KARAN SINGH versus THE STATE OF UTTAR PRADESH & ORS on 2 March 2022

1. Leave granted.

2. This Appeal is against a judgment and order dated 30[th] July2018 passed by a Division Bench of the Allahabad High Court, dismissingCriminal Appeal No. 1813 of 1983 filed by the Appellant along withother accused persons, against a judgment and order of conviction dated1[st] August 1983 passed by the VI Additional District and Sessions Judge,Shahjahanpur in Sessions Trial No. 268 of 1981, inter alia, convictingthe Appellant of the offences under Section 302 read with Section 149,Section 307 read with Section 149 and Section 148 of the Indian PenalCode (hereinafter referred to as “the IPC”) and sentencing him, interalia, to life imprisonment for offence punishable under Section 302 readwith Section 149 of the IPC.

3. It appears that the Appellant had been granted bail by the TrialCourt by an order dated 13[th] June 1980. The High Court also grantedbail to the Appellant during the entire period of the appeal. The Appellantwas taken into custody on 9[th] September 2019 after dismissal of hisappeal by the High Court.

4. It is the case of the Prosecution that on 8[th] April 1980, at about12:15 P.M., one Rati Pal arrived at Kaanth Police Station and filed acomplaint alleging that eight days before Holi, one Rajkumar Singh hadpurchased a buffalo from his elder brother Brahmapal Singh at the priceof Rs. 1,900/-.

5. The said Rajkumar had promised to pay the price of the buffaloto the complainant’s elder brother, Brahmapal Singh, eight days afterHoli.

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A6. Rajkumar Singh, however, did not pay the price of the buffaloto the complainant’s elder brother, Brahmapal Singh as promised.Brahmapal Singh did not permit Rajkumar Singh to harvest his crops.

7. On 7[th] April 1980, Rajkumar Singh asked Brahmapal Singh tocome to Simra Khera the next day, that is, 8[th] April 1980, to collect hisBmoney.

8. On 8[th] April 1980, the complainant’s cousin brother, MahendraSingh came to the complainant’s house and asked Brahmapal Singh togo to Simra Khera with him to collect his money from Rajkumar Singhafter settling accounts with him. Thereafter, the complainant’s brother-Cin-law (Shreepal Singh), Brahmapal Singh, the complainant, a villagerBadshah Singh and Mahendra Singh went to Simra Khera. They wentto the house of Sher Singh Thakur and sat on a cot in the sitting area.

9. Mahendra Singh called Rajkumar Singh, who came with a riflein his hand along with the Appellant, Karan Singh, who was also armedDwith a rifle, Sukhlal armed with a single barrel gun, Jagdish Singh armedwith a single barrel gun, Harpal Singh armed with a single barrel gun andNankoo Singh armed with a double barrel gun.

10. At about 9:00 A.M., Brahmapal Singh asked for his money.Harpal Singh asked Rajkumar Singh to discharge his debt to BrahmapalESingh as soon as possible. At this, Rajkumar Singh opened fire with hisrifle and shot Brahmapal Singh. The bullet hit his head. Brahmapal Singhfell down unconscious.

11. Thereafter, the associates of Rajkumar Singh, that is, HarpalSingh, Karan Singh, Jagdish Singh, Sukhpal Singh and Nankoo SinghFopened fire from their respective weapons. After the associates ofRajkumar Singh opened fire, the complainant, Badshah Singh, ShreepalSingh and Mahendra Singh ran away from the spot. Out of the shotsfired from the side of the accused, one shot hit Mahendra Singh. Thecomplainant and other eyewitnesses ran into Sher Singh Thakur’s house.When they returned to the place of occurrence, they found BrahmapalGSingh dead.

12. After the FIR was lodged, the Investigating Officer investigatedthe case and after completion of investigation submitted chargesheetagainst the accused persons Rajkumar Singh, Harpal Singh, Jagdish Singh,Karan Singh, Sukhlal Singh and Nankoo Singh under Sections 148, 302/H149 and 307/149 of the IPC.

13. The Fifth Prosecution Witness (PW5) Dr. P. K. Gupta whohad conducted the post mortem examination of the dead body of thedeceased found several gunshot injuries on the body.

14. The Appellant and other accused persons were tried by theSessions Court. The prosecution examined six witnesses, namely, thefirst Prosecution Witness, Dr. R.N. Rastogi (PW1), Rati Pal Singh (PW2),Shreepal Singh (PW3), Mahendra Singh (PW4), Dr. P.K. Gupta (PW5)and the Investigating Officer (IO) Jagdish Singh (PW6).

