Full Judgment Text
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PETITIONER:
BHUPENDRA SINGH
Vs.
RESPONDENT:
THE STATE OF PUNJAB
DATE OF JUDGMENT:
05/03/1968
BENCH:
BHARGAVA, VISHISHTHA
BENCH:
BHARGAVA, VISHISHTHA
SIKRI, S.M.
SHELAT, J.M.
CITATION:
1968 AIR 1438 1968 SCR (3) 404
CITATOR INFO :
F 1974 SC2165 (69)
F 1975 SC 246 (16)
F 1975 SC1501 (8)
R 1976 SC1924 (6)
ACT:
Code of Criminal Procedure, 1898, ss. 375, 376 and 423--Duty
of appellate Court to examine entire record in proceedings
for confirmation of death sentence--if court can accept
defence admission of its case having no substance or should
examine record for itself.
Sentence--appeal against--when Supreme Court may interfere.
HEADNOTE:
The appellant lived with his father A in a house adjoining
that of the deceased G who lived there with his two sons and
a daughter. An argument developed one evening between the
appellant and one of the sons of G. When G intervened, the
appellant’s father A raised a ’lalkara’ asking the appellant
to finish him off. Thereupon the appellant shot and killed
G. By this time G’s two sons, his daughter and one M who
lived nearby had arrived and witnessed the occurrence. At
the trial the appellant’s defence was a pica of alibi but
the Trial Court rejected the defence and convicted the
appellant of G’s murder and sentenced him to death. in
appeal, the High Court did not go into the defence evidence
because the counsel appearing for the appellant admitted
that there was no substance in it. The High Court
accordingly dismissed the appeal and confirmed the sentence
of death.
In appeal to this Court against the conviction and the
sentence it was contended that the High Court in not
examining the defence evidence for itself, committed an
error and did not properly discharge its duties.
HELD : (i) Although ordinarily, in a criminal appeal against
conviction, the appellate Court, under s. 423 of the Code of
Criminal Procedure, can dismiss the appeal if the Court is
of the opinion that there is no sufficient ground for
interference and it is not necessary for the appellate Court
to examine the entire record for the purpose of arriving at
an independent decision, the position is different where the
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appeal is by an accused who is sentenced to death, so that
the High Court dealing with the appeal has before it,
simultaneously with the appeal,a reference for .confirmation
of the capital sentence under s. 374 of the Code. On a re-
ference for confirmation of sentence of death, the High
Court is required to proceed in accordance with sections 375
and 376 of the Code of Criminal Procedure and the provisions
of these sections make it clear that the duty of the High
Court, in dealing with the reference, is not only to see
whether the order passed by the Sessions Judge Is correct
but to examine the case for itself and even direct a further
enquiry or the taking of additional evidence if the Court
considers it desirable in order to ascertain the guilt or
the innocence of the convicted person. [407 D-G]
Jumman and Others v. The State of Punjab, A.I.R. 1957, S.C.
469; Ram Shanker Singh & Ors. v. State of West Bengal,
[1962] Supp. 1 S.C.R. 49 at p. 59; applied.
(ii)(Upon an examination of the entire evidence by the
Court) : No s had been made out- for interference with, the
appellants con[409 D-E]
405
Maaslti v. State of U.P., [1964] 8 S.C.R. 133 at p. 144;
referred to.
(iii) The sentence of death must be set aside and instead
the appellant sentenced to imprisonment for life
Although ordinarily this Court, in exercise of its power
under Art 136, does not interfere with a sentence, in the
present case there were some special features which had to
be taken into account : even according to the prosecution,
the murder of G by the appellant was not premeditated; the
act of firing at him a to-be that of a hot-headed person who
was incited to do so by his father; the murder was not in
any way cruel or brutal. In all these circumstances, the
ends of justice would be met if the lesser penalty
prescribed by law was awarded to the appellant. [413 G-H]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal 185of 1967.
Appeal by special leave from the judgment and order dated
May 18, 1967 of the Punjab and Haryana High Court in Cri-
minal Appeal No. 247 of 1967 and Murder Reference No. 23 of
1967.
A.S.R. Charl, B. A. Desai, S. C. Agarwal, A. K. Gupta,
Shiva Pujan Singh and Virendra Verma, for the appellant.
