KIRPAL SINGHversusSTATE OF U.P.

                    [2010] 2 S.C.R. 1133


                       KIRPAL SINGH                               A
                             v.
                       STATE OF U.P.
             (Criminal Appeal No. 235 of 2006)
                    FEBRUARY 23, 2010
                                                                  B
  [B. SUDERSHAN REDDY AND J.M. PANCHAL, JJ.]

     Penal Code, 1860 - s. 302 - Murder - Dispute between
the parties - Appellant firing gun shot to deceased resulting
in his death - Conviction and sentence of all the accused for     c
the commission of offence - Conviction of appellant u/s. 302
                                                                      \.
and imposition of sentence of life imprisonment by courts
below - Interference with - Held: Not called for - Appreciation
of evidence by courts below neither perverse nor
unreasonable - Homicidal death of deceased proved by              D
testimony of the doctor - Testimony of eye witnesses reliable
- No major discrepancy therein - FIR filed promptly -
Evidence.

    The question which arose for consideration in this
                                                                  E
appeal is whether the courts below were justified in
convicting the appellant u/s. 302 IPC and imposing
sentence of life imprisonment.

    Dismissing the appeal, the Court
                                                                  F
     HELD: 1. On the facts and in the circumstances of
the case, the conviction of the appellant under section
302 IPC as well as imposition of sentence of life
imprisonment is well-founded and no case is made out
to interfere with the same. [Para 1O] [1144-F]                    G
    2.1 The fact that deceased died a homicidal death
amply stands proved by the testimony of doctor-PW 7.
The injuries, which were noticed by the Medical Officer
while performing autopsy on the dead body of the
                         1133                                     H
    1134   SUPREME COURT REPORTS            [2010] 2 S.C.R.


A deceased, have been mentioned by him in his
  substantive evidence before the court. The injuries are
  also mentioned by him in the post mortem notes prepared
  by him. It is nobody's case that the deceased died an
  accidental death or natural death or had committed
B suic;ide. Therefore, the finding recorded by the Sessions
  Court and the High Court that the deceased had died a
  homicidal death, deserves to be upheld and is upheld.
  [Para 7] (1141-E, F]

       2.2 J-first informant was examined as PW-1. She
C asserted in her sworn testimony that on the date of
  incident at about 2.00 pm a quarrel had ensued between
  children of the two families and, therefore, RS had gone
  to the house of KS with a view to get the matter
  reconciled amicably but the deceased was abused. It is
D further asserted by her that at about 7.00 pm on May 30,
  1983, when she along with her deceased husband and
  son RK was returning from jungle, they were accosted
  near the house of KS, who with his sons, was standing
  on the road in front of his house and that the appellant,
E who was having a gun, had fired a shot at the deceased
  as a result of which the deceased had fallen down on the
  road. Though PW-1 was cross-examined searchingly,
  nothing could be elicited to establish that the appellant
  and others were falsely implicated in the case because
F of enmity. Her testimony gets complete corroboration
  from the contents of FIR lodged by her. The courts below,
  on appreciation of evidence held that the FIR was neither ·
  ante-timed nor delayed and that the same was filed
  promptly. When so.on after the occurrence the FIR is
G lodged at the police station, false story being cooked up
  and/or false implication of accused stands ruled out.
  (Para 8] (1141-H; A-DJ

       2.3. The testimony of wife of the deceased also gets
    complete corroboration from the testimony of witness
H
           KIRPAL SINGH v. STATE OF U.P.                 1135


