STATE OF U.P. versus KISHANPAL & ORS

30. In the case on hand, the prosecution witnesses have clinchingly demonstrated how the accused persons formed an ·~ -". unlawful assembly at a particular spot with deadly weapons like guns and pistols and that all had fired at the injured and de- ceased. The number of injuries on the deceased as per the Post Mortem report as well as the firearm injuries sustained by the three injured persons clearly demonstrate the common ob- ject of accused Nos. 1 to 10 was to kill the complainant's party.

31. In Yunis @ Kariya vs. State of M.P (2003) 1 SCC 425, this Court held: "Even if no overt act is imputed to a particular person, when the charge is under Section 149 IPC, the presence of the accused as part of an unlawful assembly is sufficient for conviction. The fact that the accused was a member of the unlawful assembly is sufficient to hold him.guilty." Following the above principle, in Jaishree Yadav vs. State of UP, (2005) 9 SCC 788, in an identical circumstance, this "" """' Court interfered with the acquittal of the High Court. It is relevant to refer to para 28 of the said decision. STATE OF U. P. v. KISHANPAL & ORS. 'y [P. SATHASIVAM, J.] "28. In view of the above principle in law, since the trial court has found these respondent-accused guilty of being members of an unlawful assembly with the common object of causing the murder of the deceased, and the High Court having not differed from the said finding, it erred in acquitting these '!A respondent-accused solely on the ground that there is no evidence to show that they had taken part in the actual assault. In our opinion, assuming that the High Court was correct in coming to the conclusion that these respondent-accused have not taken part in the attack even then they having come together with the other accused armed, and having been members of the unlawful assembly and having shared the common object, c they will be guilty of an offence punishable under Section 302 read with Section 149 IPC."

32. In the earlier part of our discussion, we referred to the evidence of P.Ws. 1,5, 7 and 9 and C.W.1 as well as the two Doctors and the Post Mortem Report Exh. Ka 19, 20 21 and D ,. ,,.. Injury Report Exh. Ka 22, 23 and 24. As observed in the above decisions, 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 i,. firing by all of them, all of them have to be held guilty of offence charged against them.

33. We are satisfied that the High Court has committed an error in acquitting all the accused except Onkar Singh only F on the ground that specific overt act or involvement had not been highlighted by the prosecution witnesses. The High Court has observed that the testimony of PW-9, Resham Devi, inspires their confidence fully. PW-9 has given evidence of the unlawful assembly of ten accused and indiscriminate firing by the ten accused, apart from referring to the specific acts of accused Nos. 1, 5 and 6. Therefore, the High Court could not have ac- quitted accused Nos. 2, 4, 7, 8, 9 and 10. The observation of High Court that some of the witnesses stated all the relevant information before the Court, they did not inform the same to P.W.1 who made a complaint to the Police or to the lnves~igat- [2008) 11 S.C.R. ing Officer who visited the spot, on verification of the entire evi- dence, we are of the view that the observation may not be sound. In fact, P.Ws. 5, 7 and 9 explained that in view of the fact that the three persons died and three sustained firearm injuries either some went to the hospital along with the injured persons an·d others stayed back at the place of occurrence. The said expla- nation cannot be rejected as unacceptable_ particularly when they are illiterate villagers. It is also settled.law that there is no need to inform everything either to the complainant or in the com- plaint. In such circumstances, we reject the reasoning of the High c Court.

34. Inasmuch as the present appeal by the State is against an order of acquittal, learned counsel for the respondents sub- mitted that the appeal involved only appreciation of evidence and this Court may not interfere with the findings of facts result- D ing from appreciation of evidence. In State of Rajasthan vs. Smt. Kalki and Another, (supra), similar contention was raised before a three-Judge Bench of this Court. Rejecting the said contention, the Bench held: " ….. It is true that in an appeal under Article 136 of the Constitution this Court normally does not in~erfere with findings of facts arrived at by the High Court. But when it appears that the findings of facts arrived at are bordering on perversity and result in miscarriage of justice, this Court will not decline to quash such findings to prevent the miscarriage of justice."

35. In our opinion, the guilt of the respondents has been established by the prosecution beyond reasonable doubt and their acquittal resulted in grave miscarriage of justice. The para- mount consideration of the Court is to ensure that miscarriage of justice is avoided. The miscarriage of justice which may arise G from the acquittal of the guilty is no less than from the conviction of an innocent.

