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PETITIONER:

LACHMAN SINGH AND OTHERS

Vs.

RESPONDENT:

THE STATE

DATE OF JUDGMENT:

21/03/1952

BENCH:

FAZAL ALI, SAIYID

BENCH:

FAZAL ALI, SAIYID

BOSE, VIVIAN

CITATION:

1952 AIR 167 1952 SCR 839

CITATOR INFO :

RF 1954 SC 204 (5)

D 1956 SC 116 (49,63)

R 1956 SC 546 (5)

R 1962 SC1116 (10)

C 1965 SC 328 (8,9)

R 1988 SC1353 (16)

F 1990 SC1982 (3)

ACT:

Evidence Act (1 of 1872), sec. 27--Statements of several

accused leading to discoveries--Admissibility--Necessity of

proof as to which statement was made first--Scope of sec.

27.

HEADNOTE:

Three persons K, M and S, who were accused of murder

made statements to the police which disclosed that the dead

bodies after being dismembered were thrown into a stream and

the police party thereafter went with the three accused to

the stream where each of them pointed out a place where

different

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840

parts of the dead bodies were discovered. It was contended

on behalf of the accused that it was only the information

which was first given that was admissible under sec. 27 of

the Evidence Act, that once a fact has been discovered in

consequence of information received from a person accused

of an offence, it cannot be said to be re-discovered in

consequence of information received from another accused

person, and that in the absence of evidence to show which of

the accused first gave the information the discoveries

alleged cannot be proved against any of the accused persons:

Held, that, even assuming that this argument was correct, as

it appeared from the evidence that S led the police to a

particular spot on the stream and it was at his instance

that some blood stained earth was recovered from a place

outside the village and he had also pointed out the trunk of

one of the dead bodies, and the High Court was satisfied

that there was an "initial pointing out" by S, the case was

covered by the rule and the evidence as to the discoveries

was admissible.

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With regard to the rule applicable to cases where there

is clear and unimpeachable evidence as to independent and

authentic statements of the nature referred to in sec. 27 of

the Evidence Act having been made by several accused persons

either simultaneously or otherwise, some of the decided

cases have gone further than is warranted by the language of

sec. 27 of the Evidence Act and may have to be reviewed on a

future occasion.

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.

22 of 1950. Appeal from the judgment and order dated 29th

June, 1950, of the High Court of Judicature at Simla (Weston

C.J. and Khosla J.) in Criminal Appeal No. 432 of 1949

arising out of a judgment dated 5th August, 1949, of the

Court of the Additional Sessions Judge, Amritsar, in Ses-

sions Trial No. 7 of 1949 and Case' No. 8 of 1949.

Jai Gopal Sethi (R. L. Kohli, with him) for the appel-

lants.

Gopal Singh for the State.

1952. March 21. The Judgment of the Court was delivered

by

FAZL ALl J. --The three appellants were tried by the

Additional Sessions Judge at Amritsar and found guilty of

having murdered two persons named Darshan Singh and Achhar

Singh and sentenced to transportation for life. The High

Court of Punjab upheld their

841

conviction and sentence and granted them a certificate under

article 134(1)(c)of the Constitution that the case is a fit

one for appeal to this Court. Hence this appeal.

The facts of the case may be briefly stated as follows.

On the evening of 16th December, 1948, a little before

sunset, Achhar Singh, one of the murdered persons, went to

the house of one Inder Singh in village Dalam for getting

paddy husked. Achhar Singh's brother, Darshan Singh, who

was working as a driver at Amritsar, came to Dalam from

Amritsar the same evening, and, on coming to know from his

father that Achhar Singh had gone to Inder Singh's house, he

also went there. while the two brothers were returning

home, they were attacked by the three appellants and two of

their relatives in a lane adjoining Inder Singh's house. The

five assailants, who were armed with deadly weapons, in-

flicted a number of injuries on the two victims, as a result

of which they died then and there. After the murder, the

appellants and their companions tied the two dead bodies in

two kheses (wrappers) and took them to village Saleempura

where two other persons, named Ajaib Singh and Banta Singh,

joined them, and the dead bodies after being dismembered

were thrown into a stream known as Sakinala at a place about

five miles from village Dalam. Bela Singh, father of the

deceased persons, who was one of the persons who claims to

have witnessed the occurrence, did not leave the village at

night on account of fear, but he started about two hours

before sunrise on the next morning and lodged the first

information report at 10 A.M. at the nearest police station.

