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PETITIONER: DARSHAN SINGH & ANOTHER

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT29/01/1988

BENCH: OZA, G.L. (J) BENCH: OZA, G.L. (J) RAY, B.C. (J) SHETTY, K.J. (J)

CITATION:  1988 AIR  747            1988 SCR  (2) 843  1988 SCC  (1) 618        JT 1988 (1)   219  1988 SCALE  (1)198

ACT:      Indian Penal  Code, 1860: Sections 34 and 302-Murder by inflicting injuries  which were  cruel-Sentence of death not justified in the absence of motive.      Section 154-FIR-question as to time of recording-Such a question to be put in cross_examination-Held, in the absence of  any   material  to   the  contrary,   FIR  was  recorded immediately after the incident.

HEADNOTE: %      Appellants Nos.  1 and  2 along  with two other accused were convicted  for the  murder  of  the  first  Appellant’s paternal uncle,  his wife  and daughter.  First the brother, and then  his daughter  and wife  were done  to  death  with gandassa and kapa blows just outside their house.      The motive  alleged  was  that  the  first  appellant’s father and his deceased brother had inherited some land from their father  and there  were  disputes  about  it,  and  by eliminating the  family, one  of the  successors entitled to half share  in the  property had  been removed.  It was also alleged that the deceased man had no male issue and had only one daughter  for whom negotiations for marriage were in the offing and  appellant No.  1 and  his father apprehended the entry of  a stranger  in the  family as  the  son-in-law  to succeed to the property falling to the share of the deceased man. The  Trial Court convicted the appellants and sentenced them to death, while the other two accused were sentenced to life imprisonment.      Against the  conviction and  sentence,  an  appeal  was filed. There  was also  a reference  to the  High Court,  as death  sentence   was  involved   in  respect   of  the  two appellants.  The   High  Court   dismissed  the  appeal  and confirmed the  death sentence.  The appeal before this Court is filed  by the  two appellants  who have been sentenced to death.      The motive  alleged has  been disputed on behalf of the appellants, as  a will had been executed by the deceased man in favour  of the  son of his wife’s brother, and that if at all there was a motive he should have also been eliminated.

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844      It was  also contended that in the locality independent witnesses  could   be  available  and  they  have  not  been examined. Another  submission was  that one of the witnesses had complained  against the Police Officer and so the Police Officers were  prejudiced against him. The time at which the FIR had  been registered  has also  been questioned.  In the absence of  motive on  the part  of the second appellant, it was contended, that the death sentence awarded to him is not justified.      Allowing the appeal partly, this Court, ^      HELD: 1.  The will was filed after the murders, in some civil proceedings  when the legatee claimed to be brought on record in  place of  the deceased man. This apparently could not indicate  that this  will was  in the  knowledge of  the appellants on  the date  of incident.  Therefore the  motive cannot be doubted. [848G-H]      2. One  of the  witnesses is  the maternal uncle of the deceased girl  and there  were  some  negotiations  for  her marriage and for that purpose he along with his son had come to the house of the deceased. It is apparent that a maternal uncle is  generally consulted when negotiations for marriage of a  girl are in progress and apart from it both the courts below had  accepted the  testimony of  this witness which is fully corroborated  by the  First Information  Report lodged immediately after the incident. It appears from the evidence that the nearby area was not so inhabitated and by that time in the  evening no  one else  was available.  Those who were present have  been examined  and in  this view of the matter the contention  that independent witnesses were not examined is of  no consequence.  The names  of the eye-witnesses have been mentioned  in the  First Information  Report, which was lodged immediately  after the incident and the statements of eye-witnesses  have   been  fully  corroborated  by  medical evidence. No  doubt could  therefore  be  raised  about  the reliability of such evidence. [849B-C; 851C]      3. No relevant evidence was brought on record and not a single question  was put to any witness or to the person who made the First Information Report as to whether he had noted the correct  time of  the incident.  There is no material on record to  show as  to whether  the persons  who lodged  the First Information  Report, walked  through 12 1/2 kilometres or took  a lift  in any  vehicle.  In  the  absence  of  any material, the  only thing  that appears  is that immediately after the  incident the  report was recorded and this report contains a  clear description  of the incident corroborating the testimony of the eye-witnesses. [849F; 850A-B] 845      4. Merely  because the  second appellant  chose to make some application and also mentioned the names of some police officers in  it, it  could  not  be  said  that  all  police officers would be interested in falsely implicating him in a murder case.  In the complaint made by appellant No. 2, none of the police officers in charge of the investigation of the present case  has been referred to therein. It was, however, contended that  the brotherhood  of the  uniform  created  a prejudice against  the second  appellant and  that is why he has been  falsely implicated.  This appears to be too tall a proposition. There is no material to indicate that there was any prejudice  in the mind of the investigating officer. The report of  the incident  was lodged  immediately and  in the report the  part played  by the  accused  has  been  clearly stated. [851A-B; 850G-H]      5.1 It appears that first appellant and his father were

