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PETITIONER: STATE OF RAJASTHAN

       Vs.

RESPONDENT: KARTAR SINGH

DATE OF JUDGMENT: 18/03/1970

BENCH: HIDAYATULLAH, M. (CJ) BENCH: HIDAYATULLAH, M. (CJ) RAY, A.N. DUA, I.D.

CITATION:  1970 AIR 1305            1971 SCR  (1) 566  1970 SCC  (2)  61  CITATOR INFO :  R          1980 SC 628  (11,14)

ACT: Indian  Evidence Act, (1 of 1872) s.  145--Entire  statement made  before  Committal  Court  stated  to  be  made   under pressure--Whole  statement  read and then witness  asked  to explain--Whether s. 145 complied with.

HEADNOTE: A father and son were charged with committing seven murders. K,  an eye witness, narrated the incident in  the  committal court  and stated that the two accused armed with  a  pistol and  sword respectively entered the house of  the  deceased, the  son attacked the victims and the father fired when  his son was caught by M. R stated that the son made a confession to  him with regard to the murder.  In the sessions court  K turned  hostile,  and the public prosecutor read  to  K  the whole  of  her  statement  and  asked  whether  it  was  her statement.   She admitted that it was a true record of  what she  stated before the committal court, but stated  that  it was  a  false statement given under ’police  pressure.   The same  was  the case with R. Both the statements of K  and  R before  the  committal court were brought on record  of  the Sessions  trial  as Exhibits, and the defence did  not  then object  to their being read.  The Sessions  Court  convicted the  father  and son relying on the statements of  K  and  M before the committal court, of another eye witness, and of S who had heard the report of pistol shot and saw the  accused armed  with  their  respective weapons  coming  out  of  the deceased’s house.  The High Court, on appeal, affirmed  the- conviction  of the son, but rejecting the testimony of K,  R and  S  acquitted the father holding that he  had  taken  no share  in the affair.  In appeals, by the State against  the father’s  acquittal, and by the son against  his  conviction this Court HELD  :  The  High Court was in error  in  not  reading  the statements.  The objection taken to the admissibility of the statement of K was that every single passage which  differed from  her testimony in the Court of Session was not  put  to her  with  a  view  to  affording  her  an  opportunity   of

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explaining  why  she  had made- a  contrary  statement.   No doubt,  if  there were some passages here  and  there  which differed  from her later version, that procedure would  have been   necessary.   Here  the  witness  admitted  that   her statement  was truly recorded in the Committal  Court.   She only  denied that it was a true statement because  she  said that  she  was made to depose that way by  the  police.   It would  have  been  useless to point  out  the  discrepancies between  the  two,statements because her  explanation  would have   been   the  same.   In   these   circumstances,   the requirements of s. 145 of the Indian Evidence Act were fully complied  with  and-the earlier statement could be  read  as evidence in the Sessions Trial. [61-C-E] The same was the case with R. These two witnesses also  made a statement under s. 164 of the Code of Criminal  Procedure. These  statements  were, of course, not  evidence  but  were corroborative  of  what  had  been  stated  earlier  in  the Committal  Court.  The attention of the witnesses was  drawn to  the  passages  from  those  statements  also  and  their explanation  only  was  that they  were  made  under  police pressure.  The 57 High  Court should have accepted the evidence of S.  because there was sufficient corroboration of this evidence.   There was,  thus, enough evidence on record to convict the  father also. [61 E; 62 B]