A police officer arrived in village Dalam shortly after-

wards, and after investigation a charge-sheet was submitted

against seven persons including the present appellants. At

the trial, five of the accused were charged with offences

under section 302 read with section 149 and under section

201 read with section 149 of the Indian Penal Code. and the

remaining two accused were charged with the offence under

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section 201 read with section 149 of that Code. The learned

Judge who tried

842

the accused, convicted the appellants and two other persons

under section 302 read with section 149 of the Penal Code

and sentenced them to transportation for life, and convicted

Ajaib Singh under section 201 read with section 149 and

sentenced him to three years' R.I. Bantu Singh, accused, was

acquitted. On appeal, the Punjab High Court upheld the

conviction of the present appellants and acquitted the

remaining three persons.

Before proceeding to discuss the evidence in the case,

it is necessary to refer to what has been. described as the

motive for the murder. It appears that in June, 1947, Natha

Singh, father of the third appellant, Swaran Singh, was

murdered, and Darshan Singh and Achhar Singh, the two mur-

dered persons in the case before us, and their third broth-

er, Sulakhan Singh, were charged with the murder of that

person. As a result of the trial, Darshan Singh was acquit-

ted and Achhar Singh was sentenced to 11/2 years' R.I.,

while Sulakhan Singh was sentenced to 7 years' R.I. The

judgment of the Sessions Judge in that case was delivered

shortly before the date of the present occurrence, and it is

common ground that Achhar Singh had been released on bail by

the appellate court and was at large at that time. It is

said that the appellants and their relatives felt aggrieved

by the acquittal of Darshan Singh and by the light sentence

passed on Achhar Singh, and therefore committed this murder

in a spirit of frustration and revenge. It was conceded

before us by the learned counsel for the appellants that the

facts stated above constituted a strong motive for the

murder, but he also contended that they constituted an

equally strong motive for the appellants being falsely

implicated in case the murder was committed, as was suggest-

ed by him, in circumstances under which the murderers could

not be seen or identified. It therefore becomes necessary to

set out the evidence adduced by the prosecution in support

of the murder.

The evidence led by the prosecution may be divided under

two main heads :--(1) Direct evidence, and(2) Circumstantial

evidence. The direct evidence consists

843

of the testimony of four eye-witnesses, namely, Bela Singh,

father of the deceased, who claims to have gone to the scene

of occurrence on hearing an outcry and to have witnessed the

murderous assault on his sons; Inder Singh and his wife,

Mst. Taro, to whom the murdered persons had gone for getting

paddy husked and who lived in a house adjoining the lane

where the murder took place; and Gurcharan Singh, a resident

of a different village, who states that he saw the occur-

rence when he was going towards village Dhadar on a cycle.

The circumstantial evidence in the case, on which the

High Court has relied, may be briefly summarised as follows

:--

(1) The second appellant, Massa Singh, who was arrested

on the 18th December, 1948, was wearing a pyjama stained

with human blood.

(2) The third appellant, Swaran Singh, who was arrested

on the 18th December, 1948, took the police on the 19th

December to his haveli which was locked, and, on opening it

two kheses (wrappers) which were stained with human blood

were recovered.

(3) Swaran Singh pointed out a spot on the way to Saki-

nala, where the two dead bodies were placed for a short time

while they were being taken to Sakinala, and the police

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scrapped blood-stained earth from that spot. He also led the

police to the bank of Sakinala and pointed out the trunk of

the body of Darshan Singh which was lying in the nala.

(4) Lachhman Singh, who was arrested on the 28th Decem-

ber, 1948, pointed out a dilapidated khola near Sakinala

where 3 spears, one kirpan and a datar, all stained with

human blood, were recovered.

