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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.                             147 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 148 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                             149 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, 21 150 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 151 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 152 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.                             153 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 154 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                             155 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, 156 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 157 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. 22 158