Hans Rai Khanna and R. N. Sachthey, for the respondent.
The Judgment of the Court was delivered by
Bhargava, J. Bhupendra Singh has come up to this Court in
appeal by special leave against a judgment of the High Court
of Punjab and Haryana confirming the sentence of death
awarded to him by the Sessions Judge of Jullundur for an
offence, under section 302 of the Indian Penal Code and
dismissing his appeal against the conviction and sentence.
The conviction of the appellant was recorded for committing
the murder of one Gurdarshan Singh who was living in the
same. village Birpind as the appellant in the house
adjoining the appellant’s house. The- appellant’s father,
Ajit Singh, also lived with the appellant, while, with
Gurdarshan Singh, were living his sons, Gurdial Singh and
Sarvjit Singh, and his daughter Gian Kaur. According to the
prosecution, on the 6th November, 1965, at about 7.45 p.m.,
the two brothers, Gurdial Singh and Sarvjit Singh, happened
to be standing in front of their house talking to each
other, when the appellant came out of his house and asked
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them what they were talking about. Gurdial Singh replied
that he and Sarvjit Singh were brothers and were talking
between themselves and it was no business of the appellant
to interfere. The appellant, thereupon, abused the two-
brothers and also slapped Sarvjit Singh on the face.
Gurdial Singh asked the appellant why he had beaten his
brother and used abusive language against the appellant.
The appellant got enraged, ran into his house abusing the
two boys, and return-
406
ed with a double-barrel 12 bore gun. When he came out of
his house this time, he was accompanied by his father, Ajit
Singh. Gurdial Singh and Sarvjit Singh then ran into the
’deorhi’ of their house. In the meantime, their father,
Gurdarshan Singh, and their sister, Gian Kaur, returned to
the house from their fields. When Gurdarshan Singh saw the
appellant carrying the gun, he enquired what the matter was.
Thereupon, Ajit Singh raised a ’lalkara’ asking his son, the
appellant, to finish off Gurdarshan Singh. The appellant
then fired two shots in quick succession from his gun
hitting Gurdarshan Singh on vital parts of his body.
Gurdarshan Singh fell down dead on the ground. One Malkiat
Singh, who lived in a house nearby, had arrived and saw this
occurrence, so that the four persons, who witnessed the
occurrence. were Malkiat Singh, Gurdial Singh, Sarvjit Singh
and Gian Kaur. Gurdial Singh, leaving others to look after
the dead body of his father, went with Lal Singh, Lambardar,
to the Police Station which was situated at a distance of
about three miles and lodge the First Information Report at
about 9.30 p.m. on the same day. The ,case was then
investigated. A post mortem examination on the corpse of
Gurdarshan Singh was performed and articles like pellets,
blood-stained cardboard pieces lying near the scene of
occurrence were taken into their possession by the Police.
Both the appellant and his father, Ajit Singh, were
thereafter prosecuted for this murder. The appellant was
charged with being the principal offender in committing the
murder, while his father, Ajit Singh, was prosecuted for
having participated in the murder with the common intention
that Gurdarshan Singh should be killed. However, before the
trial could take place in the Court of Sessions, Ajit Singh
was murdered and, for that murder, Gurdial Singh was
prosecuted.
In the case, at the first stage before the Court of the
Committing Magistrate, both Ajit Singh and the appellant
took the plea that neither of them was responsible for
committing the murder of Gurdarshan Singh and contented
themselves with denying the correctness of the prosecution
case. In the Court of Sessions, when the appellant was
examined under section 342 of the Code of Criminal
Procedure, he came forward with the plea that it was his
father, Ajit Singh, who actually fired and killed Gurdarshan
Singh. He pleaded that he himself was not present in this
-village at all and was, in fact, that day staying at
Phillaur. He, thus, put forward the plea of alibi.
The Sessions Judge believed the evidence of the four
prosecution witnesses mentioned above, and, after discussing
the defence evidence given on behalf of the appellant in
support of his pleas. rejected that evidence. He did not
accept the defence evidence that Gurdarshan Singh was fired
at by Ajit Singh and he also, held that the evidence given
on behalf of the appellant to prove
407
his alibi could not be relied upon. On these findings, the
Sessions Judge convicted the appellant and sentenced him to
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death for committing the murder of Gurdarshan Singh. When
the case came up before the High Court, the High Court
briefly examined the evidence of the prosecution witnesses
and held that their evidence was reliable. The High Court
did not, however, go into the defence evidence, because the
counsel appearing for the appellant, according to the High
Court, frankly admitted that there was no substance in it.