The learned Sessions Judge, who heard the evidence,

seems to have been impressed by the evidence of the eye-

witnesses, and he has summed up his conclusion in these

words :--

"This evidence was so consistent, so reliable, and of

such nature that in my opinion it is definitely established

that the five accused Lachhman Singh, Katha

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Singh, Massa, Singh, Charan Singh and Swaran Singh are

proved to have actually murdered both Darshan Singh and

Achhar Singh. This fact is further proved from subsequent

events as deposed by P.W. 8 Bahadur Singh and P.W. 9 Gian

Singh and P.W. 11 Bhagwan Singh. These witnesses had wit-

nessed the various recoveries in this case which were made

at the instance of all the accused."

The learned Judges of the High Court, though they re-

pelled most of the criticisms levelled against the witness-

es, ultimately came to the conclusion that "in all the

circumstances (of the case) it would be proper not to rely

upon the oral evidence implicating particular accused unless

there is some circumstantial evidence to support it".

Having laid down this standard, they examined the circum-

stantial evidence against each of the accused persons and

upheld the conviction of the three appellants on the ground

that the circumstantial evidence, to which reference has

been made, was sufficient corroboration of the oral evi-

dence.

The case of the appellants was argued at great length by

Mr. Sethi, who appeared for them, and everything that could

possibly be said in their favour was urged by him with great

force and clarity. Proceeding, however, upon the principles

laid down by this court, circumscribing the scope of a

criminal appeal after the case has been sifted by the trial

court and the High Court, it seems to us that the question

involved in the present appeal is a short and simple one.

According to our reading of the judgment of the High Court,

the learned Judges, who dealt with the case, did not condemn

the oral evidence outright, but, as a matter of prudence and

caution, they decided not to convict an accused person

unless there were some circumstances to lend support to the

evidence of the eye-witnesses with regard to him. It is

quite clear on reading the judgment that the corroboration

which the learned judges required to satisfy themselves

was not that kind of corroboration which one requires in the

case of the evidence of an approver or an accomplice,

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but corroboration by some circumstances which would lend

assurance to the evidence before them and satisfy them that

the particular accused persons were really concerned in the

murder of the deceased. Judged by this standard, which it

was open to them to prescribe, it seems to us that the case

of each of the appellants clearly fell within the rule which

they had laid down for their own guidance.

The comment of the learned counsel for the appellants

with regard to the blood-stained pyjama which was recovered

from Massa Singh was, firstly, that it was not possible to

gather from the evidence the extent of the blood stains, and

secondly that it would be highly improbable that this ac-

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cused person would be so reckless as to continue to wear a

blood stained pyjama after having perpetrated the crime.

This criticism has been considered by the courts below, and

it does not appear to us to be of such a nature as to affect

the conclusion arrived at by them. As to the recovery of

blood-stained weapons at the instance of Lachhman Singh, it

was urged that the entire evidence with regard to this

recovery should be discarded, as the police investigation in

the case was not a straightforward one but was conducted in

such a way as to raise suspicion that the police were delib-

erately trying to create some evidence of recovery against

each of the accused persons. It is sufficient to say that it

is not the function of this court to reassess evidence and

an argument on a point of fact which did not prevail with

the courts below cannot avail the appellants in this court.

The comment against the discoveries made at the instance of

Swaran Singh was that they are not admissible in evidence

under section 27 of the Indian Evidence Act, which

provides--

"When any fact is deposed to as discovered in conse-

quence of information received from a person accused of an

offence in the custody of a police officer, so much of such

information, whether it amounts to a confession or not, as'

relates distinctly to the fact there. by discovered, may be

proved,"

846

The main facts which it is necessary to state to under-

stand the argument on this point, may be summed up as fol-

lows :-

According to the prosecution, all the three accused,

namely, Katba Singh, Massa Singh and Swaran Singh, were

interrogated by the police on the morning of the 19th Decem-

ber, 1948, and they made certain statements which were

duly recorded by the police. In these statements, it was

disclosed that the dead bodies were thrown in the Sakinala.

Thereafter, the police party with the three accused went to

Sakinala where each of them pointed out a place where dif-

ferent parts of the dead bodies were discovered.

