- Bookmark
- Share
- CaseIQ
State Of U.P v. Kishan Chand And Others
Factual and Procedural Background
Nine persons were charged before the Additional Sessions Judge for offences arising out of an incident on 3 August 1974 at Harish Purwa, Police Station Sachendi, District Kanpur. During trial one accused died; eight continued. At the conclusion of trial the court:
- Acquitted Accused 6, 7 and 8 (no State appeal followed).
- Convicted five accused—Kishan Chand, Rama Shankar, Ram Chandra, Gauri Shankar and Chhotey Lal—of murder, attempt to murder, rioting with deadly weapons and causing hurt, imposing life imprisonment and lesser concurrent sentences under various sections of the Indian Penal Code (Sections 302/34, 302/149, 307/149, 148, 323).
The convicts appealed. The High Court allowed their appeals and acquitted them of all charges. The State of Uttar Pradesh obtained special leave and brought the present appeal before the Supreme Court.
Legal Issues Presented
- Whether the High Court erred in discarding the testimony of four prosecution eyewitnesses (PWs 1, 2, 3 and 8) and in acquitting the respondents.
- Whether the presence of animosity or familial relationship renders eyewitness testimony unreliable in the circumstances of this case.
- Whether convictions under Sections 302/34 and 302/149 IPC can stand without proof of the specific overt act of each accused.
- Whether non-explanation of simple injuries on the accused vitiated the prosecution case.
- Whether the reconstructed trial record inadequately reflected the respondents’ statements under Section 313 CrPC, thereby causing prejudice.
Arguments of the Parties
State/Appellant's Arguments
- The trial court correctly accepted the consistent and trustworthy accounts of PWs 1, 2, 3 and 8; two of them (PWs 1 & 8) were injured and independent, lending strong corroboration.
- The High Court’s rejection of these eyewitnesses was unsupported by reason and therefore perverse.
- Under Sections 34 and 149 IPC, liability is collective; identification of the individual who inflicted each fatal injury is unnecessary.
- Non-explanation of minor injuries on the accused is not fatal when prosecution evidence is otherwise compelling.
- The reconstructed record fully incorporates and considers the Section 313 statements.
Respondents/Accused's Arguments
- PWs 2 and 3 are brothers of a deceased and hence “interested”; their testimony is unreliable, especially given prior enmity.
- Evidence shows accused Ram Chandra was merely on a roof instigating; therefore no unlawful assembly with common object to murder existed.
- The prosecution failed to establish which accused caused the fatal injuries.
- Failure to explain injuries on the accused prejudiced the defence.
- After reconstruction of the record, the trial court did not properly evaluate the respondents’ Section 313 statements, causing prejudice.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Masalti v. State of U.P. (1964) 8 SCR 133; AIR 1965 SC 202 | Liability of members of an unlawful assembly under Section 149 IPC; need only prove membership and common object, not individual overt act. | Used to rebut the defence contention that absence of specific attribution of the fatal act to a particular accused invalidates the conviction under Sections 302/149 and 302/34. |
Court's Reasoning and Analysis
The Supreme Court found that the High Court “did not assign any reason much less ostensible reason” for rejecting the eyewitnesses. It undertook its own evaluation and reached the following conclusions:
- Credibility of Eyewitnesses: Relationship to the deceased does not per se discredit witnesses; in fact, such witnesses are “natural” and likely to seek punishment of the real culprits rather than falsely implicate others. Injuries suffered by PWs 1 & 8 strongly corroborate their presence at the scene.
- Animosity as Double-Edged Sword: Prior enmity can motivate both false implication and commission of the crime; thus it is not an adequate ground for total disbelief of eyewitnesses.
- Common Object and Section 149: From the arrival of the accused armed with guns, country-made pistols and hockey sticks, followed by indiscriminate firing on a festival evening, the Court inferred formation of an unlawful assembly with the common object to commit murder. The principle in Masalti was invoked: once membership and common object are established, all members share liability.
- Identification of Individual Acts: Because convictions were based on Sections 34 and 149, it was unnecessary to prove which accused inflicted each fatal injury.
- Non-explanation of Accused’s Injuries: Injuries on the accused were minor, explained as having been sustained while attempting to flee arrest, and, even if unexplained, would not vitiate otherwise strong prosecution evidence.
- Section 313 Statements & Record Reconstruction: The trial court quoted the statements verbatim and considered them in detail; the High Court earlier recorded satisfaction with the reconstructed record. Hence no prejudice arose.
Holding and Implications
ALLOWED – High Court acquittal set aside; trial court convictions restored.
All five respondents were ordered to be taken into custody forthwith, with compliance to be reported within three weeks.
