Full Judgment Text
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PETITIONER:
KESAR SINGH
Vs.
RESPONDENT:
STATE OF PUNJAB
DATE OF JUDGMENT04/03/1974
BENCH:
BEG, M. HAMEEDULLAH
BENCH:
BEG, M. HAMEEDULLAH
CHANDRACHUD, Y.V.
CITATION:
1974 AIR 985
ACT:
Criminal Practice.
Conviction for murder-Sentence.
HEADNOTE:
The appellant was charged with an offence under s. 302,
Indian Penal Code of murdering three persons. The trial
court found that there was enough evidence to show that the
appellant was one of murderers of one of the three, men and
sentenced him to life imprisonment. The High Court enhanced
the sentence to one for death on the grounds: that, the
motive was to avenge murder of the appellant’s brother in-
law committed some years prior to the occurrence so that
there could be no immediate provocation; that, the three
murders were committed in very coldblooded and brutal manner
when the deceased were sleeping on their cots; that, two
shots from a 12 bore gun had been fired at each of the three
murdered men indicating the determination to give no chance
of survival to anyone; that, the time selected for the
murder was such that no possible help could be rendered to
prevent the death of any of the three deceased and no
obstruction could be possible to carry out the design of
committing these murders.
Allowing the appeal in part,
HELD : A criminal case is not tied down to a particular
version as a civil case is by the pleading of the parties.
Moreover, there is so much of explicable inaccuracy often
intermingled with imagination and exaggeration by witnesses
who are convinced of the guilt of a particular accused
person that courts dealing with criminal cases cannot throw
the whole case over-board simply because parts of it are im-
probable. To hold that a version is improbable is not to
disbelieve entirely or to find it to be false. It may be
that facts are sometimes stranger than fiction. Prudence,
however compels courts to test the version advanced in the
light of what is reasonably to be expected from the ordinary
or usual norms of human conduct and the common course of
natural events so as to infer What may have actually
happened. In a criminal case conviction must rest on a
proof so strong that the court must be convinced that what
is concluded must necessarily have happened and is not
really explicable in any other way. [492A-D]
In the instant case although the appellant was guilty of an
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offence punishable under s. 302 Indian Penal Code, all the
reasons given by the High Court for awarding the death
sentence have not been substantiated.. The evidence only
disclosed that it was more likely that the appellant was one
of the several murderers and that he caused the death of
only one man with his gun, the other having been killed by
others who were not recognised, and, therefore, nothing,
apart from the occurrence, proved about the character of the
appellant. Nothing was disclosed about the antecedents of
the appellant. Therefore, the real basis adopted by the
High Court for enhancing the sentence of the appellant would
disappear. [493A-C]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 167 of
1973.
Appeal by special leave from the judgment and order dated
the 24th April, 1973, of the Punjab and Haryana High Court
at Chandigarh in Criminal Appeal No. 29 of 1972 and Criminal
Revision No. 224 of 1972.
Nuruddin Ahmed and D. Goburdhun, for the appellant.
H.R. Khanna, O. P. Sharma and R. N.Sachthey, for the
respondent.
488
The Judgment of the Court was delivered by
BEG. J.-This is an appeal by special leave filed by Kesar
Singh, aged 23 years, who was convicted under Section 302
Indian Penal Code on three counts and sentenced to life
imprisonment by an Additional Sessions’ Judge of Patiala for
having committed the murders of three persons, namely,
Gurbachan Singh, Karnail Singh and Dewan Singh, one after
another, during the night between 20th and 21st June, 1970,
in village Dhablan. On appeal against the conviction and a
revision application by the State against the lesser penalty
for murder, the High Court of Punjab & Haryana dismissed the
appeal of Kesar Singh, but it allowed the revision
application of the State of Punjab enhancing the sentence of
Kesar Singh to one of death.
The grounds given by the High Court for enhancing the
sentence were: the motive was to avenge the murder of the
appellant’s brother in-law Gurnam Singh committed about 7 or
8 years prior to the occurrence so that there could,be no
immediate provocation; the three murders were committed "in
a very cold blooded and brutal manner when the deceased were
sleeping on their cots"; two shots from a 1 2 bore, gun had
been fired at each of the three murdered men "indicating the
determination to give no chance of survival to anyone"; "the
time selected for the murder was such that no possible help
could be rendered to prevent the death of any of the three
deceased and no obstruction could be possible to carry out
the design of committing these murders". Before giving
these reasons, quoted mostly in the words of the High Court
itself, the High Court had relied on observations of this
Court in Apren Joseph & Ors. Vs. The State of Kerala:(1)
"The determination of sentence in a given case
depends on a variety of considerations, the
more, important being, the nature of the
crime, the manner of its commission, the
motive which impelled it and the character and
antecedents of accuseds".