15. By a judgment and order dated 1[st] August 1983, the TrialCourt convicted the accused persons, inter alia, for murder andsentenced them, inter alia, to undergo life imprisonment.

16. The Trial Court found the testimonies of the eye-witnesseswere reliable. The Trial Court further found there was motive to kill thedeceased and this was proved by the witnesses produced by theProsecution. All accused persons had come to the spot with deadlyweapons with intention to kill the deceased. All the accused had fired onthe deceased with their firearms, as a result of which the deceased hadsustained 16 bullet injuries.

17. As observed above, the Appellant along with other convictedpersons filed Criminal Appeal No. 1813 of 1983 which has been dismissedby the High Court by the judgment and order under appeal. While theappeal was pending before the High Court, five out of six accused personsdied. Only the Appellant is alive.

18. The High Court did not find any major contradiction either inthe evidence of the witnesses or any conflict in medical or ocular evidence,which could tilt the balance in favour of the Appellant. The High Courtobserved that minor discrepancies and/or improvements and/orembellishments were insignificant and ought to be ignored in view of theoverwhelming corroborative evidence of the other witnesses.

19. Mr. Ajit Kumar Sinha, learned Senior Counsel appearing onbehalf of the Appellant submitted that the police recovered two articleswhich were produced in evidence. They produced blood-stained clothesof the injured witness Mahender Singh marked as Exhibit Ka-13 and theblood-stained mud and normal mud recovered from the alleged site ofthe incident which is marked as Exhibit Ka-12. Mr. Sinha argued thatthere was no recovery of the weapon of crime.

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A20. The 11 exhibits tendered in evidence were (i) Medical Reportof injuries sustained by the injured witness Mahender Singh, (ii) Thecomplaint made by the complainant to the Investigating Officer, (iii) PostMortem Report of the deceased, (iv) Pallets recovered from the body ofthe deceased, (v) Incident Report entered by the constable on the basisof the FIR, (vi) Case diary submitted by the I.O., (vii) Panchnama etc.,B(viii) Site plan of the place of occurrence, (ix) Sample of blood-stainedmud and normal mud collected from the site by the I.O., (x) Blood-stained clothes of the injured witness Mahender Singh and (xi)Chargesheet drawn by the police upon conclusion of investigation, as isevident from the records.C

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21. The Prosecution, as observed, had examined six ProsecutionWitnesses namely, Dr. R.N. Rastogi (PW1), Ratipal Singh (PW2),Shreepal Singh (PW3), Mahendra Singh (PW4), Dr. P.K. Gupta (PW5)and Jagdish Singh (Investigating Officer).

22. Mr. Sinha submitted that it was the case of the ProsecutionDthat there was dispute between the prime accused Rajkumar Singh andthe deceased Brahmapal Singh over the price of buffalo for whichBrahmapal Singh stopped Rajkumar Singh from harvesting his crops.There was no dispute or enmity between the Appellant and the deceased.

23. Mr. Sinha further argued that it has been alleged that of theEsix accused persons, Rajkumar Singh and Karan Singh were carryingrifles with them, the others carried single/double guns. However, thewitnesses did not see any of the other accused persons except RajkumarSingh firing at the deceased. There is, therefore, no eye-witness againstKaran Singh.F

24. Mr. Sinha argued that no weapon alleged to have been usedby the Appellant was either recovered or produced by the police in courseof trial. Mr. Sinha argued that the main injured witness Mahendra Singhhad testified that he had not seen the Appellant at the spot when theincident took place. The Prosecution has not declared this witness hostileGbut relied upon on his evidence.

25. Mr. Sinha further argued that it is alleged that injured witnessMahender Singh is a relative of the Appellant Karan Singh. This is contraryto the admission of the complainant as contained in the FIR itself. Mr.Sinha argued that Mahender Singh is not a relative of Karan Singh but aclose relative of Rati Pal and Brahmapal Singh.H

26. Mr. Sinha further argued that medical examination of the injuredwitness Mahender Singh and the post mortem report of the deceasedBrahmapal Singh revealed that all the injuries inflicted on both the personswere gunshot injuries. No injury has been caused from the rifle. Thebody of the deceased contained pellets fired from the gun. There is noinjury caused by bullets fired from rifle.