 RK-son of the deceased and examined as PW-2. Witness             A
 RK stated that the appellant had fired a shot from his gun
 at the deceased as a result of which the deceased had
 died. Though this witness was cross-examined at length,
 no dent could be made in the assertion made by him that
 the deceased had died because of the gun shot fired by           B
 the appellant. PW-1 is the wife of the deceased whereas
 RK, examined as PW-2, is the son of the deceased. They,
 being the close relatives of the decP.ased, would not allow
-the real culprits to go scot free and implicate the appella.nt
 falsely in the case. KS was brother-in-law, i.e., husband        c
 of the sister of J. Therefore, she would never make an
 attempt to implicate the appellant falsely in the case, as
 the appellant is closely related to her. It was easy for her
 to mention in her FIR and before the court that the shot
 was fired either by KS i.e., her brother-in-law or by VP or
                                                                  0
 by DK. But she has not made any such attempt and
 attributed the firing of the shot only to the appellant. The
 trial court, which had advantage of observing demeanour
 of the witnesses, rightly placed reliance on the testimony
 of J and RK for the purpose of coming to the conclusion          E
 that the appellant had fired a shot at the deceased due
 to which the deceased lost his life. The appreciation of
 evidence by the trial court and the High Court is neither
 perverse nor unreasonable. It could not be pointed out
 that any material piece of evidence on record was ignored
 either by the trial court or by the High Court before            F
 coming to the conclusion that the appellant was guilty
 under section 302 IPC. Therefore, the finding that the
 appellant caused death of the deceased deserves to be
 upheld. [Para 8] [1142-E-H; A-C]
                                                                  G
     2.4. The submission that after drawing adverse
inference against the prosecution for not examining
injured witness-SD, the prosecution story should have
been disbelieved as improbable has no substance. The
                                                                  H
                                                        I·
                                                       '
                                                       t




   1136    SUPREME COURT REPORTS              [2010] 2 S.C.R.

A prosecution has satisfactorily established that a quarrel
    between the children of the two families-family of the
    deceased and the family of KS, had ensued on the day
    of the incident at about 2.00 pm and, therefore, in order
    to see that the disputes were settled amicably, the
8 deceased had gone to the house of KS, but he was
    humiliated by KS and his sons and invectives were hurled
    at him and, therefore, he had to come back. The evidence
  _ shows that the accused had decided to liquidate RS and
    were, therefore, standing in front of their house with
C , weapons and the appellant had killed the deceased by
    firing shot from the gun at him. The eye witnesses, J and
    RK narrated the whole incident before the court on oath
    in a simple manner without any material improvement.
    The testimony tendered by the eye witnesses was
    subjected to great care, caution and circumspection by
D the High Court as well as by the trial court because the
    eye witnesses were found to be closely related to the
    deceased as well as the accused. No major discrepancy
    could be brought to the notice of the court, which would
    make the testimony of the eye witnesses unreliable. The
E finding recorded by the trial court as well as by the High
    Court on the question of motive could not be
    successfully assailed. Though the defence had examined
    three witnesses, the evidence of none of them was of any
    assistance for establishing the innocence of the
F appellant. The evidence tendered by DW-3 that the
    deceased was also having a gun licence has no
    consequence whatsoever because it is nobody's case
    that the appellant had fired a shot from the gun belonging
    to the d~ceased. Thus, the examination of defence
G witnesses was futile and could not probablize the
    defence of the accused that they were innocent and
    were falsely implicated. [Para 9] [1143-E-H; A-E]

      CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
H No. 235 of 2006.
            KIRPAL SINGH v. STATE OF U.P.                    1137


    From the Judgment & Order dated 11.7.2005 of the High             A
Court of Judicature at Allahabad in Criminal Appeal No. 2lffi2
of 1985.

     T~S. Doabia, Sudarshan Singh Rawat and Sunita Sharma
for the Appellant.                                                    B

   Ratnakar Dash, Shail K. Dwivedi, AAG, Rajiv K. Dubey,
Kamlendra Mishra and lrshad Ahmad for the Respondent.