On this view, the High Court dismissed the appeal of the
appellant and confirmed his sentence of death.
In this appeal, the principal question that was canvassed
before us on behalf of the appellant was that the High
Court, in not examining the defence evidence for itself on
the simple ground that counsel for the appellant admitted
that there was no substance in it, committed an error and
did not properly discharge its duty. It appears that there
is substance in the submission made on behalf of the
appellant. Ordinarily, in a criminal appeal against
conviction, the appellate Court, under s. 423 of the Code of
Criminal Procedure, can dismiss the appeal, if the Court is
of the opinion that there is no sufficient ground for
interference, after examining all the grounds urged before
it for challenging the correctness of the decision given by
the trial Court. It is not necessary for the appellate
-Court to examine the entire record for the purpose of
arriving at an independent decision of its own whether the
conviction of the appellant is fully justified. The
position is, however, different where the appeal is by an
accused who is sentenced to death, so that the High Court
dealing with the appeal has before it, simultaneously with
the appeal, a reference for confirmation of the capital
sentence under s. 374 of the Code of Criminal Procedure. On
a reference for confirmation of sentence of death, the High
Court is required to proceed in accordance with sections 375
and 376 of the Code of Criminal Procedure and the provisions
of these sections make it clear that the duty of the High
Court, in dealing with the reference, is not only to see
whether the order passed by the Sessions Judge is correct,
but to examine the case for itself and even direct a further
enquiry or the taking of additional evidence if the Court
considers it desirable in order to ascertain the guilt or
the innocence of the convicted person It is true that, under
the proviso to s. 376, no order of confirmation is to be
made until the period allowed for preferring the appeal has
expired, or, if an appeal is presented within such period,
until such appeal is disposed of, so that, if an appeal is
filed by a condemned prisoner that appeal has to be disposed
of - before any order is made in the reference confirming
the sentence of death. In disposing of such an appeal,
however, it is necessary that the High Court should keep in
view its duty under s. 375 of the Code of Criminal Procedure
and, consequently, the Court must examine the appeal record
for itself,.
408
arrive at a view Whether a further enquiry or taking of
additional evidence is desirable or not, and then come to
its own conclusion on the entire material on record whether
conviction of the condemned prisoner is justified and the
sentence of death should be confirmed. In Jumman and Others
v. The State of Punjab(’), this Court explained this
position in the following words:-
"............ but there is a difference when a
reference is made under s.. 374, Criminal
Procedure Code, and when, disposing of an
appeal under s. 423, Criminal Procedure Code,
and that is that the High Court has to satisfy
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itself as to whether a case beyond reasonable
doubt has been made out against the accused
persons for the infliction of the penalty of
death. In fact the proceedings before’ the
High Court are a reappraisal and the
reassessment of the entire facts and law in
order that the High Court should be satisfied
on the materials about the guilt or innocence
of the accused persons. Such being the case,
it is the duty of the High Court to consider
the proceedings in all their aspects and come
to an independent conclusion on the materials,
apart from the view expressed by the Sessions
-Judge. In so doing, the High Court will be
assisted by the opinion expressed by the
Sessions Judge, but under the provisions of
the law above-mentioned it is for the High
Court to come to an independent conclusion of
its own."
The same principle was recognised in Ram Shankar Singh
Others, v.State of West Bengal (2) :_
"...... The High Court had also to consider
what order should be passed on the reference
under s. 374, and to decide on an appraisal of
the evidence, whether the order of conviction
for the offences for which the accused were
convicted was justified and whether, having
regard to the circumstances, the sentence of
death was the appropriate sentence."
In Masalti V. State of U.p.(3) this Court was dealing with
an appeal under Article 136 of the Constitution and, in that
appeal, on behalf of the persons who; were under sentence of
death, a point was sought to be urged which was taken before
the trial Court and was, rejected by it, but wits not
repeated before the -High Court. This Court held:-
".........it may, in a proper case, be
permissible to the appellants to ask this
Court to consider
(1) A.I.R. 1957 S.C. 469.
(2) [1962] Supp. I S.C.R. 49 at p. 59.