Learned Counsel for the appellant has taken us through the
evidence of the two eye witnesses Gurdev Singh, P. W. 3, and
Nachhattar Singh, P. W. 4, whose testimony had been accepted
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wholly by the Trial Court and the High Court about the
murder of three men by the appellant singly, although the
Trial Court had disbelieved the very reason given for Gurdev
Singh to wake up in time to see the murder of Gurbachan
Singh, and, therefore,had acquitted the co-accused Kishori.
It may be mentioned here that Gurdev Singh, P. W. 3, was
shown to be sleeping on the roof of the house of his uncle
Dewan Singh, from where he could see his cousin, Gurbachan
Singh, and brother Gurmel Singh, P. W. 5, sleeping on the
roof of the next house where Gurbachan Singh was murdered on
a full moon night. The prosecution version was that, when
Kesar Singh and the acquitted accused, Kishori, went up the
stairs to the roof, Gurmel Singh, P. W. 5, who was totally
blind from birth, woke up and heard Kesar Singh, whom he
recognised by voice, telling Kishori to catch hold of the
blind man who was awake.
(1) A.I.R. 1973 S.C.R 1.
489
He alleged that Kishori gave him two blows whereupon he
cried out: "Mar Ditta Mar Ditta". It is these cries which
are said to have awakened Gurdev Singh. There were two
abrasions on the body of Gurmel Singh, one on the forehead
and another on his wrist, indicating that he had fallen down
and hurt himself. The Trial Court had, very rightly, held
that he must have got up and shouted only after the two
shots had been fired at Gurbachan Singh. There was no point
in assaulting him merely because he was awake. If that was
done he was sure to raise a hue and cry and wake up others.
Therefore, the prosecution version that Gurdev Singh, P. W.
3, had got up because of Gurmel Singh’s cries and had seen
the appellant firing twice at Gurbachan Singh had to be
discarded as too transparent an embellishment with an
obvious purpose behind it. The High Court, however, had not
analysed the evidence of any of the witnesses. It had
observed rather mechanically:
"Both Gurdev Singh and Nachhattar Singh have
given consistent version of the incident and
their statements are wholly free from
inaccuracies or discrepancies, even though
both the witnesses were cross-examined at
considerable length. nothing at all has been
brought out in their cross-examination which
would show that the story set up by them in
the examination-in-chief was not true".
Apart from the fact that the High Court had not even noticed
the very good reasons given by the Trial Court for
discarding the evidence of Gurmel Singh, P. W. 5, including
the fact that this witness , who claimed to have identified
Kesar Singh by voice, could not recognise Kesar Singh’s
voice when the Presiding Judge spoke to Kessar Singh, during
the trial, to test the correctness of the claim of the
witness, the High Court had overlooked a number of features
brought out by cross-examination of the two eye witnesses
which made the version given out by them very difficult to
believe totally.
Gurdev Singh had described Kesar Singh as wearing a blue
turban whereas Nachhattar Singh had described it as a cream
coloured ("Badami") turban. While Gurdev Singh had said
that Kesar Singh Awe a white shirt, Nachhattar Singh had
said that he was draped in a with stripes on it and wore a
shirt of several colours. Considering that Nachhattar Singh
was said to be sleeping in a remote corner of the enclosure
around the house on the roof of which Gurbachan Singh was
murdered and Dewan Singh and Karnail Singh were asleep at
some distance from him in this enclosure, it is difficult to
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believe that Nachhattar could have made out not only the
colour of the turban but also the stripes on the chadar and
shirt of Kesar Singh even on a full moon night. These
varying descriptions could indicate that perhaps two
different but similar men with guns had been seen shooting
but only Kesar Singh-was identified as the murderer with a
gun.
Another broad feature, brought out from the cross-
examination of the witnesses, may be pointed out here.