Implications are confined to the parties: the decision reinstates the trial court’s findings and sentences. No new legal doctrine was created, but the judgment reaffirms established principles regarding evaluation of related or injured eyewitnesses and collective liability under Section 149 IPC.
H.K Sema, J. Nine accused were put on trial before the Additional Sessions Judge. During the pendency of the trial, one accused died, therefore, eight accused have faced the trial. At the end of the trial, the trial court acquitted Accused 6, 7 and 8 of all the charges. No appeal was preferred by the State against their acquittal. The five accused (respondents herein), namely, Kishan Chand, Rama Shankar, Ram Chandra, Gauri Shankar and Chhotey Lal were convicted under various sections of law as follows:
Accused Kishan Chand was sentenced to undergo life imprisonment under Sections 302/34 and 302/149 IPC. Six months' RI under Section 323 IPC. One year's RI under Section 148 IPC and 5 years' RI under Section 307 read with Section 149 IPC and 5 years' RI.
2. Accused Rama Shankar was sentenced to undergo life imprisonment under Section 302 IPC. One year's RI under Section 148 IPC. Five years' RI under Sections 307/149 IPC and 6 months' RI under Section 323 read with Section 34 IPC.
3. Accused Ram Chandra, son of Bala Sukh and Gauri Shankar were sentenced to undergo life imprisonment under Section 302 read with Section 34 IPC and Section 302 read with Section 149 IPC. Six months' RI under Sections 323/34 IPC. One year's RI under Section 149 and 5 years' RI under Section 307 read with Section 149 IPC.
4. Accused Chhotey Lal was sentenced to undergo one year's RI under Section 148 IPC. Life imprisonment under Sections 302/149 IPC and five years' RI under Sections 307/149 IPC. The sentences, however, were directed to run concurrently.
5. On appeal being preferred by the accused persons, the High Court by the impugned order acquitted them of all the charges levelled against them. Hence, this appeal by special leave has been preferred by the State of U.P
6. Briefly stated, the facts are as follows:
The accused and the complainants are all residents of Harish Purwa, PS Sachendi, District Kanpur. On 3-8-1974 at about 5.30 p.m the accused formed an unlawful assembly in the dharmashala of Shridhar in Village Hariram ka Purwa and in furtherance of common object murdered Sheo Ram and Mool Chand and caused injuries to PW 1 Shridhar and PW 8 Mizazi Lal. The first information report lodged by PW 3 Ram Swarup disclosed that on the fateful day at about 5.30 p.m Chhotey Lal (PW 2), son of Tulsi was singing on the eve of Raksha Bandhan in the dharmashala of Shridhar. Ashok Chand, Mizazi Lal, Soney Lal Gupta, Ram Mohan, Mool Chand, his son Ramoo and others were also there. In the meantime, accused Kishan Chand, son of Hem Raj, Rama Shankar, son of Chhotey Lal, Ram Chandra, son of Sada Sukh, Gauri Shankar, son of Hem Raj and Chhotey Lal armed with gun, country-made pistols and hockey sticks reached there. Immediately thereafter, accused Kishan Chand gave a hockey-blow to Shridhar. Thereupon, the deceased Mool Chand asked him not to quarrel on the festival day. Accused Rama Shankar fired at him. Thereafter, accused Kishan Chand fired at Shridhar who fell down after sustaining injuries. Accused Ram Chandra was at the roof and instigated the accused to kill the informant and others. At his instigation accused Chhotey Lal, Kishan Chand, Rama Shankar, Gauri Shankar and Ram Chandra became more furious and started firing indiscriminately from their gun and country-made pistols. In the process, Shridhar (PW 1) and Mizazi Lal (PW 8) had also received injuries. In the said incident, Sheo Ram and Mool Chand died on the spot.
7. In course of the trial, the prosecution relied upon the testimony of eyewitnesses PW 1 Shridhar, PW 2 Chhotey Lal, PW 3 Ram Swarup and PW 8 Mizazi Lal. Counsel for the State contended that the trial court was justified in placing reliance on the eyewitnesses' account of PWs 1, 2, 3 and 8 and the High Court was clearly in error in disbelieving the eyewitnesses' account of prosecution witnesses resulting in acquittal of the accused on the basis of perverse finding.
8. Per contra, counsel for the accused-respondents would contend that the so-called eyewitnesses are interested witnesses. PW 2 Chhotey Lal, PW 3 Ram Swarup, being the brothers of the deceased, their testimony is not reliable and the High Court was justified in disbelieving their testimony. He would further contend that there was an enmity between the parties and the witnesses deposed falsely against the accused because of animosity. Counsel on both the sides have taken pain in taking us through the entire judgment of the High Court. To say the least, the High Court did not assign any reason much less ostensible reason for discarding the testimony of the eyewitnesses account.
