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PETITIONER: KESAR SINGH

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT04/03/1974

BENCH: BEG, M. HAMEEDULLAH BENCH: BEG, M. HAMEEDULLAH CHANDRACHUD, Y.V.

CITATION:  1974 AIR  985

ACT: Criminal Practice. Conviction for murder-Sentence.

HEADNOTE: The  appellant  was charged with an offence  under  s.  302, Indian  Penal  Code of murdering three persons.   The  trial court found that there was enough evidence to show that  the appellant was one of murderers of one of the three, men  and sentenced him to life imprisonment.  The High Court enhanced the  sentence  to one for death on the  grounds:  that,  the motive  was to avenge murder of the appellant’s brother  in- law  committed  some years prior to the occurrence  so  that there  could  be no immediate provocation; that,  the  three murders were committed in very coldblooded and brutal manner when  the  deceased were sleeping on their cots;  that,  two shots from a 12 bore gun had been fired at each of the three murdered men indicating the determination to give no  chance of  survival  to  anyone; that, the time  selected  for  the murder  was such that no possible help could be rendered  to prevent  the  death  of any of the  three  deceased  and  no obstruction  could  be possible to carry out the  design  of committing these murders. Allowing the appeal in part, HELD  :  A criminal case is not tied down  to  a  particular version  as a civil case is by the pleading of the  parties. Moreover,  there is so much of explicable  inaccuracy  often intermingled with imagination and exaggeration by  witnesses who  are  convinced  of the guilt of  a  particular  accused person that courts dealing with criminal cases cannot  throw the whole case over-board simply because parts of it are im- probable.   To hold that a version is improbable is  not  to disbelieve  entirely or to find it to be false.  It  may  be that  facts are sometimes stranger than fiction.   Prudence, however  compels courts to test the version advanced in  the light of what is reasonably to be expected from the ordinary or  usual  norms of human conduct and the common  course  of natural  events  so  as  to infer  What  may  have  actually happened.   In  a criminal case conviction must  rest  on  a proof  so strong that the court must be convinced that  what is  concluded  must  necessarily have happened  and  is  not really explicable in any other way. [492A-D]  In the instant case although the appellant was guilty of an

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offence  punishable under s. 302 Indian Penal Code, all  the reasons  given  by  the High Court for  awarding  the  death sentence  have  not been substantiated.. The  evidence  only disclosed that it was more likely that the appellant was one of  the  several murderers and that he caused the  death  of only  one man with his gun, the other having been killed  by others  who  were not recognised, and,  therefore,  nothing, apart from the occurrence, proved about the character of the appellant.   Nothing was disclosed about the antecedents  of the  appellant.   Therefore, the real basis adopted  by  the High Court for enhancing the sentence of the appellant would disappear. [493A-C]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 167 of 1973. Appeal  by special leave from the judgment and  order  dated the  24th April, 1973, of the Punjab and Haryana High  Court at Chandigarh in Criminal Appeal No. 29 of 1972 and Criminal Revision No. 224 of 1972. Nuruddin Ahmed and D. Goburdhun, for the appellant. H.R.  Khanna,  O.  P.  Sharma and  R.  N.Sachthey,  for  the respondent. 488 The Judgment of the Court was delivered by BEG.   J.-This is an appeal by special leave filed by  Kesar Singh,  aged 23 years, who was convicted under  Section  302 Indian  Penal  Code on three counts and  sentenced  to  life imprisonment by an Additional Sessions’ Judge of Patiala for having  committed  the  murders of  three  persons,  namely, Gurbachan  Singh, Karnail Singh and Dewan Singh,  one  after another, during the night between 20th and 21st June,  1970, in village Dhablan.  On appeal against the conviction and  a revision application by the State against the lesser penalty for murder, the High Court of Punjab & Haryana dismissed the appeal   of  Kesar  Singh,  but  it  allowed  the   revision application of the State of Punjab enhancing the sentence of Kesar Singh to one of death. The  grounds  given  by the High  Court  for  enhancing  the sentence  were: the motive was to avenge the murder  of  the appellant’s brother in-law Gurnam Singh committed about 7 or 8  years prior to the occurrence so that there  could,be  no immediate provocation; the three murders were committed  "in a very cold blooded and brutal manner when the deceased were sleeping on their cots"; two shots from a 1 2 bore, gun  had been fired at each of the three murdered men "indicating the determination to give no chance of survival to anyone"; "the time selected for the murder was such that no possible  help could  be rendered to prevent the death of any of the  three deceased  and no obstruction could be possible to carry  out the  design  of committing these  murders".   Before  giving these reasons, quoted mostly in the words of the High  Court itself,  the High Court had relied on observations  of  this Court in Apren Joseph & Ors.  Vs.  The State of Kerala:(1)               "The determination of sentence in a given case               depends  on a variety of  considerations,  the               more,  important  being,  the  nature  of  the               crime,  the  manner  of  its  commission,  the               motive which impelled it and the character and               antecedents of accuseds". Learned  Counsel for the appellant has taken us through  the evidence of the two eye witnesses Gurdev Singh, P. W. 3, and Nachhattar Singh, P. W. 4, whose testimony had been accepted