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keen to  grab the  property and  it is  in pursuit  of  this motive that they committed the triple murder. The attack was brutal. The  medical evidence  indicates that  the  deceased man’s neck  was chopped  off and  repeated blows  by Gandasa were inflicted on the body of his daughter. Therefore, it is clear that the first appellant first chopped off the neck of his uncle  and even  after doing this he inflicted number of blows on  the young  girl, who was his own uncle’s daughter, and the  repeated blows  go to  show that  he inflicted  the injuries with determination that she may not escape. In this view of  the matter and the brutal manner in which these two were done to death, there is no reason to alter the sentence awarded to the first appellant. [852C-E]      5.2 So far as the second appellant is concerned he is a stranger and  he is not in any way connected with the family and so  there could  be no  motive  attributed  to  him.  He appears to  have been  dragged into  the killing. Therefore, the sentence  of death  awarded to  the second  appellant is altered to a sentence of imprisonment for life. [852E-F]

JUDGMENT:      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 98 of 1987.      From the  Judgment and  Order dated  9.10.1986  of  the Punjab and Haryana High Court in Crl. A. No. 437 of 1986.      A.N. Mulla and S.K. Sabharwal for the Appellants.      M.R. Sharma, R.S. Suri, H.S. Phoolta, Meera Agarwal and R.C. Mishra for the Respondent. 846      The Judgment of the Court was delivered by      OZA, J.  This is  an appeal  on grant  of special leave against the judgment of the High Court of Punjab and Haryana in Criminal Appeal No. 437/86 and Reference No. 4/86 wherein the  learned  Judgess  of  the  High  Court  maintained  the conviction and sentence passed against the appellants by the learned Additional  Sessions Judge, Faridkot. The conviction and sentences passed against the appellants are: CHARGES & SENTENCES: Darshan Singh  u/s 302 IPC (for    Sentenced to death and to                the murder of       pay a fine of Rs.200/- or                Mukand Singh        in default R.I. for three                                    months. Pala Singh,    u/ss 302/34 IPC     Sentenced to undergo Buggar Singh   (for the murder)    imprisonment for life and alias Bagga    (of Mukand Singh)   to pay a fine of Rs.200/- Singh and                          or in default R.I. for Roop Singh                         three months each. Darshan Singh  u/s 302 IPC         Sentenced to death and to                (for the murder)    pay a fine of Rs.200/- or                of Harbans Kaur)    in default to undergo                                    R.I. for three months. Pala Singh,    u/ss 302/34 IPC     Sentenced to undergo Buggar Singh   (for the murder)    imprisonment for life alias Bagga    of Harbans Kaur)    and to pay a fine of Singh and                          Rs.200/- or in default Roop Singh                         R.I. for three months                                    each Buggar Singh   u/s 302 IPC         Sentenced to death and to Bagga Singh    (for the murder)    pay a fine of Rs.200/- or                of Pritam Kaur)     in default to undergo for                                    R.I. three months. Darshan Singh, u/ss 302/34 IPC     Sentenced to undergo Pala Singh and (for the murder)    imprisonment for life and