     The Judgment of the Court was delivered by

     J.M. PANCHAL, J. 1. This appeal, by special leave, is
                                                                      c
directed against judgment dated July 11, 2005, rendered by the
High Court of Judicature at Allahabad in Criminal Appeal No.
2402 of 1985 by which the conviction of the appellant recorded
under Section 302 IPC and imposition of sentence of life
imprisonment on him by learned V Additional Sessions Judge,           D
Moradabad in ST No. 622 of 1983, is confirmed

    2. The facts emerging from the record of the case are as
under: -
                                                                      E
      Deceased Ram Kumar Singh was resident of village
Dudaila, District Muradabad. Some six months prior to the
incident in question, some dispute had taken place between
Ram Kumar Singh who lost his life in the incident and Kallu
Singh, i.e. original accused No.3 over the question of digging
                                                                      F
and lifting of the earth from the land of accused No.3 for the
purpose of raising of level of a village pathway which was
decided to be constructed by village people at a Shramdan
Yojna held in the village. Ever since the said dispute, the parties
were not on the talking terms with each other. On May 30, 1983        G
at about 2.00 pm, some quarrel had taken place between the
grandsons of original accused No. 3, i.e., Kallu Singh and
children of Ram Kumar Singh. The appellant, i.e., Kirpal Singh
who was original accused No.1, Vijay Pal Singh, who was
original accused No. 2 and Devender Kumar, who was original
                                                                      H
     1138   SUPREME COURT REPORTS                 [2010] 2 S.C.R.


A accused No. 4, are sons of original accused No. 3, i.e., Kallu
  Singh. Ram Kumar Singh went to the house of original accused
  No. 3, i.e., Kallu Singh for getting the quarrel settled but Kallu
  Singh and his sons not only abused him but were found to be
  ready to assault him. At that point of time Ram Swarup and
B others, who were present there, intervened. At about 7.00 pm
  on the same day, Ram Kumar Singh, his wife Mrs. Jishna and
  his son Rupender Kumar were returning home from the jungle.
  Ram Kumar Singh was slightly ahead of his wife and son. Whey
  they reached near the house of the accused, who were
c·standing in front of their house, Kallu Singh is said to have
  exhorted his sons to kill Ram Kumar Singh and finish the
  dispute for ever, whereupon the appellant fired a shot from his
  gun at Ram Kumar Singh which hit his chest. On sustaining the
  gunshot injury, Ram Kumar Singh tumbled down on the road.
  On hearing the cries of Mrs. Jishna, wife of Ram Kumar Singh
0
  and noise of the gun shot, Hari Raj Singh, Rattu Singh and
  others reached the place of incident. Another shot at Ram
  Kumar Singh was fired by original accused No. 2, i.e., Vijay
  Pal Singh from his country made pistol, which hit Mrs. Shanti
  Devi, wife of Nathu Singh. As the people gathered at the place
E of incident, Kallu Singh and his sons made their escape good.
  Ram Kumar Singh, who had sustained fire arm injuries, was
  removed to Government Hospital, Kanth in a tractor, which was
  arranged by his wife Mrs. Jishna. Injured Ram Kumar Singh
  succumbed to his injuries at the hospital and was declared
F dead by the Medical Officer at about 10.15 pm. Mrs. Jishna
  thereafter got a report scribed through one Anand Kumar in the
  hospital premises and lodged the same at the police outpost
  Kanth, at 10.50 pm. On the basis of the First Information
  Report, offences punishable under Sections 302 and 307 read
G with Section 34 of the Indian Penal Code were registered
  against the four accused. After necessary investigation, charge-
  sheet was submitted in the court of learned Chief Judicial
  Magistrate, Moradabad. As the offences punishable under
  Sections 302 and 307 are exclusively triable by a court of
H Sessions, the case was committed to the Court of learned V
  KIRPAL SINGH v. STATE OF U.P. [J.M. PANCHAL, J.]1139