Kesar Singh was shown to 3-M45 Sup CI/75
490
have first climbed to the roof of the house where Gurbachan
Singh was asleep and then to have come down the stairs to
shoot at Karnail Singh on his cot, and, thereafter, to have
shot Dewan Singh on his cot It does appear rather unlikely
that, while even a blind man had got up, and Gurdev Singh,
P. W. 3, sleeping on the roof of the next house, and
Nachhattar Singh, P. W. 4, Purran Singh, P. W. 6, declared
hostile, who were also sleeping near Karnail Singh and D.-
wait Singh, had got up, neither Karnail Singh nor Dewan
Singh could got up from their cots and try to either grapple
with or run away from the assailant who was permitted to
quietly reload his double barrelled gun to shoot at each of
the three men twice each time. Dewan Singh was, however,
said to be awake and sitting up in his bed when shot. But,
no empty cartridges were recovered from the scene of
occurrence. The witnesses, who claimed to have observed
everything so closely, did not depose that Kesar Singh took
out and put the spent cartridges into a pocket.
Another difficulty in accepting the prosecution version
totally, as put forward by the two eye witnesses, is that
Gurdev Singh, P. W. 3, was shown to have rushed out of the
house on the roof of which he was sleeping and to have taken
up his stand at the bottom of the stairs down which the
murderer and his companion are shown to have descended
although Gurdev Singh was empty handed and admitted that he
was afraid of Kesar Singh who had a gun in his possession.
We. find it very difficult to believe that Gurdev Singh
would have rushed and taken up his stand here to see the
murders of Karnail Singh and Dewan Singh if he had actually
seen Kesar Singh shoot twice at Gurbachan Singh on the roof.
We think that it is very likely that Gurdev Singh woke up,
like the others nearby. at hearing the gun shots and took up
his stand near the stairs from where he could have seen
Kesar Singh murdering Karnail Singh and Dewan Singh It is
only because he had not seen the murder of Gurbachan Singh
that he could be expected, to act like this and. come and
stand at the bottom of the stairs, without apprehending
danger to himself, down which the murderer descended. If he
had rushed at once to this spot in this fashion he was, more
likely, than not, to have virtually intercepted the
murderer.
The broad probabilities which we have mentioned above
certainly make it difficult to accept unhesitatingly, as the
High Court had done, the version that Kesar Singh alone shot
at each of the three men and killed them. We have, however,
no doubt that Kessar Singh was seen by the witnesses running
away with a double barrelled gun and had actually killed at
least one of the three men murdered on the night between
20th and 21st June, 1970, and could have been seen doing so.
It is likely that more than that is due to the not uncommon
propensity of witnesses to speculate, imagine, and
exaggerate.
Evidence shows that the appellant had two brothers at least
one of whom was a resident of village Dhablan at the time of
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the shooting, if implication was only due to a desire to
take revenge for three murders, the appellant would not have
been the only one who would have
491
been alleged to have used a gun to shoot when there was
opportunity to implicate others too in the same position as
the appellant so far as any enmity goes. It is difficult to
hold that either Gurdev Singh or Nachhattar Singh, who had
both been prosecuted for the murder of’ their step brother
Gurnam Singh but acquitted about seven years before the
occurrence, could have any grudge for this reason only
either against Kesar Singh or his brother Bhajan Singh both
of whom were residing with and looking after the land of Tej
Kaur the widow of Gurnam Singh. If the witnesses had
implicated Kesar Singh merely out of suspicion they would
have involved Bhajan Singh also for the same reason.
The statements of the two eye witnesses find corroboration
from the fairly detailed account of the occurrence of about
3 a.m. in the F.I.R. lodged at Police Station Sadar Patiala
about 10 miles away at 8 25 a.m. on 21-6-1970.
It appears that Lal Singh Sarpanch and Jag Singh Panch, had
also come to the scene of occurrence after it had taken
place and had gone to the Police Station so that the F.I.R.
was lodged in their presence although they did not sign it
because there was no need for that. It was contended that
they ought to have been produced by the prosecution because
the eye witnesses gave their accounts to them first. They
were neither eye witneesses nor essential for unfolding of
the prosecution version. If the eye witnesses had said
anything before them which could help the accused, they
could have been produced in defence, or in any case, the
accused could have applied for their examination under
Section 540 Criminal Procedure Code. We do not think that
the failure to examine these witnesses either by the
prosecution or by the Court, suo moto, can cast a doubt on
the prosecution case.
Apart from the motive to murder, we think that the
prosecution case against the appellant finds corroboration
from the statement of the Investigating Officer, Kuldev
Singh, P. W. 12, who deposed that when he went to the house
of Tej Kaur, looking for the appellant, he found it locked.
