Full Judgment Text
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PETITIONER:
DALIP SINGH AND OTHERS
Vs.
RESPONDENT:
STATE OF PUNJAB.
DATE OF JUDGMENT:
15/05/1953
BENCH:
BOSE, VIVIAN
BENCH:
BOSE, VIVIAN
MAHAJAN, MEHR CHAND
JAGANNADHADAS, B.
CITATION:
1953 AIR 364 1954 SCR 145
CITATOR INFO :
R 1954 SC 204 (7)
D 1954 SC 648 (8)
D 1955 SC 762 (7)
R 1955 SC 778 (15)
RF 1956 SC 460 (9)
R 1956 SC 469 (14)
F 1958 SC 993 (11)
F 1960 SC 289 (18)
D 1960 SC 673 (6)
RF 1961 SC1787 (11)
R 1963 SC 174 (10)
R 1965 SC 202 (20)
RF 1968 SC1464 (3)
R 1972 SC 254 (4)
F 1974 SC 276 (11)
F 1974 SC 323 (5,9)
RF 1975 SC1917 (14)
R 1976 SC1084 (12)
R 1976 SC2207 (51)
F 1977 SC 472 (13)
F 1991 SC 318 (13)
ACT:
Indian Penal Code (XLV of 1860), ss. 149,302-Conviction
under s. 149-Conviction of less than five persons-When
proper-Sentence for transportation-Enhancement to sentence
of death, on appeal-Interference with discretion of trial
judge-Propriety-Evidence-Relationship of witness to
deceased.
HEADNOTE:
Before s. 149 of the Indian Penal Code can be applied, the
court must find with certainty that there were at least live
persons sharing the common object.
This does not, however, mean that five persons must always
be convicted before s. 149 can be applied. If the judge
concludes that five persons were unquestionably present and
shared the common object, though the identity of some of
them is in doubt, the conviction of the rest would be good;
but if this is his conclusion, it behoves him, particularly
in a murder case where heavy sentences have been imposed, to
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say so with certainty.
Rameshwar v. The State of Rajasthan ([1952] S.C.R. 377)
referred to.
The power to enhance a sentence from transportation to death
should very rarely be exercised and only for the strongest
reasons. It is not enough for the appellate court to say or
think that if left to itself it would have awarded the
greater penalty because the discretion does not belong to
the appellate court but to the trial judge, and the only
ground on which the appellate court can interfere is that
the discretion has been improperly exercised, as for
instance where no reasons have been given and none can be
inferred from the circumstances of the case or where the
facts are so gross that no normal judicial mind would have
awarded the lesser penalty.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 22 of
1953.
Appeal by special leave from the Judgment and Order dated
the 19th November, 1952, of the High Court of Judicature of
Punjab at Simla in Criminal Appeal No. 102 of 1952 and
Criminal Revision Nos. 423
146
and 499 of 1952 of the Court of the Sessions Judge,
Jullundur, in Sessions Case No. 30 of 1951 and Sessions
Trial No. 5 of 1951.
Jai Gopal Sethi (R. L. Kohli and Deva Singh, with him) for
the appellants.
Gopal Singh for the respondent.
1953. May 15. The Judgment of the Court was delivered by
BosE J.-Four persons appeal against sentences of death
passed upon them in convictions for a double murder, the
victims being two brothers, Rattan Singh and Bawa Singh.
The learned Sessions Judge convicted three others also but
sentenced all, including the four appellants, to
transportation for life. The High Court acquitted three of
the seven but sustained the convictions of the four
appellants and enhanced their sentences in each case to
death.
The prosecution story is simple. All seven accused belong
to the same village and belong to the same faction or
"party", as Mst. Punnan (P.W. 2) calls it. Of the seven,
the appellants Dalip Singh and Battan Singh are brothers.
Jarnail Singh who was acquitted is a son of Battan Singh.
The remaining four, including the appellants Sadhu Singh and
Kundan Singh, are not related to the other three and, except
for the evidence that they belong to the same party, are not
shown to have any common interest with the other three.
The appellants Dalip Singh and Battan Singh are said to have
assaulted the two dead men Rattan and Bawa about twenty
years before the occurrence. They were prosecuted and
convicted and served short terms of imprisonment. Dalip
Singh and Battan Singh are also said to be dacoits and it is
said that they believed that the two dead men used to
furnish information against them to the police. This is
said to be the motive for the murders. Why the others
should have joined in, except on the basis that they belong
to the same "Party", is not disclosed.