(3) [1964] 8 S.C.R. 133 at P. 144.
409
that point in an appeal under Article 136 of
the Constitution; after aft in criminal
proceedings of this character where sentences
of death are imposed on the appellants, it may
not be appropriate to refuse to consider
relevant and material pleas of fact and law
only on the ground that they were not urged
before the High Court. If it is shown that
the pleas were actually urged before the High
Court and had not been considered by it, then,
of course the party is entitled as a matter of
right to obtain a decision on those pleas from
this Court. But even otherwise no hard and
fast rule can be laid down prohibiting such
pleas being raised in appeals under Art. 136."
In view of these principles indicated by us above, and in
view of the fact that, in this case, the’ High Court did not
properly examine the defence evidence on the ground that the
counsel for the appellant in that Court admitted that there
was no substance in it, we permitted learned counsel for the
appellant in this appeal to take us through the entire
evidence on the record given by the prosecution and the
defence so as to enable us to form our own judgment about
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the correctness of the conviction and sentence of the
appellant. We, however, find that, after examining the
entire evidence, we are unable to hold that any grounds are
made out for interference with the conviction.
The prosecution case, as already mentioned by us above, is
supported by the evidence of four eye-witnesses, Gurdial
Singh, Sarvjit Singh, Gian Kaur and Malkiat Singh. Three of
these witnesses, Gurdial Singh, Sarvjit Singh and Gian Kaur
are the sons and daughter of the deceased Gurdarshan Singh,
but this circumstance, in our opinion, does not detract from
the value to be attached to their evidence, because,
naturally enough, they are interested in seeing that the
real murderer of their father is convicted of the offence
and they cannot be expected to adopt a course by which some
innocent person would be substituted for the person really
guilty of the murder. None of these witnesses had any such
enmity with the appellant as could induce him to give false
evidence and to substitute him as the murderer in place of
the person really guilty. In fact, their feelings. would be
strongest against the real culprit and, consequently, their
evidence cannot be discarded on the mere ground of their
close interest in the deceased. Malkiat Singh has been held
both by the Sessions Judge and the High Court to be an
independent witness and we find no reason to differ from the
view taken by the two Courts. On behalf of the appellant,
it- was sought to be. urged that Malkiat Singh bore a grudge
against Ajit Singh, because Ajit Singh had been instrumental
in the adoption of a son by Malkiat Singh’s real uncle, Veer
Singh, with the result that Malkiat Singh was
410
deprived of the succession to the property of his uncle.
Malkiat Singh denied that he had any grievance against Ajit
Singh on such a ground. In support of the plea put forward
on behalf of the appellant, one defence witness, Niranjan
Singh was examined who claimed to be the son of another real
uncle of Malkiat Singh. Niranjan Singh came to depose that
his son, Sadhu Singh, had been adopted by Veer Singh and
this adoption took place because Ajit Singh had asked Veer
Singh to take Sadhu Singh in adoption. Niranjan Singh had,
however, to admit that, in the deed of adoption, the person
adopted is described as Mukhtiar Singh and not Sadhu Singh.
To explain this discrepancy, Niranjan Singh came forward
with the assertion that his son, Sadhu Singh, bore an alias
Mukhtiar Singh. If Sadhu Singh was the real and principal
name of the boy adopted by Veer Singh, there is no reason
why that name was not mentioned in the deed of adoption and
why the person adopted was described only as Mukhtiar Singh.
There is further the circumstance that, even according to
Niranjan Singh, Malkiat Singh, witness, did not try to
challenge the adoption, even though the adoption had taken
place in April 1965, seven months before this incident.
Malkiat Singh had stated that he had no grievance against
Ajit Singh and was in fact not interested in challenging the
adoption. In these circumstances, we do not think that
Malkiat Singh can be said to be an interested witness and
must hold that his evidence has been rightly relied upon.
The time of the murder was not only proved by the evidence
of these four witnesses, but is also borne out by the
circumstance that the First Information Report was lodged at
the Police station three miles away at about 9.30 p.m.
without any undue delay. On behalf of the appellant, it was
urged that the First lnformation Report was in fact recorded
much later and not at 9.30 p.m. the same day, on the basis
that the copy of that report sent to the Ilaqa Magistrate
was received by him at 10.30 a.m. on 8th November, 1965.
