KARAN SINGH v. THE STATE OF UTTAR PRADESH & Ors.

HELD:

The Appellant’s presence has been proved by two eye witnesses. It has been proved by the eye witnesses, that the Appellant carried a rifle. But PW2 and PW3 deposed that all the accused had opened fire. The prosecution was required 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 witnesses may not have mentioned the name of Appellant does not demolish the evidence of the other witnesses. [Para 46] [485-F-H] Rohtash Kumar v. State of Haryana (2013) 14 SCC 434 : [2013] 3 SCR 884; Narayan Chetanram Chaudhary and Another v. State of Maharashtra AIR 2000 SC 3352 : [2000] 3 Suppl. SCR 104; Kuriya and Anr. v. State of Rajasthan (2012) 10 SCC 433 : [2012] 10 SCR 570; Shyamlal Ghosh v. State of West Bengal (2012) 7 SCC 646 : [2012] 10 SCR 95 – relied on. Palvinder Kaur v. State of Punjab AIR 1952 SC 354 : [1953] SCR 94; Hanumant Govind Nargundkar v. State of Madhya Pradesh AIR 1952 SC 343 : [1952] SCR 1091; Mrinal Das and Others v. State of Tripura AIR 2011 SC 3753 : [2011] 14 SCR 411; Navaneethakrishnan v. State By Inspector of Police (2018) 16 SCC 161 : [2018] 6 SCR 749 – referred to. Case Law Reference B C D E F [1953] SCR 94 [1952] SCR 1091 [2011] 14 SCR 411 [2018] 6 SCR 749 G [2013] 3 SCR 884 referred to referred to referred to referred to relied on [2000] 3 Suppl. SCR 104 relied on [2012] 10 SCR 570 [2012] 10 SCR 95 relied on relied on H Para 31 Para 31 Para 32 Para 33 Para 41 Para 42 Para 43 Para 44 KARAN SINGH v. THE STATE OF UTTAR PRADESH & ORS 475 CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. A 327 of 2022. From the Judgment and Order dated 30.07.2018 of the High Court of Judicature at Allahabad in Criminal Appeal No.1813 of 1983. Ajit Kumar Sinha, Sr. Adv., Sanjeev Agarwal, Ekansh Agarwal, Advs. for the Appellant. Sanjay Kumar Tyagi, Rohit Pandey, Jagjit Singh Chhabra, Advs. for the Respondents. The Judgment of the Court was delivered by INDIRA BANERJEE, J.

1. Leave granted.

This Appeal is against a judgment and order dated 30th July 2018 passed by a Division Bench of the Allahabad High Court, dismissing Criminal Appeal No. 1813 of 1983 filed by the Appellant along with other accused persons, against a judgment and order of conviction dated 1st August 1983 passed by the VI Additional District and Sessions Judge, Shahjahanpur in Sessions Trial No. 268 of 1981, inter alia, convicting the Appellant of the offences under Section 302 read with Section 149, Section 307 read with Section 149 and Section 148 of the Indian Penal Code (hereinafter referred to as “the IPC”) and sentencing him, inter alia, to life imprisonment for offence punishable under Section 302 read with Section 149 of the IPC.

It appears that the Appellant had been granted bail by the Trial Court by an order dated 13th June 1980. The High Court also granted bail to the Appellant during the entire period of the appeal. The Appellant was taken into custody on 9th September 2019 after dismissal of his appeal by the High Court.

It is the case of the Prosecution that on 8th April 1980, at about 12:15 P.M., one Rati Pal arrived at Kaanth Police Station and filed a complaint alleging that eight days before Holi, one Rajkumar Singh had purchased a buffalo from his elder brother Brahmapal Singh at the price of Rs. 1,900/-.

The said Rajkumar had promised to pay the price of the buffalo to the complainant’s elder brother, Brahmapal Singh, eight days after Holi. B C D E F G H 476 SUPREME COURT REPORTS [2022] 2 S.C.R. A B C D E F G H

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

On 7th April 1980, Rajkumar Singh asked Brahmapal Singh to come to Simra Khera the next day, that is, 8th April 1980, to collect his money.