9. The submission of the counsel for the accused that the testimony of PWs cannot be acted upon as they are interested witnesses is to be noted only to be rejected. By now, it is well-settled principle of law that animosity is a double-edged sword. It cuts both sides. It could be a ground for false implication and it could also be a ground for assault. Just because the witnesses are related to the deceased would be no ground to discard their testimony, if otherwise their testimony inspires confidence. In the given facts of the present case, they are but natural witnesses. We have no reason to disbelieve their testimony. Similarly, being relatives, it would be their endeavour to see that the real culprits are punished and normally they would not implicate wrong persons in the crime, so as to allow the real culprits to escape unpunished.
10. That apart, PW 1 Shridhar and PW 8 Mizazi Lal are both independent and injured witnesses. The testimony of an injured witness has its own relevance and efficacy. The fact that the witnesses sustained injuries at the time and place of occurrence lends support to their testimony that the witnesses were present during the occurrence. The injured witnesses were subjected to lengthy cross-examination but nothing could be elicited to discredit their testimony.
11. Counsel for the accused contended that the prosecution fails to establish which of the accused caused fatal injuries. This submission is misconceived. The convictions were recorded under Section 302 with the aid of Section 34 and under Section 302 with the aid of Section 149. It is a well-established principle of law that when the conviction is recorded with the aid of Section 149, relevant question to be examined by the court is whether the accused was a member of an unlawful assembly and not whether he actually took active part in the crime or not. The Constitutional Bench of this Court in Masalti v. State of U.P (1964) 8 SCR 133, AIR 1965 SC 202, (1965) 1 Cri LJ 226, SCR at p. 148 held:
“What has to be proved against a person who is alleged to be a member of an unlawful assembly is that he was one of the persons constituting the assembly and he entertained along with the other members of the assembly the common object as defined by Section 141 IPC. Section 142 provides that whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly. In other words, an assembly of five or more persons actuated by, and entertaining one or more of the common objects specified by the five clauses of Section 141, is an unlawful assembly. The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified by Section 141.”
Further, at SCR p. 149 it is said:
“In fact, Section 149 makes it clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence; and that emphatically brings out the principle that the punishment prescribed by Section 149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly.”
12. Counsel for the respondents strenuously urged that from the evidence of the prosecution witnesses accused Ram Chandra was at the roof and instigated the accused to finish the prosecution party and as such it cannot be said that the accused formed an unlawful assembly to perpetrate the crime. We are unable to countenance this submission of the counsel. Firstly, an assembly, which was not an unlawful assembly when it assembled, may subsequently become an unlawful assembly. Secondly, common object of the unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behaviour of the assembly at or before the scene of occurrence. It is an inference to be deduced from the facts and circumstances of each case. In the instant case, the prosecution evidence disclosed that it was Raksha Bandhan day when the singing was going on, the accused appeared at the scene with gun and country-made pistols and hockey sticks, attacked the prosecution party and started firing indiscriminately resulting in the death of Sheo Ram and Mool Chand. Deduced from the surrounding facts and circumstances of this case, it is clear that the accused did form an unlawful assembly and in furtherance of that common object of the unlawful assembly, crime has been perpetrated.
13. The next contention of the counsel for the respondents that the non-explanation of the injuries sustained by the accused caused prejudice to the accused, also deserves to be rejected. The prosecution has explained that at the time of arrest the accused tried to flee and in that process sustained some injuries being beaten by the arresting party. The injuries sustained by the accused were simple in nature. This apart, it is well-settled principle of law that non-explanation of injuries sustained by the accused by the prosecution would not vitiate the trial, if the prosecution evidence against the accused is so strong on the basis of which alone the conviction can be recorded. As already noted, in the present case, out of four eyewitnesses two are independent and stamped witnesses.
14. There is yet another contention of the counsel for the respondents, which deserves outright rejection. Counsel would contend that after the reconstruction of the case record the statements made by the accused-respondents under Section 313 CrPC have not been properly considered by the trial court and prejudice thereby has been caused to the accused-respondents. We have gone through the judgment of the trial court which would show that the statements made by the accused under Section 313 have been quoted verbatim and the same have been considered by the trial court in great detail. Before the High Court, it was not the case of the accused that the reconstruction of the record has not been done properly. Conversely, the High Court in the order dated 7-10-1994 has recorded its total satisfaction that the reconstructed record is proper.
15. In the premises aforesaid, we are clearly of the view, that the High Court fell in error in acquitting the accused resulting in grave miscarriage of justice. The impugned order of the High Court is, accordingly, set aside. The conviction recorded by the trial court is hereby restored. The accused-respondents Kishan Chand, Rama Shankar, Ram Chandra, Gauri Shankar and Chhotey Lal are directed to be taken into custody forthwith. Compliance report within three weeks. The appeal is, accordingly, allowed.
Alert