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION : Criminal  Appeal  Nos.114 and 115 of 1969. Appeals  by special leave from the judgment and order  dated May  6, 1968 of the Rajasthan High Court in Criminal  Appeal No.624 of 1967. K.  Baldev  Mehta, for the appellant (in Cr. A. No.  114  of 1969). E.  Udayarathnam,  for the appellant (in Cr. A. No.  115  of 1969). S.  P. Sinha and S. K. Bisaria, for the respondent  (in  Cr. A. No. 114 of 1969). K.  Baldev Mehta, for the respondent (in Cr.  A. No. 115  of 1969). The Judgment of the Court was delivered by Hidayatullah, C.J. This judgment will govern the disposal of Criminal  Appeals Nos. 114 and 115 of 1969.  They have  been filed  by  special leave granted by  this  Court.   Criminal Appeal  No.  114  of 1969 has been filed  by  the  State  of Rajasthan  against  the  acquittal  of.   Kartar  Singh  and Criminal  Appeal No. 115 of 1969 has been filed  by  Gurjant Singh  son of Kartar Singh who has been convicted  under  S. 302, I.P.C. and sentenced to death.  Previously the Sessions Judge, Ganganagar had convicted Kartar Singh also tinder  s. 302/34,  I.P.C.  and sentenced him to  death.   Both  Kartar Singh and Gurjant Singh were also convicted for sortie minor offences  and sentenced to diverse periods  of  imprisonment but  we  are  not  concerned  with  them  here,  though  the conviction  and  sentences  of Gurjant Singh  on  the  minor offences were confirmed but Kartar Singh was acquitted. The  case arises from an incident which took place  on  the, night  between the 8th and 9th February, 1967 at 11 p.m.  at Mauza  Ramsara  in  District Ganganagar.   It  involved  the murder of no less than 7 persons and injuries to two others. The murdered persons were Kartar Singh’s father Dayal Singh, Kartar  Singh’s stepmother Phinno and five children born  to

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Dayal Singh from Phinno.  Two other step-brothers of  Kartar Singh were grievously wounded but escaped with their  lives. The  cause  of this miniature massacre was the  purchase  of land  by Dayal Singh in the names of his second wife  Phinno and two of her sons.  This annoyed Kartar Singh and his  son Gurjant Singh since the step-mother and the ,11S pCI/70-5 58 step-brothers were being favoured.  The family had  migrated from  the West Punjab and settled down first  at  Simrewala. Later  it shifted to village Ramsara.  Dayal Singh sold  the land at Simrewala and purchased some other at Ramsara in the names of his second wife Phinno and two of her sons.  Kartar Singh  also sold his land in village Simrewala and  went  to village  Jasana, 2 to 2-1/2 miles from village Ramsara.   On the  night  in  question  Dayal Singh  was  talking  to  his daughter Mst.  Kartar Kaur from his first wife, who had gone to her father’s house that very day.  Some of the members of the  family  were asleep and some were awake.  At  about  11 p.m.  Gurjant Singh and his father Kartar Singh went to  the house  of Dayal Singh and called Dayal Singh.   Dayal  Singh went  to the door, opened it and enquired why they had  come at  such  an  odd  hour.  He was told  that  they  had  been attacked by some Nayaks and had come to the house for taking shelter.   Kartar Singh was armed with a pistol and  Gurjant Singh  with  a sword.. As soon as they  entered  the  house, Gurjant  Singh started striking Dayal Singh with his  sword. Dayal  Singh emerged into the ’Chowk’.  Mohinder Singh,  his adult son, then grappled with Gurjant Singh.  Gurjant  Singh also  wounded  Mohinder  Singh and Kartar  Singh  fired  his pistol  which  made Mohinder Singh  release  Gurjant  Singh. Mohinder  Singh  then made his escape with his  full  sister Kartar Kaur.  Meanwhile Mst.  Phinno had arrived and she was also  attacked by Gurjant Singh.  It is not necessary to  go over the ground. Suffice it to say that one after the  other the seven inmates of the house-six step relations of Gurjant Singh  and Kartar Singhand Dayal Singh himself were  killed. One  boy another stepbrother of Kartar  Singh-was  seriously wounded but survived. Mohinder Singh then went to the house of Fazal Deen (P.W. 2) and  reported the matter to him and asked for  help.   Fazal Deen sent his son Balu Khan with Mohinder Singh and  himself started  to  get  ready.  They first went to  the  house  of Premaram carpenter and with Premaram they went to the  house of Gurdeep Singh (P.W. 1).  Then they proceeded to the house of  Dayal Singh and found the seven bodies and  the  wounded boy  lying there.  Many other persons arrived on the  scene. Balu  Khan  was  asked to go and report the  matter  to  the police.   He went in search of his mare but  Samandar  Singh (P.W. 6),told him that he had seen Kartar Singh and  Gurjant Singh  going away on the back of a horse.  Balu Khan’s  mare was  not  found; presumably they had taken  his  mare.   The incident  was  reported at Police Station Noher at  about  2 p.m. After leaving the spot, the father and son seem to have parted  company.  Gurjant Singh went to village  Patholawali in Haryana State where Mst.  Kartar Kaur was married. He met Ranjeet  Singh son of Kartar Kaur and disclosed to him  that he had murdered Dayal Singh, Phinno and also their child- 59 ren.   A  fire was lit to warm himself and in that  fire  he cast the shoe and his shirt which were, blood-stained.  They were  burnt.  It may be pointed out that at the  spot  where murders  took  place,  a safa, an odd shoe and  a  live  303 cartridge were found.  The shoe,. which Gurjant Singh  burnt in the fire and the one found on the spot were presumably  a pair.   After  Gurjant Singh fell  asleep,  Ranjeet  Singh’s

