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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

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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.

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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

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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

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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,

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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

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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

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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.

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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

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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

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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,

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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

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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.

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