KARNESH KUMAR SINGH & ORS. versus THE STATE OF UTTAR PRADESH

Citation: [1968] 3 S.C.R. 774 · Decided: 15-04-1968 · Supreme Court of India · Bench: V. RAMASWAMI · Disposal: Dismissed

Judgment (excerpt)

774 
KAR!'.'ESH KUMAR SINGH & ORS. 
v. 
THE STATE OF UTfAR PRADESH 
April 15, 1968 
[V. RAMASWAMI, J. M. SHELAT AND V. BHARGAVA, JJ.] 
Indian Penal Code, 1860, ss. 302, 201 and 149-Whether inconsisten-
cies and discrepancies in evidence showed misca"iage of justice-Four 
out of ten appellants sentenced to death a11d others to life imprisonment-
Distinction bared on the four being anned with dangerous weapons-If 
sustainable on evidence. 
Evidence Act, 1872, s. 114(8)-Adver.ve inference when prosecution 
does not produce some of the eye .. witnesses--When may be drawn. 
The ten appellants were convicted under ss. 302 and 20 I both read 
with s. 149 of the J.P.C. mainly on the evidence of four eye-witnesses who 
were members of the family di the two murdered persons. Four of the 
appellants Were sentenced to death and the rest to imprisonment for life. 
The High Court confirmed the convictions and sentences. 
In appeal 
to this Court by s)'OCiaJ leave it was contended, inter alia, on behalf of the 
appellants that (1) there were various discrepancies and inconsistencies 
in the evidence showing miscarriage of justiC'e; (ii) though two iildepen• 
dent eye-witnesses were available they were purposely excluded and only 
the family members were examined as eye-witnesses; and the High Court 
had wrongly refused to draw !from therr non-examination an adverse in-
ference under s. 114(g) of the Evidence Act; and (iii) the sentences on 
the appellants were wrongly confirmed by the High Court. 
HELD : (i) There was no reason to interfere with the concurrent 
findings of the trial court and the High Court that !he appellants were res-
ponsible for the deaths of the two deceased persons and were guilty di 
the offences they were charged with. [782 E] 
(ii) The prosecutor need not examine witnesses who, in his opinion, 
have not witnessed the incidem. Normally, ·he .ought to examine alt the 
eye-witnesses in support of his case. But in a case where a large number 
of persons have witnessed the incident, it is open to him to make a selec· 
ti on which must, however, be fair and honest and not with a view to 
suppress inconvenient witnesses. If it is shown that persons who had 
witnessed the ino.ident have been deliberately 
kept back, the court may 
draw an adverse inference and in 
a proper case record such failure as 
constituting a serious infirmity in the proof of the prosecution case. 
[781 G-H; 782 Al 
In the present case, the prosecution had explained that the two in-
dependent eye-witnesses were not necessary. The defence remained con-
tent with that explanation and did not a.Sk the other concerned witnesses 
any questions to elicit why these two persons were considered unnecessary 
witnesses. 
Furthermore, there was nothing in the evidence to suggest 
that they were not produced because they would have turned out to be 
inconvenient witnesses. 
It was not therefore possible to say that the pro-
se~tion had deliber~tely withheld these 
two persons 
for any oblique 
motrve or that the High Court ought to have drawn an adverse inference. 
(782 C-Dl 
. 
(iii) The sentence of death on four o[ the ten appellants must be set 
aside and the sentence _of rigorous life imprisonment substituted therefor. 
• 
c 
D 
E 
F 
G 
H 
A 
B 
c 
D 
E 
F 
G 
H 
KARNESH KUMAR v. STATE (She/at, I.) 
775 
Jn imposing the sentence of death on four of the appellants the trial 
court made a distinction between them and the others as three of them 
\v\lre armed· with firearms and the fourth with a hatchet This reason for 
imposing the extreme penalty on the four appellants could not be sustam· 
ed on the evidence as the others were also armed with equally dangerous 
weapons. Jn the absence of evidence as to who inflicted the 'fatal blows, 
the same punishment should have been imposed on all of them. [783 C-Dl 
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 
213 of 1967. 
Appeal by special leave from the judgment and order, dated 
May 19, 1967 of the Allahabad High Court (Lucknow Bench) at 
Lucknow in Criminal Appeal No, 118 of 1967 and capital sen· 
tence No. 11 of 1967. 
R. K. Garg, S. C. Agarwala, D. P. Singh and A. K. Gupta, for 
the appellants. 
0. P. Rana, for the respondent. 
The Judgment of the Court was delivered by 
Sbelat, J.-This appeal, by special leave ,is directed against the 
judgment of the High Court of Allahabad which confumed th.e 
convictions and sentences passed by the Sessions Judge, Hardru, 
in respect of the murders of Lal

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