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wholly  by  the  Trial Court and the High  Court  about  the murder  of three men by the appellant singly,  although  the Trial Court had disbelieved the very reason given for Gurdev Singh  to  wake up in time to see the  murder  of  Gurbachan Singh, and, therefore,had acquitted the co-accused Kishori. It  may  be mentioned here that Gurdev Singh, P. W.  3,  was shown  to be sleeping on the roof of the house of his  uncle Dewan  Singh, from where he could see his cousin,  Gurbachan Singh,  and brother Gurmel Singh, P. W. 5, sleeping  on  the roof of the next house where Gurbachan Singh was murdered on a  full moon night.  The prosecution version was that,  when Kesar Singh and the acquitted accused, Kishori, went up  the stairs  to the roof, Gurmel Singh, P. W. 5, who was  totally blind  from  birth, woke up and heard Kesar Singh,  whom  he recognised  by voice, telling Kishori to catch hold  of  the blind man who was awake. (1)  A.I.R. 1973 S.C.R 1. 489 He  alleged  that Kishori gave him two  blows  whereupon  he cried  out: "Mar Ditta Mar Ditta".  It is these cries  which are  said  to have awakened Gurdev Singh.   There  were  two abrasions  on the body of Gurmel Singh, one on the  forehead and another on his wrist, indicating that he had fallen down and  hurt himself.  The Trial Court had, very rightly,  held that  he  must have got up and shouted only  after  the  two shots had been fired at Gurbachan Singh.  There was no point in assaulting him merely because he was awake.  If that  was done he was sure to raise a hue and cry and wake up  others. Therefore, the prosecution version that Gurdev Singh, P.  W. 3,  had got up because of Gurmel Singh’s cries and had  seen the  appellant  firing twice at Gurbachan Singh  had  to  be discarded  as  too  transparent  an  embellishment  with  an obvious purpose behind it.  The High Court, however, had not analysed  the  evidence  of any of the  witnesses.   It  had observed rather mechanically:               "Both  Gurdev Singh and Nachhattar Singh  have               given  consistent version of the incident  and               their   statements   are  wholly   free   from               inaccuracies  or  discrepancies,  even  though               both  the  witnesses  were  cross-examined  at               considerable  length. nothing at all has  been               brought  out in their cross-examination  which               would  show that the story set up by  them  in               the examination-in-chief was not true". Apart from the fact that the High Court had not even noticed the  very  good  reasons  given  by  the  Trial  Court   for discarding the evidence of Gurmel Singh, P. W. 5,  including the fact that this witness , who claimed to have  identified Kesar  Singh  by voice, could not  recognise  Kesar  Singh’s voice when the Presiding Judge spoke to Kessar Singh, during the  trial,  to  test the correctness of the  claim  of  the witness, the High Court had overlooked a number of  features brought  out by cross-examination of the two  eye  witnesses which  made the version given out by them very difficult  to believe totally. Gurdev  Singh  had described Kesar Singh as wearing  a  blue turban whereas Nachhattar Singh had described it as a  cream coloured  ("Badami")  turban.  While Gurdev Singh  had  said that  Kesar  Singh Awe a white shirt, Nachhattar  Singh  had said  that he was draped in a with stripes on it and wore  a shirt of several colours.  Considering that Nachhattar Singh was said to be sleeping in a remote corner of the  enclosure around  the house on the roof of which Gurbachan  Singh  was murdered  and Dewan Singh and Karnail Singh were  asleep  at some distance from him in this enclosure, it is difficult to