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father Karnail Singh informed the Sarpanch and the Lambardar about  the  murders  committed  by  Gurjant  Singh  and  the Sarpanch and the Lambardar ’took Gurjant Singh to the Police Station Raina and handed him over to the police.  His  jersy was  found  to  be stained with  blood  and  seized.   Later Gurjant Singh made a statement that he had thrown the  sword in a cotton held in village Ledesar and that he would  point out the place.  As a result of this information a sword  was found  in the field pointed out by Gurjant Singh  and  later both  the jersy and the sword were found to be stained  with human blood. Kartar  Singh  was not arrested  immediately.   He  remained absconding till February 26, 1967 when he was arrested  near the  bus-stand  at  Dekha, District  Ludhiana.   He  made  a statement  that he had buried a pistol and  some  cartridges near  a bush about one furlong from the village Ladesar  and that he would point out the place.  On his pointing out  the place  a pistol and 18 live cartridges of 303 bore were  dug out from the ground and they were also seized. After  investigation  the police  presented  a  charge-sheet against  Kartar  Singh  and  his  son  Gurjant  Singh.   The Sessions  Judge  Ganganagar convicted both of them  but  the High   Court   has  since  acquitted  Kartar   Singh   while maintaining  the conviction and sentences of  Gurjant  Singh and hence the two appeals before us. There  were  two eye-witnesses to  the  occurrence,  namely, Mohinder  Singh (P.W. 4), and Kartar Kaur (P.W. 2).   Kartar Kaur  turned  hostile  in  the Court  of  Sessions  and  the statement made by her before the committal court was brought on the record of the trial court under s. 288 of the Code of Criminal  Procedure.  Mst.  Kartar Kaur admitted  that  that was  correctly  recorded but denied the truth of  it  saying that  it  was  given under  police  pressure.   The  learned Sessions Judge relied upon the statements of Mohinder  Singh and  that  of  Kartar Kaur before the  committal  court  and convicted  both the father and the son.  The High Court  did not  accept  the earlier statement of Kartar Kaur,  for  the reasons  which  will soon appear,  and  therefore  acquitted Kartar  Singh because he had taken no share in  the  affair. Kartar Kaur had earlier stated that he had fired the  pistol but later resiled from that statement.  As no other part was attributed  to Kartar Singh the High Court felt that he  was not  involved in the murder and only his son  Gurjant  Singh was responsible. 60 We shall first deal with the appeal of Gurjant Singh against his conviction and sentence of death. The prosecution case against Gurjant Singh has been accepted by the High Court and the Court of Session.  Ordinarily this Court  does not consider evidence for the third time when  a concurrent  finding  has already been reached  by  the  High Court  and the Court of Session.  However, as there  was  an appeal  against  the  acquittal  of  Kartar  Singh  and  the evidence was read to us in that connection we have been able to  appraise  it  in relation to Gurjant  Singh  also.   Our conclusion  is that the case against Gurjant Singh is  amply proved.   There are other pieces of evidence which the  High Court rejected, in our opinion, wrongly.  If those are added to the evidence already accepted against Gurjant Singh  they leave  no room for doubt (if there was one) that he was  the person  who  committed  the seven murders  on  that  fateful night.   Before we summarise the case against Gurjant  Singh we wish to consider the evidence which was discarded by  the High  Court in relation to his case and the  appeal  against Kartar Singh.

