LexSTATE OF U.P. versus KISHANPAL & ORS
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[2008) 11 S.C.R. 1048 ' ' Y' A STATE OF U.P. \/. KISHANPAL & ORS. (Criminal Appeal No. 936 of 2003) I I B AUGUST 8, 2008 [R.V. RAVEENDRAN AND P. SATHASIVAM, JJ.] 'i ~ Penal Code, 1860; Ss. 148, 302, 304 Part-/ & 307: c Murder-Accused 16 in number forming unlawful ass,em- bly armed with firearms shot at deceased and others - Two persons died on the spot and ·another succumbed to injuries - FIR - Charge sheet-Acquitting accused Nos. 11 to 16, trial Court found accused Nos. 1 to 10 guilty of committing murder of deceased, convicted and sentenced them under s. 302 rlw , D s. 149, 307 rlw s. 149 and under s. 148 /PC - On appeal, High Court acquitted all the convicts except A 1 - Correctness of - v Held: Object of formation of unlawful assembly proved - High Court while accepting testimony of PWs confirmed conviction and sentence as against A 1 but has not given due credence E to their testimony in respect of other accused persons - When the testimony of PWs cogent, reliable and inspiring confidence of the Court, it cannot be discarded on ground that witnesses ·are relative of the deceased - Foundation has to be laid if plea of false implication is made - Evidence of PWs and CW1 . F found reliable by trial court and no reason found to disbelieve t them - Analysis of evidence of PWs clearly established the .. motive behind the incident - High Court lost sight in not con- centrating on material evidence while acquitting all the ac- ~ cused persons except A 1 - Guilt of all the accused has been G established by the prosecution beyond reasonable doubt, hence acquittal of all of them except A 1 resulted in miscar- riage of justice - Case of prosecution fully corroborated by medical evidence - Trial Court rightly held accused Nos. 1 to )I. . 10 guilty of committing the murder of deceased persons - H 1048 ' STATE OF U.P. v. KISHANPAL & ORS. 1049 ,....., However, in the facts and circumstances of the case, appro- A priate conviction would be under s.304 part 1 !PC and accord- ingly sentence reduced to 10 years - Sentencing - Relative/ interested witnesses - Testimony of. Criminal Law: B ~· )- Liability of members of an unlawful assembly - Dis- cussed. Motive - Scope of, in proving guilt of the accused. ' Evidence: c Evidence of related witness - Reliance on. Interested witness & natural witness - Meaning of. According to the prosecution, on the fateful day, ac- cused persons, 16 in number, hatched a conspiracy at D the residence of one 'G' for killing the deceased 'K' and '-f 'R' as they were allegedly harassing them. All the accused persons reached at the place of occurrence where infor- mant PW1 alongwith deceased 'K' and 'R' was preparing fodder for the cattle and his sister 'M' and mother, PW9 E were also present. Accused persons opened fire, the in- .formant hide himself in a hut, however, 'R' and the sister of informant 'M' died on the spot and 'K' died on the way to hospital. PW1, with the help of others, took the injured persons including his mother to the police station and a F . _), report was lodged. Injured were sent for medical exami- - nation by the police and post mortem examination was conducted on the dead bodies of the deceased persons. On completion of the investigation, charge sheet was filed by the police against 16 accused persons. Trial Court G found accused Nos.1 to 10 guilty of committing the of- · . fence of murder punishable under s.302 r/w s.149 IPC, -"( s.307 r/w s.149 IPC and under s.148 IPC and sentenced them to life imprisonment, it however, acquitted accused Nos.11 to 16, as charges were not proved against them. H ~~ f 1050 SUPREME COURT REPORTS [2008] 11 S.C.R. "(. ,• A The convicts preferred appeal. During pendency of ap- i- peal, A3, AS and AG died, appeal abated as against them. The High Court acquitted all the convicts except A-1. Hence, the present appeal preferred by the State. Partly allowing the appeal, the Court ~ B ~ .. HELD: 1.1 Though the High Court accepted the tes- timony of PWs 1, 5, 7 and 9 while confirming the convic- tion and sentences of accused No.1 but has not given due credence to their testimonies in respect of other ac- c cused. This Court has repeatedly held that if the testimony of prosecution witnesses was cogent, reliable and confi- dence inspiring, it cannot be discarded merely on the ground that the witness happened to be relative of the deceased. The witness may be call
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