27. Mr. Sinha argued that the Investigating Officer had statedthat there was no recovery of any empty cartridge or bullet from thesite. No scattered gun pellets were recovered from the site. There wasno witness from the village even though the village had a population of700-800 people. The villagers had only stated that they had heard of theincident.

28. Mr. Sinha argued that the Trial Court had in its judgmentrecorded that “since Raj Kumar fired a shot from rifle & hiscompanions were armed with guns, therefore the witnesses gotpanicked & they never tried to know the truth that whether in realitythe bullet of rifle ever hit Brahmapal or not. The best witness tostate this reality could have been deceased Brahmapal himself thatwhether the bullet fired by Rajkumar ever hit him or not, or did hefell on the takht just because he got panicked since the bullet merelytravelled from near his head. Since Brahmapal is dead therefore inthis situation there is no witness left to prove this fact that whetherthe bullet fired by Rajkumar ever hit Brahmapal or not. Therefore,even in this situation where there is no injury mark of bullet rifle onthe head of deceased Brahmapal, no effect is caused on the case ofthe prosecution because under panic nobody is in this situationwhere he can assess the reality.”

29. According to Mr. Sinha, this establishes that the convictionmade by the Trial Court was only based on assumption/presumption.Mr. Sinha argued that all the prosecution witnesses namely, PW2, PW3and PW4 had stated that, as soon as the first shot was fired by RajkumarSingh from his rifle towards Brahmapal Singh, they all ran away withtheir back towards the accused and they did not see who had fired buthad nevertheless heard gun shots. Hence, none of the witnesses haddeposed as to which of the accused was involved in firing apart fromRajkumar Singh.

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A30. Mr. Sinha argued that the Trial Court erred in holding thatthe aforesaid material factors were minor contradictions and minorlapses on the part of the Prosecution and proceeded to convict all theaccused persons guilty beyond doubt. Mr. Sinha argued that the TrialCourt had completely ignored the chain of evidence to wrongly concludethat the accused persons were guilty, particularly the Appellant KaranBSingh.

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31. Mr. Sinha further argued that as per settled law, the doctrineof severability does not apply in the case of a statement of a witness ina criminal trial. Either the whole statement has to be discarded bydeclaring the witness hostile or else the entire statement has to be reliedCupon. In this context Mr. Sinha cited Palvinder Kaur v. State of Punjab[1],and Hanumant Govind Nargundkar v. State of Madhya Pradesh[2].In Palvinder Kaur (supra) this court held that a statement that containsself-exculpatory matter cannot amount to a confession, if the exculpatorystatement is of some fact, which if true, would negative the offenceDalleged to be confessed. In Hanumant (supra) this Court held:- “…It is settled law that an admission made by a personwhether amounting to a confession or not cannot be split upand part of it used against him. An admission must be usedeither as a whole or not at all. If the statement of the accusedEis used as a whole, it completely demolishes the prosecutioncase and, if it is not used at all, then there remains no materialon the record from which any inference could be drawn thatthe letter was not written on the date it bears.”

32. The judgments of this Court in Palvinder Kaur (supra) andFin Hamunant (supra), which pertain to confession and/or admission aredistinguishable on facts. On the other hand, in Mrinal Das and Othersv. State of Tripura[3], this Court held that it is well settled that in a criminaltrial, credible evidence of even hostile witnesses can form the basis ofconviction.

G33. Mr. Sinha also referred to Navaneethakrishnan v. State ByInspector of Police[4], where this Court re-affirmed: - 1 AIR 1952 SC 3542 AIR 1952 SC 3433 AIR 2011 SC 3753H4 (2018) 16 SCC 161

“…every incriminating circumstance must be clearlyestablished by reliable and clinching evidence and thecircumstances so proved must form a chain of events fromwhich the only irresistible conclusion about the guilt of theaccused can be safely drawn and no other hypothesis againstthe guilt is possible.”

34. Mr. Sinha concluded by submitting that the Prosecution hasfailed to prove Appellant’s guilt beyond reasonable doubt. There wereclear discrepancies in evidence visible on the face of the record. Theappeal therefore ought to be allowed.

35. On the other hand, on behalf of the State, Mr. Sanjay KumarTyagi, Advocate on Record, submitted that this Court should not interferewith a concurrent finding of the Trial Court and the High Court.

36. On post mortem, the dead body of the deceased was found tohave a large number of gun shots, multiple shot wounds. Some bulletspenetrated and exited the body. The injured Mahender Singh hadmedically been examined by Dr. R.N. Rastogi, who had found gunshotwounds, pellet injuries etc.