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Roop Singh     of Pritam Kaur)     to pay a fine of Rs.200/-                                    or in default to undergo                                    R.I. for three months                                    each. 847      Accused Pala Singh and Roop Singh are also convicted as mentioned above but they have not come up before this Court. This appeal has been filed by Darshan Singh and Buggar Singh @ Bagga  Singh, therefore  we are concerned with their cases only.      The prosecution  case at  the trial  was that  on  24th June, 1985 at about 7.30 p.m. Dalip Singh, brother of Pritam Kaur, and  his son  Sarbjit Singh  were present  outside the house of  Mukand Singh  alongwith Gurnam  Singh son  of Babu Singh. Mukand  Singh was  returning to  his house.  At  that time, Darshan  Singh and  Roop Singh  accused armed  with  a Gandasa each, Pala Singh and Buggar Singh accused armed with Kapa each  came on  a tractor  from the  village side.  They stopped the  tractor near Mukand Singh. All the four accused got down from the tractor. Pala Singh and Roop Singh accused caught hold  of Mukand  Singh deceased  and threw him on the ground. A  blow on the neck of Mukand Singh was inflicted by Darshan Singh  as a result of which the neck was chopped off except that  it remained  suspended with  the body  by skin. Then Harbans  Kaur, the daughter of Mukand Singh came out of the house  and she was given three gandasa blows on her head by Darshan  Singh. It  is thereafter  that Pritam  Kaur, the wife of  Mukand Singh came out of the house and Bugger Singh gave kapa  blows on  her person.  As a result, all the three victims died  on the  spot. Dalip  Singh, Sarbjit  Singh and Gurnam Singh  who had witnessed the incident raised an alarm and also  threw brick bats towards the assailants. Thereupon all the appellants made good their escape. It is significant that Mukand Singh had only one daughter Harbans Kaur and had no male issue.      The appellant  Darshan Singh  is the  son of Pala Singh whereas Bugger  Singh is said to be an agricultural labourer working with Pala Singh and Roop Singh also belonging to the group of appellant.      It is  alleged by the prosecution that the two brothers had inherited  some land  from their  father and  there were disputes about  it. Apparently, Pala Singh and Darshan Singh by eradicating  the  family  of  his  brother  Mukand  Singh removed one  of the  successors claiming  half share  in the property. It  was also  alleged that  as Mukand Singh had no male issue  and Harbans  Kaur was  of marriageable  age,  it appears from evidence that negotiations for marriage were in the offing,  Pala Singh  apprehended the  entrance  of  some stranger in  the family  as son-in-law  of Mukand  Singh  to succeed to  the property  falling in  the  share  of  Mukand Singh. 848      Dalip Singh  accompained with  Gurnam Singh son of Babu Singh went  immediately to  the Police  Station, Baghapurana and lodged  the First  Information Report  Ex. PH  which was recorded  by   Inspector  Darshan  Singh.  This  report  was recorded at  8.30 p.m.  and it was alleged that the incident had taken place sometimes in the evening about 7.30 p.m.      Inspector Darshan  Singh went on the spot, prepared the visual plan.  He also  held inquest of the three dead bodies of Mukand  Singh, Harbans  Kaur and Pritam Kaur respectively and sent  the dead  bodies for  autopsy. He also took blood- stained earth from the place where the bodies were found and recovered 20  brick bats  from the spot. The accused persons were  searched   and  it  is  alleged  that  they  were  not

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traceable. They, however, were arrested subsequently on 27th June,  1985   and  1st   July,  1985.   After  arrest,   the Investigation officer  interrogated Darshan Singh accused in the presence of Gurnam Singh son of Kartar Singh and Kalkiat Singh  PW   and  he   disclosed  in   his  statement  giving information where the gandasa is and on his information from the  specified  place,  the  gandasa  was  recovered.  After investigaton, a  charge-sheet was  filed and  on  trial  the appellants have  been convicted  and sentenced  as mentioned above. As  it involved  a  sentence  of  death  to  the  two appellants,  apart   from  the   appeal  preferred   by  the appellants there  was also a reference to the High Court and by the impugned judgment the High Court dismissed the appeal filed by  the appellants and confirmed the sentence of death awarded by  the learned  trial court  and it is against this judgment that the present appeal by Darshan Singh and Bugger Singh is before us.      Learned counsel  appearing for  the  appellants  mainly contended that  the motive  alleged that  the appellants did not like  the idea of a stranger inheriting the property and coming into  the family  after the  marriage of Harbans Kaur appears to  be not  a very  plaussible reason.  It was  also contended that  there is  a will executed by Mukand Singh in favour of  Sarbjit Singh son of Dalip Singh and therefore if the motive  was to  eliminate all possible successors to the half share  of Mukand Singh the accused appellants would not have spared  Sarbjit Singh. So far as this contention of the learned  counsel  is  concerned  when  he  referred  to  the relevant evidence  it is discovered that this will was filed by  Sarbjit   Singh  after   this  incident  in  some  civil proceedings when he claimed to be brought on record in place of Mukand  Singh on  the basis  of the will. This apparently could not indicate that this will in favour of Sarbjit Singh was in  the knowledge  of the  appellants  on  the  date  of incident. Learned  counsel could  not point out to any other material to 849 suggest that  this will  was known  to the appellants on the date of incident and therefore this contention raised by the learned counsel for the appellant is without any substance.      Learned counsel  also attempted  to contend  that Dalip Singh who  is the  brother of Pritam Kaur the wife of Mukand Singh has  given an explanation for having come to the house of Mukand  Singh but  it does not appear to be justified. As according to  the witness,  he  is  the  maternal  uncle  of Harbans Kaur  and there  was  some  negotiations  about  her marriage and  for that purpose he alongwith his son had come to the house of Mukand Singh. It is apparent that a maternal uncle of  the daughter  (bride) is  generally consulted when negotiations for  marriage of  the daughter  are in progress and apart  from it  both the  courts below  had accepted the testimony of  this witness  which also is fully corroborated by the First Information Report lodged immediately after the incident. In  fact, in  this case  as the  report is  lodged immediately the  contention advanced  by the learned counsel for the  appellants is  not that  there is  delay but it was seriously contended  that if the incident has taken place at 7.30 p.m.  as mentioned  in the First Information Report the report could  not have  been lodged  at 8.30 p.m. within one hour as  in the First Information Report itself the distance of the  police station  from  the  scene  of  occurrence  is recorded as  121/2 kilometres  and on this basis an argument was raised  by learned  counsel for  the appellants that the report appears  to have  been prepared  later on and a false time has been mentioned in the report.

