KAILASH NATHversusSTATE OF U.P.

                        [2010] 3 S.C.R. 599

                             KAILASH NATH                          A
                                  v.
                        STATE OF U.P.
              (Criminal Appeal No. 1416 of 2008)
                      DECEMBER 10, 2009'
                                                                   B
     [HARJIT SINGH BEDI AND J.M. PANCHAL, JJ.]

     Penal Code, 1860:

       ss. 3021149 and 3071149 - Eight persons involved in         c
 causing death of one of the victims and injuring the other by
 gunshots - Conviction by· trial court - High .Court convicting
 only one accused who fired the shots and acquitting others
 giving them.benefit of doubt- Plea that since the High Court
 itself had opined false implication of other persons who had
                                                                   0
 not caused injuries, accused should also be acquitted -
 HELD: Merely because some of the accused who had not
 caused any injuries to the deceased or the witnesses have
 been given benefit of doubt would not mean that they were
 not present - It is only as a matter of abundant caution that
 the benefit has been given to them - Further, the manner and      E
 time of attack-indicate that it could not be made by one or two
 persons - In any case, the High Court has, by way of
 abundant caution, given the benefit of doubt to those who had.
 not caused any injury, buf the appellant who is stated to have
 caused gun shot wounds to the deceased and to PW-1 cannot         F
 be treated in the same manner - PW-1, the injured witness
is also the wife of the deceased - She gave a long description
of. the incident and despite her cross-examination she stood
by story of shots fired by appellant - Statement of PW-5, the
scribe of FIR, who had been sleeping on the ground floor of        G
the house a very shorl distance away, also merits acceptance
- Besides, the time and place of incident and the weapon
used have not been controverted by the defence - Even
•   Jud Recd. on 22.4.2010
                                 599                               H
    600      SUPREME COURT REPORTS                 [2010] 3 S.C.R.

A otherwise, medical evidence clearly supports the prosecurion
  version - As regards motive, the evidence reveals the e1_ent
  of animositv between the parties with murders and counter
  murders a,;d litigations going back to the 1960s - Furthe~ in
  a case of direct evidence, any uncertainty as to the motive
B could not be said to be fatal to the prosecution story - Appeal
  dismissed - Criminal Law - Motive. [Para 5,8,9 and 11]

        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 1416 of 2008.

C       From the Judgment & Order dated 24.82007 of the High
    Court of Judicature at Allahabad Lucknow Bench, Lucknow in
    Criminal Appeal No. 628 of 1981.

        K.V. Vishwanathan, Rishad Murtaza, M. Shoeb Alam, Anup
    Kumar, Neha, Abhishek, M. Sahu, B. Sunita Rao for the
0
    Appellant.

        Ratnakar Dash, Shail Kumar Dwivedi, Manoj Dwivedi,
    Gunnam Venkateswara Rao, Vandana Mishra for the
    Respondent.
E
          The following Order of the Court was delivered

                                ORDER

          1. The prosecution story is as under:-
F
          1.1. Chhoti - P.W. 1, the complainant in the case was
  earlier married to Kallu Singh of village Tendwar, P.S. Maholi,
  District Sitapur and had three sons from him namely, Virendra,
  Surendra and Mahendra. Kallu Singh aforesaid had an uncle
G named Ram Singh and Ram Singh had a son named Lallu
  Singh. Kallu Singh owned a house in village Tendwar. A short
  distance therefrom was the residential house of Vikram Singh
  -P.W. 5 nephew of Kallu Singh. Kallu Singh aforesaid was
  murdered about 12 years before the date of the present incident
H and as per the prosecution story a partition had been effected
            KAILASH NATH v. STATE OF U.P.                    601