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believe  that  Nachhattar could have made out not  only  the colour of the turban but also the stripes on the chadar  and shirt  of  Kesar  Singh even on a full  moon  night.   These varying   descriptions  could  indicate  that  perhaps   two different  but similar men with guns had been seen  shooting but  only Kesar Singh-was identified as the murderer with  a gun. Another   broad  feature,  brought  out  from   the   cross- examination  of  the  witnesses, may be  pointed  out  here. Kesar Singh was shown to 3-M45 Sup CI/75 490 have first climbed to the roof of the house where  Gurbachan Singh  was asleep and then to have come down the  stairs  to shoot at Karnail Singh on his cot, and, thereafter, to  have shot  Dewan Singh on his cot It does appear rather  unlikely that,  while even a blind man had got up, and Gurdev  Singh, P.  W.  3,  sleeping  on the roof of  the  next  house,  and Nachhattar  Singh, P. W. 4, Purran Singh, P. W. 6,  declared hostile,  who were also sleeping near Karnail Singh and  D.- wait  Singh,  had got up, neither Karnail  Singh  nor  Dewan Singh could got up from their cots and try to either grapple with  or  run away from the assailant who was  permitted  to quietly reload his double barrelled gun to shoot at each  of the  three men twice each time.  Dewan Singh  was,  however, said to be awake and sitting up in his bed when shot.   But, no  empty  cartridges  were  recovered  from  the  scene  of occurrence.   The  witnesses, who claimed to  have  observed everything so closely, did not depose that Kesar Singh  took out and put the spent cartridges into a pocket. Another  difficulty  in accepting  the  prosecution  version totally,  as put forward by the two eye witnesses,  is  that Gurdev  Singh, P. W. 3, was shown to have rushed out of  the house on the roof of which he was sleeping and to have taken up  his  stand at the bottom of the stairs  down  which  the murderer  and  his  companion are shown  to  have  descended although Gurdev Singh was empty handed and admitted that  he was  afraid of Kesar Singh who had a gun in his  possession. We.  find  it very difficult to believe  that  Gurdev  Singh would  have  rushed and taken up his stand here to  see  the murders of Karnail Singh and Dewan Singh if he had  actually seen Kesar Singh shoot twice at Gurbachan Singh on the roof. We  think that it is very likely that Gurdev Singh woke  up, like the others nearby. at hearing the gun shots and took up his  stand  near the stairs from where he  could  have  seen Kesar  Singh murdering Karnail Singh and Dewan Singh  It  is only  because he had not seen the murder of Gurbachan  Singh that  he could be expected, to act like this and.  come  and stand  at  the bottom of the  stairs,  without  apprehending danger to himself, down which the murderer descended.  If he had rushed at once to this spot in this fashion he was, more likely,   than  not,  to  have  virtually  intercepted   the murderer.  The  broad  probabilities  which we  have  mentioned  above certainly make it difficult to accept unhesitatingly, as the High Court had done, the version that Kesar Singh alone shot at each of the three men and killed them.  We have, however, no doubt that Kessar Singh was seen by the witnesses running away with a double barrelled gun and had actually killed  at least  one  of the three men murdered on the  night  between 20th and 21st June, 1970, and could have been seen doing so. It is likely that more than that is due to the not  uncommon propensity   of   witnesses  to  speculate,   imagine,   and exaggerate. Evidence shows that the appellant had two brothers at  least one of whom was a resident of village Dhablan at the time of

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the  shooting,  if implication was only due to a  desire  to take revenge for three murders, the appellant would not have been the only one who would have 491 been  alleged  to have used a gun to shoot  when  there  was opportunity to implicate others too in the same position  as the appellant so far as any enmity goes.  It is difficult to hold  that either Gurdev Singh or Nachhattar Singh, who  had both  been prosecuted for the murder of’ their step  brother Gurnam  Singh  but acquitted about seven  years  before  the occurrence,  could  have  any grudge for  this  reason  only either against Kesar Singh or his brother Bhajan Singh  both of whom were residing with and looking after the land of Tej Kaur  the  widow  of Gurnam Singh.   If  the  witnesses  had implicated  Kesar Singh merely out of suspicion  they  would have involved Bhajan Singh also for the same reason. The  statements of the two eye witnesses find  corroboration from the fairly detailed account of the occurrence of  about 3 a.m. in the F.I.R. lodged at Police Station Sadar  Patiala about 10 miles away at 8 25 a.m. on 21-6-1970. It appears that Lal Singh Sarpanch and Jag Singh Panch,  had also  come  to the scene of occurrence after  it  had  taken place and had gone to the Police Station so that the  F.I.R. was  lodged in their presence although they did not sign  it because  there was no need for that.  It was contended  that they ought to have been produced by the prosecution  because the  eye witnesses gave their accounts to them first.   They were  neither eye witneesses nor essential for unfolding  of the  prosecution  version.  If the eye  witnesses  had  said anything  before  them which could help  the  accused,  they could  have  been produced in defence, or in any  case,  the accused  could  have  applied for  their  examination  under Section  540 Criminal Procedure Code.  We do not think  that the  failure  to  examine  these  witnesses  either  by  the prosecution  or by the Court, suo moto, can cast a doubt  on the prosecution case. Apart  from  the  motive  to  murder,  we  think  that   the prosecution  case against the appellant finds  corroboration from  the  statement of the  Investigating  Officer,  Kuldev Singh, P. W. 12, who deposed that when he went to the  house of Tej Kaur, looking for the appellant, he found it  locked. The  appellant could be arrested only on 27-6-(97t) after  a "Nakabandi" at the canal bridge of village Dhakraba and  was found in illegal possession of the gun No. 60780 loaded with live cartridges and with powder lining inside the barrel  so that  it must have been used.  At the trial,  the  appellant falsely  denied  this  recovery  and  circumstances  of  his arrest.  His conduct was certainly very suspicious. The manner in which the witnesses describe the infliction of the  injuries  is also corroborated, according to  the  High Court, by the medical evidence.  On the whole we agree  with this view. Although we are not impressed by the rather ready and facile acceptance  by  the  High Court  of  the  whole  prosecution version,  which suffers from the  improbabilities  mentioned above, we find the evidence to be enough to establish beyond reasonable  doubt that Kesar Singh was at least one  of  the possibly several murderers. 492 Learned  Counsel  for the appellant has  submitted  that  it would  not be prudent, while discarding the case  of  triple murder against Kesar Singh., to unhold his conviction on the assumption  that  he committed at least one murder  as  this would  be contrary to the prosecution version.  It  is  also urged that a witness who has been disbelieved because he has

