# STATE OF U.P v. KISHANPAL & ORS

- **Citation:** [2008] 11 S.C.R. 1048
- **Court:** Supreme Court of India
- **Decided:** 2008-08-08
- **Case number:** Criminal Appeal No. 936 of 2003
- **Bench:** R.V. Raveendran, P. Sathasivam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-u-p-v-kishanpal-ors-23525
- **Pages:** 43

## Headnote

'i ~
Penal Code, 1860; Ss. 148, 302, 304 Part-/ & 307:
c
Murder-Accused 16 in number forming unlawful ass,embly 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
t
them - Analysis of evidence of PWs clearly established the
..
motive behind the incident - High Court lost sight in not concentrating on material evidence while acquitting all the ac-
~
cused persons except A 1 - Guilt of all the accused has been
G established by the prosecution beyond reasonable doubt,
hence acquittal of all of them except A 1 resulted in miscarriage 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, approA
priate conviction would be under s.304 part 1 !PC and accordingly sentence reduced to 10 years - Sentencing - Relative/
interested witnesses - Testimony of.
Criminal Law:
B
~· )-
Liability of members of an unlawful assembly - Discussed.
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, accused 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 informant 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 api-
peal, A3, AS and AG died, appeal abated as against them.
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 testimony of PWs 1, 5, 7 and 9 while confirming the conviction and sentences of accused No.1 but has not given
due credence to their testimonies in respect of other acc cused. This Court has repeatedly held that

## Text

_Characters 0–39,993 of 85,741. This is a partial read: ask again with offset=39993 for what follows._