 between Kallu Singh and Lallu Singh with regard to the mango A
 grove in Khasra No. 165 which jointly belonged to them. The
 story further goes that Lallu Singh sold his portion of the grove
 to Kailash, the appellant herein, in the year 1970 as he was
 living with him at that time. It also appears that Lallu Singh did
 not pay any amount to Chhoti or the sons of Kallu Singh though .B
 they claimed a share in this property as well. It further appears
 that two years after the murder of Kallu Singh, Chhoti - P.W.
 started living with Deep Singh in her house as her second
 husband and it was Deep Singh who continued to look after
 the properties of Kallu Singh and his sons born from Chhoti.       c
 Deep Singh, who also happened to be a distant cousin of Kallu
 Singh, had two brothers Vikram Singh and Lakhan Singh. In
 the year 1976, Kallu Singh's sons from Chhoti i.e. Virender,
 Surender and Mahender had filed a suit claiming the land
 covered by Khasra No. 165 which Lallu Singh had sold to D
 Kailash Nath appellant and it was Deep Singh who had
 pursued the matter in court on behalf of the plaintiffs. A few days
 before the incident negotiations took place between the .
 appellant and Lallu Singh about the proposed sale of yet
 another mango grove covered by Khasra No. 243 in which Kallu
                                                                     E
 Singh's family also claimed a share. Deep Singh, on receiving
this information, and in deep consternation went to the appellant
and protested against the proposed sale. This fact annoyed the
appellant and he told Deep Singh that he would one day kill
him as he had been an obstacle in all his transactions. It
appears that this latest incident was the fall out of some earlier F
incidents where the parties had quarrelled over property or
other matters and Deep Singh in fact had moved applications
before the DIG and the Superintendent of Police apprehending
danger from Kailash and his associates.
                                                                     G
      1.2. At about 1:00a.m. on the 17th June, 1980, Deep
Singh and Chhoti were sleeping on the roof of the Baithak in
their house in village Tendwar on one cot, on which a quilt had
been spread out. A lantern was also kept burning on the railing
of the roof of the baithak. Kallu Singh's sons Virender and H
    602      SUPREME COURT REPORTS                 [2010] 3 S.C.R.


A  Surender were sleeping on their cots in a part of the baithak
   adjoining the main residential house whereas the other ladies
   of the family were sleeping inside and Vikram Singh in his home
   a short distance away, Chhoti was, however, rudely awakened
   on hearing the sound of a gun shot and she saw Deep Singh
B lying besides her with a gun shot injury and bleeding profusely.
   She immediately got up and noticed that accused Balwant
   Singh (since dead) was present near the cot and re-loading his
   weapon whereas Kailash Nath, Rampal and five others were
   standing close by. Chhoti, thereupon, fell to her knees and
c  pleaded with the appellant not to harm her husband but he
   nevertheless fired a shot killing him at the spot and also caused
   injuries to Chhoti. The noise which came about attracted P.W.'s
   4 and 5 to the place of incident on which the accused ran away
   but before they did so they were identified by the witnesses in
D the light of the torch which they were carrying. Vikram, P.W.
   thereupon wrote (on the dictation of Chhoti) a report Exhibit Ka-
   1 at about 5:00a.m. and reached the Police Station, Maholi at
   about 7:15a.m. on which a formal FIR was lodged at that time.
  ·After recording the FIR, Kesho Prasad Rai, P.W. 8, Inspector
E of Police and the SHO, reached the place of incident and sent
   Chhoti for her medical examination to the Primary Health
   Centre, Maholi. He also made the necessary spot investigation,
   recovered one spent .12 bore cartridge, a blood stained lathi,
   a blood stained quilt and also a portion of the blood stairled
   cot, which were duly sealed and deposited in the Malkhana. in
F the police station. Dr. Habib Ahmad, P.W. 3, also examined
   Chhoti at 10:30 a.m. on the 17 th June, 1980 and detected 2
   gun shot injuries with blackening and charring thereon and on
   an x-ray examination found some pellets embedded in her body
   as well. On the completion of the investigation, all the accused,
G 8 in number, were charged for offences punishable under
   Sections 302/147/148/149 of the IPC. It appears that accused
   Balwant died before commencement of the trial. The trial was,
   accordingly, held with respect to the remaining 7 accused, who
   were convicted for offences punishable under Sections 302/149
H of the IPC and sentenced to life imprisonment and under
           KAILASH NATH v. STATE OF U.P.                      603


Section 307/149 IPC to three years rigorous imprisonment. An          A
appeal was thereafter filed in the High Court. During its
pendency, appellant Ratnu also died. The High Court went into
the matter with respect to five of the appellants and observed
that as four out of them had caused no injuries to the deceased
and as there was a long history of animosity between the              s
parties it could be a case of false implication of some of them.
The High Court, accordingly, gave the benefit of doubt to four
but dismissed the appeal of the appellant herein, Kailash Nath,
who is now the only person left in the fray.