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falsely  implicated an accused for one murder could  not  be relied  upon for convicting the accused for another  murder. We  think  that  a  criminal case is  not  tied  down  to  a particular version as a civil case is by the pleading of the parties.    Moreover,  there  is  so  much   of   explicable inaccuracy   often  inter-mingled  with   imagination   ,and exaggeration by witnesses who are convinced of the guilt  of a  particular  accused  person  that  Courts  dealing   with criminal cases cannot throw the whole caw over-board  simply because parts of it are improbable.  To hold that a  version is improbable is not to disbelieve it entirely or to find it to  be false.  It may be that facts arc  sometimes  stranger than fiction.  Prudence, however, compels Courts to teat the version  advanced  in  the light of what  is  reasonably  be expected  from the ordinary or usual norms of human  conduct and the common course of natural events so as to infer  what may have actually happened.  In a criminal case a conviction must  rest  on  a proof so strong that  the  Court  must  be convinced  that  what  it concludes  must  necessarily  have happened and is not reasonably explicable in any other  way. We  think that the version given by the two  eye  witnesses, even though it suffers from improbabilities mentioned above, so as to make its total truthfulness doubtful, must be  true at  least  so  far as participation of Kesar  Singh  in  the murder of three men by shooting at least one of them, if not both  Karnail  Sigh  and Dewan Singh before  their  eyes  is concerned.  This much cannot, we think, be disbelieved.   As pointed  out above, the participation of Kesar Singh in  the occurrence  is sufficiently corroborated by other facts  and circumstances  mentioned above.  Thus, the testimony of  the two   eye  witnesses  does  not  stand  alone  against   the appellant.   We  are  unable to conclude that  the  two  eye witnesses  belong  to  the  category  of  wholly  unreliable witnesses so that their testimony cannot be acted upon  even when corroborated by other facts. It  may  be mentioned here that Kesar  Singh’s  sister,  Tej Kaur,  with whom he was said to be residing and who was  the owner  of the licensed double barrelled gun  recovered  from the  appellant’s  possession,  was  also  challenged  as  an instigator,  but  she was discharged.  It may  be  that  the appellant  had  grown up from childhood hearing  the  woeful story,  from  his  widowed  sister, of  the  murder  of  his brother-in-law, Gurnam Singh, who was a step-brother of Gur- dev Singh.  The appellant, who is a young man, may have been imP.-lied or goaded on by the grief of his widowed sister to participate  in  the  murder of three men as  a  part  of  a vendetta.  It had come in evidence that two of the  murdered men, Karnail Singh and Dewan Singh, had been prosecuted  for the murder of Gurnam Singh the brother-in-law of Kesar Singh and had been acquitted. 493 Therefore , although we hold that Kesar Singh was guilty  of an offence punishable under Section 302 I. P. C., we do  not consider  all  the  reasons  given by  the  High  Court  for awarding the death sentence to have been substantiated.  The High  Court  had overlooked facts which  we  have  mentioned above.  It had also overlooked that there was nothing, apart from  the  occurrence,  proved about the  character  of  the appellant.   Nothing was disclosed about the antecedents  of the  appellant.  If it was more likely, as we think it  was, that the appellant was one of the several murderers and that he  had caused the death of only one man with his  gun,  the others  having been killed by others who were  probably  not recognised,  the  real basis adopted for  awarding  a  death sentence to him would disappear.

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The result is that, although we uphold the conviction of the appellant for an offence punishable under Section 302 I.  P. C., we set aside the sentence of death and substitute it  by life imprisonment.  The appeal is thus partly allowed to the extent indicated above. P.B.R.                 Appeal allowed in part. 494