[2008) 11 S.C.R. 1048
'
'
Y'
A
STATE OF U.P.
\/.
KISHANPAL & ORS.
(Criminal Appeal No. 936 of 2003)
I
I
B
AUGUST 8, 2008
[R.V. RAVEENDRAN AND P. SATHASIVAM, JJ.]
'i ~
Penal Code, 1860; Ss. 148, 302, 304 Part-/ & 307:
c
Murder-Accused 16 in number forming unlawful ass,embly 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
t
them - Analysis of evidence of PWs clearly established the
..
motive behind the incident - High Court lost sight in not concentrating on material evidence while acquitting all the ac-
~
cused persons except A 1 - Guilt of all the accused has been
G established by the prosecution beyond reasonable doubt,
hence acquittal of all of them except A 1 resulted in miscarriage 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, approA
priate conviction would be under s.304 part 1 !PC and accordingly sentence reduced to 10 years - Sentencing - Relative/
interested witnesses - Testimony of.
Criminal Law:
B
~· )-
Liability of members of an unlawful assembly - Discussed.
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, accused 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 informant 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 api-
peal, A3, AS and AG died, appeal abated as against them.
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 testimony of PWs 1, 5, 7 and 9 while confirming the conviction and sentences of accused No.1 but has not given
due credence to their testimonies in respect of other acc cused. This Court has repeatedly held that if the testimony
of prosecution witnesses was cogent, reliable and confidence inspiring, it cannot be discarded merely on the
ground that the witness happened to be relative of the
deceased. The 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]
rE
State of Rajasthan vs. Smt. Kalki & Anr., (1981) 2 SCC
752 - relied on.
1.2 There is no such universal rule as to warrant rejection 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
)iiwitnesses are near relatives too, the Court has a duty to
scrutinize their evidence with great care, caution and cirH 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. (Para10) [1064-F-G]
1.4 It is well settled that the evidence of witness cannot be discarded merely on the ground that he is a re8
lated witness, if otherwise the same is found credible .
... ,_
(Para -10) [1064-G]
1.5 It is the quality of the evidence and not the quantity of the evidence which is required to be judged by the
court to place credence on the statement. The ground that c
the witness being a close relative and consequently being
a partisan witness, should not be relied upon, has no substance. Relationship is not a factor to affect credibility of a
witness. It is more often than not that a relation would not
~
conceal actual culprit and make allegations against an inD
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
down the same. PW-1, signed the report and the same was
I-
..
B filed in the police station. (Para - 13) [1067-F-H; 1068-A-B]
'<(
f
2.2 It is clea.r from the evidence of PW-1 that he witI
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
~
Iagain· 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 prosecution 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 platform. 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 sustained 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 accused, 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 others. (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 reason 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 accused also. (Para - 16) [1071-A-B,G,H; 1072-A]
2.6 Apart from the evidence of P.Ws. 1, 5, 7 and 9, on G
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 version. (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 prosecution, the accused persons had enmity with the
complainant's party including the deceased persons and
their family members. One of the members of prosecution party lodged a report against members of complains ant party in the police station. Thereafter, accused persons 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 occurC 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
such a serious crime, the said motive was highly insufficient, as rightly observed by the trial Judge, the motive is
0
a thing which is primarily known to the accused themselves and it is not possible for the prosecution to explain 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 cirE 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 imF
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 eyewitnesses is not convincing. In the same way, even if there
G may not be an apparent motive but if the evidence of eyewitnesses 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
' r-
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 adverted to this without any contradiction and all of them
denied the suggestion that the alleged incident was due
to attack by the dacoits and the accused persons have
~ ;-
nothing to do with it. (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 considering the distance of Police Station from the place of occurrence and taking all the injured immediately to the hospital. (Para -19) [1074-D]
4. Though the High Court has commented that the D
'"-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 E
and Post Mortem certificates, injury report amply prove
'
that not only A1, A5 and AG fired but also all the ten accused fired indiscriminately by using guns and pistols
which resulted in three deaths and fire arm injuries to three
persons. The evidence.of PWs 1, 5, 7, 9 and CW-1 and the
F
evidence of two doctors and their reports clearly support
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 acquitting all the accused except A1. (Para - 23) [1081-E-G]
G
5. It is well 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. (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) 1 o sec 682 - relied on.
6.1 The facts and circumstances of the case unB 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 precious lives were lost and another three sustained firearm
c injuries. (Para - 27) [1083-C-D]
6.2 The prosecution witn~sses have clinchingly demonstrated how the accused persons formed an unlawful
assembly at a particular spot with deadly weapons like
D guns and pistols and that all had fired at the injured and
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 demonstrate that the common object of accused Nos. 1 to 10
E was to kill the complai'nant's party. (Para - 30) [1085-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.
F
6.3 Even though specific overt act had been attributed only to accused Nos. 1, 5 and 6 and not to each of
the other accused, in view of the fact that there is ample
.{._
evidence for the presence of all the accused as part of
unlawful assembly and firing by all of them, all of them
~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) - reD 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 factual scenario is considered in the background of legal prinE 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
G
H