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Testimony  of  three  witnesses was rejected  by  the  High, Court.  The first is Kartar Kaur, the full sister of  Kartar Singh,  the  second  her son Ranjeet  Singh  and  the  third Samandar Singh (P.W. 6).  The evidence of Kartar Kaur in the Committal Court was brought upon the record of the  Sessions trial,  as Ex.  E- 1 4, and the evidence ,of  Ranjeet  Singh before the Committal Court was brought on the record of  the trial  court  as  Ex.  E- 1 7.  When  these  documents  were admitted in evidence, counsel for the defence did not object to  their being read.  In the High Court,  however,  attempt was  made to get rid of the statements by saying  that  they were  inadmissible,  since the provisions of s. 145  of  the Indian  Evidence  Act  were  not  complied  with.   In   our judgment,  there  was enough compliance with s. 145  of  the Evidence  Act and the High Court erred in not reading  these earlier statements for what they were worth.  When these two witnesses were examined. in the committal court, they gave a clear  version involving the two accused in the  case.   The statement  of Mst.  Kartar Kaur was that Gurjant  Singh  and his father Kartar Singh came to the house of Dayal Singh and Gurjant Singh called aloud to Dayal Singh to open the  door. The  door  was opened and father and son entered.   At  that time  Gurjant Singh was carrying a sword.  She stated  quite clearly  that Gurjant Singh attacked her father Dayal  Singh and later her stepmother Phinno.  She also said that  Kartar Singh  had also entered with Gurjant Singh and Kartar  Singh fired  a firearm when Gurjant Singh was caught  by  Mohinder Singh.  She also stated that Mohin der Singh was wounded  by Gurjant  Singh  and  then she ran out of the  house  in  the company  of  Mohinder Singh.  These  clear  statements  were completely denied by her when she came to the Court 61 of Session.  Her effort then was to make it appear that  the persons  who had entered the house had muffled  their  faces and she could not identify them.  She also said that she had not  seen anything in the hands of those persons.   In  fact she did not say that there were two persons at ,all but only one.  She was declared hostile and was allowed to be  cross- examined  by the Public Prosecutor.  The  Public  Prosecutor read to her the whole of her statement before the  Committal Court  and  asked  her whether it was  her  statement.   She admitted  that it was a true record of what she  had  stated before the Committal Court, but she said that it was a false statement  given  under ’police  pressure’.   The  objection taken  to the admissibility of the statement was that  every single  passage  which differed from her  testimony  in  the Court of Session was not put to her with a view to affording her an opportunity of explaining why she had made a contrary statement.   No doubt, if there were some passages here  and there which differed from her later version, that  procedure would  have been necessary.  Here the witness admitted  that her  statement  was truly recorded in the  Committal  Court. She  only  denied that it was a true statement  because  she said that she was made to depose that way by the police.  It would  have  been  useless to point  out  the  discrepancies between  the  two statements because her  explanation  would have   been   the  same.   In   these   circumstances,   the requirements  of,  s. 145 of the Indian  Evidence  Act  were fully complied with and the earlier statement could be  read as evidence in the Sessions Trial. The same was the case with Ranjeet Singh.  He had also given a  graphic account of how Gurjant Singh had met him  at  his field  and  had confessed to him that he  was  coming  after murdering  Dayal Singh and the whole family.  Gurjant  Singh said that he was hungry and therefore, he was brought  home.