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The argument was that, if the report had been lodged at 9.30
p.m. on 6th November 1965, the copy should have reached the
Magistrate the same night or early on the 7th November and
not as late as 8th November. We are unable to accept this
submission. The evidence of Gurdial Singh was perfectly
clear that he reached the police station and lodged the
report that very night at 9.30 p.m. and there is no reason
to disbelieve him. It appears that in this case, the
investigating officer, Sub-Inspector Ram Saran Dass was, to
some extent, negligent. In the report lodged by Gurdial
Singh, the facts given clearly made out an offence of
murder, and yet the Sub-Inspector chose to register the case
wrongly as for an offence under section 304 read with
section 34 of the Indian Penal Code. It may be that, having
wrongly put down the offence as under 304 I.P.C.’instead of
section 102, the Sub-Inspector did not consider it necessary
to
411
send the report to the Ilaqa Magistrate the same night and
delayed sending it, so that it was received at 10-30 a.m. on
8th November, 1965 by the Magistrate. It is also not clear
from the evidence whether, apart from the copy of the First
Information Report sent to the Ilaqa Magistrate, any special
report was also sent to the Magistrate by the Sub-Inspector.
In any case, we do not think that this late receipt of the
copy of the First Information Report by the Magistrate can
lead to the inference that Gurdial Singh is not right in
saying that he had the report recorded the same night at
9.30 p.m.
The evidence of the doctor who performed the post mortem
examination and of the ballistic expert clearly establish
that Gurdarshan Singh had died as a result of gun shot
injury received by him from a gun. The gun which the
appellant possessed under a licence issued to him was
examined by the ballistic expert and his evidence proved
that the shots, which killed the deceased, were fired from
that very gun. In these circumstances, the Sessions Judge
and the High Court were right in recording the conviction of
the appellant for the murder of Gurdarshan Singh on the
basis of this prosecution evidence.
So far as the defence put forward on behalf of the appellant
is concerned, the first point to be noticed is that the plea
that the shots, which killed Gurdarshan Singh, were fired by
Ajit Singh, was not taken by the appellant until his father,
Ajit Singh, had already died. It seems to be clear that
this plea, which was put forward for the first time in the
Court of Sessions, was an afterthought which could be taken
safely by the appellant after Ajit Singh had died and he
could not be convicted for the murder. When the appellant
was examined in the court of the Committing Magistrate while
Ajit Singh was alive, he did, not make any such statement.
This is an important circumstance that militates against the
plea put forward in defence.
The appellant relied upon the evidence of two witnesses in
support of the plea that the shots which killed Gurdarshan
Singh were fired by Ajit Singh and not by the appellant.
The first of these witnesses is Uggar Singh who stated that
he was in his house situated opposite to the house of the
appellant and, when he came out on hearing the noise, he saw
Ajit Singh quarelling with Gurdarshan Singh deceased and
exchanging abuses. Thereafter, Ajit Singh fired the gun
shots towards Gurdarshan Singh killing him instantaneously.
According to him, neither Malkiat Singh nor the sons of
Gurdarshan Singh were present at that time. Even Shrimati
Giano, according to him, was not there. The evidence of
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this witness cannot be relied upon for several reasons.
According to this witness, his statement was recorded by the
Police at about 10 a.m. the next day, i.e., the 7th
November, 1965; but
L7Sup.C.l.68--2
412
the investigating officer’s statement is clear that no
person residing in the neighbourhood had been examined by
him or had come forward to give any statement to him. Uggar
Singh, thus, made a wrong statement that he was examined by
the Police the next day. It also appears that he was
prosecuted in a murder case in which he was acquitted and
Ajit Singh had assisted him in that trial. The answers
given by him in the cross-examination also show that, in
fact, his house is not in front of the house of the
appellant but is situated in the same line as the house of
the appellant and the deceased and at some distance. He
tried to get over this difficulty by stating that he has
another house which is opposite to the house of the
appellant, but it appears that that house belongs to his
cousin, Ujagar Singh, and that is how the house is described
in the site plan also. In all these circumstances, the
evidence of Uggar Singh cannot be accepted.