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    Instances of  this filed  that no relevant evidence was brought on  record and  not a single question was put to any witness or  to Dalip  Singh who  made the  First Information Report that  he had  noted the time of incident after seeing the watch  and this  was recorded  in the  first information report as  7.30 p.m.  It is also clear that there is nothing in his  evidence to  indicate that  he and  Gurnam Singh who went to  the police  station walked  on foot  and covered  a distance of  121/2 kilometres  because it  is not  in  their testimony as  to whether  they went through the normal route or they  went across  the fields  by short  cut nor there is anything in  the evidence  that they  did not take a lift in any vehicles.  Learned counsel  when  confronted  with  this situation contended  that the  burden lay on the prosecution but it could not be disputed that if this was the contention of the  defence that the report could not have been recorded at 8.30  p.m. if  the incident  was at 7.30 p.m. question to establish this should have been put in corss-examination. It is apparent  that there  is no material to indicate that the time of incident when noted was 7.30 p.m. it is precise time nor it is there in 850 evidence as  to whether  the persons  who lodged  the  first information report  walked through  12  1/2  kilometres.  In abssence of any material the only thing that appears is that immediately after  the incident  the report  is recorded and this report  contains a  clear description  of the  incident corroborating the testimony of the eye witnesses. The courts below therefore on consideration of the testimony of the eye witnesses  accepted   their  version   and   convicted   the appellants as mentioned above.      Learned counsel  could not from the evidence of the eye witnesses refer  to any  part of  their evidence to indicate that the  evidence is  such on  which reliance  could not be placed  except  for  the  fact,  according  to  the  learned counsel, that  there were  disputes between  the two parties i.e. the  groups of the two brothers and all the prosecution witnesses apparently  were belonging  to the  group  of  the deceased.  It  was  also  contended  that  in  the  locality independent witnesses  could be  available but they have not been examined.  The Courts below have considered this aspect of the  matter. It appears from the evidence that the nearby area was  not so inhabitated and by that time in the evening no one  else was available. Those who were present have been examined and  in this view of the matter the contention that independent  witnesses   were  not   examined   is   of   no consequence.      It is  also significant  that the  testimony of the eye witnesses  has   been  fully  corroborated  by  the  medical evidence and  the injuries  on the  particular parts  of the body of  the three  deceased persons.  In this  view of  the matter therefore  learned counsel  for the appellants mainly emphasised on the aspect of motive and the first information report.      It was  also contended  that appellant Bugger Singh had submitted an  application somtimes  before this  incident in which he had made allegations against the police officers of the police  station and  in view of that the police officers must have  been prejudiced  against him. The application for contempt against  the police  moved by Bugger Singh was also relied upon in support of the contention. We do not find any substance in  this contention too. In the complaint made, it is apparent  that none  of the  police officers in charge of the investigations  of the present case has been referred to therein. It  was however,  contended that the brotherhood of