36. In the light of the above discussion, we find that the High Court has not assigned any good reason for acquitting H Kishan Pal Singh, Suresh Singh, Mahendra Singh @ Neksey l i STATE OF U.P. v. KISHANPAL & ORS. y [P. SATHASIVAM, J.] Singh, Jaivir Singh, Sheodan Singh and Bahar Singh. Further, the_ materials placed by the prosecution clearly show that the acquitted-accused along with ·convict-accused Onkar Singh and three others (who died after the trial) have formed unlawful as- sembly and all came with fire arm and caused fire arm injuries t on the deceased persons as well as on the injured persons and the case of the prosecution was fully corroborated by medical evidence. In our considered view, the trial Court rightly held that the accused persons had formed unlawful assembly and com- mitted murders by ·going at the place of incident with fire arm and causing fire arm injuries. On the other Hand, the High Court c erred in acquitting those persons and the same deserves to be set aside.

37. In this regard, it is relevant to note that the incident occurred as early as on 21.06.1978, though the learned Trial Judge convicted these persons on 8.4.1980, the High Court D l "' set aside the conviction and acquitted them on 19.09.2002. We have to see whether the respondents/accused persons are to be awarded life sentence as imposed by the Trial Court. It is relevant to mention in Virsa Singh v. State of Punjab (AIR 1958 SC 465) Vivian Bose, J speaking for the Court, explained the E meaning and scope of clause (3) of Section 300 l.P.C. It was observed that the prosecution must prove the following facts before it can bring a case under Section 300 "thirdly". First, it must establish quite objectively, that a bodily injury is present; secondly, the nature of the injury must be proved. These are _)._ purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are . proved to be present, the enquiry proceeds further, and fourthly, it must be proved that the inquiry of the type just described made up of the three elements set out above was ·sufficient to cause m-·.-: death in the ordinary course of nature. This part of the enquiry is. purely objective and inferential and has nothing to do with the intention of the offender.

38. The ingredients of clause "thirdly" of Section 300 IPC were brought out by Bose, J. which reads as under: "12. To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 300 "thirdly"; First, it must establish, quite objectively, that, a bodily injury is )( ""' present; Secondly, the nature of the injury must be proved; These are purely objective investigations. c Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just "'( , described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender."

39. The learned Judge explained the third ingredient in the following words (at page 468): "The question is not whether the prisoner intended to inflict a serious injury or a trivial.one but whether he intended to inflict the injury that is proved to be present. If he can show that he ….__ did not, or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness, or intended serious consequences, is neither here nor there. The question, so far as the intention is ::-:4 concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence STATE OF U.P. v. KISHANPAL & ORS. r [P. SATHASIVAM, J.] of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion."

40. The test laid down by Virsa Singh case (supra) for the applicability of clause "thirdly" is now ingrained in our legal sys- tern and has become part of the rule of law. Under clause thirdly of Section 300 IPC, culpable 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 c of nature to cause death. It must be proved that there was an intention to inflict that particufar bodily injury which, in the ordi- nary course of nature, was sufficient to cause death viz. that the injury found to be present was the injury that was intended to be inflicted. Thus, according to the rule laid down in Virsa Singh D ,., 'y case (supra) even if the intention of the accused was limited to 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. Illustration (c) ap- pended to Section 300 clearly brings out this point.

41. The fact that the incident had occurred 30 years ago namely 1978, and of the fact that all the prosecution witnesses referred to gun shots and bullet injuries in general, when we consider all the factual scenario in the background of legal prin- ciples set out above, the inevitable conclusion is that the appro- priate conviction in so far as the respondents herein would be under Section 304Part11.P.C. Custodial sentence of 10 years should meet the ends of justice.

42. In the result, the judgment of the High Court dated 19.09.2002 acquitting Kishan Pal Singh, Suresh Singh, Mahendra Singh@ Neksey Singh, Jaivir Singh, Sheodan Singh f. and Bahar Singh is set aside. Consequently each of the ac- cused persons/respondents herein namely Kishan Pal Singh, Suresh Singh, Mahendra S~ngh@ Neksey Singh, Jaivir Singh, Sheodan Singh and Bahar Singh is sentenced to undergo RI for two years under Section 148, to five years RI under Section 307/1491.P.C. and imprisoriment for 10 years RI under Section 304 Part I l.P.C. All the sentences are to run concurrently. The respondents shall surrender to custody forthwith to serve the remaining period of sentence. The appeal filea by the State is :.: _,, allowed to this extent and the judgment of the 1-figh Court is set aside. S.K.S. Appeal partly allowed. .<; –