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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