The second witness is Niranjan Singh, whose evidence we have
noticed Above, and he also partially supported this part of
the defence case by saying that he came rushing to the spot
after the incident and found Gurdarshan Singh lying dead,
while Ajit Singh was standing outside his house with
something which appeared to be a gun. It is clear that this
is art another attempt by Niranian Singh to help the
appellant and on this point also reliance cannot be-,placed
on his evidence.
There remains to be considered the evidence given on behalf
of the appellant to establish his plea of alibi. One
defence witness Kirpal Singh was examined to prove that the
accused was on deputation in the Seed Corporation at
Phillaur and was attached to-the Tehsildar, Phillaur and
that he was not suspended until 11th November, 1965. His
evidence is of no help, because it is obvious that the
appellant could be suspended only after he surrendered in
connection with this charge which happened on 11th November
1965. The fact that he was in service on 6th November,
1965, does not necessarily prove that he could not have been
present at the place of occurrence.
The Witness, on whose evidence reliance is primarily placed
is Bunta Ram, Patwari. Bunta Ram stated that on 6th Novem-
ber, 1965 he had come to the office of the Corporation at
Phillaur in order to collect his pay and he also brought
some files from Nakodar in order to consign those files. In
that connection. he remained in the office of the
Corporation throughout the day. He saw the appellant also
working in the said office throughout the day. According to
him, at about 6.30 p.m., he and the appellant went to the
house of Inderjit Singh, Patwari and spent the night at his
house. It, ’however, I appears that this witness is a
direct subordinate of the appellant and that is the reason
why he has come forward to support the appellant’s case. In
this connec-
413
tion, Jagdish Rai Batta, Tehsildar in the Seed Corporation,
was examined as a court witness by the Sessions Judge and
his evidence shows that Bunta Ram was one of the Patwaris
working as a subordinate of the appellant who was a kanoongo
in the Corporation. Bunta Ram had stated that on that day
he had himself appeared before the Tehsildar in connection
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with the consignment of the tiles and the Tehsildar had
given him some directions in that behalf. Jagdish Rai Batta
stated that on that day Bunta Ram, Patwari did not appear
before him nor did he produce any files. He went further
and stated that he did not point out any defects to Bunta
Ram Patwari either orally or in writing. Thus, Bunta Ram-
is proved to be an untruthful witness by the evidence of
Jagdish Rai Batta, Tehsildar. Bunta Ram, in his cross-
examination, purported to state that the appellant was
living in a part of the house of Inderjit Singh at Phillaur.
On the face of it, it cannot be correct because the
appellant did not belong to Phillaur and was not even posted
there in connection with his employment. His headquarters,
according to Jagdish Rai Batta, was Nakodar and not
Phillaur. The evidence of Jagdish Rai Batta only shows that
he saw the appellant working in his office at Phillaur on
that day until about 5 p.m. Phillaur is connected with Nako-
dar by a metalled road along with which there is a bus
service, and village Birpind,where the murder took place, is
only three miles from Nakodar. It is quite clear that the
appellant could easily reach Birpind well before 7.45 p.m.
even if he worked at Phillaur till 5 p.m. on that day.- It
is also significant that the murder was committed with the
gun belonging to the appellant. If the appellant himself
had not been at Birpind and had been at Phillaur or Nakodar,
the gun should have been with him. at one of these places
and not at Birpind. The gun could not, therefore, have been
available for use by Ajit Singh, his father in his absence.
Considering all these circumstances and the nature of the
evidence, we are unable to accept that there is any force in
the defence plea of alibi put forward by the appellant, so
that the conviction based on the prosecution evidence must
be upheld.
A plea was put in for reduction of sentence. Ordinarily,
this -Court, in exercise of its powers under Art. 1 36 of
the Constitution, does not interfere with a sentence awarded
by a Sessions Judge and upheld by the High Court; but, in
this case, there are some special features which we cannot
ignore. Even according to the prosecution, the murder of
Gurdarshan Singh by the appellant was not pre-meditated.
The act of firing at him appears to be that of a hot-headed
person who was incited to do so by his father. The murder
was, not in any way cruel or brutal. In all these
circumstances, we think that the ends of justice would be
met if the lesser penalty prescribed by law is awarded to
the appellant.
414
Consequently, while upholding the conviction, we allow the
appeal to the extent that the sentence of death is set
aside, and, instead, the appellant is sentenced to
imprisonment for life.
R.K.P.S. Appeal allowed.
415