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

Mahendra Singh called Rajkumar Singh, who came with a rifle in his hand along with the Appellant, Karan Singh, who was also armed with a rifle, Sukhlal armed with a single barrel gun, Jagdish Singh armed with a single barrel gun, Harpal Singh armed with a single barrel gun and Nankoo Singh armed with a double barrel gun.

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

Thereafter, the associates of Rajkumar Singh, that is, Harpal Singh, Karan Singh, Jagdish Singh, Sukhpal Singh and Nankoo Singh opened fire from their respective weapons. After the associates of Rajkumar Singh opened fire, the complainant, Badshah Singh, Shreepal Singh and Mahendra Singh ran away from the spot. Out of the shots fired from the side of the accused, one shot hit Mahendra Singh. The complainant and other eyewitnesses ran into Sher Singh Thakur’s house. When they returned to the place of occurrence, they found Brahmapal Singh dead.

After the FIR was lodged, the Investigating Officer investigated the case and after completion of investigation submitted chargesheet against the accused persons Rajkumar Singh, Harpal Singh, Jagdish Singh, Karan Singh, Sukhlal Singh and Nankoo Singh under Sections 148, 302/ 149 and 307/149 of the IPC. KARAN SINGH v. THE STATE OF UTTAR PRADESH & ORS [INDIRA BANERJEE, J.] 477

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

The Appellant and other accused persons were tried by the Sessions Court. The prosecution examined six witnesses, namely, the first 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).

By a judgment and order dated 1st August 1983, the Trial Court convicted the accused persons, inter alia, for murder and sentenced them, inter alia, to undergo life imprisonment.

The Trial Court found the testimonies of the eye-witnesses were reliable. The Trial Court further found there was motive to kill the deceased and this was proved by the witnesses produced by the Prosecution. All accused persons had come to the spot with deadly weapons with intention to kill the deceased. All the accused had fired on the deceased with their firearms, as a result of which the deceased had sustained 16 bullet injuries.

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

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

Mr. Ajit Kumar Sinha, learned Senior Counsel appearing on behalf of the Appellant submitted that the police recovered two articles which were produced in evidence. They produced blood-stained clothes of the injured witness Mahender Singh marked as Exhibit Ka-13 and the blood-stained mud and normal mud recovered from the alleged site of the incident which is marked as Exhibit Ka-12. Mr. Sinha argued that there was no recovery of the weapon of crime. A B C D E F G H 478 SUPREME COURT REPORTS [2022] 2 S.C.R. A B C D E F G H

The 11 exhibits tendered in evidence were (i) Medical Report of injuries sustained by the injured witness Mahender Singh, (ii) The complaint made by the complainant to the Investigating Officer, (iii) Post Mortem Report of the deceased, (iv) Pallets recovered from the body of the deceased, (v) Incident Report entered by the constable on the basis of the FIR, (vi) Case diary submitted by the I.O., (vii) Panchnama etc., (viii) Site plan of the place of occurrence, (ix) Sample of blood-stained mud 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 is evident from the records.

The Prosecution, as observed, had examined six Prosecution Witnesses 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).

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

Mr. Sinha further argued that it has been alleged that of the six accused persons, Rajkumar Singh and Karan Singh were carrying rifles with them, the others carried single/double guns. However, the witnesses did not see any of the other accused persons except Rajkumar Singh firing at the deceased. There is, therefore, no eye-witness against Karan Singh.

Mr. Sinha argued that no weapon alleged to have been used by the Appellant was either recovered or produced by the police in course of trial. Mr. Sinha argued that the main injured witness Mahendra Singh had testified that he had not seen the Appellant at the spot when the incident took place. The Prosecution has not declared this witness hostile but relied upon on his evidence.