      2. Mr. K.V. Vishwanathan, the learned senior counsel for        C
the appellant has raised three basic arguments during the
course of hearing. He has first pointed out that in the light of
the fact that Chhoti P.W. 1 had not seen the shot being fired
 by Balwant as she had been asleep at that time and had woken
up in alarm and seen that Deep Singh had already been injured         D
and as only one injury had been suffered by the deceased as
per the prosecution, the story of a second shot by the appellant
was not believable. Elaborating this argument, Mr.
Vishwanathan has pointed out that the fact whether one shot
or two shots had been fired had to be determined from the             E
pellet holes in the clothes that the deceased and the injured had
been wearing but as the clothes had not been taken into
possession, a presumption should be drawn against the
prosecution and it must be held that one and not two shots had
been fired which would clear the appellant. It has also been          F
pleaded that there appeared to be no apparent motive for the
incident and the suggestion with regard to the animosity on
account of the various land transactions etc. which had been
spelt out by the prosecution, had been found by the High Court
to be unacceptable and the High Court had accepted the story          G
given in Ex Ka. 5 to K. 7. He has also pointed out that as the
complaints allegedly made by Deep Singh long before his death
that he apprehended danger at the hands of the appellant and
his' associates had seen the light of the day for the first time in
court, their veracity was doubtful. It has finally been pleaded by
                                                                      H
    604     SUPREME COURT REPORTS                  [2010]3 S.C.R.

A   Mr. Vishwanathan that animosity between the parties was
    admitted and in the light of the observations of the High Court,
    the appellant too was entitled to the benefit of doubt which had
    been given to the other accused.

        3. Mr. Ratnakar Dash, the learned senior counsel
8
  representing the State of Uttar Pradesh has, however,
  controverted the arguments raised by Mr. Vishwanathan. He
  has pointed out that though the motive had been proved beyond
  doubt but in the face of the direct evidence in the person of
  Chhoti, P.W. 1 who was also an injured eye witness, the
C absence of motive would have no effect on the prosecution ·
  story. He has pleaded in elaboration that the place of incident,
  the time of the incident and the weapons used in the crime have
  not been disputed by the defence and in the light of the fact
  that the FIR had been recorded by 7:15a.m. at the Police
D Station which was situated 12 miles away from the place of the
  incident, supported the prosecution story in its entirety. He has
  also pointed out that as per the doctor's evidence the injuries
  had been caused with a shotgun.

E       4. We have heard the learned counsel for the parties at
    great length and gone through the record very carefully.

        5. It would be relevant that Chhoti, P.W. 1, is an injured
  witness. She is also the wife of the deceased. We see from
  the record that in the course of her extensive cross examination
F Chhoti was not in any way, fazed. She gave a long description
  of the incident and despite her cross-examination she stood
  by the story of the shot fired by the appellant. We also observe
  that the time and place of incident and the weapon used have
  not been controverted by the defence. Even otherwise, we
G notice that the medical evidence clearly supports the
  prosecution version. Dr. M.M. Gupta - P.W. 6 found the
  following injuries on the dead body:

        "1. Injury No. 1 firearm entry wound Berns from up to
H       downward X Scms side to side on the head towards front
      KAILASH NATH v. STATE OF U.P.                    605


side of forehead in the central line above the root of the    A
nose. Aroun,d this injury up to the neck in the area of 29
crns 'UP to down and 18 ems side to side blackening signs
and tatooing were present.

2. Fire arm exit wound measuring 2cms X 2cms on the
                                                              8
head 7 ems above the ear 11 ems above the outer portion
of the eye brow and on the backside.

On dissection I found that frontal bone had got fractured
below .the injury No. 1 in which a hole measuring 5 ems
side to side X 4.5 ems upto downward was available.           C
Fracture of size 3 ems X 2.5 ems. Was found in the parietal
bone which was apparent below the Injury No. 2. A fracture
measuring 9cms. Long X linear was found in parietal bone
which was commencing from the entry wound. Fracture in
the - - bone measuring 6 ems X linear was available           o
which was radiating from the exist wound.

3. Entry shadow of four pellets on the shoulder at deltoid
region just below the shoulder lip in the area of 9 ems X 8
ems an size measuring 0.4 cm X 0.4 cm X ski deep. No
tattooing or blackening signs were available. The distance    E
of two wounds was 1.5 ems to 1.09 ems.

4. Abrasion in the area of 2 ems X 0.2 cm. Towards hair
backside on the upper portion of the arm 7.5 ems above
the tip of the elbow.                                         F

5. Abrasions in the area of 0.5 cm X 0.5 cm. On the left
forearm outside portion 6 ems. Below the tip of the elbow.

6. Abrasion in the area of 1 cm XC 0.5 cm on the backside
of the left forearm 6.5 ems. above the ankle on the radial    G
side.

7. On the backside of index finger and left thumb
blackening and tatooing was available in the area of 13
~ms X 7.5. ems 3 ems from the ankle.                          H
    606       SUPREME COURT REPORTS                  [2010) 3 S.C.R.