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The prosecution case is as follows:-On 16th June, 1951,
Rattan Singh was taking some food out to a well a short
distance from his house for himself and his son. This was
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about 2 p.m. Just as he left the house, his wife Mst.
Punnan (P.W. 2) heard cries of alarm and on rushing out with
her daughter Mst. Charni (P.W. 11) saw all seven accused
assaulting her husband. They beat him up till he fell to
the ground.
As soon as Rattan Singh fell down, they left him and rushed
to his (Rattan Singh’s) Haveli where the other brother Bawa
Singh was lying on a cot, shouting that they would also make
short work of him. All seven belaboured him on the cot,
then they dragged him out and beat him up some more.
After this they returned to where Rattan Singh was still
lying on the ground and gave him some more blows. Then they
ran away.
Bawa Singh died very shortly after the assault. The other
brother survived a little longer but he also died not long
after.
According to Mst. Punnan (P.W. 2) the accused were armed as
follows: The appellants Dalip Singh and Sadhu Singh with
barchhas; the appellant Battan Singh and two of the accused
who have been acquitted with lathis; the appellant Kundan
Singh had a takwa -a hatchet with along handle, and the
accused Kehar Singh, who has been acquitted, had a khunda-a
hefty stick with a curved iron end.
The medical evidence discloses that Rattan Singh had
nineteen injuries on his person. Of these, only two, on the
head, would have been fatal in themselves. The rest were on
non-vital parts like the foot, ankle, leg, knee, thigh,
buttock, forearm and wrist, but of these six were grievous.
The doctor says death was caused by shook produced by the
multiple injuries aided by haemorrhage in the brain due to
injury No. 14.
The other brother Bawa had sixteen injuries but except for
two the rest were on non-vital parts. One of the two was on
the head and the other ruptured the
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spleen. The rest were on the ankle, leg, knee, thigh,
elbow, thumb and wrist, but eleven of them were grievous.
In his case the doctor put the death down to rupture of the
spleen.
In Rattan Singh’s case, only one of the injuries was
inflicted by a sharp-edged pointed weapon and all the rest
by blunt weapons. The two on the head were inflicted by
blunt weapons.
In Bawa Singh’s case, four wounds were caused by a sharp-
edged or pointed sharp-edged weapon. The others were all
inflicted by blunt weapons. Here again, the fatal injury
which ruptured the spleen was caused by a blunt weapon.
This analysis would appear to indicate that neither of the
appellants Dalip Singh and Sadhu Singh, who carried spears,
nor the appellant Kundan Singh, who carried a hatchet, aimed
at any vital part; and of those who had blunt weapons, the
appellant Battan Singh who had a lathi has alone been
convicted while Indar Singh and Jarnail Singh, who also had
lathis, and kehar Singh, who had a khunda, have all been
acquitted; and yet Battan Singh alone could hardly have been
responsible for eighteen injuries on Rattan Singh and nine
on Bawa Singh.
The appellant Dalip Singh was arrested on the 17th June and
the other three on the 18th. Each was wearing blood-stained
clothes.
The learned Sessions Judge did not attach much importance to
the bloodstained clothes, nor did he regard the recovery of
certain weapons, some of which were blood-stained, as of
much consequence. But he was impressed with the evidence of
the two eyewitnesses Mst. Punnan (P.W. 2) and Mst. Charni
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(P. W. 11) and believing them convicted each of the seven
accused under section 302 read with section 149, Indian
Penal Code. He said that as the fatal injuries could not be
attributed to any one of the accused he refrained from
passing the sentence of death. All the assessors considered
all seven accused guilty.
The learned High Court Judges did not attach any importance
to the recovery of the weapons because
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for one thing they were not recovered till the 30th, that is
to say, not until fourteen days after the murders, and when
found, one set pointed out by Jarnail Singh, who has been
acquitted, was found in Dalip Singh’s field and another set,
pointed out by Sadhu Singh, was found in Kehar Singh’s
field. But they considered the blood-stained clothes an
important factor. They were not prepared to believe the two
eye-witnesses all the way, partly because they were of
opinion that a part of their story was doubtful and seemed
to have been introduced at the instance of the police and
partly because they considered that when the fate of seven
men hangs on the testimony of two women "ordinary prudence"
requires corroboration. They found corroboration in the
case of the four appellants because of the blood-stained
clothes and none in the case of the others. Accordingly,
they convicted the four appellants and acquitted the others.
