# KAR!'.'ESH KUMAR SINGH & ORS v. THE STATE OF UTfAR PRADESH

- **Citation:** [1968] 3 S.C.R. 774
- **Court:** Supreme Court of India
- **Decided:** 1968-04-15
- **Case number:** Criminal Appeal No. 213 of 1967
- **Bench:** V. Ramaswami, J. M. Shelat, V. Bhargava
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kar-esh-kumar-singh-ors-v-the-state-of-utfar-pradesh-4343
- **Pages:** 10

## Headnote

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 imprisonmentDistinction 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 prose~tion had deliber~tely 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.
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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

## Text

774
KAR!'.'ESH KUMAR SINGH & ORS.
v.
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 imprisonmentDistinction 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 prose~tion had deliber~tely 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.
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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 in~idcnt
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.
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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
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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 stat~ments of Ragbubar, P. W. 9 ·and Gopali, P. W. 12. It
appears that statements of these witnesses were recorded late 1!5
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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.
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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, then- 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 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
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(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, the·names 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.
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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
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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
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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
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the trial court and the High Court failed to app~iate 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
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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.
H
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 ear~r
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, the~ore.
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.
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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
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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
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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 supB
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
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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
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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
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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
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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.
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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,
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 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 d~vice 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 n~rmally, he ought to examine all
the eye witnesses m support of his case. But in a case where a
l~rge number of per~ons have witne~sed the incident, it is open to
him to make a sel~tJon. 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 conA
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 purB
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 delibeD
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
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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 evi~ce as.
to who inflicted the fatal blows, should have been the same punishD
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_