A         On internal examination I found that upper membrances of
          the brain had burst and the brain was in liquid in
          connection. From here I found 5 Tiklis and 20 small pellets
          and having taken them out, it had been sent to S.P. Sitapur
          in sealed condition. About 6 ozs semi-digested food
B         material has been found in his abdomen. Excrement had
          been filled here and there in the small intestine. Excrement
          in the upper portiion of the large intestine had been filed
          and Readini was lying empty."

        6. Injury No. 1 is the wound of entry with charring and
C blackening and injury no. 2 of the exit of injury no. 1. Injury Nos.
   3-7 appear to be by an independent shot as they are placed
   far apart from injury no. 1 which is from point blank range. It is
  also clear from the evidence that 12 small pellets and 5 wads
  were found embedded in the head of the deceased. Further in
D his cross examination, the Doctor has stated that even injury
  Nos. 3,4,5 and 6 could be caused with a fire arm. If that be so,
  the spread of the injuries would clearly reveal that not one but
  two shots had hit Deep Singh as he lay on the bed. The
  statement ofthe doctor also reveals the presence of two gun
E shot injuries on the person of Chhoti and after a radiological
  examination radio opaque shadows were seen on her person
  confirming the prosecution story that these too had been
  caused by a shot gun.

F       7. The fact that the incident happened on the roof of the
  baithak is also borne out from the statement of the Investigating
  Officer, P.W. 8, Kesha Prasad Rai. He deposed that on
  reaching the place of incident he had picked up an empty
  cartridge, various weapons and other items already referred to
  above from near the dead bc.idy on the roof itself. As a matter
G of fact the defence has not challenged the fact that incident had
  happened in the house but it has been argued that the injuries
  had been sustained by Chhoti in the house though not on the
  roof. We find no basis for this suggestion which needs to be
  rejected straightaway.
H
            KAILASH NATH v. STATE OF U.P.                          607

     8. We are also of the opinion that statement of P.W. 5                A
Vikram Singh, the scribe of the FIR, also merits acceptance.
Undoubtedly he had not been injured but it has come in
evidence that he had been sleeping on the ground floor of his
house a very short distance away.
                                                                           B
       9. Mr. Vishwanathan has, however, dwelt very extensively
on the lack of motive and on the contrary the motive for false
implication. He has pointed out that there was no categoric
evidence to show (apart from the mere ipse dixit of the Pws')
that the relations between the parties prior to the incident were          C
strained and on the contrary it appears that some quarrel
between the groups had taken place and as the deceased
belonged to the opposite group it had been thought proper to
sort him out once and for all and Chhoti had been used as a
willing tool. It has been pointed out that the High Court itself had
not believed the story of the mango groves and had per force               D
fallen back on the documents Ex. Ka, 5 to K. 7 to show motive
but as these documents had been produced in the court for the
first time during trial, their veracity was clearly in doubt. It is true
that the High Court has given a finding showing an absence of
motive. The fact, however, remains that de hors these                      E
documents the other evidence reveals the extent of animosity
between the parties with murders and counter murders and
litigations going back to the 1960s. It has also come in evidence
that Kallu Singh, the first husband of Chhoti had been murdered
and one of the P.W. was Vikram Singh who also testified that               F
on account of various issues there was much animosity between
the parties. We are further of the opinion that in a case of direct
evidence, any uncertainty as to the motive could not be said to
be fatal to the prosecution story.
                                                                           G
     10. Mr. Vishwanathan has also submitted that as the High
Court had itself opined on the possibility of false implication of
several persons who had not caused any injuries, the same
yard stick should apply to the appellant as well as the evidence
against him was much to the same effect.
                                                                           H
    608       SUPREME COURT REPORTS                [2010] 3 S.C.R.

A          11. It is true that some of the observations made by the
  High Court do appear to suggest that the prosecution story was
  not categoric and could have been concocted. We are of the
  opinion that these observations are way beyond the record and
  merely because some of the accused who had not caused any
B injuries to the deceased or the witnesses would not mean that
  they were not present and it is only as a matter of abundant
  caution that the benefit has been given to those accused.
  Further, it cannot be ignored that an attack made at dead night
  in a residential house, where several inmates are present and
c a possibility of a swift couriter attack by the inmates cannot be
  ruled out, the entire incident had to be well arranged and
  organised and could not be made by one or two persons. It has
  come in the evidence that Chhoti's house was being used by
  three of her grown up sons as well. In any case, the High Court
0 has, by way of abundant caution, given the benefit of doubt to
  those who had not caused any injury and on the same yard
  stick, the appellant who is stated to have caused a gun shot
  wound to the deceased and to Chhoti P.W., cannot be treated
  in the same manner.

E          12. We, accordingly, dismiss the appeal.
    R.P.                                        Appeal dismissed .