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the uniform created a prejudice against the appellant Buggar Singh, and  it is  why he  has been falsely implicated. This appears to  be too  tall a proposition. There is no material to indicate  that there was any prejudice in the mind of the investigating officer. The report of the incident was lodged immediately and in the 851 report the  part played  by the  accused  has  been  clearly stated. Under these circumstances, therefore, merely because Buggar  Singh  chose  to  make  some  application  and  also mentioned the  names of some police officers in it, it could not be  held that  all police officers will be interested in falsely implicating  this appellant  in a murder case. There is no  other material  on the  basis of  which it  could  be contended that there was any prejudice against him.      The evidence  of the eye witnesses have been considered by both  the courts  in detail  and especially  the Sessions Court before whom the witnesses were examined accepted their testimony and  we have no reason to discard their testimony. The names  of the  eye witnesses  have been mentioned in the first information report, which was lodged immediately after the incident  and the  statements of eye witnesses have been fully corroborated  by  medical  evidence.  No  doubt  could therefore be raised about the reliability of such evidence.      Learned  counsel  realising  the  situation  ultimately contended that so far as Darshan Singh is concerned he could not make  submissions about the sentence as he has done away with first  Mukand Singh  his uncle  and then  Harbans Kaur, Mukand Singh’ daughter i.e. her own cousin. But he contended that so  far as  Buggar Singh  is concerned he is a stranger and he  is not  in any  way connected with the family and so there could  be no  motive attributed to him. Pala Singh and Darshan Singh  may have the interest of getting the property falling into  the share of Mukand Singh but Buggar Singh has no such  motive and  therefore the sentence of death awarded to him does not appear to be justified.      The learned  counsel appearing for the respondent State contended that the courts below have considered the question of sentence  in  a  reasonable  manner  and  those  who  are personally responsible  for killing  in such a brutal manner three persons  one after  another, have  been  sentenced  to death and  those who  have been  convicted with  the aid  of Section 34  have been treated leniently and sentence of life imprisonment alone is awarded.      In the  light of the discussions above therefore so far as merits  are concerned,  there  is  no  substance  in  the contention advanced  by learned  counsel for the appellants. The conviction  of the  appellants could  not be assailed on any ground.  The only question that remains to be considered is the question of sentence. Learned counsel referred to the decision of  this Court  in Dalbir  Singh & Ors. v. State of Punjab, 852 [1979] 3  SCR 1059  wherein the  plausible reasons which may weigh with  a court  while awarding a sentence of death have been enunciated.  So far as the present case is concerned we must consider  the facts  of the  case. It  is clear and not disputed also  that father  of Mukand  Singh and  Pala Singh left behind  some agricultural  land. It  is not  in dispute that the  two brothers  Pala Singh and Mukand Singh were the only heirs  entitled to  the share  in the property of their father. It  is also not disputed that so far as Mukand Singh is concerned  he had  only one daughter Harbans Kaur and had no male  issue.  It  is  also  disputed  that  the  property disputes have  been going  on. There  have  been  cases  and

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complaints against  each other.  It appears  that Pala Singh and his  son Darshan  Singh were  keen to grab that property and it  is in  pursuit of  this motive  that  they  attacked Mukand Singh  and his  family and  killed all the members of the family,  Mukand Singh, his wife Pritam Kaur and his only daughter Harbans  Kaur and  thereby eliminated  everyone who could claim  any share  in  the  property.  The  attack  was brutal. The  medical evidence  indicates that Mukand Singh’s neck  was  chopped  off,  repeated  blows  by  Gandasa  were inflicted on the body of Harbans Kaur. Therefore it is clear that Darshan  Singh first  chopped off  the neck  of  Mukand Singh and even after doing this he inflicted number of blows on Harbans  Kaur a  young girl, his own Uncle’s daughter and the repeated  blows go  to show  that he  inflicted injuries with determination  that she may not escape. In this view of the matter  and the  manner in which brutally these two were done to  death, we  see no  reason  to  alter  the  sentence awarded to Darshan Singh.      So far as Buggar Singh is concerned it is no doubt true that he  inflicted three  blows on Pritam Kaur by Kapa which he was  carrying. So  far  as  infliction  of  injuries  are concerned it  could be described as nothing but cruel but it is true  that he  had no  motive. He  appears to  have  been dragged into  the killing.  In our  opinion, so far as he is concerned both  the courts  below were not right in awarding sentence of death.      Consequently  the   appeal  is   partly  allowed.   The conviction  of   all  the   appellants  is  maintained.  The sentences of  all the  appellants except  Buggar  Singh  are maintained and so far as Buggar Singh is concerned, sentence of death  awarded  to  him  is  altered  to  a  sentence  of imprisonment for life. G.N.                                         Appeal allowed. 853