37. Mr. Tyagi argued and rightly that the Prosecution case wasproved from the statements of three eye witnesses namely, Rati Pal(PW2), Shivpal (PW3) and Mahender Singh (PW4), apart from PW1being the Doctor who had examined injured witnesses and PW5 beingthe Doctor who had conducted the post mortem.

38. As argued by Mr. Tyagi, there may have been some minordiscrepancies in the evidence of the PW’s. However, all materialparticulars have been corroborated. PW2 and PW3 more or lesscorroborated the prosecution story. They both said that the AppellantKaran Singh was there at the place of occurrence with a rifle. They saidthe accused Raj Kumar Singh opened fire first, after which all the othersstarted firing. PW2 said he did not actually see the others firing, but heheard the sound of firing from which he knew that the others were firingbullets. However, PW2 categorically stated that all the others had openedfire. When the accused opened fire all these three PWs ran away. Theywent inside the house of Sher Singh. When they came out after a fewminutes they found Brahmapal dead. PW4, Mahender Singh, the injuredwitness has not, however, named Karan Singh. No question was put tohim as to whether he had seen Karan Singh.

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A39. PW1, Dr. R.N. Rastogi who had examined Mahender Singhsaid that he had been hit on the back. This tallies with the version of thePWs that he was hit by bullet while they were all running away. PW5,being the Doctor who conducted the post mortem on the body of thedeceased said he found gunshot injury on the center of the forehead, 3centimetre above the nose. Many bones of the head were fractured. HeBdescribed various other gunshot wounds. There were multiple gunshotwounds. There were also gunshot wounds of exit of bullets apart fromgunshot wounds of entry. The thigh bone was fractured. Upon internalexamination, brain was ruptured, right and left membrane were ruptured,lungs were ruptured. 45 pellets, small and large were recovered. TheCDoctor opined that the cause of death was bleeding and shock caused bythe injuries. He opined that all the injuries were sufficient to cause death.

40. The tenor of the evidence of the Doctor who conducted thepost mortem tends to support the case of the prosecution witnesses thatall the accused persons, who were present, carrying arms had fired.DThe injured witness Mahender Singh may not have specifically namedthe Appellant Karan Singh. However, two of the other eye-witnesses,that is, PW2 and PW3 confirmed that he was present at the place ofoccurrence and was carrying rifle. PW3 had seen the Appellant KaranSingh fire.

41. From the evidence of Mahender Singh, PW-4, it appears thatEno specific question was put to him as to whether the Appellant waspresent at the place of occurrence or not. This Court, in Rohtash Kumarv. State of Haryana[5]held:- “24. ... The court has to examine whether evidence read as awhole appears to have a ring of truth. Once that impression isFformed, it is undoubtedly necessary for the court to scrutinisethe evidence more particularly keeping in view the deficiencies,drawbacks and infirmities pointed out in the evidence as awhole and evaluate them to find out whether it is against thegeneral tenor of the evidence given by the witnesses andwhether the earlier evaluation of the evidence is shaken, as toGrender it unworthy of belief. Thus, the court is not supposed togive undue importance to omissions, contradictions anddiscrepancies which do not go to the heart of the matter, andshake the basic version of the prosecution witness...”

42. Referring to Narayan Chetanram Chaudhary and Anotherv. State of Maharashtra[6], Mr. Tyagi argued that minor discrepanciescaused by lapses in memory were acceptable, contradictions were not.In this case, there was no contradiction, only minor discrepancies.

43. In Kuriya and Anr. v. State of Rajasthan[7], this Court held:

“30. This Court has repeatedly taken the view that thediscrepancies or improvements which do not materially affectthe case of the prosecution and are insignificant cannot bemade the basis for doubting the case of the prosecution. Thecourts may not concentrate too much on such discrepanciesor improvements. The purpose is to primarily and clearly siftthe chaff from the grain and find out the truth from thetestimony of the witnesses. Where it does not affect the coreof the prosecution case, such discrepancy should not beattached undue significance. The normal course of humanconduct would be that while narrating a particular incident,there may occur minor discrepancies. Such discrepancies mayeven in law render credential to the depositions. Theimprovements or variations must essentially relate to thematerial particulars of the prosecution case. The allegedimprovements and variations must be shown with respect tomaterial particulars of the case and the occurrence. Everysuch improvement, not directly related to the occurrence, isnot a ground to doubt the testimony of a witness. The credibilityof a definite circumstance of the prosecution case cannot beweakened with reference to such minor or insignificantimprovements. Reference in this regard can be made to thejudgments of this Court in Kathi Bharat Vajsur v. State ofGujarat[8], Narayan Chetanram Chaudhary v. State ofMaharashtra[9], Gura Singh v. State of Rajasthan[10] andSukhchain Singh v. State of Haryana[11].