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As  he  was feeling cold a fire was lit  and  Gurjant  Singh began to warm himself.  Then he asked for hot water so  that he (Gurjant Singh) could take a bath.  He also asked Ranjeet Singh  to  prepare some tea.  When, tea was  being  prepared Gurjant Singh put his chaddar, shirt and a shoe in the fire. Ranjeet  Singh on getting the smell came and asked what  was being  burnt and was told that he (Gurjant Singh) had  burnt his  clothes which were blood-stained.  When  Gurjant  Singh fell asleep, Karnail Singh father of Ranjeet Singh  informed the Lambardar and the Sarpanch and they came and caught Gur- jant Singh and handed him over to the police.  In the  Court of  Session Ranjeet Singh completely denied  the  statement. He  was confronted with this statement and it was read  over to  him in extensor He also admitted that was a true  record of what he had stated in the Committal Court but that it was false  and  was  given  under  ’police  pressure’.   In  our judgment, there was sufficient compliance with s. 145 of the Indian  Evidence Act in his case also.  It would  have  been pointless to draw his attention to each sen- 62 tence and ask his explanation because the explanation  would have  been  the  same  that it was  false  and  given  under pressure of police. It  may be pointed out that these two witnesses also made  a statement  under S. 164 of the Code of  Criminal  Procedure. These  statements  were, of course, not  evidence  but  were corroborative  of  what  had  been  stated  earlier  in  the Committal  Court.  The attention of the witnesses was  drawn to passages from those statements also and their explanation only  was that they were made under ’police  pressure’.   In our judgment the High Court was in ,error in not reading the statement  of Ranjeet Singh made before the Committal  Court and considering it as part of the evidence in the case. Samandar  Singh (P.W. 6) was the third witness to be  disbe- lieved.   His  statement was that he heard the report  of  a pistol  shot and climbed his roof.  He saw in the  house  of Dayal  Singh  a light burning and also  that  something  was happening  as  there were shouts of ’bachao’  ’bachao’  from that  direction.   He  saw Kartar Singh  and  Gurjant  Singh coming out of the house of Dayal Singh.  Gurjant Singh had a naked  sword in his hands and Kartar Singh had a white  mare with  him.   That mare belonged to Fazaldeen.   He  accosted them  but they did not stop and told him to go away lest  he should  be  killed.   Both the father and the  son  had  not covered  their faces.  He saw them go away on the mare.   He followed  them for some 70 to 80 paces and then turned  back and  went to the house of Dayal Singh and saw the dead  body of a woman lying in the courtyard.  He went to Fazaldeen but did  not find him.  He then returned to his own house  which was next to Dayal Singh’s house and found Prema, Gurdeep and other  persons  there.  He told them that Kartar  Singh  and Gurjant  Singh  had gone away with the mare.   He  also  saw Mohinder  Singh  who  was wounded.   The  evidence  of  this witness was curiously disbelieved by the High Court  because the report of the pistol shot was not heard by Fazaldeen and Gurdeep  Singh.  It is often the case that the report  of  a firearm at night is heard by some persons and not by others. It depends on the fact that some persons are awake and  some are  asleep.   It is obvious that Samandar Singh  was  awake that  night because he was at the house of Dayal Singh  soon afterwards.   Perhaps lying awake and as his house was  next door  he  heard, the report of the pistol shot an  also  the cries from Dayal Singh’s house.  There is nothing  unnatural in  the statement made by Samandar Singh and we do  not  see any reason to disbelieve ’him.  Another reason given by  the

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High Court was that Samandar Singh claimed to have  followed the father and the son for 70 to 80 paces and that would-not be  natural since it was night time and the other two  were, armed.   It  may be that Samandar Singh, who  was  a  police surveille, claimed that he was following the suspects merely to earn a name for himself.  But we do not think that his 63 whole  testimony is false because his statement  that  there was a pistol shot was corroborated by Mohinder Singh and  by Kartar  Kaur  in her statement before the  Committal  Court. The  story of pistol shot was disbelieved by the High  Court because it was not mentioned to Fazaldeen and Gurdeep  Singh by   Mohinder  Singh  and  did  not  figure  in  the   First Information  Report.  The First Information Report was  made not  by  one of the persons immediately concerned but  by  a person  who  had  the information from  another.   In  these cases, sometimes, a fact gets omitted which should have been mentioned.   Fazaldeen  and Gurdeep Singh had stood  by  the First Information Report although there was no mention in it about the pistol shot.  This was noticed by the High  Court. In these circumstances the suspicion should have fallen on,- the  correctness of the statements of Fazaldeen and  Gurdeep Singh  rather  than  on the statements  by  Mohinder  Singh, Kartar Kaur and Samandar Singh. No  doubt  Kartar Kaur and Ranjeet changed but  it  must  be remembered  that  Kartar Kaur and Ranjeet Singh  were  imme- diately  related to Kartar Sin h. Kartar Kaur was  his  full sister and Ranjeet Singh was her son.  They were  favourably disposed  towards  Kartar Singh and his son  Gurjant  Singh. Although  they had made truthful statements under the  shock of  what  had  happened they were trying  to  save  them  by denying  their statements in the Committal Court.  It  would be  impossible to think that police could exert pressure  to make  successive  statements  to the  police,  then  to  the Magistrate under S. 164 and then to the Committal Court.  It is  obvious  that pressure was exercised the  other  way  by Kartar  Singh and Gurjant Singh and the  earlier  statements were denied to save them. When  these  statements  are thrown  in,  the  case  against Gurjant Singh remains amply proved.  Apart from the evidence of  eyewitnesses, namely, Mst.  Kartar Kaur and her  brother Mohinder Singh, there is the evidence of Samandar Singh that he  was seen going away.  In support of this evidence  there is the extra-judicial confession of Gurjant Singh to Ranjeet Singh  when  he  met him at the latter’s  village.   We  are completely  satisfied  that this confession was  made.   The circumstantial  evidence of burning the chaddar,  shirt  and the  shoe clearly demonstrates the guilt of  Gurjant  Singh. It must be remembered that a safa and an odd shoe were found at  the spot near the body of Mst.  Phinno.  Mohinder  Singh identified them as the shoe and safa of Gurjant Singh.  The, High  Court has accepted this evidence and we see no  reason to  disbelieve  Mohinder  Singh  who  was  the   identifying witness.   Then  there is the discovery of  the  sword  with human  blood-stains  on it and his pullover which  was  also found to be stained with human blood.  The fact that Gurjant Singh was apprehended from a 64 place  far away from the place where the murders took  place also shows that he had run away from the place of murder  to seek shelter elsewhere.  The evidence, against Gurjant Singh is  complete and we are convinced that the prosecution  case put  up against him has been fully brought home to him.   We are  further  convinced  that for the  reasons  given  above statements made by Kartar Kaur and Ranjeet Singh before  the