The learned counsel for the appellants cited a number of

rulings in which section 27 has been construed to mean that

it is only the information which is first given that is

admissible and once a fact has been discovered in conse-

quence of information received from a person accused of an

offence, it cannot be said to be re-discovered in conse-

quence of information received from another accused person.

It was urged before us that the prosecution was bound to

adduce evidence to prove as to which of the three accused

gave the information first. The head constable, who record-

ed the statements of the three accused has not stated which

of them gave the information first to him, but Bahadur

Singh, one of the witnesses who attested the recovery memos,

was specifically asked in cross-examination about it and

stated: "I cannot say from whom information was got first".

In the circumstances, it was contended that since it cannot

be ascertained which of the accused first gave the informa-

tion, the alleged discoveries cannot be proved against any

of the accused persons. It seems to us that if the evidence

adduced by the prosecution is found to be open to suspicion

and it appears that the police have deliberately attributed

similar confessional statements relating to facts discovered

to different accused persons, in order to create evidence

against all of them, the case Undoubtedly demands a most

cautious approach.

847

But as to what should be the rule when there is clear and

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unimpeachable evidence as to independent and authentic

statements of the nature referred to in section 27 of the

Evidence Act, having been made by several accused persons,

either simultaneously or otherwise, all that we wish to say

is that as at present advised we are inclined to think that

some of the eases relied upon by the learned counsel for the

appellants have perhaps gone farther than is warranted by

the language of section 27, and it may be that on a suitable

occasion in future those cases may have to be reviewed. For

the purpose of this appeal, however, it is sufficient to

state that even if the argument put forward on behalf of the

appellants. which apparently found favour with the High

Court, is correct, the discoveries made at the instance of

Swaran Singh cannot be ruled out of consideration. It may

be that several of the accused gave information to the

police that the dead bodies could be recovered in the

Sakinala, which is a stream running over several miles, but

such an indefinite information could not lead to any discov-

ery unless the accused followed it up by conducting the

police to the actual spot where parts of the two bodies were

recovered. From the evidence of the head constable as well

as that of Bahadur Singh, it is quite clear that Swaran

Singh led the police via Salimpura to a particular spot on

Sakinala, and it was at his instance that blood-stained

earth was recovered from a place outside the village, and he

also pointed out the trunk of the body of Darshan Singh.

The learned judges of the High Court were satisfied, as

appears from their judgment, that his was "the initial

pointing out" and therefore the case was covered even by the

rule which, according to the counsel for the appellants, is

the rule to be applied in the present case.

The learned counsel for the appellants pointed out that

the doctor who performed the post-mortem examination of the

corpses, found partially digested rice in the stomach of the

two deceased persons, and he

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urged that from this it would be inferred that the

occurrence must have taken place sometime at night after

the deceased persons had taken their evening meals together.

This argument again raises a question of fact which the High

Court has not omitted to consider. It may however be stated

that a reference to books on medical jurisprudence shows

that there are many factors affecting one's digestion, and

cases were cited before us in which rice was not fully

digested even though considerable time had elapsed since the

last meal was taken. There are also no data before us to

show when the two deceased persons took their last meal, and

what article of food, if any, was taken by them along with

rice. The finding of the doctor therefore does not neces-

sarily affect the prosecution case as to the time of occur-

rence.

It was also contended that there being no charge under

section 302 read with section 34 of the Indian Penal Code,

the conviction of the appellants under section 302 read with

section 149 could not have been altered by the High Court to

one under section 302 read with section 34, upon the acquit-

tal of the remaining accused persons. The facts of the case

are however such that the accused could have been charged

alternatively, either under section 302 read with section

149 or under section 302 read with section 34. The point has

therefore no force.

In our opinion, there is no ground for interfering with

the judgment of the courts below, and we accordingly dismiss

this appeal and uphold the conviction and sentence of the

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appellants. We however wish to endorse the opinion of the

High Court that having regard to the gruesome nature of the

crime, the sentence imposed by the Additional Sessions Judge

was inappropriate and his reasons for imposing the lighter

penalty are wholly inadequate.

Appeal dismissed.

Agent for the appellant : R.N. Sachthey.

Agent for the respondent: P.A. Mehta.

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