Now this has led the learned Judges into an inconsistency
and it is that which led to the granting of special leave to
appeal. The learned Judges say that their conclusion is
that
(1) "generally the story related by Mst. Punnan and Mst.
Charni is true;
(2) that certainly not less than five persons took part in
the beating of the two deceased; and
(3) that the corroboration required by prudence is afforded
by the presence of the blood stained clothes found on the
persons of the four appellants who have been convicted. "
As regards the three accused whom they acquitted the learned
Judges say-
The other three accused may or may not have taken part in
the affair."
Now it is clear from the above that it is impossible to
ascribe any particular injury to any particular person.
Therefore’ it is impossible to convict any one of the
accused of murder simpliciter under section 302,
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150
nor do the learned Judges attempt to do that. They convict
under section 302 read with section 149. But section 149
requires the presence of five persons who share the common
object. It is true that in one place the learned Judges say
that there were certainly not less than five present but in
the very next breath they say that the three whom they
acquit "may or may not have taken part in the affair". If
those three -are eliminated, then we are left with only four
and that militates against their previous finding that they
were at least five.
Before section 149 can be called in aid, the court must find
with certainty that there were at least five persons sharing
the common object. A finding that three of them "may or may
not have been there" betrays uncertainty on this vital point
and it consequently becomes impossible to allow the
conviction to rest on this uncertain foundation.
This is not to say that five persons must always be
convicted before section 149 can be applied. There are
cases and cases. It is possible in some eases for Judges to
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conclude that though five were unquestionably there the
identity of one or more is in doubt. In that case, a
conviction of the rest with the aid of section 149 would be
good. But if that is the conclusion it behoves a court,
particularly in a murder case where sentences of
transportation in no less than four cases have been enhanced
to death, to say so with unerring certainty. Men cannot be
hanged on vacillating and vaguely uncertain conclusions.
In fairness to the learned Judges we have examined the
evidence with care to see whether, if that was in their
minds, such a conclusion could be reached in this particular
case on the evidence here. That it might be reached in
other cases on other facts is undoubted, but we are
concerned here with the evidence in this case.
Now mistaken identity has never been suggested. The accused
are all men of the same village and the eye-witnesses know
them by name. The murder took
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place in daylight and within a few feet of the two eye-
witnesses. If the witnesses had said, "I know there were
five assailants and I am certain of A, P and C. I am not
certain of the other two but think they were D and E", a
conviction of A, B and C, provided the witnesses are
believed, would be proper, But when the witnesses are in no
doubt either about the number or the identity and there is
no suggestion about mistaken identity and when further, the
circumstances shut out any reasonable possibility of that,
then hesitation on the part of the Judge can only be
ascribed, not to any doubt about identity but to doubt about
the number taking part. The doubt is not whether D and E
have been mistaken for somebody else but whether D and E
have been wrongly included to swell the number to five.
Again, it is possible for a witness to say that "A, B, C, D,
E and others, some ten or fifteen in number, were the
assailants". In that event, assuming always that the
evidence is otherwise accepted, it is possible to drop out D
and E and still convict A, B and C with the aid of section
149. But that again is not the case here. No one suggests
that there were more than seven; no one suggests that the
seven, or any of them, were, or could be, other than the
seven named.
Nor is it possible in this case to have recourse to section
34 because the appellants have not been charged with that
even in the alternative, and the common intention required
by section 34 and the common object required by section 149
are far from being the same thing. In the circumstances, we
find ourselves unable to allow the conviction to rest on the
insecure foundations laid by the High Court. We have
accordingly reviewed the evidence for ourselves. Mr. Sethi
took us elaborately through it. In our opinion, the learned
Sessions Judge’s conclusions are right.
We are unable to agree with the learned Judges of the High
Court that the testimony of the two eyewitnesses requires
corroboration. If the foundation
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for such an observation is based on the fact that the
witnesses are women and that the fate of seven men hangs on
their testimony, we know of no such rule. If it is grounded
on the reason that they are closely related to the deceased
we are unable to concur. This is a fallacy common to many
criminal cases and one which another Bench of this court
endeavoured to dispel in Rameshwar v. The State of
Rajasthan(1). We find, however, that it unfortunately still
persists, if not in the judgments of the courts, at any rate
in the arguments of counsel.
