examination an adverse inference under s. 114(g) of the Evidence Act.

Counsel argued that the High Court erred in declining to do so and relied on Habeeb Mohammed v. State of Hyderabad('), where it has been observed that it is the bounden 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 v. State of Punjab (2) also this Court has observed that a. prosecutor should never adopt the dvice of keeping back eye w1tnesse:" only because their evidence is likely to go against the prosecution and that the duty of the prosecutor is to assist the

Caurt in reaching a proper conclusion. It is open, however, to the secutor not. to. examine witnesses who in his opinion have not w1tnes.sed the !nc1dent, but nrmally, he ought to examine all the eye witnesses m support of his case. But in a case where a

lrge number of perons have witnesed the incident, it is open to him to make a seltJon. The selection must, however, be fair and honest and. n.ot. with a view to suppress inconvenient witnesses.

Therefore, 1f 1t 1s shown that persons who had witnessed the incident have been deliberately kept back, the court may draw an

(I) A. I. R. 1'54 S.C. 51.

\2) {1964] 3 S.C.R. 397, 408.

782 SUPJ.U!MB COU&T &BPOllTS

[1968] 3 S.C.R.

adverse inference and in a proper case record such failure as con- A stituting a serious infirmity in the proof of the prosecution cas~.

As stated earlier, it appears that the persons mentioned by P. W. I 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 pur- B pose 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 P.W. I • c or to the Investigating Officer to elicit why these two pe:i:sons 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 Coun on an examination of the evidence held that it was not possible to say that the prosecution had delibe- D 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 inre_rfere 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 Kamesh, Krishna, Kaushal and Clihetrapal, it is difficult for us to agree with that order passed by the trial court and confinned 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 appeliants 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 bl()W to him. But the F.I.R. 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

KARNESH KUMAR v. STATE (She/at, /.) 78 3

dragged out on the road. It is hardly conceivable that if P. W. l had seen these appellants firing either at Lal Singh or at Harihar. he would have forgotten 10 make a positive statement about it in the F.I.R. 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 tlie 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 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 pWiishment that should have been awarded to the four appellants in the absence of clear evice as. to who inflicted the fatal blows, should have been the same punish- D ment 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 dismiss.ed.

R.K.P.S.

Appeal dismissed_