Case Law Reference
(1981) 2 sec 752
(1998) 4 sec 145
(2002) s sec 686
(2003) 11 sec 681
(2004) s sec 679
(2005) 11 sec 142
(2007) 1 sec 699
Relied on.
Para 8
Relied on.
Para 10
Relied on.
Para 10
Relied on.
Para 10
Relied on.
Para 10
Relied on.
Para 10
Relied on.
Para 10
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) 1 o sec 682
Relied on.
Para 26
(2003) 5 sec 537
Relied on
Para 28
(1999) 3 sec 97
Relied on.
Para 29
(2003) 1 sec 425
·Relied on.
Para 31
c
(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.
E
812 of 1980
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 conspiracy 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 othC 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 aforeD 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 accused persons ran away from the spot. Suraj Pal Singh came
out of Jhonpari and found Raj Mahesh and Maya Devi dead.
Kaptan Singh was breathing his last while Resham Devi, 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 bullockH 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, PW6, 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. Thereafter 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 prosecution 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 maintained 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 acquitting Kishanpal singh, Suresh Singh, Mahendra Singh, Jaivir
Singh, Sheodan Singh, and Bahar Singh, the State of U.P. has
0
preferred this appeal by way of special leave.
5. We heard Mr. Pramod Swarup, learned counsel for the
appellant-State of U.P. and Mr. Arvind Singh, learned counsel
for the respondents/accused.
6. The High Court though relied_ on the eye-witnesses P.W.1
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-witF
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 respect of the charges leveled against them ignoring the implication 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 prosecution are related to the deceased and injured Suraj Pal Singh,
PW-1 is the brother of the deceased Kaptan Singh and Maya
Devi. Resham Devi (PW-9) is their mother. Jagdish, PW-5 and c
Ranveer Singh (PW-7) and deceased Raj Mahesh were cousins of PW-1. lshwari Devi, injured, is the sister of Jagdish (PW5). 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 conviction and sentences of Onkar Singh has not given due credence
to their testimonies in respect of other accused. This Court has
E
repeatedly held that if the testimony of prosecution witnesses
was cogent, reliable and confidence inspiring, it cannot be discarded merely on the ground that the witness happened to. be
relative of the deceased. The plea "interested witness" "related
witness" has been succinctly explained by this Court in State of
Rajasthan vs. Smt. Kalki & Anr, (1981) 2 SCC 752. The folF
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 G
deceased", and (2) there were discrepancies in her evidence.
With respect, in our opinion, both the grounds are invalid. For,
_,
in the circumstances of the case, she was the only and most
natural witness; she was the only person present in the hut
with the deceased at the time of the occurrence, and the only
person who saw the occurrence. True, it is, she is the wife of 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
B
punished. A witness who is a natural one and is the only
possible eyewitness in the circumstances of a case cannot
">(~
be said to be "interested"."
9. From the above it is clear that "related" is not equivalent
to "interested". The witness may be called "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 possible 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 probabilities of the case to be true, it can provide a 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 scruG 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
H the duty of the Court to be more careful in the matter of scrutiny
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 consequently 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 conceal actual culprit and make allegations against an innocent
person. Foundation has to be laid if plea of false implication is
made. In such cases, the Court has to adopt a careful approach
and analyse the evidence to find out whether it is cogent and 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 lnspecE
tor of Police (2005) 11 SCC 142, Salim Sahab vs. State of
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
SCC 578, this Court considered the reliability of interested/reF
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
partisan witnesses,] should not be relied upon, has no
G
-r
substance. This theory was repelled by this Court as early as
.
in Dalip Singh v. State of Punjab, AIR 1953 SC 364 in which
surprise was expressed over the impression which prevailed
in the minds of the members of the Bar that relatives were not 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
B
observation is based on the fact that the witnesses are
'-1~
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
,tCourt 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-andfast rule can be laid down as to how much evidence
should be appreciated. Judicial approach has to be
F
cautious in dealing with such evidence; but the plea that
.,
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
"i- ,1
observation, normal errors of memory due to lapse of time,
.
due to mental disposition such as shock and horror at the
time of occurrence and those are 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 c
occurrence. When he was examined as PW-1, he identified all
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 pistols. 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 deposed that Rajmahesh, Kaptan Singh, Maya Devi, Resham Devi,
Ram Autar and lshwari Devi were injured on account of the inE
discriminate firing resorted to by al! the accused. According to
him, Raj Mahesh and Maya Devi died at the very spot on account of being shot at. The remaining four had become injured
on account of sustaining gun shots. He also mentioned that
Jagdish Singh, PW-5, Murari Singh, Ram Bahadur, his father 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 police 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 written down the same .. On Natthu Singh reading the contents of
t
the said report, PW-1, signed and the same was filed in the
'
police station. The said report is exhibited as KA-1. It was PW1 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
Ipolice station, made a complaint Exh. Ka 1 and then went to the
Ihospital and from there returned to the village at about 5.00 hrs.
"Iin 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
l
D time of the occurrence there had been no chowkidar of their
village present at the said spot. This shows that except the ac-
~
..
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 hacf witnessed the entire occurE
rence. He also denied the suggestion of the defence to the effeet that the gang belonging to Btfagwana Kachi village had
r
·committed dacoity at the said spot of occurrence.