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A witness is normally to be considered independent unless he
or she springs from sources which are likely to be tainted
and that usually means unless the witness has cause, such as
enmity against the accused, to wish to implicate him
falsely. Ordinarily, a close relative would be the last to
screen the real culprit and falsely implicate an innocent
person. It is true, when feelings run high and there is
personal cause’ for enmity, that there is a tendency to drag
in an innocent person against whom a witness has a grudge
along with the guilty, but foundation must be laid for such
a criticism and the mere fact of relationship far from being
a foundation is often a sure guarantee of truth. However,
we are not attempting any sweeping generalisation. Each
case must be judged on its own facts. Our observations are
only made to combat what is so often put forward in cases
before us as a general rule of prudence. There is no such
general rule. Each case must be limited to and be governed
by its own facts.
This is not to say that in a given case a Judge for reasons
special to that case and to that witness cannot say that he
is not prepared to believe the witness because of his
general unreliability, or for other reasons, unless he is
corroborated. Of course, that can be done. But the basis
for such a conclusion must rest on facts special to the
particular instance and cannot be grounded on a supposedly
general rule of prudence enjoined by law as in the case of
accomplices.
(1) [1952] S.C.R. 377 at 390.
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Now what is the ground for suspecting the testimony of these
two witnesses? The only other reason given by the learned
High Court Judges is that they have introduced a false
element into their story at the instigation of the police in
order to save the "face" of the lambardars. But if that is
so, it throws a cloak of, unreliability over the whole of
their testimony and, therefore, though it may be safe to
accept their story where the corroborative element of the
blood-stained clothes is to be found, it would be as unsafe
to believe, on the strength of their testimony, that at
least five persons were present as it would be to accept
that the ones who have been acquitted were present; and once
we reach that conclusion section 149 drops out of the case.
We have carefully weighed the evidence of these women in the
light of the criticisms advanced against them by Mr. Sethi,
most of which are to be found in the judgments of the lower
courts, and we are impressed by the fact that the learned
Sessions Judge who saw them in the witness box was impressed
with their demeanour and by the way they stood up to the
crossexamination, and also by the fact that the learned High
Court Judges appear to believe them to the extent that at
least five persons were concerned.
Some of the accused have made general and sweeping
statements to the effect that the prosecution witnesses are
inimical to them but no one has suggested why. In the long
cross-examination of these witnesses not a single question
has been addressed to them to indicate any cause of enmity
against any of the accused other than the appellants Dalip
Singh and Battan Singh. A general question was asked, and
it was suggested that there was some boundary dispute
between Mst. Punnan’s husband and the accused Indar Singh
and Kundan Singh but that was not followed up by other
evidence and neither Kundan Singh nor Indar Singh suggests
that there was any such dispute in their examinations under
section 342, Criminal Procedure Code. Kehar Singh says
vaguely that he has inherited land which will pass to the
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line
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of Rattan and Bawa if he dies without heirs but lie has made
no effort to substantiate this. The questions put in cross-
examination therefore remain just shots in the dark and
leave the testimony of the two women unimpaired.
The first information report was made by Mst. Pullnan (P.W.
2) herself. It was made very promptly though this was
attacked by Mr. Sethi. It was made at 8-30 p.m. within 6-
1/2 hours of the occurrence at a place 12 miles from the
police station. The victims did not die at once and it was
only natural that Mst. Punnan’s first thoughts should have
been to tend them Next, she had to walk part of the distance
and the rest she covered in a lorry, and above all she has
not been cross-examined regarding delay. We consider that a
report made within 61 hours in such circumstances is prompt.
Now the important thing about this report is that it names
the seven accused, no less and no more, and from start to
finish Mst. Punnan has adhered to that story without
breaking down in cross-examination and without any attempt
to embellish it by adding more names; and in this she is
-supported by Mst. Charni (P.W. 11).
Next, the bloodstained clothes found on the persons of the
four appellants afford strong corroboration as against them,
and as two courts have believed the witnesses to that extent
all we need do is to concentrate on the other three accused
who have been acquitted in order to see whether there were
seven persons as Mst. Punnan says and to see whether the
conclusion of the High Court that there were at least five
present is sound.
We do not think the discovery of tile weapons can be,
lightly excluded. One set was pointed out by Jarnail Singh.
In itself that might not mean much but it is unquestionable
corroboration as against Jarnail Singh unless the fact of
discovery is disbelieved or is considered to be a fraud.
But that is not the finding of either court. The first
court, believes the evidence and the High Court does not
disbelieve it but
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considers the incident as of small probative value. It may
be in itself, but it is a corroborative element in the case
of two witnesses who do not require corroboration and that
makes it all the more safe to accept their testimony.