 Additional Sessions Judge, Moradabad for trial.                    A
       3. The learned Judge framed charge against the appellant
  under Section 302 of Indian Penal Code whereas other
, accused were charged under Section 302 read with Section
  34 of Indian Penal Code. All the four accused, including the
                                                                    8
  appellant, were also charged under Section 307 read with
  Section 34 of the Indian Penal Code. The Charge was read
  over and explained to the accused, who pleaded not guilty to
  the-same and claimed to be tried. The prosecution, therefore,
  examined witnesses and also produced documentary evidence
  in support of its case against the appellant and others. After    C
  recording of evidence of prosecution witness was over, the
  learned Judge explained to the accused the circumstances
  appearing against them in the evidence of prosecution
  witnesses and recorded their further statements as required by
  Section 313 of the Code of Criminal Procedure. In the further     D
  statement the case of the appellant and others was that they
  were implicated falsely in the case due to enmity. On behalf of
  the accused witness Pooran Singh was examined as DW-1,
  whereas Mr. Haris'h Chander, a fire arm dealer, was examined
  as DW-2 and Mr. Nihal Chand, arms clerk, was examined as          E
  DW-3.

      4. On appreciation of evidence adduced by the parties the
 learned Judge held that it was proved satisfactorily by the
 prosecution that deceased Ram Kumar Singh died a homicidal
                                                                    F
 death and Mrs. Shanti Devi was injured in the incident. The
 learned Judge noticed that both, i.e., Kallu Singh, original
 accused No. 3 and Ram Kumar Singh, the deceased, were
 brothers-in-law and wives of both of them were cousins. The
 learned Judge found that accused Devendra Kumar had not
 committed any offence and was entitled to be acquitted. On         G
 scrutiny of evidence the learned Judge found that the evidence
 tendered by Mrs. Jishna, widow of Ram Kumar Singh, was
 trustworthy as weil as reliable and the same was corroborated
 by her complaint, which was neither ante-dated nor delayed and
                                                             ,.,    H
    1140    SUPREME COURT REPORTS                   [2010) 2 S.C.R.


A was filed promptly. Similarly, the learned Judge found that the
  testimony of Rupender Kumar, son of the deceased, was
  trustworthy and reliable. After placing reliance on the evidence
  of these two witnesses, the learned Judge held that it was
  established that the appellant had fired a shot at the deceased
8 because of which the deceased had fallen down and ultimately
  died. After analysis of evidence of PW-3 Mishri Singh, the
  learned Judge held that the motive, which prompted the
  appellant to kill the deceased was dispute between the
  deceased and original accused No.3 relating to the digging and
C lifting of the earth from the field of original accused No.3 for the
  purpose of raising level of the road to be constructed for people
  of the village and quarrel which took place between the
  grandsons of the deceased and accused No.3 on the date of
  the incident. On assessment of evidence of DW-1, DW-2 and
  DW-3, the learned Judge found that the defence that th~
D accused were falsely implicated in the case due to enmity, was
  not probablized at all. By judgment dated September 9, 1985
  the learned Judge convicted the appellant under Section 302
  of Indian Penal Code whereas accused Kallu Singh and
  accused Vijay Pal Singh were convicted under Section 302 with
E the aid of Section 34 of Indian Penal Code and accused Vijay
  Pal Singh was also convicted under Section 323 of the Indian
  Penal Code for causing injuries to Mrs. Shanti Devi. Thereafter,
  learned counsel on behalf of the accused and the learned
  Additional Public Prosecutor were heard by the learned Judge
F with reference to the sentence to be imposed on the accused
  and by order dated September 9, 1985 the appellant was
  sentenced to R.I. for life for commission of offence punishable
  under Section 302 of Indian Penal Code whereas accused
  Kallu Singh and Vijay Pal Singh were sentenced to life
G imprisonment for commission of offence punishable under
  Section 302 read with Section 34 of Indian Penal Code.
  ~urthe.r, accused Vijay Pal Singh was sentenced to R.I. for six
  months for commission of offence punishable under Section
  323 of Indian Penal Code.
H
KIRPAL SINGH v. STATE OF U.P. [J.M. PANCHAL, J.]1141