The appellant could be arrested only on 27-6-(97t) after a
"Nakabandi" at the canal bridge of village Dhakraba and was
found in illegal possession of the gun No. 60780 loaded with
live cartridges and with powder lining inside the barrel so
that it must have been used. At the trial, the appellant
falsely denied this recovery and circumstances of his
arrest. His conduct was certainly very suspicious.
The manner in which the witnesses describe the infliction of
the injuries is also corroborated, according to the High
Court, by the medical evidence. On the whole we agree with
this view.
Although we are not impressed by the rather ready and facile
acceptance by the High Court of the whole prosecution
version, which suffers from the improbabilities mentioned
above, we find the evidence to be enough to establish beyond
reasonable doubt that Kesar Singh was at least one of the
possibly several murderers.
492
Learned Counsel for the appellant has submitted that it
would not be prudent, while discarding the case of triple
murder against Kesar Singh., to unhold his conviction on the
assumption that he committed at least one murder as this
would be contrary to the prosecution version. It is also
urged that a witness who has been disbelieved because he has
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falsely implicated an accused for one murder could not be
relied upon for convicting the accused for another murder.
We think that a criminal case is not tied down to a
particular version as a civil case is by the pleading of the
parties. Moreover, there is so much of explicable
inaccuracy often inter-mingled with imagination ,and
exaggeration by witnesses who are convinced of the guilt of
a particular accused person that Courts dealing with
criminal cases cannot throw the whole caw over-board simply
because parts of it are improbable. To hold that a version
is improbable is not to disbelieve it entirely or to find it
to be false. It may be that facts arc sometimes stranger
than fiction. Prudence, however, compels Courts to teat the
version advanced in the light of what is reasonably be
expected from the ordinary or usual norms of human conduct
and the common course of natural events so as to infer what
may have actually happened. In a criminal case a conviction
must rest on a proof so strong that the Court must be
convinced that what it concludes must necessarily have
happened and is not reasonably explicable in any other way.
We think that the version given by the two eye witnesses,
even though it suffers from improbabilities mentioned above,
so as to make its total truthfulness doubtful, must be true
at least so far as participation of Kesar Singh in the
murder of three men by shooting at least one of them, if not
both Karnail Sigh and Dewan Singh before their eyes is
concerned. This much cannot, we think, be disbelieved. As
pointed out above, the participation of Kesar Singh in the
occurrence is sufficiently corroborated by other facts and
circumstances mentioned above. Thus, the testimony of the
two eye witnesses does not stand alone against the
appellant. We are unable to conclude that the two eye
witnesses belong to the category of wholly unreliable
witnesses so that their testimony cannot be acted upon even
when corroborated by other facts.
It may be mentioned here that Kesar Singh’s sister, Tej
Kaur, with whom he was said to be residing and who was the
owner of the licensed double barrelled gun recovered from
the appellant’s possession, was also challenged as an
instigator, but she was discharged. It may be that the
appellant had grown up from childhood hearing the woeful
story, from his widowed sister, of the murder of his
brother-in-law, Gurnam Singh, who was a step-brother of Gur-
dev Singh. The appellant, who is a young man, may have been
imP.-lied or goaded on by the grief of his widowed sister to
participate in the murder of three men as a part of a
vendetta. It had come in evidence that two of the murdered
men, Karnail Singh and Dewan Singh, had been prosecuted for
the murder of Gurnam Singh the brother-in-law of Kesar Singh
and had been acquitted.
493
Therefore , although we hold that Kesar Singh was guilty of
an offence punishable under Section 302 I. P. C., we do not
consider all the reasons given by the High Court for
awarding the death sentence to have been substantiated. The
High Court had overlooked facts which we have mentioned
above. It had also overlooked that there was nothing, apart
from the occurrence, proved about the character of the
appellant. Nothing was disclosed about the antecedents of
the appellant. If it was more likely, as we think it was,
that the appellant was one of the several murderers and that
he had caused the death of only one man with his gun, the
others having been killed by others who were probably not
recognised, the real basis adopted for awarding a death
sentence to him would disappear.
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The result is that, although we uphold the conviction of the
appellant for an offence punishable under Section 302 I. P.
C., we set aside the sentence of death and substitute it by
life imprisonment. The appeal is thus partly allowed to the
extent indicated above.
P.B.R. Appeal allowed in part.
494