Next comes the discovery of another set of weapons by Sadhu
Singh. He was already implicated by reason of some blood-
stained clothes but the importance of the discovery in his
case lies in the fact that the weapons were found in the
field of Kehar Singh. It is certainly a circumstance to be
taken into consideration that these weapons should be found
in the field of a man who was named from the start.
Then comes the fact that Mst. Punnan (P.W. 2) not only
named the various assailants in her first information report
but stated exactly what sort of weapon each was carrying.
Here again she is consistent from start to finish except for
an unessential difference in the case of Jarnail. In the
first information report she said he had a dang while in her
evidence she says he had a lathi, but as a dang is a big
lathi that is not a real discrepancy. This, in our opinion,
is impressive consistency, especially as it tallies in
general with the postmortem findings. Now the fact that
weapons of this description, four stained with human blood,
are discovered at the instance of two persons she has named
from the beginning in the fields of others whom she has also
named from the start certainly does not tend to weaken her
testimony.
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The only accused who is not in some way independently linked
up with the testimony of these two women is Indar. But when
their stories find corroboration on so many important
particulars we see no reason why they should be disbelieved
as regards Indar, always remembering that these are not
witnesses who require corroboration under the law. In our
opinion, the High Court was unnecessarily cautious in
acquitting the other three accused when the learned Judges
were convinced that at least five persons were, concerned,
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We have taken into consideration the fact that the High
Court considers that the portion of Mst. Punnan’s story
regarding the lambardars has been falsely introduced by the
police, also that both courts have rejected the evidence
about the dying declaration. Despite that, we agree with
the learned Sessions Judge that Mst. Punnan and Mst.
Charni are to be believed regarding the main facts and that
they correctly named all seven accused as the assailants.
On that finding the conviction under section 302 read with
section 149 can be sustained. We accordingly uphold these
convictions. The acquittals in the other the cases will of
course stand but the mere fact that these persons have, in
our opinion, been wrongly acquitted cannot affect the
conviction in the other cases.
On the question of sentence, it would have been necessary
for us to interfere in any event because a question of
principle is involved. In a case of murder, the death
sentence should ordinarily be imposed unless the trying
Judge for reasons which should normally be recorded
considers it proper to award the lesser penalty. But the
discretion is his and if he gives reasons on which a
judicial mind could properly found, an appellate court
should not interfere. The power to enhance a sentence from
transportation to death should very rarely be exercised and
only for the strongest possible reasons. It is not enough
for an appellate court to say, or think, that if left to
itself it would have awarded the greater penalty because the
discretion does not belong to the appellate court but to the
trial Judge and the only ground on which an appellate court
can interfere is that the discretion has been improperly
exercised, as for example where no reasons are given and
none can be inferred from the circumstances of the case, or
where the facts are so gross that no normal judicial mind
would have awarded the lesser penalty.
None of these elements is present here. This is a case in
which no one has been convicted for his own act but is being
held vicariously responsible for the act of another or
others. In cases where the facts are more
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fully known and it is possible to determine who inflicted
blows which were fatal and who took a lesser part, it is a
sound exercise of judicial discretion to discriminate in the
matter of punishment. It is an equally sound exercise of
judicial discretion to refrain from sentencing all to death
when it is evident that some would not have been if the
facts had been more fully known and it had been possible to
determine, for example, who hit on the head or who only on a
thumb or an ankle; and when there are no means of deter-
mining who dealt the fatal blow, a judicial mind can
legitimately decide to award the lesser penalty in all the
cases. We make it plain that a Judge is not bound to do so,
for he has as much right to exercise his discretion one way
as the other. It is impossible to lay down a hard and fast
rule for each case must depend on its own facts. But if a
Judge does do so for reasons such as those indicated above,
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then it is impossible to hold that there has not been a
proper exercise of judicial discretion.
Now the High Court do not consider these facts at all. They
give no reasons and dispose of the matter in one sentence as
follows:
"I would dismiss the appeals of the other four and
accepting the revision petitions change their sentences
from transportation to death."
That, in our opinion, is not a proper way to interfere with
a judicial discretion when a question of enhancement is
concerned. We are unable to hold that the discretion was
improperly exercised by the learned Sessions Judge. Whether
we ourselves would have acted differently had we been the
trial court is not the proper criterion. We accordingly
accept the appeals on the question of sentence and reduce
the sentence in each case to that of transportation for
life. Except for that, the appeal is dismissed.
Sentence reduced.
Appeal dismissed.
Agent for the appellants: Naunit Lal.
Agent for the respondents: G H. Rajadhyaksha.
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