      5. Feeling aggrieved, the accused preferred Criminal          A
Appeal No. 2402 of 1985 in the High Court of Judicature at
Allahabad. The High Court noticed that Kallu Singh, who was
rightly convicted under Section 302 read with Section 34 of the
Indian Penal Code, had expired during the pendency of the
appeal and, therefore, the appeal by him had abated whereas         B
there was no evidence to establish that accused Vijay Pal
Singh had committed offence punishable under Section 302
read with Section 34 of Indian Penal Code, but his conviction
under Section 323 of the Indian Penal Code was eminently just.
The High Court, therefore, by judgment dated July 11, 1985,         c
dismissed the appeal filed by the appellant and partly allowed
the appeal filed by Vijay Pal Singh, which has given rise to the
instant appeal.

     6. This Court has heard the learned counsel for the parties
at length and considered the documents forming part of the          D
appeal.

     7. The fact, that deceased Ram Kumar Singh died a
homicidal death, is not disputed before this Court by the learned
counsel for the appellant. The said fact amply stands proved        E
by the testimony of Dr. D.N. Sharma, who was examined by
the prosecution as Prosecution Witness No. 7. The injuries,
which were noticed by the Medical Officer while performing
autopsy on the dead body of the deceased, have been
mentioned by him in his substantive evidence before the court.      F
The injuries are also m~ntioned by him in the post mortem notes
prepared by him. It is nobody's case that the deceased died
an accidental death or natural death or had committed suicide.
Therefore, the finding recorded by the Sessions Court and the
High Court that the deceased had died a homicidal death             G
deserves to be upheld and is hereby upheld.

     8. Mrs. Jishna, who is the first informant, was examined
as PW-1. She asserted in her sworn testimony that on the date
of incident at about 2.00 pm a quarrel had ensued between
children of the two families and, therefore, Ram Kumar Singh        H·
    1142    SUPREME COURT REPORTS                  [201 O] 2 S.C.R.


A   had gone to the house of Kallu Singh with a view to get the
    matter reconciled amicably but the deceased was abused. It
    is further asserted by her that at about 7.00 pm on May 30,
    1983, when she along with her deceased husband and son
    Rupender Kumar was returning from jungle, they were accosted
B   near the house of Kallu Singh, who with his sons, was standing
    on the road in front of his house and that the appellant, who was
    having a gun, had fired a shot at the deceased as a result of
    which the deceased had fallen down on the road. Though this
    witness was cross-examined searchingly, nothing could be
c   elicited to establish that the appellant and others were falsely
    implicated in the case because of enmity. Her testimony gets
    complete corroboration from the contents of FIR lodged by her.
    The courts below, on appreciation of evidence, have held that
    the FIR was neither ante-timed nor delayed and that the same
    was filed promptly. It is well settled that when soon after the
0
    occurrence the FIR is lodged at the police station, false story
    being cooked up and/or false implication of accused stands '
    ruled out. The testimony of wife of the deceased also gets
    complete corroboration from the testimony of witness Rupender
    Kumar, who is son of the deceased and examined as PW-2.
E   Witness Rupender Kumar has also stated that the appellant
    had fired a shot from his gun at the deceased as a result of
    which the deceased had died. Though this witness was cross-
    examined at length, no dent could be made in the assertion
    made by him that the deceased had died because of the gun
F   shot fired by the appellant. It is well to remember that Mrs.
    Jishna PW-1 is the wife of the deceased whereas Rupender
    Kumar, examined as PW-2, is the son of the deceased. They,
    being the close relatives of the deceased, would not allow the
    real culprits to go scot free and implicate the appellant falsely
G   in the case. As noticed by the High Court, Kallu Singh was
    brother-in-law, i.e., husband of the sister of Mrs. Jishna.
    Therefore, she would never make an attempt to implicate the
    appellant falsely in the case, as the appellant is closely related
    to her. It was easy for her to mention in her FIR and before the
H   court that the shot was fired either by Kallu Singh, i.e., her
  KIRPAL SINGH v. STATE OF U.P. [J.M. PANCHAL, J.]1143