6 AIR 2000 SC 3352

7 (2012) 10 SCC 433

8 (2012) 5 SCC 724

9 (2000) 8 SCC 45710 (2001) 2 SCC 20511 (2002) 5 SCC 100

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31. What is to be seen next is whether the version presentedin the Court was substantially similar to what was said duringthe investigation. It is only when exaggeration fundamentallychanges the nature of the case, the Court has to considerwhether the witness was stating the truth or not. [(Ref. SunilKumar v. State (Govt. of NCT of Delhi)][12].

32. These are variations which would not amount to anyserious consequences. The Court has to accept the normalconduct of a person. The witness who is watching the murderof a person being brutally beaten by 15 persons can hardlybe expected to a state a minute by minute description of theevent. Everybody, and more particularly a person who isknown to or is related to the deceased, would give all hisattention to take steps to prevent the assault on the victim andthen to make every effort to provide him with the medical aidand inform the police. The statements which are recordedimmediately upon the incident would have to be given a littleleeway with regard to the statements being made and recordedwith utmost exactitude. It is a settled principle of law thatevery improvement or variation cannot be treated as anattempt to falsely implicate the accused by the witness. Theapproach of the court has to be reasonable and practicable.Reference in this regard can be made to Ashok Kumar v. Stateof Haryana[13] and Shivlal v. State of Chhattisgarh[14].”

44. In Shyamlal Ghosh v. State of West Bengal[15], this Courtheld:

“46. Then, it was argued that there are certain discrepanciesand contradictions in the statement of the prosecutionwitnesses inasmuch as these witnesses have given differenttiming as to when they had seen the scuffling andstrangulation of the deceased by the accused. …………Undoubtedly, some minor discrepancies or variations aretraceable in the statements of these witnesses. But what the 12 (2003) 11 SCC 36713 (2010) 12 SCC 35014 (2011) 9 SCC 561H15 (2012) 7 SCC 646

Court has to see is whether these variations are material andaffect the case of the prosecution substantially. Every variationmay not be enough to adversely affect the case of theprosecution.

49. It is a settled principle of law that the court should examinethe statement of a witness in its entirety and read the saidstatement along with the statement of other witnesses in orderto arrive at a rational conclusion. No statement of a witnesscan be read in part and/or in isolation. We are unable to seeany material or serious contradiction in the statement of thesewitnesses which may give any advantage to the accused.”

45. In Rohtash Kumar v. State of Haryana[16], this Court held:- “24. ... The court has to examine whether evidence read as awhole appears to have a ring of truth. Once that impressionis formed, it is undoubtedly necessary for the court toscrutinise the evidence more particularly keeping in view thedeficiencies, drawbacks and infirmities pointed out in theevidence as a whole and evaluate them to find out whether itis against the general tenor of the evidence given by thewitnesses and whether the earlier evaluation of the evidenceis shaken, as to render it unworthy of belief. Thus, the courtis not supposed to give undue importance to omissions,contradictions and discrepancies which do not go to the heartof the matter, and shake the basic version of the prosecutionwitness...”

46. As argued by Mr. Tyagi, appearing for the State both PW2and PW3 had clearly mentioned that the Appellant and PW4 MahenderSingh were both present at the place of occurrence. The Appellant’spresence has been proved by two eye witnesses. It has been proved bythe eye witnesses, that the Appellant carried a rifle. But PW2 and PW3deposed that all the accused had opened fire. The prosecution wasrequired to prove its case beyond reasonable doubt, which it has done,and not beyond all iota of doubt. The fact that one of the injured witnessesmay not have mentioned the name of Appellant Karan Singh does notdemolish the evidence of the other witnesses.

16 (2013) 14 SCC 434

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486SUPREME COURT REPORTS

[2022] 2 S.C.R.

A47. We find no grounds to interfere with the concurrent findingsof the Trial Court and the High Court. The fact that the trial/appealshould have taken years and that other accused should have died duringthe appeal cannot be a ground for acquittal of the Appellant. The appealis thus dismissed.

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Appeal dismissed.

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