Mr. Sinha further argued that it is alleged that injured witness Mahender Singh is a relative of the Appellant Karan Singh. This is contrary to 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 a close relative of Rati Pal and Brahmapal Singh. KARAN SINGH v. THE STATE OF UTTAR PRADESH & ORS [INDIRA BANERJEE, J.] 479

Mr. Sinha further argued that medical examination of the injured witness Mahender Singh and the post mortem report of the deceased Brahmapal Singh revealed that all the injuries inflicted on both the persons were gunshot injuries. No injury has been caused from the rifle. The body of the deceased contained pellets fired from the gun. There is no injury caused by bullets fired from rifle.

Mr. Sinha argued that the Investigating Officer had stated that there was no recovery of any empty cartridge or bullet from the site. No scattered gun pellets were recovered from the site. There was no witness from the village even though the village had a population of 700-800 people. The villagers had only stated that they had heard of the incident.

Mr. Sinha argued that the Trial Court had in its judgment recorded that

since Raj Kumar fired a shot from rifle & his companions were armed with guns, therefore the witnesses got panicked & they never tried to know the truth that whether in reality the bullet of rifle ever hit Brahmapal or not. The best witness to state this reality could have been deceased Brahmapal himself that whether the bullet fired by Rajkumar ever hit him or not, or did he fell on the takht just because he got panicked since the bullet merely travelled from near his head. Since Brahmapal is dead therefore in this situation there is no witness left to prove this fact that whether the bullet fired by Rajkumar ever hit Brahmapal or not. Therefore, even in this situation where there is no injury mark of bullet rifle on the head of deceased Brahmapal, no effect is caused on the case of the prosecution because under panic nobody is in this situation where he can assess the reality.

According to Mr. Sinha, this establishes that the conviction made by the Trial Court was only based on assumption/presumption. Mr. Sinha argued that all the prosecution witnesses namely, PW2, PW3 and PW4 had stated that, as soon as the first shot was fired by Rajkumar Singh from his rifle towards Brahmapal Singh, they all ran away with their back towards the accused and they did not see who had fired but had nevertheless heard gun shots. Hence, none of the witnesses had deposed as to which of the accused was involved in firing apart from Rajkumar Singh. A B C D E F G H 480 SUPREME COURT REPORTS [2022] 2 S.C.R. A B C D E F G H

Mr. Sinha argued that the Trial Court erred in holding that the aforesaid material factors were minor contradictions and minor lapses on the part of the Prosecution and proceeded to convict all the accused persons guilty beyond doubt. Mr. Sinha argued that the Trial Court had completely ignored the chain of evidence to wrongly conclude that the accused persons were guilty, particularly the Appellant Karan Singh.

Mr. Sinha further argued that as per settled law, the doctrine of severability does not apply in the case of a statement of a witness in a criminal trial. Either the whole statement has to be discarded by declaring the witness hostile or else the entire statement has to be relied upon. In this context Mr. Sinha cited Palvinder Kaur v. State of Punjab1, and Hanumant Govind Nargundkar v. State of Madhya Pradesh2. In Palvinder Kaur (supra) this court held that a statement that contains self-exculpatory matter cannot amount to a confession, if the exculpatory statement is of some fact, which if true, would negative the offence alleged to be confessed. In Hanumant (supra) this Court held:-

…It is settled law that an admission made by a person whether amounting to a confession or not cannot be split up and part of it used against him. An admission must be used either as a whole or not at all. If the statement of the accused is used as a whole, it completely demolishes the prosecution case and, if it is not used at all, then there remains no material on the record from which any inference could be drawn that the letter was not written on the date it bears.

The judgments of this Court in Palvinder Kaur (supra) and in Hamunant (supra), which pertain to confession and/or admission are distinguishable on facts. On the other hand, in Mrinal Das and Others v. State of Tripura3, this Court held that it is well settled that in a criminal trial, credible evidence of even hostile witnesses can form the basis of conviction.

Mr. Sinha also referred to Navaneethakrishnan v. State By Inspector of Police4, where this Court re-affirmed: -