  brother-in-law or by Vijay Pal Singh or by Devender Kumar. But      A
  she has not made any such attempt and attributed the firing of
  the shot only to· the appellant. The trial court, which had
  advantage of observing demeanour of the witnesses, has
  rightly placed reliance on the testimony of Mrs. Jishna and
  Rupender Kumar for the purpose of coming to the conclusion          B
  that the appellant had fired a shot at the deceased due to which
  the deceased lost his life. The appreciation of evidence by the
  trial court and the High Court is neither perverse nor
  unreasonable. It could not be pointed out by the learned counsel
  for the appellant that any material piece of evidence on record     c
  was ignored either by the trial court or by the High Court before
  coming to the conclusion that the appellant was guilty under
  Section 302 of the Indian Penal Code. Therefore, the finding
  that the appellant caused death of the deceased deserves to
  be upheld.
                                                                      D
            9. The contention, that after drawing adverse inference
       against the prosecution for not examining injured witness Mrs. -
       Shanti Devi, the prosecution story should have been
       disbelieved as improbable has no substance. As observed
       earlier, the prosecution has satisfactorily established that a E
       quarrel between the children of the two families, i.e., family of
..... the deceased and the family of Kallu Singh, had ensued on the
      day of the incident at about 2.00 pm and, therefore, in order to
      see that the disputes were settled amicably, the deceased had
      gone to the house of Kallu Singh, but he was humiliated by Kallu F
      Singh and his sons and invectives were hurled at him and,
      therefore, he had to come back. The evidence further shows
      that the accused had decided to liquidate Ram Kumar Singh
      and were, therefore, standing in the front of their house with
      weapons and the appellant had killed the deceased by firing G
      shot from the gun at him. The eye witnesses, i.e., Mrs. Jishna
      and Rupender Kumar, have narrated the whole incident before
      the court on oath in a simple manner without any material
      improvement. The testimony tendered by the eye witnesses
     was subjected to great care, caution and circumspection by the H

               -
    1144    SUPREME COURT REPORTS                    [2010] 2 S.C.R.


A High Court as well as by the trial court because the eye
  witnesses were found to be closely related to the deceased as
  well as the accused. No major discrepancy could be brought
  to the notice of the court by the learned counsel for the 'appellant,
  which would make the testimony of the eye witnesses
B unreliable. The finding recorded by the trial court as well as by
  the High Court on the question of motive could not be
  successfully assailed by the learned counsel for the appellant.
  Though the defence had examined three witnesses, the
  evidence of none of them was of any assistance for establishing
c the innocence of the appellant. DW-1 Pooran Singh had tried
  to suggest that there was no way for coming to the house of
  the deceased from his chak, but to a court question he had to
  admit that the deceased Ram Kumar Singh was going to his
  field from his open land, which was situated in the front of house
  of the appellant. Similarly, the evidence of DW-2. Harish
D Chander was of little assistance to the defence. The evidence
  tendered by DW-3 Nihal Chand that the deceased was also
  having a gun licence has 90 consequence whatsoever because
  it is nobody's case that the ~ppellant had fired a shot from the
  gun belonging to the deceased. Thus, the examination of
E defence witnesses was futile and could not probablize the
  defence of the accused that they were innocent and were
  falsely implicated.

          10. On the facts and in the circumstances of the case, this
F   Court finds that the conviction ofthe appellant under Section
    302 of Indian Penal Code as well as imposition of sentence of
    life imprisonment is well-founded and no case is made out by
    the learned counsel for the appellant to interfere with the same.
    The appeal, which lacks merit, deserves to be dismissed.
G
        11. For the foregoing reasons the appeal fails and is
    dismissed.

    N.J.                                         Appeal dismissed.