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Committal  Court  are  true  and  they  fully  support   the conclusion that Gurjant Singh has been rightly convicted and sentenced.  His appeal will be dismissed. This brings us to the appeal against Kartar Singh.  We  have already stated that we think that the statement of  Mohinder Singh  about  the firing of the pistol by  Kartar  Singh  is corroborated by the earlier statements of Mst.  Kartar  Kaur and the statement of Samandar Singh who heard the report  of the firing of the pistol.  At the scene of the murder a live cartridge of .303 bore was found.  Later Kartar Singh made a statement to the police and as a result of that statement  a pistol and 18 live cartridges of the same bore were dug  out from the ground.  These corroborate the evidence of Mohinder Singh  and of Kartar Kaur that Kartar Singh had a pistol  in his hand and he fired it to force Mohinder Singh to  release Gurjant Singh with whom he was grappling.  ’The presence  of the  cartridge  on the scene of the murder  connects  Kartar Singh and lends sufficient corroboration to the statement of the-  eyewitnesses  to make the guilt brought home  to  him. The  High Court was in error in thinking that  Kartar  Singh did nothing in the matter and was a silent spectator.  It is impossible to think that Kartar Singh would stand aloof  and let  his son commit as many as seven murders  including  the murder  of  his  (Kartar  Singh’s) own  father  and  not  do anything  to prevent his son unless he himself had  connived and was a party.  It is clear from the evidence that  Kartar Singh  and Gurjant Singh had come together’ They  were  both armed  and both went away together.  The pistol was in  fact fired  and at the site of the offence a live  cartridge  was found  which  matched  with the pistol and  the  other  live cartridges  dug  out  from  the ground  as  a  result  of  a statements  made  by  Kartar  Singh.   We  believe  Samandar Singh’s statement that he saw these two go away together, as indeed  he  must have, after the assault on the  family  had been  made.  On the whole the case against Kartar  Singh  is also proved.  He did not do anything to murder these persons but, he certainly was there with Gurjant Singh and both were of  the  same mind in doing away with the  family  of  Dayal Singh including Dayal Singh himself.  We are satisfied  that the case stood proved against him as well. We allow the appeal of the State of Rajasthan against Kartar Singh and convict him under s. 302/34, I.P.C. He was awarded 65 a  sentence of death by the learned Sessions Judge  but,  we think,.  that  as  his  part  in  the  seven  murders,   was secondary,  it would be sufficient if the sentence  of  life imprisonment is imposed upon him.  Kartar Singh is therefore convicted  under  s.  302/34, I.P.C.  and  is  sentenced  to undergo  rigorous  imprisonment for life.  If he is  not  in custody  he  shall be arrested forthwith  and  committed  to prison,to serve out his sentence. Y.P.              Appeal allowed. 66